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HomeMy WebLinkAboutord2018-047WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018 -253 CLEARANCES Initial Date Date Received in Council Office A enda Date Assigned to: Originator. CliffStrong 8130118 g./ ( ? ��. �� � 4 Su�v.� ' � ":'� 911112018 COTWJIntro Division Head: 9/25/2018 Council- Hearing N/A a z u Dept. Head.• 8130118 Mark Personius g Prosecutor: Karen Frakes Purchasing /Budget: I Fxecutive: Jack Lou. ` I TITLE OF DOCUAP KT. An Ordinance Adopting Amendments to the Whatcom County Comprehensive Plan and the Whatcom County Code Title 24 Health Code, Relating to Water Resources and the Implementation of ESSB 6091. ATTACHMENTS: • Staff Memorandum • Draft Ordinance 2018- • Exhibit A, showing the proposed amendment to the Whatcom County Comprehensive Plan and Title 24 Health Code • Staff Report SEPA review required? ( x ) Yes ( ) NO Should Clerk schedule a hearing? ( x ) Yes O NO SEPA review completed? ( x ) Yes ( ) NO Requested Date: 912512018 SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) An Ordinance Adopting Amendments to the Whatcom County Comprehensive Plan and the Whatcom County Code Title 24 Health Code, Relating to Water Resources and the Implementation of ESSB 6091. COMMITTEE ACTION: COUNCIL ACTION. 9/11/2018: Discussed 9/11/2018: Introduced 7 -0 9/25/2018: Adopted 7 -0, Ordinance 2018 -047 Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Ord. 2018 -047 Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us /council. INTRODUCTION DATE: 9/11 /2018 ORDINANCE NO. 2018 - -047 AN ORDINANCE ADOPTING AMENDMENTS TO THE WHATCOM COUNTY COMPREHENSIVE PLAN AND THE WHATCOM COUNTY CODE TITLE 24 HEALTH CODE WHEREAS, RCW 36.70A.070(1), requires that the land use element of a county comprehensive plan "shall provide for protection of the quality and quantity of groundwater used for public water supplies "; and, WHEREAS, RCW 36.70A.070(5)(c)(iv) requires that the rural element of a county comprehensive plan "shall include measures that apply to rural development and protect the rural character of the area, as established by the County, by:... protecting critical areas ... and surface water and groundwater resources "; and, WHEREAS, RCW 19.27.097(1) requires that applicants for building permits of buildings necessitating potable water provide evidence of an adequate water supply for the intended use of the building; and, WHEREAS, RCW 58.17.110(2) requires that "A proposed subdivision and dedication shall not be approved unless the... county legislative body makes written findings that... appropriate provisions are made for... potable water supplies... "; and, WHEREAS, WCC Chapter 24.11 contains requirements for potable water; and, WHEREAS, to protect rural character and regulate groundwater withdrawals, Whatcom County adopted Ordinance 2012 -032, amending its Comprehensive Plan to adopt by reference existing development regulations, adding Policy 2DD -2.C.6 which adopts by reference WCC 21.04.090 and 21.05.080, Policy 2DD -2.C.7 which adopts by reference WCC 24.11.050, Policy 2DD -2.C.8 which adopts by reference WCC 24.11.060, and Policy 2DD -2.C.9 which adopts by reference WCC 24.11.090, .100, .110, .120, .130, .160, and .170, any amendments to these WCC provisions are also amendments to the Comprehensive Plan; and, WHEREAS, the Growth Management Hearings Board (Board) found the amended Comprehensive Plan lacked the required measures to protect water resources (GMHB Case No. 12 -2- 0013); and, WHEREAS, on October 6, 2016, the Washington State Supreme Court (Court), in reversing a Court of Appeals decision, upheld the Board's decision that the County's Page 1 of 4 Comprehensive Plan does not satisfy the GMA requirements to protect water availability, and stated, "We hold that the Board properly concluded that the GMA requires counties to make determinations of water availability. "; and, WHEREAS, the Court stated, "...the GMA places the burden on counties to protect groundwater resources, and requires counties to assure that water is both factually and legally available before issuing building permits. "; and, WHEREAS, the Court stated, "...The county's policies incorporate WCC provisions that do not allow water to be withdrawn from 'an area where [the Department of Ecology] has determined by rule that water for development does not exist.' ...these ordinances further provide that an application for a permit- exempt appropriation will be approved without any analysis of that withdrawal's impact on instream flows. The Board found that these provisions result in water withdrawals from closed basins and senior instream flows —flows that the record indicated drop below the minimum levels 100 days out of the year. The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA... "; and, WHEREAS, Chapter 173 -501 WAC Instream Resources Protection Program – Nooksack Water Resource Inventory Area (WRIA) 1 identifies waterbodies in Whatcom County that are closed or partially closed to further appropriation, by listing their status as "closure," "partial year closure," "low flow," or "minimum flow, "; and, WHEREAS, on January 18, 2018, the Washington State Legislature adopted ESSB 6091, which requires the Department of Ecology to work with the initiating governments and the planning unit in WRIA I to review existing watershed plans to identify the potential impacts of exempt well use, identify evidence -based conservation measures, and identify projects to improve watershed health. Until rules are adopted that specify otherwise, Section 202(5), which effectively reverses the Court's decision in Hirst, allows new domestic water uses in WRIA 1 that rely on groundwater withdrawals exempt from permitting under RCW 90.44.050, provided that applicants pay