Almost 2 years ago, on Tuesday, November 22, 2005 to be exact, I was moved to revisit the excellent recommendations submitted by the Waterfront Futures Group [WFG], who had labored for 18 months in a public learning process and then distilling it into what they thought might provide the best benefit to Bellingham from redeveloping its waterfront. They came up with some really good, ambitious ideas! Ideas that can resonate over time as the right way to go about making a 'silk purse out of a sow's ear' for the G-P property. And they did that before we had any certainty that this entire property would be owned by the Port of Bellingham and become the subject of its major collaboration with the City of Bellingham. I think we owe this group, and its leadership, our lasting gratitude.
But, the WFG also have given us a big challenge to incorporate as many of its recommendations as possible into any redevelopment plans that are adopted. Much like our 14 Growth Mangement Act [GMA] Goals, some of the recommendations appear to conflict with, or at least overlap, others. This means that none of the recommendations can simply ignore the others, but a balance needs to be struck that reasonably reflects what is feasible and can be accomplished.
That said, the primary purpose of the Waterfront Redevelopment undertaking is economic development, and all that entails. This project is about stimulating our local economy, creating jobs and growing businesses that are sustainable. That also is how this venture will ultimately be paid for, not from subsidies, get rich quick schemes or excessive taxes on current residents.
Of course, like all such ambitious undertakings, all parts don't just happen at once, or by wishful thinking. They have to be carefully planned, built in prudent steps and gradually achieved over time. That kind of effort takes ingenuity, fortitude and patience that spans multiple terms of office of elected officials, several iterations of plans and cost estimates, and future generations to fully enjoy the ensuing benefits. It is not a simple thing to do, or to describe in sound bytes. It requires an understanding of what is envisioned, what is possible, what is true, and what is not true. In the end, this is more like a team marathon relay race than a sprint for individuals who want to be heroes - or otherwise.
Amazingly, this undertaking has attracted some serious detractors! But, maybe that's not really amazing, because every other project I've seen has also had its detractors, and detractors can serve a useful purpose in asking questions, expressing concerns, or making alternate suggestions. Actually, we need detractors - but not demolition experts who are intent on laying such mine-fields of fear, cynicism, petty jealousy and misinformation that the public is deceived into not believing the WR should, could or would happen.
[Already, Whatcom County seems to be headed in that direction, which is distressing given it's excellent Comprehensive Plan Chapter 7 on Economics, and the supporting information in Appendix C, regarding vision statements on the 14 GMA goals, including the Economic Development Action Plan]
Some detractors do have legitimate concerns about the environmental and social aspects of WR that do need addressing. From my perspective, those concerns will be fully addressed, but I recognize it will require a leap of faith for some to believe that as I do. At this point, my main concern is with the economics side of the issue; specifically how much the required infrastructure will cost and how this will be phased and financed to support redevelopment. That information is being developed, but it does take time because this planning effort is inherently iterative in nature and based upon discovery of actual conditions. practicalities and possibilities.
That leads to the purpose of this piece, which is to make sure the intent of the Waterfront Futures Group is as fully incorporated into WR as possible.
[Note: I apologize in advance for the length of what follows, much of which is available from the City's Web Site at www.cob.org. It is reproduced here for convenience, and as background for these comments]
Appendices A & B are at the end
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Here are some ideas regarding the current discussion of Strategic Principles for the Waterfront Redevelopment as promised last night.
[Tuesday, November 22, 2005]
The 11 "Strategic Guidelines" [SG's] conceived and recently presented by CollinsWoerman seem awkward and do not have the ring of authenticity for those familiar with the excellent WFG effort and final recommendations. They remind of being written 'by folks who are not from around here'! This effort does not seem reflective of the consultant's best work, but does have the appearance that the Port's thumb may have been applied to the scales in an effort to achieve -via after-the-fact executive fiat- what was not accomplished during the 2-year public process.
Whatever happened, these 11 "SG's" don't adequately describe what this community has come to expect from redeveloping its waterfront, and this has been evidenced by the adverse public reaction to the artificially fast-track process that is now being attempted. There are legitimate concerns being expressed that need to be heard and incorporated into the SGs and this will require more time and reflection.
I have given some thought to how the SG's might be rewritten to better capture both the essence and spirit of the WFG recommendations. One thought was to simply accept the 11 SG's presented and rewrite them as abstracts that better reflect local values.
These attempted rewrites are listed in Attachment A [below].
A second approach was to simply review the WFG recommendations, combine this with personal reflection and write another complete set of SG's.
These are summarized in Attachment B [below].
While neither of these 2 rewrite attempts may completely paraphrase the WFG recommendations, they do come closer than CollinsWoerman's version. It is also fair to say that CollinsWoerman did largely capture much of the essence intended by WFG, but missed some emphases entirely and badly described other key points. It is tricky at best to try to paraphrase a larger body of thought, that itself contains very strong inter-linkages, with a few succinct SGs, particularly if only the 4 overarching principles are used as starting points. The goal should be to more elegantly capture the totality of WFG thinking.
The information listed below was taken directly from the WFG recommendations on the COB web-site:
Note the 12 ideas 'that emerged repeatedly' might themselves make good SG's
The four 'overarching principles' are listed below. Each could be expanded with bullet points to flesh out the broader meanings intended. This could be another approach toward developing appropriate SG's. Perhaps this is what the consultant tried to do.
I. Reinforce the Inherent Qualities of Each Place on the Waterfront
II. Restore the Health of Land & Water
III. Improve Waterfront Access
IV. Promote a Healthy & Dynamic Waterfront Economy
The Consultant's two 'Core Ideas' given on page 2 of their report do not seem to serve any useful purpose other than to reiterate what everyone seems to already understand. Why restate these, unless they are targeted at those who are in denial as to the underlying reasons for the Port's initiative and the City's agreement to be a partner in the waterfront redevelopment? Is this intended to inform potential investors? Remind those in opposition? Inform the community? What is the intended audience?
• CBD & Waterfront District are parts of a whole downtown
• Waterfront's potential as a job-source, economic engine and place of enjoyment needs to to be steadily realized
Finally, the GUIDING PRINCIPLES AND RECOMMENDATIONS for the CITY Center are the most appropriate starting point for developing SGs, since this area defines the former G-P site as the single one area -out of the six identified by WFG- with the most potential for redevelopment, and the one for which the Port and City have agreed to a long-term cooperation.
Also note the following 2 points, which many believe to be key in insuring adherence to the WFG vision":
• the Georgia Pacific property should be acquired and held in public ownership as it is planned and developed over time
• development should be phased and coordinated by a public renewal authority or other tools that ensure public accountability while avoiding excess bureaucracy
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Waterfront Futures Group Final Recommendations [Page 3]
A dozen ideas emerged repeatedly during the WFG work sessions and served as a foundation for subsequent decisions. They provide a set of underlying assumptions for a successful waterfront in our community:
1. Successful waterfronts are welcoming to all.
2. Bellingham Bay and its physical landscape are part of larger natural systems.
3. Jobs of the future will help shape waterfront redevelopment.
4. Sustainability is a cornerstone for all waterfront work.
5. Education, training and apprenticeships increase our human capital and workforce capacity.
6. Fishing and food from the sea, deep-water access, and shallow draft marine access will continue to be a significant part of our area’s heritage, economy, and culture.
7. Waterfront redevelopment consistent with community goals will require significant public investment and in some cases public ownership as a catalyst for private reinvestment.
8. The “best” of our waterfront must be reserved for the benefit of our entire community.
9. Our waterfront assets are many and diverse, allowing us balanced development over time with a wide variety of purposes.
10. Successful waterfronts create continuous public access along the entire shoreline.
11. As part of Bellingham’s evolving economy, we will need to make provisions for industries moving off the waterfront.
12. Innovative approaches to cleanup of upland and in-water contamination will be needed to restore the health of our waterfront.
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FOUNDATION FOR DECISIONS - INTRODUCTION
Waterfront Vision & Framework Plan
I. Reinforce the Inherent Qualities of Each Place on the Waterfront
1. Make the waterfront a regular part of the lives of more people.
2. Respect history, cultures and the arts.
3. Make the waterfront inviting to people on foot.
4. Reinforce a unique “sense of place” at different waterfront locations.
5. Complement adjacent uses.
II. Restore the Health of Land & Water
1. Enhance or reintroduce natural systems.
2. Create and restore habitat wherever possible.
3. Remediate upland and in-water contamination.
4. Protect existing natural shorelines.
5. Seek opportunities to soften existing hardened shorelines.
6. Tailor environmental cleanup strategies and remediation to planned use.
7. Manage stormwater to enhance estuarine habitats.
8. Require sustainable practices in all development.
9. Restore, enhance and expand beaches wherever possible.
10. Connect proposed open space and natural areas to regional open space network and wildlife corridors.
11. Explore mitigation banking and incentives (such as environmental credits) for environmental resource protection and enhancement prior to redevelopment.
III. Improve Waterfront Access
1. Develop strong connections between uplands and water.
2. Provide links to regional trail systems.
3. Provide multiple modes of access to each area of the waterfront.
4. Provide convenient connections between different modes of transportation.
5. Create and connect large and small parks and open spaces with a “braided” system of pedestrian trails.
6. Enhance opportunities for visual access to waterfront areas.
7. Provide the opportunity to walk the waterfront while respecting natural habitat.
8. Help people find their way.
9. Provide way finding for the Coast Millennium Trail as a route that follows existing and proposed trails.
10. Explore the concept of public access “banking” and other financing incentives for improving public access.
11. Protect and enhance environmental resources when designing for shoreline access and upland development.
IV. Promote a Healthy & Dynamic Waterfront Economy
1. Create new mixed-use areas on the waterfront for commercial, industrial, educational, recreational and residential uses.
2. Support water-dependent activities and uses.
3. Create conditions attractive to jobs of the future.
4. Strengthen the tie between local jobs and resources.
5. Provide public amenities and infrastructure to support redevelopment.
6. Improve permitting processes to achieve the goals and principles of the Waterfront Vision.
7. Explore economic spin-off related to Bellingham Bay Pilot cleanup strategies.
8. Provide incentives and credits for “green” buildings.
The Waterfront Vision and Framework Plan provides FOUR overarching principles and THIRTY FIVE detailed principles to guide progress toward achieving a successful waterfront. The Waterfront Futures Group recommends all THIRTY NINE Guiding Principles for adoption as public policy. In some cases, bulleted statements follow the Guiding Principle. These statements provide further detail and should be treated as part of the Guiding Principle for that area.
