HomeMy WebLinkAboutPublic Works August 7 20121
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WHATCOM COUNTY COUNCIL
Public Works, Health, and Safety Committee
August 7, 2012
CALL TO ORDER
Committee Chair Barbara Brenner called the meeting to order at 1:40 p.m. in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
ROLL CALL
(1:41:02 PM)
Present: Barbara Brenner, Ken Mann, and Pete Kremen.
Absent: None.
Also Present: Carl Weimer, Sam Crawford, and Kathy Kershner
SPECIAL PRESENTATION
1. PRESENTATION BY ROGER BROWN, REPRESENTATIVE OF THE WATER
DISTRICTS CAUCUS OF THE WRIA 1 WATERSHED PLANNING UNIT,
REGARDING ALLOCATION OF WATER AND RELATED LITIGATION (AB2012-
274)
Roger Brown, Water Resource Inventory Area (WRIA) 1 Water Districts
Representative, submitted and read from a presentation (on file). He described the history
of the WRIA process, the salmon recovery process, and the consolidation of the policy
boards of both processes. The water districts have been left out of the water planning and
salmon recovery processes. He described the history of water rights use and negotiations,
instream flow rules, adjudication of water rights, and the current process and an alternative
process for adjudication. He recommends that the County must act on a habitat
conservation plan. The County has standing in an adjudication process. He recommends
that the County secure legal counsel, reexamine instream flow work, develop a habitat
conservation plan (HCP) for agriculture, enter litigation per legal advice, and develop a
funding plan.
Mann asked if a general adjudication is based on the WRIA 1 boundary or some other
boundaries. Brown stated the court would decide on the scope. The State Department of
Ecology (DOE) would make a recommendation.
Brenner stated councilmembers can send their questions to Mr. Brown, with a copy
to the Clerk.
Crawford asked about the necessary flows determined by Utah State University
(USU). Brown stated the USU recommended flows are significantly higher than the DOE
recommended flows, which leaves less water available for water rights. A farmer was told
that the water required was more than all the water in the stream.
Brenner stated USU did not do the necessary peer review for its results. Take those
results with a grain of salt. She agrees with the problem, however.
Public Works, Health, and Safety Committee, 8/7/2012, Page 1
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Weimer stated a reason for all those meetings was to find a path shorter than the
35-year adjudication in Yakima. Brown stated State law has changed as a result of the
mistakes made in the Yakima case. A subsequent case is estimated to take ten to 15 years.
The next adjudication will be tried in Spokane. They don't have to wait for Spokane to be
done with its adjudication.
Brenner stated she thanks Mr. Brown for the presentation.
(Clerk's Note: Public comment continued, below.)
COMMITTEE DISCUSSION
1. HEALTH DEPARTMENT BRIEFING TO COUNCIL ON MOBILE FOOD UNIT
PERMITTING AND INSPECTION IN WHATCOM COUNTY (AB2012-271)
(2:23:29 PM)
John Wolpers, Health Department, introduced Environmental Health Specialist Tom
Kunesh.
Tom Kunesh, Health Department, referenced the staff memo in the Council packet.
Crawford asked how the public knows that they are getting food that is not subject
to contamination, if the mobile units are as regulated as fixed restaurants, and if hand
washing stations and restrooms are required onsite. He has seen more food trucks
recently. He would like to know their level of safety. More and more vendors decide to use
a food truck because the mobile units don't have the same costs of a fixed restaurant. He
likes these vendors, and wants to make sure public health and safety is being taken care of.
Kunesh stated the mobile food units are regulated by the State as a food establishment,
specifically a type that has additional rules such as proximity to restrooms, water source,
and proper disposal of wastewater. Since the units are more compact, there isn't as much
equipment on board as a full service restaurant. They consider those limitations by limiting
the menu, limiting the amount of preparation that can be done on board, and requiring
preparation at a commissary. The planning review process communicates the requirements
before a mobile unit begins to operate. If a mobile unit spends an hour or more at a single
location, it must have a restroom for employees, but not for patrons.
Brenner asked how far a unit has to move from its location. Kunesh stated many
units have routes that move around every hour. If they provide seating for customers, they
must provide access to the restrooms. However, they generally waive the requirement for
an espresso stand with a picnic table, for example.