a fee of five hundred dollars to the permitting authority and limit their maximum annual average withdrawal of three thousand gallons per day, per connection, and record this limitation on the property title; and, WHEREAS, ESSB 6091, Section 101(5), also provides that "[a]ny permit- exempt groundwater withdrawal authorized under RCW 90.44.050 associated with a water well constructed in accordance with the provisions of chapter 18.104 RCW before the effective date of this section is deemed to be evidence of adequate water supply under this section "; and, WHEREAS, the amendments proposed by this ordinance are consistent with the aforementioned requirements of ESSB 6091 and are therefore consistent with the GMA, as specifically addressed in Section 102 of ESSB 6091; and, Page 2 of 4 WHEREAS, adoption of this ordinance is necessary to complete the GMA compliance proceedings before the Western Washington Growth Management Hearings Board (GMHB Case No. 12 -2- 0013); and, WHEREAS, a determination of non - significance (DNS) (SEPA 2018 - 00063) was issued under the State Environmental Policy Act (SEPA) on July 19, 2018; and, WHEREAS, ESSB 6091 was signed by Governor Inslee on January 19, 2018, and, pursuant to the emergency clause in Section 307, it became effective immediately as the Legislature declared that it was "necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing institutions ... "; and, WHEREAS, in accordance with RCW 36.70A.106, Whatcom County Planning and Development Services notified the Department of Commerce of the proposed amendments contained herein on July 17, 2018, and no comments were received from state agencies; and, WHEREAS, The Planning Commission held a duly noticed public hearing on this ordinance on July 26, 2018; and, WHEREAS, the County Council held a duly noticed public hearing on this ordinance on September 25, 2018; and, WHEREAS, the amendments are in the public interest; and, WHEREAS, the amendments are consistent with the Whatcom County Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED that the Whatcom County Council adopts the above "WHEREAS" recitals as findings of fact and conclusions in support of its action as required by RCW 36.70A.390. BE IT FURTHER ORDAINED by the Whatcom County Council that the Whatcom County Comprehensive Plan and the Whatcom County Code are hereby amended as shown in Exhibit A. Page 3 of 4 BE IT FURTHER ORDAINED that if a section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason by any court of competent jurisdiction; such decision shall not affect the validity of the remaining portions of this ordinance, and if the provisions of this ordinance are found to be inconsistent with other provisions of the Whatcom County Code, this ordinance shall control. ADOPTED this 25th day of September 2018. WHATCOM Cgt4NTYhgPUNCIL WHATCOM' GOQ', TV U�h ` h�•I,NGTON N j <, ATTET b� R -• Dana 'Brown"-' 0, ' vc6iI Clergy APPRO D as to form: Civil Deputy Prosecutor Rud Browne, Chairperson Page 4 of 4 Approved () Denied April 24, 2018 EXHIBIT A Whatcom County Code AMENDMENTS TITLE 24 HEALTH CODE CHAPTER 24.11 DRINKING WATER 24.11.060 Water availability required. A. Prior to issuance of a building or other project permit, and unless exempt pursuant to subsection (C), the applicant must provide Whatcom County Planning and Development Services evidence of adequate water supply as documented by a water availability notification signed by the director the Whatcom County Health Department. The water availability notification shall document a supply of potable water adequate to serve a land use associated with a project permit in terms of quality, quantity, and legal availability. B. The applicant must provide evidence of legal availability in the form of: 1. A water right permit from the Department of Ecology; or, 2. A letter from an approved public water purveyor with sufficient water rights, stating the ability to provide water; or, 3. Evidence that a permit- exempt groundwater withdrawal (authorized under RCW 90.44.050) is associated with a well constructed (in accordance with the provisions of RCW Chapter 18.104) prior to January 19, 2018; or, 4. Evidence that water can be supplied by a rainwater catchment system approved by the Whatcom County Health Department, per Department of Ecology Policy 1017; or, 5. If the well site is located in WRIA 3 (Lower Skagit - Samish) , evidence that water for domestic use will be supplied by a new withdrawal exempt from permitting under RCW 90.44.050. 6. If the well site is located in WRIA 4 (Upper Skagit), evidence that the requirements of chapter 173 -503 WAC have been met. 7. If the well site is located in WRIA 1 (Nooksack), , the applicant may obtain approval for a withdrawal exempt from permitting pursuant to RCW 90.44.050 under the following conditions: a. Water for domestic uses shall be subject to a maximum annual average withdrawal of 3,000 gallons per day per connection. b. The applicant shall record with the property title any relevant restrictions or limitations associated with water supply; and c. The applicant shall pay to the permitting authority any applicable fees for each project permit. April 24, 2018 C. A water availability notification is not required for: 1. A project permit that does not require potable water. A project permit relying on either a permit- exempt groundwater withdrawal per RCW 90.44.050 or a surface water withdrawal for potable water for (a) a remodel of an existing building or (b) replacement of a demolished or removed building but not proposing a change of use, either of which would increase the floor area by no more than 50 percent over that of the existing building; however, such permits shall require documentation of current water quality and quantity, approved by the director.