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GUIDING PRINCIPLES AND RECOMMENDATIONS - INTRODUCTION
Waterfront Vision & Framework Plan
CITY CENTER
The vision for the city center waterfront calls for the creation of a mixed-use neighborhood that combines commercial, institutional, educational, retail services and residential uses, and that over time will provide many new job opportunities and a substantial amount of urban housing. It will be a neighborhood that complements the existing central business district.
The neighborhood will provide a place where people can live, work, study and spend their leisure time without relying on vehicular transportation and while offering a healthy and sustainable relationship between the city and the bay.
The existing aeration stabilization basin (asb) will be cleaned and opened up to accommodate either a new marina or new marine habitat combined with stormwater treatment or some combination of those uses.
When the adjacent tissue warehouse closes, the building will be adapted to accommodate a combination of public uses with links to Old Town.
Deep water moorage will be maintained in the Whatcom Waterway and marine-related commerce will continue on both the I & J and Whatcom Waterways. The waterways will retain sufficient depth to support existing and planned shore-side uses.
Public access will be provided throughout the area, with a network of walkways connecting new public spaces and regional trails.
Transient moorage will be provided on both sides of the Whatcom Creek Waterway while avoiding critical habitat areas. Habitat enhancement will be a condition of this new transient moorage provision.
New transit routes will serve the area and public docks will accommodate multiple modes of water transportation.
New facilities for Western Washington University and other educational institutions will be located in the Center City area with new transportation linkages to the main WWU campus.
The Cornwall Avenue landfill site will be improved including open space and pedestrian spaces along the waters edge connected by an over-water trail to Boulevard Park. Mixed-use development on the adjacent uplands could include a terraquarium and a Native American facility.
To realize this vision, the Georgia Pacific property should be acquired and held in public ownership as it is planned and developed over time. Infrastructure and public amenities to support development should be constructed, and development should be phased and coordinated by a public renewal authority or other tools that ensure public accountability while avoiding excess bureaucracy.
Waterfront Futures Group Final Recommendations [Page 19]
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[Page 20] Waterfront Vision & Framework Plan
CITY CENTER - GUIDING PRINCIPLES
Reinforce the Inherent Qualities of Each Place on the Waterfront
1. Make the waterfront a regular part of the lives of more people.
· Foster a greater sense of ownership and stewardship for the health of the Bay and its shore lands by providing places for people to live, work, learn and play as a regular part of their daily activities
· Create physical and cultural conditions that are welcoming to visitors and encourage their participation in waterfront places and activities
2. Respect history, cultures and the arts.
· Embrace, include and expand knowledge of our peoples and their cultural heritage
3. Make the waterfront inviting to people on foot.
4. Reinforce a unique “sense of place” at different waterfront locations.
· Support development of a vibrant area that integrates water-dependent uses with new commercial, institutional, educational, and residential uses and public spaces
5. Complement adjacent uses.
· Create an urban mixed-use neighborhood that will complement downtown
Restore the Health of Land & Water
1. Enhance or reintroduce natural systems.
2. Create and restore habitat wherever possible.
3. Remediate upland and in-water contamination.
4. Protect existing natural shorelines.
5. Seek opportunities to soften existing hardened shorelines.
6. Tailor environmental cleanup strategies and remediation to planned use.
7. Manage stormwater to enhance estuarine habitats. · Treated or otherwise, assure the quality of stormwater used to enhance estuarine habitats.
8. Require sustainable practices in all development.
· Avoid “heat island” effect by utilizing high reflective roofing materials and vegetated roof systems
· Make use of on-site renewable energy such as solar and day-lighting, to satisfy the building’s energy needs
· Incorporate Leadership in Energy & Environmental Design (leed) intentions and requirements in design and construction of new structures
9. Restore, enhance and expand beaches wherever possible.
10. Connect proposed open space and natural areas to regional open space network and natural wildlife corridors.
11. Explore mitigation banking and incentives (such as environmental credits) for environmental resource protection and enhancement prior to redevelopment.
Improve Waterfront Access
1. Develop strong connections between uplands and water.
· Utilize existing streets to make pedestrian and vehicle connections to and from adjacent districts and neighborhoods
· Identify areas where pedestrian access is provided when not in use for commercial/industrial purposes
· Provide transient moorage with easy access from water to upland services
2. Provide links to regional trail systems.
3. Provide multiple modes of access to each area of the waterfront.
· Create and establish circulation routes
· Preserve transportation corridor on railroad right-of-way
· Cluster shared parking away from the water
4. Provide convenient connections between different modes of transportation (jitney/bus).
5. Create and connect large and small parks and open spaces with a “braided” system of pedestrian trails.
· Create water-oriented parks and open spaces
· Connect parks and open spaces with walkways and bikeways through the City Center neighborhood
6. Enhance opportunities for visual access to waterfront areas.
· Preserve, improve and create public views to and from the waterfront
7. Provide the opportunity to walk the waterfront while respecting natural habitat.
· Provide viewing that respects industrial activity areas
8. Help people find their way.
9. Provide way finding for the Coast Millennium Trail as a route that follows existing and proposed trails.
10. Explore the concept of public access “banking” and other financing incentives for improving public access.
11. Protect and enhance shoreline environmental resources when designing for shoreline access and upland development.
Promote a Healthy & Dynamic Waterfront Economy
1. Create new mixed-use areas on the waterfront for commercial, industrial, educational, recreational and residential uses.
· Encourage reuse and renovation of existing buildings
· Identify, preserve and locate sites for water-dependent uses
· Complement existing downtown area with waterfront redevelopment
· Support water-dependent activities and uses
· Retain deep water moorage and entitlement
2. Support water-dependent activities and uses.
3. Create conditions attractive to jobs of the future.
· Create a vision for desired businesses and educational facilities
4. Strengthen the tie between local jobs and resources.
· Encourage and promote fisheries and ocean-related research industries and facilities
· Encourage a range of development and businesses that foster apprenticeships and other educational and training opportunities
5. Provide public amenities and infrastructure to support redevelopment.
6. Improve permitting processes to achieve the goals and principles of the Waterfront Vision.
· Promote a “business incubator” model with access to development resources
· Create flexible zoning in the City Center
7. Explore economic spin-off related to Bellingham Bay Pilot cleanup strategies.
8. Provide incentives and credits for “green” buildings.
Waterfront Vision & Framework Plan
CITY CENTER RECOMMENDATIONS
Future Uses
· When the Georgic Pacific tissue plant closes, use the site of the tissue warehouse for a combination of public uses which could include neighborhood gathering places, community facilities, sites for dry stack boat storage and support facilities for a new marina at the asb site.
· Provide sites for water-dependent uses along both the I & J Waterway and the Whatcom Creek Waterway on either side of the asb peninsula.
· Create beach areas with small parking lots on either side of the asb site and at the end of Wharf Street adjacent to the Cornwall Landfill.
· Relocate rail road tracks from the Georgic Pacific siteto the base of the bluff.
· To cluster shared parking away from the water, consider locating public parking to buffer development areas from the railroad and the Co-Gen plant.
Future Development
· Provide a site for Western Washington University expansion at the foot of Pine Street and the water’s edge.
· Provide for a range of education and research facilities.
· Retain sufficient water depth in I & J and Whatcom waterways to support existing and future water-related uses.
· Create a public renewal authority or use other methods to develop a plan for the City Center area and to coordinate its implementation.
· Purchase the Georgia Pacific site and put it in public ownership to assure that the long term community interest is served.
· Create expedited review and permitting procedures for redevelopment that is consistent with an adopted renewal plan.
· Provide a location for a potential terraquarium as well as other potential cultural facilities.
· Provide an enhanced beach at the north end of the site, and locations for a potential terraquarium as well as a potential Native American cultural facility.
· Coordinate with the Economic Development Council to publicize local resources and maximize use of locally based contractors.
· Accommodate mixed-use development on uplands adjacent to Cornwall Avenue landfill site.
· Along Whatcom Waterway water-related commercial/ industrial development may incorporate some residential components.
Natural Systems & Environmental Cleanup
· Clean up contamination outside of the asb on the bay side.
· Remove all contaminated sediment from the ASB and reconnect with Bellingham Bay.
· Examine implications of leaving the Whatcom Waterway sediment in place.
· Remove creosote piles from intertidal and subtidal areas near RG Haley site.
· Protect habitat enhancements at the log pond site and extend habitat and beach enhancement into upland areas.
· Cap the Cornwall Avenue landfill and provide marine habitat enhancement and a new public open space along the water for the length of the site.
· Examine contamination levels to help shape renewal master plan and then tailor remediation to planned use.
· Restore beaches where possible.
· Investigate opportunities for stormwater treatment and creation of marsh habitat using treated stormwater at outfalls and adjacent to open space areas.
Culture & History
· Collaborate with Native American neighbors.
· Preserve the train depot building off Holly Street.
Water Connections
· Provide transient moorage adjacent to Central Avenue on the south side of the Whatcom Waterway and on the west side of Whatcom Waterway while avoiding critical habitat areas. Habitat enhancement will be a condition of this new transient moorage provision.
· Locate transient moorage east of shipping terminal pier.
· Provide water jitney stops at Whatcom Creek Waterway adjacent to Central and Roeder Avenues and on the east side of the shipping terminal pier.
· Provide hand-carry boat landings on either side of the asb peninsula and at the Cornwall Avenue landfill.
· Remove the sewer pipe under Roeder Avenue Bridge which blocks wate-side access to Whatcom Creek estuary.
Vehicular Connections
· Maintain truck access to the shipping terminal.
· Change Chestnut Street to two-way.
· Maintain Cornwall Avenue and Wharf Street and extend Commercial Avenue and Laurel Street as auto access routes to the City Center waterfront.
· Extend Commercial Street over the railroad to an intersection with an extended Laurel Street.
· Extend Laurel Street over the bluff and relocated railroad to intersect with an extended Commercial Street.
· Design the Commercial Street extension to retain a view of Mount Baker Theatre from the Laurel/Commercial Street intersection.
Pedestrian Connections
· Provide a site for Western Washington University expansion at the foot of Pine Street and the water’s edge.
· Add a vertical connection at the south end of the Cornwall Landfill over the railroad and up the hill.
· Establish an over-water pathway from the Cornwall Landfill to Boulevard Park.
· Connect new pedestrian routes through the City Center waterfront to regional trail systems and provide streetscape improvements conducive to year-round pedestrian use.
· Provide pedestrian routes along the extended rights-ofway of F, C, Central, Commercial and Pine streets.
· Develop safe connections over railroad tracks.
· Provide for direct access to Western Washington University including an on the ground or surface hill climb assist/corridor connection up Pine Street.