Crawford asked about food handlers permits and food temperatures. Kunesh stated
the requirements are the same as those of a restaurant.
Crawford asked how the Health Department checks compliance. Kunesh stated they
respond to complaints and also do random inspections, using the State -provided checklist.
They provide a description of any citations. They focus on any high -risk factors, such as
personal hygiene, temperature control, food sources, and prevention of contamination
during handling and service. They also see how the floors, walls, and ceilings look using a
'white glove" test.
Public Works, Health, and Safety Committee, 8/7/2012, Page 2
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Crawford asked if mobile barbeque vendors are regulated the same way, including
how they bring in the meat in ice chests. Kunesh stated they are also regulated.
Crawford asked how often a unit is typically inspected. Kunesh stated an average is
one surprise inspection per year.
Brenner stated the Health Department will do additional visits if the it receives a
complaint. Kunesh stated they will, and they will rate the complaints on severity and
potential for health impacts.
(2:34: 53 PM)
Kremen asked if the percentage of code violations is about the same with restaurants
as with mobile food units. Kunesh stated he estimates that they are more likely to find
violations that result in permit suspensions because the mobile units have more conditions
to meet. If a mobile unit is preparing foods at the unit instead of at the commissary, they
may have to throw food away or suspend an operation. It's harder for a mobile vendor to
comply, because they have more restrictions. A disproportionate number of enforcement
activities occur in mobile vending units.
Kremen asked if there is more potential for contracting some sort of illness at a
mobile food unit than a traditional eating establishment. Kunesh stated that wasn't the
meaning of his comment.
Kremen stated it seems Mr. Kunesh is saying that the chances are more likely that
someone will contract an illness at a mobile food unit.
Mann stated those violations aren't necessarily violations that will make someone
sick.
Kunesh stated it is more likely that a high risk factor violation will be noted at a
mobile vending operation, depending on the operator. All things being equal and given a
calculated aggregate of inspection results, they will find the high risk factor violations at a
higher rate at mobile food vending operations than at a brick and mortar restaurants with
similar menus. Theoretically, that leads to a greater risk of illness. However, that
assumption is not something they can draw a straight line to connect. If a mobile vendor
follows the regulations set forth in their code and operating plan, they are just as safe as
brick and mortar establishments.
Crawford asked how a consumer knows a vendor has handler permit. Kunesh stated
the vendor must have a current operating permit.
Crawford asked if Mr. Kunesh checks in on any new mobile unit they find. Kunesh
stated they will look into any unit for which they're not certain a permit has been obtained.
Mann asked how many illness outbreaks they have each year that are connected to
any food establishment. Kunesh stated it varies statewide. One outbreak is considered two
people ill from the same source. Seventy five percent of the outbreaks in the state are from
caterers or restaurants. In Whatcom County, they investigated at least three outbreaks last
year. They get many complaints and reports. Not all result in an outbreak. The most
common cause of illness by far is norovirus, which is not related to influenza and is easily
transmitted from person to person.
Public Works, Health, and Safety Committee, 8/7/2012, Page 3
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Weimer asked about the Health Department database permit and the inspection
reports being available on the website. Kunesh stated that idea was considered. The
decision was made four or five years ago to not do that, due to the difficulty of accurately
maintaining such a database on the website. Instead, they decided to publicize the
establishments that perform well through the Silver Platter program.
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. RESOLUTION TO CONSIDER VACATING A PORTION OF BRIDGEWATER
STREET (SHIPYARD ROAD) AND DEARBORN AVENUE (AB2012-272)
(2:47:20 PM)
Andrew Hester, Public Works Department, submitted a handout (on file) and gave a
staff report and stated this resolution is just to consider the vacation. It directs the County
road engineer to prepare an engineer's report.
Brenner stated she is not willing to support road vacations in general because the
County may need the road in the future for stormwater facilities, but she was impressed
with language about retaining rights -of -way for stormwater facilities.
Mann stated the road has a sharp turn. He could envision the County wanting a
more gradual turn at that location. He asked if the County would ever want that option.
Hester stated that question would be addressed by the engineers report.
Mann asked how long it takes to do an engineers report. Hester stated the applicant
pays a fee that covers some of that cost. Even if it is denied, they still charge the petitioner
the time and cost of a report and appraisal. They will recover costs.