Parks & Public Space
· Create a system of connected public open spaces between the Whatcom Waterway and the south end of the Cornwall Avenue landfill.
· Develop public open spaces along the waterfront.
· Create a public gathering space adjacent to the shipping terminal while retaining its availability for vessel staging.
· Provide an enhanced beach south of the shipping terminal at the base of Pine Street and Cornwall.
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Attachment A [A suggested rephrase of CW 11 Strategic Guideline's]
Note: "Waterfront Redevelopment" [WR] substituted for "New Whatcom"
1. Waterfront Redevelopment [WR] requires multiple strategic partnerships to realize its true potential.
2. WR goal should be to become a recognized model for environmental stewardship.
3. WR must carefully integrate with its surroundings and utilize natural access corridors to best advantage.
4. WR must provide extensive water access and connect with Bellingham's maritime history.
5. Bellingham should use WR to expend its viability and attractiveness for residents, employers and visitors.
*6. WR needs to use Transportation Oriented Development {TOD] principles to insure access, walkability and neighborhood friendliness to adjacent areas.
*7. WR needs very careful attention to integrating multi-modal circulation, safety and efficiency.
8. WR must take timely advantage of opportunities as they arise, while retaining fidelity to the long-term goals recommended by WFG.
9. Public interests must be carefully considered during WR.
10. WR deserves extended focus as our area's primary economic development project.
11. WR must preserve and enhance existing systems of public amenities, focused on the Bay and its tributaries.
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Attachment B [Another suggested rewrite of Strategic Guideline's from WFG info]
Note: "Waterfront Redevelopment" substituted for "New Whatcom"
1. WR's main goal is to create jobs & concurrently develop stronger, more sustainable revenue streams for Bellingham & the Port.
2. WR should emphasize traditional waterfront-dependent uses as its priority focus.
3. WR needs to preserve & enhance the area's local character and history.
4. WR must provide extensive, diversified public access & open space to the waterfront throughout its area.
5. WR should occur with concurrent accessibility for freight & services, using TOD requirements and provision for safe pedestrian/bicycle travel.
6. WR must exemplify the highest practicable standards in cleaning up pollution from the past.
7. WR should use care in preserving the environment for the future, including the use of sustainable materials and renewable energy sources, as well as regulatory protections for shorelines and stormwater runoff.
8. WR needs to provide for housing commensurate with the diverse income levels anticipated from workers in the area.
9. WR should connect with adjacent neighborhoods in a manner complimentary to each districts distinctive character, taking care to preserve traditional values.
10. WR should encourage environmentally friendly institutions, paying living wages, such as WWU and other non-seasonal tenants, to locate facilities there.
11. WR needs to maintain active public oversight throughout its duration to achieve the WFG vision intended, and recognize that this is helped by retaining public ownership.
Monday, August 20, 2007
Sunday, August 19, 2007
The Bellingham & Whatcom County Public Facilities District: Redux
With the recent ground-breaking for the new Art & Children's Museum, a major milestone was reached that was only a dream 5 years ago. The Public Facilities District, then envisioned -and willingly supported by Whatcom County- as an economic magnet, was being hotly debated and even opposed by some in our community. Somehow the idea of getting some of our tax money back to help finance the PFD got all fuzzed up by a few opponents as an unnecessary exercise and expense. Others insisted these funds be used to finance much needed improvements to the Civic Field Complex, which have subsequently been accomplished using other funding mechanisms. Suffice to say, the PFD was created, its financing secured, a prudent, yet visionary Board established, and the monies available used to best effect. A success story by any standard!
Back in those days, the Cascadia Weekly was the Every Other Weekly, and it's popular editorial column was called 'The Skinny'. That name inspired me to write the following blurb: [Does this theme REMIND readers of other undertakings?]
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PFD Project: Skinny or Scuttlebutt?
From my Navy days, I learned first hand about the terms "skinny" and "scuttlebutt". Skinny had the connotation of correct information, or poop, as in 'straight skinny'. Scuttlebutt was a phrase used to describe gossip around the water cooler, and every ship had at least one 'biomass' artist whose mission in life it was to create rumors and misinformation. Many things change over time, but the meanings of 'skinny' & 'scuttlebutt' seem to remain the same. With this in mind, it's interesting to focus on some of the criticisms that are now circulating about our newly established Public Facilities District, and what its mission and initial project undertaking should be.
Perhaps adding another minnow of perspective to the swirling fishbowl of created -and very creative- public perceptions is in order. While this particular minnow is not expected to survive for long amongst the various piranha, sharks, jellyfish, blowfish and slippery eels that flourish in such environs, perhaps its DNA message can then bio-accumulate in the genes of these respective species.
Perhaps, an evolutionary process is needed to eventually allow a more balanced assessment of the merits of the PFD actions to date, the sole purpose of which is to stimulate and stabilize economic redevelopment in our downtown - an area already recognized as a priority for revitalization. Using this restricted, returned tax money to turn the Mt Baker Theater into something more useful and revenue generating, by expanding its usable space, upgrading its antiquated electrical and mechanical systems, and preserving its unusually attractive historic character, seems a very prudent investment indeed! It should also help provide the foundation to stimulate additional private investment downtown, while also meeting the stringent, enabling state law requirements regarding purpose, scope and timing.
As with many situations, the roots of the current controversy spring from seeds sown in the past, and these sometimes grow more like weeds, than the gardens that people actually enjoy. Given the challenging circumstances our local governments face, one would think such a gift of returned taxes to our area for its own beneficial use is an event to celebrate!
Instead, a cacophony of interests, discovering yet another issue with cheap entertainment value, are engaging in the right of 'public process'!
o Habitual nay-sayers are again taking full advantage of an election year to frenetically spread their anti-government, anti-spending misinformation.
o At least two special interest groups have surfaced with competing ideas.
o Others are simply joining the fun with instant, armchair quarterback solutions.
o Most are probably just watching and waiting for the PFD's selected project to begin, finish and deliver its expected results.
Fair enough, that all these voices should heard, and that from the resulting discourse will come some truly excellent and enduring concepts that can be used to improve whatever project proceeds.
But, it's a pity that so much of what the public hears about is based upon data-free analysis, speculation, disguised ideology and conspiracy theories - in other words, scuttlebutt!
In today's world, that seems to be expected. To be hoped for are commentators who are willing to keep an open mind until the real facts can be triangulated and the overall situation put into truer perspective. In the meantime, the work of the PFD must proceed.
The PFD considers getting on with its project important, enough to require undertaking a satisfactory resolution of it without further undue delay. It is clearly the PFD's duty and responsibility to get a qualifying project approved and underway before yearend. The City Council has determined that the approach the PFD is following now is a sensible one, arrived at only after obtaining expert advice and significant public input on various options. Both PFD and Council have listened to many ideas and different views on how to proceed from diverse interests before selecting the course of action now being pursued. While it is clearly impossible to please everyone, we do care about the public's ultimate satisfaction in what these revitalization efforts will produce. Over time, the wisdom of the decisions made regarding the PFD's Mt Baker Theater project will manifest, and citizens will enjoy the tangible benefits of a mutually beneficial public/private partnership, which will in turn stimulate additional investment and enjoyment of our downtown area.
Sometimes, it's hard to see the forest for the trees in such situations. In the end, actions that result from broader views are usually the ones that build communities that thrive. It is to be hoped the PFD's Project and the experience gained in making it happen will become a model for future successes in downtown Bellingham, and will fully justify our substantial investment in time, energy and resources. Time will tell, but will citizens remember the Skinny or the Scuttlebutt?
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For yet another perspective back in time, here is an article I had published circa March 2003:
The Bellingham & Whatcom County Public Facilities District: A Good Idea, Enabled by Our State Legislature
The Bellingham & Whatcom County Public Facilities District [PFD] is the product of over three years of creative thinking, planning and working with the State Legislature to gain the necessary approvals. Initially, PFDs were limited to just a few very large projects in major metropolitan areas, like Safeco Field in Seattle. When several other cities recognized the potential for PFDs within their jurisdictions, a successful lobbying effort was launched. This resulted in Bellingham and Whatcom County also being qualified -late last year- to participate in this program and together began receiving about $750,000 per year for this specific purpose. This annual amount, by itself, is sufficient to pay for a bond issue worth between $13 and $15 million dollars.
Conceived as a method of financing ‘centers of regional significance’ for communities - using tax dollars already paid to the State – PFD funds are given back to a community specifically for its discretionary use to help finance projects costing a minimum of $10 million dollars. But there are also strings attached which require that certain ‘who, what, where, how and why’ questions be answered before the funds can be used. Three categories of allowed uses are cultural facilities, convention centers and sports complexes, all of which are to be considered as point destinations for citizens, patrons, tourists and other participants.
In enabling PFDs the Legislature recognized that such ‘centers of regional significance’ are magnets for attracting economic development to benefit those communities which use PFD funds wisely and provide the required resource match. Typically, projects like these centers are difficult to achieve and require significant vision, planning and investment to complete them.
Bellingham is truly fortunate to already have had the experience of so much visioning and planning focused on the revitalization of its downtown. This has helped guide the choices in spending PFD money to those that are most cost effective and synergistically efficient. Recently, the PFD Board has also seen the wisdom of focusing its first attention on creating space where facilities of lasting value can be developed in the downtown area.
What will actually be built in the space the PFD will ultimately provide has yet to be determined with any finality or timetable, because much depends upon other sources of funding and matching resources becoming available – both public and private. But, the area of current PFD focus is in the vicinity of both City Hall and the County Courthouse, both of which badly need parking space for those conducting business with our local governments, as well as government employees.
What else is in this vicinity that might benefit, directly or indirectly, from space provided by the PFD? Three public facilities, including the Bellingham Public Library, The Whatcom Museum and the Mt. Baker Theater, could all benefit from PFD-owned space downtown. All three facilities are supported by local tax dollars and are very popular with families and children, including tourists. Recognizing this, the PFD has already moved to acquire additional space to allow the Mt. Baker Theater more much-needed room to accommodate its various shows and programs.
Both the Library and the Museum are also in need of more useable space to keep up with growth demands. The Library is currently ‘maxed’ out and will likely require a new facility soon that will depend upon a separate, publicly voted bond levy. Depending upon the site selected and other factors, a bond of approximately $14 million will be needed to finance a new Library. The Museum is in critical need of seismic upgrading and climate control improvements, in addition to more exhibit space, to both protect and display its valuable collections.
How can these existing facilities and needs be combined to use the PFD funds most wisely? That is the question that the PFD is currently seeking to answer, and the possible combinations are many and varied. However, all potential combinations do share the same set of facilities and needs, which helps form a firmer matrix in which the final concepts and scenarios can begin to take shape.
Whatever concept ultimately evolves from these efforts will earn the title of “Centennial Project”, and bring Bellingham and Whatcom County the desired benefits of additional economic development, education and entertainment opportunities.
Back in those days, the Cascadia Weekly was the Every Other Weekly, and it's popular editorial column was called 'The Skinny'. That name inspired me to write the following blurb: [Does this theme REMIND readers of other undertakings?]
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PFD Project: Skinny or Scuttlebutt?
From my Navy days, I learned first hand about the terms "skinny" and "scuttlebutt". Skinny had the connotation of correct information, or poop, as in 'straight skinny'. Scuttlebutt was a phrase used to describe gossip around the water cooler, and every ship had at least one 'biomass' artist whose mission in life it was to create rumors and misinformation. Many things change over time, but the meanings of 'skinny' & 'scuttlebutt' seem to remain the same. With this in mind, it's interesting to focus on some of the criticisms that are now circulating about our newly established Public Facilities District, and what its mission and initial project undertaking should be.
Perhaps adding another minnow of perspective to the swirling fishbowl of created -and very creative- public perceptions is in order. While this particular minnow is not expected to survive for long amongst the various piranha, sharks, jellyfish, blowfish and slippery eels that flourish in such environs, perhaps its DNA message can then bio-accumulate in the genes of these respective species.
Perhaps, an evolutionary process is needed to eventually allow a more balanced assessment of the merits of the PFD actions to date, the sole purpose of which is to stimulate and stabilize economic redevelopment in our downtown - an area already recognized as a priority for revitalization. Using this restricted, returned tax money to turn the Mt Baker Theater into something more useful and revenue generating, by expanding its usable space, upgrading its antiquated electrical and mechanical systems, and preserving its unusually attractive historic character, seems a very prudent investment indeed! It should also help provide the foundation to stimulate additional private investment downtown, while also meeting the stringent, enabling state law requirements regarding purpose, scope and timing.
As with many situations, the roots of the current controversy spring from seeds sown in the past, and these sometimes grow more like weeds, than the gardens that people actually enjoy. Given the challenging circumstances our local governments face, one would think such a gift of returned taxes to our area for its own beneficial use is an event to celebrate!
Instead, a cacophony of interests, discovering yet another issue with cheap entertainment value, are engaging in the right of 'public process'!
o Habitual nay-sayers are again taking full advantage of an election year to frenetically spread their anti-government, anti-spending misinformation.
o At least two special interest groups have surfaced with competing ideas.
o Others are simply joining the fun with instant, armchair quarterback solutions.
o Most are probably just watching and waiting for the PFD's selected project to begin, finish and deliver its expected results.
Fair enough, that all these voices should heard, and that from the resulting discourse will come some truly excellent and enduring concepts that can be used to improve whatever project proceeds.
But, it's a pity that so much of what the public hears about is based upon data-free analysis, speculation, disguised ideology and conspiracy theories - in other words, scuttlebutt!
In today's world, that seems to be expected. To be hoped for are commentators who are willing to keep an open mind until the real facts can be triangulated and the overall situation put into truer perspective. In the meantime, the work of the PFD must proceed.
The PFD considers getting on with its project important, enough to require undertaking a satisfactory resolution of it without further undue delay. It is clearly the PFD's duty and responsibility to get a qualifying project approved and underway before yearend. The City Council has determined that the approach the PFD is following now is a sensible one, arrived at only after obtaining expert advice and significant public input on various options. Both PFD and Council have listened to many ideas and different views on how to proceed from diverse interests before selecting the course of action now being pursued. While it is clearly impossible to please everyone, we do care about the public's ultimate satisfaction in what these revitalization efforts will produce. Over time, the wisdom of the decisions made regarding the PFD's Mt Baker Theater project will manifest, and citizens will enjoy the tangible benefits of a mutually beneficial public/private partnership, which will in turn stimulate additional investment and enjoyment of our downtown area.
Sometimes, it's hard to see the forest for the trees in such situations. In the end, actions that result from broader views are usually the ones that build communities that thrive. It is to be hoped the PFD's Project and the experience gained in making it happen will become a model for future successes in downtown Bellingham, and will fully justify our substantial investment in time, energy and resources. Time will tell, but will citizens remember the Skinny or the Scuttlebutt?
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For yet another perspective back in time, here is an article I had published circa March 2003:
The Bellingham & Whatcom County Public Facilities District: A Good Idea, Enabled by Our State Legislature
The Bellingham & Whatcom County Public Facilities District [PFD] is the product of over three years of creative thinking, planning and working with the State Legislature to gain the necessary approvals. Initially, PFDs were limited to just a few very large projects in major metropolitan areas, like Safeco Field in Seattle. When several other cities recognized the potential for PFDs within their jurisdictions, a successful lobbying effort was launched. This resulted in Bellingham and Whatcom County also being qualified -late last year- to participate in this program and together began receiving about $750,000 per year for this specific purpose. This annual amount, by itself, is sufficient to pay for a bond issue worth between $13 and $15 million dollars.
Conceived as a method of financing ‘centers of regional significance’ for communities - using tax dollars already paid to the State – PFD funds are given back to a community specifically for its discretionary use to help finance projects costing a minimum of $10 million dollars. But there are also strings attached which require that certain ‘who, what, where, how and why’ questions be answered before the funds can be used. Three categories of allowed uses are cultural facilities, convention centers and sports complexes, all of which are to be considered as point destinations for citizens, patrons, tourists and other participants.
In enabling PFDs the Legislature recognized that such ‘centers of regional significance’ are magnets for attracting economic development to benefit those communities which use PFD funds wisely and provide the required resource match. Typically, projects like these centers are difficult to achieve and require significant vision, planning and investment to complete them.
Bellingham is truly fortunate to already have had the experience of so much visioning and planning focused on the revitalization of its downtown. This has helped guide the choices in spending PFD money to those that are most cost effective and synergistically efficient. Recently, the PFD Board has also seen the wisdom of focusing its first attention on creating space where facilities of lasting value can be developed in the downtown area.
What will actually be built in the space the PFD will ultimately provide has yet to be determined with any finality or timetable, because much depends upon other sources of funding and matching resources becoming available – both public and private. But, the area of current PFD focus is in the vicinity of both City Hall and the County Courthouse, both of which badly need parking space for those conducting business with our local governments, as well as government employees.
What else is in this vicinity that might benefit, directly or indirectly, from space provided by the PFD? Three public facilities, including the Bellingham Public Library, The Whatcom Museum and the Mt. Baker Theater, could all benefit from PFD-owned space downtown. All three facilities are supported by local tax dollars and are very popular with families and children, including tourists. Recognizing this, the PFD has already moved to acquire additional space to allow the Mt. Baker Theater more much-needed room to accommodate its various shows and programs.
Both the Library and the Museum are also in need of more useable space to keep up with growth demands. The Library is currently ‘maxed’ out and will likely require a new facility soon that will depend upon a separate, publicly voted bond levy. Depending upon the site selected and other factors, a bond of approximately $14 million will be needed to finance a new Library. The Museum is in critical need of seismic upgrading and climate control improvements, in addition to more exhibit space, to both protect and display its valuable collections.
How can these existing facilities and needs be combined to use the PFD funds most wisely? That is the question that the PFD is currently seeking to answer, and the possible combinations are many and varied. However, all potential combinations do share the same set of facilities and needs, which helps form a firmer matrix in which the final concepts and scenarios can begin to take shape.
Whatever concept ultimately evolves from these efforts will earn the title of “Centennial Project”, and bring Bellingham and Whatcom County the desired benefits of additional economic development, education and entertainment opportunities.
Saturday, August 18, 2007
Benzene in Lake Whatcom: Some Questions & Answers
Today's BELLINGHAM HERALD reported 'Boat docked at lake burns'. It mentioned that: the boat didn't sink, damage was estimated at $50,000, no one was hurt, minor damage was done to the dock and neighboring boats, that the Department of Ecology had determined there was no fuel or oil leakage, and booms were set up around the boat to prevent pollution. Also, that George Henderson, Chief of Whatcom County Fire District No. 18 - the same person and organization that was just fined $21,000 by DOE for illegally disturbing the shoreline in the South Bay - was the responding fire safety officer. He also said the owners had docked the boat after using it 'without any problems during the day'.
Two questions:
1. How do we know the boat was used during the day 'without any problems'?
2. What wasn't 'the lake' described as the Lake Whatcom Reservoir, our Municipal Water Supply?
To the extent this can become a 'teachable moment', the following is in response to a list of questions submitted to staff by me, regarding motorized watercraft management recommendations. Each underlined question is followed by its answer, with some questions having multiple parts that are related to a common subject. Cost estimates are based on a variety of sources but all should be viewed as preliminary estimates. These answers were issued on 3/11/2004.
===================================
1. For how long have the benzene tests been conducted?
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The City has collected benzene data since 1988 as part of our volatile organic chemical monitoring program per Safe Drinking Water Act (SDWA) requirements. Sampling procedures have been refined and improved in the past 5 years.
Treated water is currently sampled annually to establish compliance with the SDWA. Often the treated water sample is paired with an untreated water sample to derive treatment plant removal data for the water utility. The analysis required for Safe Drinking Water Act compliance is a broad scan, and as such, has a detection level for benzene that is up to 9 times higher than more selective methods currently used by the utility (see paragraph below). The detection level for SDWA compliance determination is conventionally reported at the State Reporting Level for compliance determination (typically reported as 0.5 parts per billion or ug/L). When reporting the results for compliance monitoring, it is the convention to report only to the State Reporting Level. Therefore, data derived for SDWA compliance sampling is reported above the benzene levels typically observed in Lake Whatcom.
Benzene, Toluene, Ethyl Benzene, and Xylene (BTEX) Sampling
Because the 1999 Olympic pipeline rupture and explosion occurred directly between the water filtration plant and the filtered water chlorine contact reservoir, there was concern about gasoline contamination in the water supply. The utility immediately began collecting and analyzing water from the treatment plant and in the distribution system for benzene, toluene, ethyl benzene, and xylene (BTEX), which are constituents of gasoline. These BTEX compounds were detected in all but seven of the 120 samples collected from the time of the explosion until the end of that year. Levels of detection were well below the State Reporting Level, and the average benzene levels in all samples collected from that period was 0.07 ug/L. Six of the seven samples that had no BTEX detections were from those samples taken from 11/15/99 until 12/13/99. Those 6 samples comprised all the samples taken during that later period.