Brenner asked if there is any data on accident history on that turn. She likes turns
that slow people down. Hester stated that would be in the engineers report.
She stated always include language in every easement that retains easements for
right-of-way and drainage.
Mann stated he is willing to support the resolution, since costs are covered.
Brenner moved to recommend approval to the full Council.
The motion carried by the following vote:
Ayes: Brenner, Mann and Kremen (3)
Nays: None(0)
SPECIAL PRESENTATION
1. PRESENTATION BY ROGER BROWN, REPRESENTATIVE OF THE WATER
DISTRICTS CAUCUS OF THE WRIA 1 WATERSHED PLANNING UNIT,
REGARDING ALLOCATION OF WATER AND RELATED LITIGATION (AB2012-
274)
(Clerk's Note: Discussion continued from earlier in the meeting.)
Public Works, Health, and Safety Committee, 8/7/2012, Page 4
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Skip Richards stated the difference between his presentation and Roger Brown's
presentation are subtle, but serious. Mr. Brown's recommendation to do the habitat
conservation plan is fine. Only one legal opinion of the County's standing matters, which is
that of the last judge who issues a decision in the case. He has no idea whether or not the
County has standing. They should question it. There are thousands of vacant land owners,
private well owners, and water association members, who are County Council constituents,
who have no voice in the process because the Council allowed the Planning Unit to be
destroyed. They must fix that. The Council can receive many impressive presentations.
They had a process by which all those people resolved the details and brought them forward
to the Council, which the Council would then approve. That process has been destroyed.
Until that is fixed, everything being done is illegitimate.
Brenner stated she wants to do something to help, but its more helpful to get ideas
than to hear what the Council did wrong. She's here to hear ideas. Richards stated the
question is how those thousands of property owners are going to represent themselves.
They could each hire an attorney. The process needs to get fixed. The content happens
later. Because of the way it was done, it's not easy to come up with an answer unless they
reconvene all those parties in some venue, and try to get that dialog going among all those
parties, rather than burdening the Council with a bunch of presentations.
Brenner stated Mr. Richards recommended what the Council is doing today. They
are hearing from different parties. Richards stated the question is what is the next step.
(2:56:39 PM)
Richards stated the water supply plan from the public utility district (PUD) seems to
be a continuation of a process that was established before. It ignores the Tribe's request
for adjudication and suggests the County come up with a plan and negotiate with the Tribe
anyway. He doesn't know if that would work, but they don't have enough information to
know what is going on.
Brenner stated she will listen to people who want to make presentations, and then
talk to staff. She won't make a decision without talking to staff. Richards stated make sure
that discussion happens in public. Make sure everyone is sitting together at the same time.
Mann asked if general adjudication applies to every water right, not just the ones
that come forward. Richards stated that's correct. The Tribe's have only asked that their
rights be adjudicated. The logic of a general adjudication is fine on one level. However,
there are thousands of property owners in Whatcom County.
Mann asked if the action the Tribe initiated is not a general adjudication. Richards
stated it is not. A general adjudication includes all water right holders. Individual water
right holders would presumably have to hire an attorney to represent themselves. If they
don't submit something, they are out of it. That's one reason the process takes so long.
Everyone has to show up and provide proof of their water right. Thousands of them have
some kind of piece of paper, and others with vacant land haven't even applied yet to drill a
well. Once that hammer comes down, they're in serious trouble. They relied on the process
created before, which was open and much less expensive. People with some kind of
interest could be represented without having to hire counsel or get knowledgeable enough
to represent themselves.
Mann asked if the Tribe's request is an adjudication of their rights, and if everyone
would still need to show up at the adjudication. Richards stated that's not correct. The
Public Works, Health, and Safety Committee, 8/7/2012, Page 5
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Tribe's right is first in line. The Court can settle that separately and first. Everyone agreed
on that. The 1855 Treaty date and the time immemorial doctrine supersede everything
else.
Mann asked if the Court would establish a quantity to which the Tribe is entitled, and
everyone else would have to figure out what is left over. Richards stated that is correct.
The general adjudication could be done concurrent with the Tribal adjudication. It will be a
court proceeding. Those people will be at a horrible disadvantage in this process that relies
on adjudication as opposed to what they established in the watershed management plan.