With the realization that BTEX compounds were being detected in the treated water supply came the desire to definitively attribute the source of these compounds. Sampling began at the Gatehouse (untreated Lake Whatcom water from the City Intake pipe in basin #2) on June 22, 1999. It came as a surprise to the utility that benzene levels were also detectable at the source of the City’s drinking water, over a mile away from the site of the pipeline rupture. As this monitoring program continued, an analytical method with better detection levels was employed starting in 2001. The Selected Ion Mass Spectrometry (SIMS) allowed detection levels at up to 9 times lower than by the conventional SDWA-required method as it is able to focus in on the specific spectra of interest.
Where are these records kept?
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All records from the Safe Drinking Water Act compliance monitoring are reported and filed with the State of Washington Department of Health and are also filed in the Water Filtration Plant Laboratory.
Records from the post-Olympic pipeline rupture monitoring are filed at the Water Filtration Plant Laboratory. Results from this monitoring are entered into an Excel spreadsheet to allow for data analysis.
What is done with this information? Is it included in any official reports or literature?
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The City included information/data on the BTEX monitoring program in two of its Consumer Confidence Reports sent to all customers of the water utility (June 2000 and June 2001). The benzene levels detected in lake water were also reported in the Water Source Protection Plan (Section 2.1.12), compiled by the City of Bellingham and Whatcom County Water District #10 in 2000.
The City’s BTEX data was also provided to the Citizen’s Advisory Committee formed to provide recommendations on boating on Lake Whatcom. This data is available electronically and is also provided to customers upon request.
Is it true that the levels reported to date are well below actionable levels [MCLs] mandated by Federal and State Law?
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Yes this is true.
The Environmental Protection Agency (EPA) and State of Washington regulatory levels of note are shown in the table below:
The table* depicts the maximum contaminant level (MCL), the maximum contaminant level goal (MCLG) and the Washington State Reporting Level. Though the MCLs are enforceable standards and MCLGs are not, the EPA feels there is no safe level of consumption for carcinogens such as benzene and has therefore set the MCLG at zero.
[Compressed Table*]
Compound//EPA Maximum Contaminant Level//EPA Maximum Contaminant Level Goal//State Reporting Level
[all values expressed in (ug/L)]
Benzene//5//0//0.5
Toluene//1000//1000//0.5
Ethyl benzene//700//700 //0.5
Total xylene//10000//10000//0.5
The EPA realizes that real financial and technological constraints often make zero unattainable, so they set MCLs as close to MCLGs as feasible using the best available treatment technology and taking cost into consideration. The maximum level of benzene found in all treated water samples taken from 2000 to present is 0.123 ug/L, and the maximum level of benzene in untreated water (for which these level do not apply) is 0.137 ug/L.
The other contaminants toluene, ethyl benzene and xylene have MCL and MCLG levels that are the same because unlike benzene, the EPA believes those levels provides sufficient protection from the potential health problems associated with these contaminants.
The EPA has grouped contaminants into five groups based on the seriousness of their health effects upon humans. The health impact is based upon whether or not the substance being classified has been determined by USEPA to cause cancer in animals or humans.
Group A is described by USEPA as a known human carcinogen, or cancer-causing substance in humans.
Group B has been determined by USEPA to be a probable human carcinogen.
Group C includes possible human carcinogens.
Group D includes substances for which there is insufficient evidence to document carcinogenic effects upon humans.
Group E is not considered a carcinogen.
Benzene is a volatile organic compound (VOC) listed as a Group A contaminant, The EPA feels that adequate human data exists to support this classification. Another Group A VOC, vinyl chloride, is also of concern.
2. Is there any discernable trend in recorded benzene levels over time, aside from the periodic spikes? Is the fact that measurable concentrations have been found a cause for concern?
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The seasonal variations seem to be the only apparent trend.
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Please refer to prior response for discussion on MCLGs and benzene.
3. Where are the sampling points and with what frequency are samples taken and tested? Does sample location or frequency matter?
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Since 1999 samples are collected at least monthly and consist of paired gatehouse and treated water samples. The gatehouse sample represents the water coming into the City’s intake pipe. The water does not stratify thermally at the intake location, therefore there is a much greater likelihood that substances on the lake surface could make their way to the intake at the bottom of the lake.
In (only) one instance were samples collected from both the intake and from the surface of the water above the intake (where one would assume more hydrocarbon to exist). This sampling occurred in August 2000. The data were:
Benzene (ug/L or parts per billion) Single ion monitoring
8/28/00 Gatehouse 0.123
8/28/00 Surface of lake near intake 0.230
4. Is the City's present water treatment process capable of removing benzene from the raw water to produce our drinking water? From the data, it appears not likely because there is little difference in concentration.
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You are correct, the City’s treatment plant is not capable of removing benzene.
5. What is the estimated expense for upgrading the water treatment plant to remove benzene and/or other organics harmful to humans?
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A full comparative analysis of equipment costs, plant remodeling costs, potential for other contamination, expected benefits of the treatment options and other factors is needed to answer this question.
The EPA has selected two preferred treatment methods for removal of Volatile Organic Compound (VOC) contaminants such as Benzene. Packed tower aeration or air stripping is one method. This process transfers the VOC's from water to air. The air is discharged into the atmosphere. Consideration must be given on a case-by-case basis to ensure that the airborne VOC contaminants do not cause health risks. While it is possible to place additional treatment on the air discharge, the additional costs involved make this method very expensive especially when higher concentrations of VOC contaminant are present. One would also need to be concerned about introducing air borne contaminants into the water.
The other method of removal is granular activated carbon (GAC) adsorption. When water passes through a bed of activated carbon, VOC's attach or stick to the carbon. The attaching or sticking process of VOC's to the carbon granules is called adsorption. The carbon must be monitored carefully so that it can be replaced before it is exhausted. Carbon which is exhausted, or has adsorbed all the VOC's it can, may allow the adsorbed VOC's to be released back into the water in higher concentrations, due to the amount of VOC accumulation upon the carbon granules. Contaminated carbon must be regenerated on site or properly disposed of so that recontamination of the water does not occur. This treatment technology also has been shown to encourage the proliferation of microorganisms at the treatment plant, some of which have shown resistance to disinfectants currently in use.
Would such an upgrade be justified?
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In the final determination of which treatment process to use for VOC removal, all elements relevant to our water system should be considered. These elements include the cost, the types/concentration of VOC's present, the amount of removal deemed acceptable and the surrounding neighborhood.
How would it be paid for and by whom?
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Water utility customers would pay the costs for changes to the water system. The utility users also pay for maintenance and operation costs.
How much more capacity is available using the current water treatment plant, and when would an expansion normally be expected, using the same technology?
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At what point would such an upgrade be anticipated?
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It is quite difficult to determine when we will reach capacity on our water treatment plant. It is an element of our comprehensive plan (1993) and was slated for expansion in 1995. Since 1993 the City’s overall water consumption has been flat and our peak use days have been significantly reduced. So at this stage we do not have a plan for expansion. At some point growth will overcome conservation and we will have to expand the facility. The current peak capacity available is approximately 20 % or 5 million gallons per day.
What are the estimated costs of a more sophisticated water treatment system based on advanced technology to remove benzene and related compounds?
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We do not have cost estimates of alternative treatment systems to address issues such as benzene. It would require us to retain a consultant to develop the feasibility of removing targeted compounds and what that would cost from a capital and O & M basis. It also would require that we evaluate the benefits of certain treatment schemes and the risks associated with using that technology. We would want to be assured that in the process of removing one contaminant that we did not introduce new risk factors which might be as great or greater than the targeted agent.
What about the idea of obtaining drinking water from another source besides Lake Whatcom? What estimated costs might this entail, assuming another source is available?
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Other drinking water sources have been reviewed. They include changing our point of withdrawal from the Nooksack River, piping Middle Fork water around the Lake directly to the water treatment plant and reverse osmosis treatment of salt water from Bellingham Bay.
Withdrawing water from the lower Nooksack is estimated to cost between $100 and $150 million for construction and $10 million or more in yearly maintenance and operations costs. The option would require land acquisition, big pumps, settling basins, new treatment facilities, etc. Electricity would be a big part of the yearly M&O costs. Due to the large sediment load and the need to pump continually equipment maintenance costs would be high. Water in the lower river receives contaminants from Everson, Lynden and Ferndale treatment plants as well as runoff from agriculture and other land uses, therefore requiring a high level of treatment.
Pumping around the Lake from the Middle Fork diversion is estimated to cost around $45 million. Yearly M&O might be
$2 million. This option relies heavily on the availability of land for the pipeline and a water reservoir. Probably big pumps would be required with high electric use. Depending solely on water withdrawal from the Middle Fork is not feasible given the instream flow constraints on our withdrawal management.
A reverse osmosis plant would be constructed on the City waterfront that would provide the supply source for drinking and industrial process water for the City’s residents and industrial users. The system would include a treatment plant, reservoir, pumps and pipes.
Reverse osmosis is, in general, very expensive ($180 million) and typically done when there is no fresh water alternative.
The advantage that reserve osmosis has is that there is no water right requirement for salt water. The supply is inexhaustible, available and located within Bellingham Bay where the City is located. In addition, a reverse osmosis plant to supply only potable water, although cheaper, does not completely relieve the City’s reliance on Lake Whatcom as a source of supply for industrial process water purposes.
How would this be paid for and by whom?
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The costs for changes to the water system would be paid by water utility customers. Maintenance and operation costs are also paid for by the utility users.
6. What is the estimated cost of moving the City's water intake to a more sheltered area in Basin 3?
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In the past the cost has been estimated to be $1000 per linear foot with an estimated distance of 5000’ for a cost of $5 million. This should be considered a minimum given anticipated cost increases by the time a project is construction ready.
Would such a move be expected to be helpful?
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We are currently reviewing this issue. The review is assessing the water quality and other issues in the portion of Basin 3 nearest Basin 2.
Would these costs be justified?
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This question will be answered after the completion of the review.
How would this be paid for and by whom?
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Water utility customers would pay the costs for changes to the water system. The utility users also pay for maintenance and operation costs.
7. Does the City have any way of systematically identifying: boaters using the Reservoir; the number by type of watercraft used; how particularly sensitive areas might be better protected; how to fairly & equitably enforce boating BMPs; how many of these boaters use the Bloedel-Donovan launch?
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At the present time, there is no comprehensive count of the numbers and types of watercraft used. Counting the number of boat launches at Bloedel Donovan Park (see below) is an inaccurate estimate of boat use, since boaters also access the reservoir at the public WDFW boat launch, as well as the boat launches at Sudden Valley and Wildwood Resort. Boat use counts are further complicated by the significant boat use that originates from the hundreds of private docks that encircle the reservoir.
How could particularly sensitive areas might be better protected?
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Identifying particular areas, such as the intake pipe, for enhanced protection is not included as a management recommendation.
How would we fairly and equitably enforce boating BMPs?
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It is recommended that the Whatcom County Sheriff’s boat patrol enforce any new boating regulations. The Sheriff currently patrols the reservoir on a limited basis. The committee has recommendation is that the boat patrol’s hours be increased, at least to cover the hours that the boat launch is open on weekends and holidays.
The recommendations include actions the City could take to improve facilities available to boaters and thus make it easier to comply with the fueling, bilge dumping and other waste related issues.
It also is recommended that a boating education program be developed to promote voluntary compliance with laws and BMPs.
How many of these boaters use the Bloedel-Donovan launching site?
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As reported in the Water Source Protection Plan (2000), in past years, the Bellingham Parks and Recreation Department charged during the boating season for weekend and holiday use of the Bloedel Donovan Park boat launch. During that time, Parks employees counted the number of vessels using the launch. Parks was able to provide data for weekend and holiday launches from Memorial Day to Labor Day 1986 (800 launches), 1998 (2156), 2000 (1375), and part of 2001 (Memorial Day through July 20, 525 launches).
In 2001, the Parks Board decided to discontinue the practice of charging for parking and use of the boat launch.
8. Does the fact that manufacturers of personal watercraft using 2-stroke carburated engines will eventually phase them out, have anything to do with these craft not being used in the Reservoir now?
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The Environmental Protection Agency (EPA) established a new standard for marine engine emissions in 1996. This standard requires marine manufacturers to achieve a 75% reduction in outboard and personal watercraft (PWC) engine hydrocarbon emissions by the year 2006. Although this standard is designed to improve air quality, they also result in engines that produce significantly less water pollution.
The California Air Resources Board (CARB) decided that the EPA’s standard was not sufficiently strict and was being implemented too slowly. As a result, CARB accelerated the EPA timeline and set stricter standards for new marine engines sold in California. The CARB standard requires manufacturers to meet EPA 2006 standards by 2001 and to produce 65% lower emissions than the EPA standard by 2008, for a total of 91% lower emissions than carbureted two-stroke engines. Because California has such a large share of the marine engine market, manufacturers are designing their engines to meet the stricter CARB limits.
Because PWC engines are subject to the same restrictions as other marine engines, manufacturers are developing PWC with four-stroke and two-stroke DFI technology to reduce emissions. The new two-stroke engines are lighter and simpler in design than four-stroke engines, and some are almost as clean.
This does not mean that two-stroke carbureted PWC will not be manufactured after 2006. The EPA allows product averaging, which means that the “Family Emission Limit” (FEL) must meet or exceed applicable emission standards. This means that some two-stroke carbureted PWC will continue to be manufactured as long as their higher emissions are offset by other low-emission members of its engine “family.”
Neither the EPA nor CARB require boaters to dispose of carbureted two-stroke engines. The EPA estimates that old engines will no longer be used by the year 2050.
The CARB has estimated that the exhaust emissions from operating a PWC for seven hours is equivalent to the emissions from a 1998 passenger car operated for 100,000 miles. This means that one hour of PWC use generates as much air pollution as one year of automobile use. Because carbureted two-stroke engines exhaust through water, the pollution is received directly by the water body.
9. Recognizing the City's rationale for 'limiting its liability' by avoiding any sort of fee or permit system per RCW, what can be done to actually prevent or measurably mitigate any of the careless boating practices, short of closing the launch to watercraft using internal combustion engines? [Note this is already City policy at Lake Padden]
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The recommendations from the Motorized Watercraft Citizens Advisory Committee and the Lake Whatcom Management Committee include actions to change poor boating practices. Provision of a fueling area and a bilge dump facility are examples of very positive actions that the City can take to mitigate polluting activities.
10. Aside from the benzene spikes [public health issue] being discussed most prominently, what other concerns drive this discussion? [e.g. public/personal safety, nuisance & noise, the message conveyed by increasing unbridled use of a valuable and essential public resource for private recreation purposes]
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Although other issues associated with boating practices were recognized by both the Citizen’s Advisory Committee and the Lake Whatcom Management Committee, neither Committee made recommendations based on those additional issues.
11. What regulations are relevant to the recommendations? (Added)
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Both the State and City already prohibit the deposit of petroleum-based products into water, although neither regulation specifically refers to exhaust of such products into water.
RCW 90.48.080 states:
Discharge of polluting matter in waters prohibited.—It shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters according to the determination of the department, as provided for in this chapter.
In addition, section 10.60.100 of the Bellingham Municipal Code states:
Deposit In Water Prohibited.—A. No person shall throw or deposit litter in any fountain, pond, lake, stream, bay, or other body of water in a park or elsewhere in the City of Bellingham. B. No person shall pour, allow to drain, discard, or otherwise introduce motor oil and other petroleum-based products, antifreeze, paint, or any other unauthorized substance including solid materials into any surface water drainage course or body of water, including but not limited to lakes, ponds, streams, creeks, storm water catch basins, storm water detention ponds, ditches, and storm water inlets, culverts, and manholes.
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Two questions:
1. How do we know the boat was used during the day 'without any problems'?
2. What wasn't 'the lake' described as the Lake Whatcom Reservoir, our Municipal Water Supply?
To the extent this can become a 'teachable moment', the following is in response to a list of questions submitted to staff by me, regarding motorized watercraft management recommendations. Each underlined question is followed by its answer, with some questions having multiple parts that are related to a common subject. Cost estimates are based on a variety of sources but all should be viewed as preliminary estimates. These answers were issued on 3/11/2004.
===================================
1. For how long have the benzene tests been conducted?
--------------------------------------------------------
The City has collected benzene data since 1988 as part of our volatile organic chemical monitoring program per Safe Drinking Water Act (SDWA) requirements. Sampling procedures have been refined and improved in the past 5 years.
Treated water is currently sampled annually to establish compliance with the SDWA. Often the treated water sample is paired with an untreated water sample to derive treatment plant removal data for the water utility. The analysis required for Safe Drinking Water Act compliance is a broad scan, and as such, has a detection level for benzene that is up to 9 times higher than more selective methods currently used by the utility (see paragraph below). The detection level for SDWA compliance determination is conventionally reported at the State Reporting Level for compliance determination (typically reported as 0.5 parts per billion or ug/L). When reporting the results for compliance monitoring, it is the convention to report only to the State Reporting Level. Therefore, data derived for SDWA compliance sampling is reported above the benzene levels typically observed in Lake Whatcom.
Benzene, Toluene, Ethyl Benzene, and Xylene (BTEX) Sampling
Because the 1999 Olympic pipeline rupture and explosion occurred directly between the water filtration plant and the filtered water chlorine contact reservoir, there was concern about gasoline contamination in the water supply. The utility immediately began collecting and analyzing water from the treatment plant and in the distribution system for benzene, toluene, ethyl benzene, and xylene (BTEX), which are constituents of gasoline. These BTEX compounds were detected in all but seven of the 120 samples collected from the time of the explosion until the end of that year. Levels of detection were well below the State Reporting Level, and the average benzene levels in all samples collected from that period was 0.07 ug/L. Six of the seven samples that had no BTEX detections were from those samples taken from 11/15/99 until 12/13/99. Those 6 samples comprised all the samples taken during that later period.
With the realization that BTEX compounds were being detected in the treated water supply came the desire to definitively attribute the source of these compounds. Sampling began at the Gatehouse (untreated Lake Whatcom water from the City Intake pipe in basin #2) on June 22, 1999. It came as a surprise to the utility that benzene levels were also detectable at the source of the City’s drinking water, over a mile away from the site of the pipeline rupture. As this monitoring program continued, an analytical method with better detection levels was employed starting in 2001. The Selected Ion Mass Spectrometry (SIMS) allowed detection levels at up to 9 times lower than by the conventional SDWA-required method as it is able to focus in on the specific spectra of interest.
Where are these records kept?
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All records from the Safe Drinking Water Act compliance monitoring are reported and filed with the State of Washington Department of Health and are also filed in the Water Filtration Plant Laboratory.
Records from the post-Olympic pipeline rupture monitoring are filed at the Water Filtration Plant Laboratory. Results from this monitoring are entered into an Excel spreadsheet to allow for data analysis.
What is done with this information? Is it included in any official reports or literature?
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The City included information/data on the BTEX monitoring program in two of its Consumer Confidence Reports sent to all customers of the water utility (June 2000 and June 2001). The benzene levels detected in lake water were also reported in the Water Source Protection Plan (Section 2.1.12), compiled by the City of Bellingham and Whatcom County Water District #10 in 2000.
The City’s BTEX data was also provided to the Citizen’s Advisory Committee formed to provide recommendations on boating on Lake Whatcom. This data is available electronically and is also provided to customers upon request.
Is it true that the levels reported to date are well below actionable levels [MCLs] mandated by Federal and State Law?
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Yes this is true.
The Environmental Protection Agency (EPA) and State of Washington regulatory levels of note are shown in the table below:
The table* depicts the maximum contaminant level (MCL), the maximum contaminant level goal (MCLG) and the Washington State Reporting Level. Though the MCLs are enforceable standards and MCLGs are not, the EPA feels there is no safe level of consumption for carcinogens such as benzene and has therefore set the MCLG at zero.
[Compressed Table*]
Compound//EPA Maximum Contaminant Level//EPA Maximum Contaminant Level Goal//State Reporting Level
[all values expressed in (ug/L)]
Benzene//5//0//0.5
Toluene//1000//1000//0.5
Ethyl benzene//700//700 //0.5
Total xylene//10000//10000//0.5
The EPA realizes that real financial and technological constraints often make zero unattainable, so they set MCLs as close to MCLGs as feasible using the best available treatment technology and taking cost into consideration. The maximum level of benzene found in all treated water samples taken from 2000 to present is 0.123 ug/L, and the maximum level of benzene in untreated water (for which these level do not apply) is 0.137 ug/L.
The other contaminants toluene, ethyl benzene and xylene have MCL and MCLG levels that are the same because unlike benzene, the EPA believes those levels provides sufficient protection from the potential health problems associated with these contaminants.
The EPA has grouped contaminants into five groups based on the seriousness of their health effects upon humans. The health impact is based upon whether or not the substance being classified has been determined by USEPA to cause cancer in animals or humans.
Group A is described by USEPA as a known human carcinogen, or cancer-causing substance in humans.
Group B has been determined by USEPA to be a probable human carcinogen.
Group C includes possible human carcinogens.