Kershner stated the Department of Ecology is charged with administering the water
rights from folks. She asked where the Department is at, what it has done, and why it's not
taking charge of the outcome. Richards stated Ecology, after establishing instream flows
and shutting down the basin, have done everything it can to assist everyone to come to a
resolution with this problem. However, Ecology has an agenda. They've decided they don't
want any more exempt wells, even though the vacant land owners have played by the rules.
That is the first thing that Ecology wants to go after. They worked hard on the watershed
plan. At the last meeting on June 30, 2009, Ecology suggested getting rid of the Planning
Unit. That was finalized at the July 8, 2009 meeting of the joint board, which is only an
administrative unit. It doesn't have any authority to be a policy board and start doing plans
and implementing policies. Ecology administers water rights, but has chosen not to follow
the strict letter of the law. Agriculture would have been nailed by it. If they enforced
against people who don't have water rights, the farm gate revenues would be halved. Many
other folks would be harmed. Ecology determined that wouldn't do any good, and has been
pressing people to come up with a plan to work it out. Ecology originally supported parts of
the plan, but not all of it.
(3: 04: 07 PM)
Henry Bierlink, Whatcom Farm Friends, stated the question is how to move forward.
This is his frustration. A year ago, the Lower Nooksack Strategy was laid out and included a
funding plan. There has since been no action on it. The Council generally approved it, but
the Council hasn't really dealt with the question of how the Planning Unit and State law
apply to what they're doing right now. That question has to be solved. They are hung up
on that question. As a result, more problems are developing than are being addressed. In
his opinion, within the Lower Nooksack Strategy, the Comprehensive Water Update Plan and
the Water Users Group could move into this role. There is no intention to be more
confidential and closed than has to happen regarding someone's particular water right. He
advocates for an open and transparent process under the Lower Nooksack Strategy. Five or
six elements of the Lower Nooksack Strategy include many well -thought out strategy. It
must be implemented.
Brenner asked his opinion of the County becoming much more involved. Bierlink
stated it's crucial. The County has a vested interest because its land use process is tied to
water use. They cannot have effective planning under Growth Management if they can't
deal with water issues. Farmers can't commit to farming here for a long time if they don't
have the resources to do it. Instead, they will look for ways to sell five acre residential lots
so people can use the exempt well provision, which would give them some return on their
land.
Brenner stated they may take that away, too. Bierlink stated that might be. The
commitment is to long-term land preservation and the water, including drainage and water
rights necessary to make that work.
Public Works, Health, and Safety Committee, 8/7/2012, Page 6
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Knutzen stated someone said the Tribe has a different opinion on the minimum
stream flow. He asked if there have been efforts to identify a quantifiable water rights
number that agriculture must have. Bierlink stated they have looked at the Bertrand and
Fishtrap areas critically. They've created water irrigation districts and examined what they
have and what they need. There is precise data. The Bertrand area and the Middle Fork
areas were part of the pilot negotiations. From both perspectives, they found the gap
between the USU numbers and what they are getting from Canada is too big to fill. They
must find a better way to deal with these things. The part of the Lower Nooksack Strategy
regarding the water budget gets at those exact questions for other areas. There is a path
and funding laid out before the County. There are one or two legal questions that have
stopped everything for 12 months.
Knutzen stated he's looking for information on how many gallons per day would a
100-acre raspberry farm use, for example. Bierlink stated they have the water irrigation
guides from Washington State University (WSU). They know how many inches they will
use. They know the efficiency of drip irrigation. They have some metered information.
They have good, solid information on how to make these decisions in certain areas. They
need to develop it further through the water budget. The plan is laid out to do that.
Brenner asked what commitment do they need from Whatcom County to take the
next steps in gathering information for the Council. Bierlink stated they need to deal with
the questions from Mr. Brown and Mr. Richards. They must be dealt with before anything is
initiated. They are solvable problems. The next thing is to determine who will lead and
facilitate the effort. It could be the County or the PUD. He prefers that it be the County,
since the County has legal land use authority. However, he is fine if the County decides to
contract with the PUD, as the utility.
Brenner stated she will review the materials provided.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 3:13 p.m.
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Please contact the Council Office to obtain an
official, signed copy:
360-676-6690 or council@co.whatcom.wa.us
Public Works, Health, and Safety Committee, 8/7/2012, Page 7