Group D includes substances for which there is insufficient evidence to document carcinogenic effects upon humans.
Group E is not considered a carcinogen.
Benzene is a volatile organic compound (VOC) listed as a Group A contaminant, The EPA feels that adequate human data exists to support this classification. Another Group A VOC, vinyl chloride, is also of concern.
2. Is there any discernable trend in recorded benzene levels over time, aside from the periodic spikes? Is the fact that measurable concentrations have been found a cause for concern?
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The seasonal variations seem to be the only apparent trend.
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Please refer to prior response for discussion on MCLGs and benzene.
3. Where are the sampling points and with what frequency are samples taken and tested? Does sample location or frequency matter?
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Since 1999 samples are collected at least monthly and consist of paired gatehouse and treated water samples. The gatehouse sample represents the water coming into the City’s intake pipe. The water does not stratify thermally at the intake location, therefore there is a much greater likelihood that substances on the lake surface could make their way to the intake at the bottom of the lake.
In (only) one instance were samples collected from both the intake and from the surface of the water above the intake (where one would assume more hydrocarbon to exist). This sampling occurred in August 2000. The data were:
Benzene (ug/L or parts per billion) Single ion monitoring
8/28/00 Gatehouse 0.123
8/28/00 Surface of lake near intake 0.230
4. Is the City's present water treatment process capable of removing benzene from the raw water to produce our drinking water? From the data, it appears not likely because there is little difference in concentration.
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You are correct, the City’s treatment plant is not capable of removing benzene.
5. What is the estimated expense for upgrading the water treatment plant to remove benzene and/or other organics harmful to humans?
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A full comparative analysis of equipment costs, plant remodeling costs, potential for other contamination, expected benefits of the treatment options and other factors is needed to answer this question.
The EPA has selected two preferred treatment methods for removal of Volatile Organic Compound (VOC) contaminants such as Benzene. Packed tower aeration or air stripping is one method. This process transfers the VOC's from water to air. The air is discharged into the atmosphere. Consideration must be given on a case-by-case basis to ensure that the airborne VOC contaminants do not cause health risks. While it is possible to place additional treatment on the air discharge, the additional costs involved make this method very expensive especially when higher concentrations of VOC contaminant are present. One would also need to be concerned about introducing air borne contaminants into the water.
The other method of removal is granular activated carbon (GAC) adsorption. When water passes through a bed of activated carbon, VOC's attach or stick to the carbon. The attaching or sticking process of VOC's to the carbon granules is called adsorption. The carbon must be monitored carefully so that it can be replaced before it is exhausted. Carbon which is exhausted, or has adsorbed all the VOC's it can, may allow the adsorbed VOC's to be released back into the water in higher concentrations, due to the amount of VOC accumulation upon the carbon granules. Contaminated carbon must be regenerated on site or properly disposed of so that recontamination of the water does not occur. This treatment technology also has been shown to encourage the proliferation of microorganisms at the treatment plant, some of which have shown resistance to disinfectants currently in use.
Would such an upgrade be justified?
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In the final determination of which treatment process to use for VOC removal, all elements relevant to our water system should be considered. These elements include the cost, the types/concentration of VOC's present, the amount of removal deemed acceptable and the surrounding neighborhood.
How would it be paid for and by whom?
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Water utility customers would pay the costs for changes to the water system. The utility users also pay for maintenance and operation costs.
How much more capacity is available using the current water treatment plant, and when would an expansion normally be expected, using the same technology?
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At what point would such an upgrade be anticipated?
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It is quite difficult to determine when we will reach capacity on our water treatment plant. It is an element of our comprehensive plan (1993) and was slated for expansion in 1995. Since 1993 the City’s overall water consumption has been flat and our peak use days have been significantly reduced. So at this stage we do not have a plan for expansion. At some point growth will overcome conservation and we will have to expand the facility. The current peak capacity available is approximately 20 % or 5 million gallons per day.
What are the estimated costs of a more sophisticated water treatment system based on advanced technology to remove benzene and related compounds?
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We do not have cost estimates of alternative treatment systems to address issues such as benzene. It would require us to retain a consultant to develop the feasibility of removing targeted compounds and what that would cost from a capital and O & M basis. It also would require that we evaluate the benefits of certain treatment schemes and the risks associated with using that technology. We would want to be assured that in the process of removing one contaminant that we did not introduce new risk factors which might be as great or greater than the targeted agent.
What about the idea of obtaining drinking water from another source besides Lake Whatcom? What estimated costs might this entail, assuming another source is available?
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Other drinking water sources have been reviewed. They include changing our point of withdrawal from the Nooksack River, piping Middle Fork water around the Lake directly to the water treatment plant and reverse osmosis treatment of salt water from Bellingham Bay.
Withdrawing water from the lower Nooksack is estimated to cost between $100 and $150 million for construction and $10 million or more in yearly maintenance and operations costs. The option would require land acquisition, big pumps, settling basins, new treatment facilities, etc. Electricity would be a big part of the yearly M&O costs. Due to the large sediment load and the need to pump continually equipment maintenance costs would be high. Water in the lower river receives contaminants from Everson, Lynden and Ferndale treatment plants as well as runoff from agriculture and other land uses, therefore requiring a high level of treatment.
Pumping around the Lake from the Middle Fork diversion is estimated to cost around $45 million. Yearly M&O might be
$2 million. This option relies heavily on the availability of land for the pipeline and a water reservoir. Probably big pumps would be required with high electric use. Depending solely on water withdrawal from the Middle Fork is not feasible given the instream flow constraints on our withdrawal management.
A reverse osmosis plant would be constructed on the City waterfront that would provide the supply source for drinking and industrial process water for the City’s residents and industrial users. The system would include a treatment plant, reservoir, pumps and pipes.
Reverse osmosis is, in general, very expensive ($180 million) and typically done when there is no fresh water alternative.
The advantage that reserve osmosis has is that there is no water right requirement for salt water. The supply is inexhaustible, available and located within Bellingham Bay where the City is located. In addition, a reverse osmosis plant to supply only potable water, although cheaper, does not completely relieve the City’s reliance on Lake Whatcom as a source of supply for industrial process water purposes.
How would this be paid for and by whom?
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The costs for changes to the water system would be paid by water utility customers. Maintenance and operation costs are also paid for by the utility users.
6. What is the estimated cost of moving the City's water intake to a more sheltered area in Basin 3?
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In the past the cost has been estimated to be $1000 per linear foot with an estimated distance of 5000’ for a cost of $5 million. This should be considered a minimum given anticipated cost increases by the time a project is construction ready.
Would such a move be expected to be helpful?
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We are currently reviewing this issue. The review is assessing the water quality and other issues in the portion of Basin 3 nearest Basin 2.
Would these costs be justified?
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This question will be answered after the completion of the review.
How would this be paid for and by whom?
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Water utility customers would pay the costs for changes to the water system. The utility users also pay for maintenance and operation costs.
7. Does the City have any way of systematically identifying: boaters using the Reservoir; the number by type of watercraft used; how particularly sensitive areas might be better protected; how to fairly & equitably enforce boating BMPs; how many of these boaters use the Bloedel-Donovan launch?
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At the present time, there is no comprehensive count of the numbers and types of watercraft used. Counting the number of boat launches at Bloedel Donovan Park (see below) is an inaccurate estimate of boat use, since boaters also access the reservoir at the public WDFW boat launch, as well as the boat launches at Sudden Valley and Wildwood Resort. Boat use counts are further complicated by the significant boat use that originates from the hundreds of private docks that encircle the reservoir.
How could particularly sensitive areas might be better protected?
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Identifying particular areas, such as the intake pipe, for enhanced protection is not included as a management recommendation.
How would we fairly and equitably enforce boating BMPs?
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It is recommended that the Whatcom County Sheriff’s boat patrol enforce any new boating regulations. The Sheriff currently patrols the reservoir on a limited basis. The committee has recommendation is that the boat patrol’s hours be increased, at least to cover the hours that the boat launch is open on weekends and holidays.
The recommendations include actions the City could take to improve facilities available to boaters and thus make it easier to comply with the fueling, bilge dumping and other waste related issues.
It also is recommended that a boating education program be developed to promote voluntary compliance with laws and BMPs.
How many of these boaters use the Bloedel-Donovan launching site?
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As reported in the Water Source Protection Plan (2000), in past years, the Bellingham Parks and Recreation Department charged during the boating season for weekend and holiday use of the Bloedel Donovan Park boat launch. During that time, Parks employees counted the number of vessels using the launch. Parks was able to provide data for weekend and holiday launches from Memorial Day to Labor Day 1986 (800 launches), 1998 (2156), 2000 (1375), and part of 2001 (Memorial Day through July 20, 525 launches).
In 2001, the Parks Board decided to discontinue the practice of charging for parking and use of the boat launch.
8. Does the fact that manufacturers of personal watercraft using 2-stroke carburated engines will eventually phase them out, have anything to do with these craft not being used in the Reservoir now?
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The Environmental Protection Agency (EPA) established a new standard for marine engine emissions in 1996. This standard requires marine manufacturers to achieve a 75% reduction in outboard and personal watercraft (PWC) engine hydrocarbon emissions by the year 2006. Although this standard is designed to improve air quality, they also result in engines that produce significantly less water pollution.
The California Air Resources Board (CARB) decided that the EPA’s standard was not sufficiently strict and was being implemented too slowly. As a result, CARB accelerated the EPA timeline and set stricter standards for new marine engines sold in California. The CARB standard requires manufacturers to meet EPA 2006 standards by 2001 and to produce 65% lower emissions than the EPA standard by 2008, for a total of 91% lower emissions than carbureted two-stroke engines. Because California has such a large share of the marine engine market, manufacturers are designing their engines to meet the stricter CARB limits.
Because PWC engines are subject to the same restrictions as other marine engines, manufacturers are developing PWC with four-stroke and two-stroke DFI technology to reduce emissions. The new two-stroke engines are lighter and simpler in design than four-stroke engines, and some are almost as clean.
This does not mean that two-stroke carbureted PWC will not be manufactured after 2006. The EPA allows product averaging, which means that the “Family Emission Limit” (FEL) must meet or exceed applicable emission standards. This means that some two-stroke carbureted PWC will continue to be manufactured as long as their higher emissions are offset by other low-emission members of its engine “family.”
Neither the EPA nor CARB require boaters to dispose of carbureted two-stroke engines. The EPA estimates that old engines will no longer be used by the year 2050.
The CARB has estimated that the exhaust emissions from operating a PWC for seven hours is equivalent to the emissions from a 1998 passenger car operated for 100,000 miles. This means that one hour of PWC use generates as much air pollution as one year of automobile use. Because carbureted two-stroke engines exhaust through water, the pollution is received directly by the water body.
9. Recognizing the City's rationale for 'limiting its liability' by avoiding any sort of fee or permit system per RCW, what can be done to actually prevent or measurably mitigate any of the careless boating practices, short of closing the launch to watercraft using internal combustion engines? [Note this is already City policy at Lake Padden]
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The recommendations from the Motorized Watercraft Citizens Advisory Committee and the Lake Whatcom Management Committee include actions to change poor boating practices. Provision of a fueling area and a bilge dump facility are examples of very positive actions that the City can take to mitigate polluting activities.
10. Aside from the benzene spikes [public health issue] being discussed most prominently, what other concerns drive this discussion? [e.g. public/personal safety, nuisance & noise, the message conveyed by increasing unbridled use of a valuable and essential public resource for private recreation purposes]
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Although other issues associated with boating practices were recognized by both the Citizen’s Advisory Committee and the Lake Whatcom Management Committee, neither Committee made recommendations based on those additional issues.
11. What regulations are relevant to the recommendations? (Added)
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Both the State and City already prohibit the deposit of petroleum-based products into water, although neither regulation specifically refers to exhaust of such products into water.
RCW 90.48.080 states:
Discharge of polluting matter in waters prohibited.—It shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters according to the determination of the department, as provided for in this chapter.
In addition, section 10.60.100 of the Bellingham Municipal Code states:
Deposit In Water Prohibited.—A. No person shall throw or deposit litter in any fountain, pond, lake, stream, bay, or other body of water in a park or elsewhere in the City of Bellingham. B. No person shall pour, allow to drain, discard, or otherwise introduce motor oil and other petroleum-based products, antifreeze, paint, or any other unauthorized substance including solid materials into any surface water drainage course or body of water, including but not limited to lakes, ponds, streams, creeks, storm water catch basins, storm water detention ponds, ditches, and storm water inlets, culverts, and manholes.
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Friday, August 17, 2007
A Tale of Two Cities: Watershed Protection Law Case Studies
Some folks have requested more background information on what can be done to help preserve the Lake Whatcom Reservoir. So, with that in mind, here is another longish piece that appeared in the April 2002 Whatcom Watch. I collaborated with Tom Pratum to research and publish the following Cover Story entitled: 'An Examination of Two Laws That Have Been Used to Protect Watersheds'.
During the 5-plus years since this was published, much additional development has occurred around Lake Whatcom, with increased runoff and continued spills contributing to measureable additional degradation. Sadly, all of the considerable efforts and funds expended since then have not even been able to slow down the rate of raw water degradation, much less stop or reverse it. So, the 2002 story remains as applicable today as it did then. The message is that not all well-intended laws work, and those that do require strong and continuing efforts on the part of both communities and their citizens.
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Both the City of Bellingham and Whatcom County have been under attack for their apparent failure to take significant measures to protect the sole source of drinking water for 85,000 residents—Lake Whatcom. This attack has become shrill with the recent sewage overflows in Sudden Valley and what would appear to be a multi-agency failure to act to stem this flow of raw sewage into the lake.
The four-day December 2001 sewage overflow and spill into the lake from Water District 10 facilities at Sudden Valley went unabated for far too long. It attracted many observers who are right to ask–what is going on here? Isn’t this against the law?
The simply stated cause of this spill was ‘excessive storm water infiltration into Water District 10’s sewer lines due to heavy rainfall’—this despite the recent installation of a large 693,000-gallon detention tank to alleviate exactly this type of situation from happening again, as it has repeatedly done in the past.
Sewage Overflows Under Control?
Now we are told that the situation is, at least temporarily, under control because additional large, portable tanks are on-site to augment the limited capacity of vacuum trucks used to haul excess sewage to the city’s sewer system. The long-term fix being proposed is to install a larger sewer interceptor system to directly connect to the city system. The construction of this new interceptor line has already begun.
Because of existing development, both the detention tank and new sewer interceptor now seem necessary to protect public health; but will they really solve the problem, or merely enable more development to occur so that the same unacceptable situation happens again in the future?
The real problem is not too much rain, because that has been happening in nature for hundreds and thousands of years. The problem is the already excessive and growing development of homes and other impervious surfaces around a public water supply reservoir, which is also being used as a vehicle transportation corridor as well as for swimming, boating and fishing.
By replacing natural vegetation with pavement, runoff volumes can be up to sixteen times greater, causing more flooding and erosion. This increased runoff picks up greater quantities of sediments as well as dirtier pollutants, like pesticides, fertilizers, metals, and fecal matter, on its way to the lake.
Prevention and Protection v. Treatment and Mitigation
Of course, detention/retention systems and treatment devices can be built to mitigate storm water runoff damage, but these are rarely more than 50 percent effective, and they cost all ratepayers big money, not just those who happen to be living in the watershed. Often, these types of facilities are required or built only after a serious problem has already occurred, too late to prevent it.
That is why it makes sense, even in urban areas, like the City of Bellingham, to adopt a policy of prevention and protection over treatment and mitigation regarding the Lake Whatcom watershed. That is also why it makes sense to limit further development in this watershed, outside the city limits.
Are the City’s Hands Tied?
As a water provider to 85,000 citizens, just what control does the city have outside of its boundaries? Some would say that the city’s hands are tied—the vast majority of its reservoir lies outside of its jurisdictional boundaries. The question is: are the city’s hands really tied? Or, do the tools exist for the city to exert its influence over this body of water, which it has a keen interest in preserving?
Here we present two often-cited cases in which a city attempted to apply its interest in water resources outside of its jurisdictional boundaries. These cases only show the obvious legal paths that have been pursued. Using this historical information as a base, we hope that a more thorough mining of legislative and administrative rules will turn up further avenues to pursue.
Water Pollution—Protection From
Our first example comes straight from the Revised Code of Washington (RCW). Over 100 years ago, in 1899—only 10 years after Washington became a State and its constitution adopted—our legislature authorized Chapter 35.88 RCW (Water Pollution—Protection From; the text is shown in the sidebar on the facing page).
Intended as enabling legislation to help cities like Bellingham protect their water supply resources, this RCW was challenged and ultimately found unconstitutional in 1928, a legacy that continues to inhibit effective protection efforts.
That development on an urban scale is inherently inappropriate in a public water supply watershed seems so obvious that even our ancestors knew it as common sense, without needing to scientifically prove or justify it. Maybe that is why our state legislature, back in 1899, passed Chapter 35.88 RCW to avoid problems like this one.
Future Generations
As contemporaries of Teddy Roosevelt, might they have been thinking of the problems, which future generations would have if such protections were not adopted and used? Why else would they even go to the trouble to pass this measure?
It is certain they were not thinking that Chapter 35.88 RCW would be challenged and ruled unconstitutional, only 28 years later, in Brown v. Cle Elum; a decision which continues to limit its use and thereby its intended effectiveness in protecting the Lake Whatcom Reservoir. This limitation has required cities to become more creative and forward thinking in their watershed protection strategies. Our second case, Tacoma v. Welcker, recounts such a strategy, which, unlike Brown v. Cle Elum, has survived the test of time.
Brown v. City of Cle Elum (Washington 1927)
Exercising its police powers, the City of Cle Elum passed an ordinance pursuant to RCW 35.88, to protect its water supply source, the Cle Elum River (near its outlet at Lake Cle Elum, located in a National Forest preserve about six miles northwest of the city).
The main features of this ordinance included:
•Prohibitions against swimming, fishing, boating in the lake;
•Prohibition against dumping raw sewage into any lake, river, spring, stream, creek or tributary which constitutes the source of water supply;
•Prohibition against camping in the watershed;
•No dwelling could be constructed or maintained in the entire (about 23 miles long with a maximum width of 17 miles) watershed, unless said dwelling is provided with a sanitary toilet. Said toilet must be so designed and so kept that the contents of said toilet cannot drain on the surface of the ground or reach the water through the ground;
•Every person who deposits or causes to be deposited any matter or thing whatever, dangerous or deleterious to health, or any matter or thing, which may or could pollute the waters or system, shall be deemed guilty of violation of the ordinance, punishable by fine, imprisonment, or both.
Initial Judgment Reversed
The initial trial in Kittitas County Superior Court [ca 1927] resulted in a judgment awarding an injunction in favor of the plaintiff, Brown, who wanted to continue renting property from the U.S. Government for his cottage, and use the lake for boating, fishing and swimming.
However, the City of Cle Elum appealed to the Washington State Supreme Court and the earlier decision was reversed. In this latter decision, the city’s ordinance was:
• presumed a valid exercise of its police power;
• held not invalid as exercising police power over United States forest preserve;
• held not unreasonable in prohibiting swimming, fishing and boating in the lake.
Additionally, it was found:
•A lessee of land along lake in forest reserve held is not entitled to enjoin the city from enforcing ordinance to protect water supply;
•States may exercise ordinary police power over United States forest reservation for preservation of public health.
Court Predicts Controversy Over Territorial Limits
Portending what was to come on re-argument of this case, the court concluded:
“There looms in the horizon of this controversy a question of far-reaching importance; that is, as to whether or not the Legislature can constitutionally delegate to a city authority to exercise police power beyond its territorial limits and outside the boundaries of property it may own beyond its territorial limits, by the passing and enforcing of ordinances assuming to regulate the conduct of citizens beyond such limits and boundaries. No argument has been presented to us here touching that question, and we purposely refrain from expressing any views thereon. The city’s power is here challenged only upon the two grounds we have noticed: (1) The United States ownership of the lands and waters; and (2) the reasonableness of the ordinance. No other question is here decided.”
Re-Hearing of Case Favors Brown
Brown v. Cle Elum was granted a re-hearing, and on November 23, 1927, the Washington Supreme Court gave this decision: “Upon re-argument of the case before the court en banc, the question referred to in the foregoing quotation was presented to the court, and after such presentation we are of the opinion that the ordinance in question is unconstitutional.”
Supporting its decision, and citing Article XI, Section 11 of the Constitution (sidebar shows relevant part of Constitution), the court found:
•Penal ordinance protecting water supply from lake, outside city limits, violated Constitution limiting exercise of police power by city to own limits;
•Statutes empowering city to pass penal ordinance affecting water outside corporate limits violated Constitution limiting exercise of police power to city’s limits;
•Municipalities have only delegated legislative powers and Legislature cannot exceed constitutional limits in delegating powers.
Because of this decision, jurisdiction regarding matters of pollution of state waters is left to the state via RCW 90.48 (Water Pollution Control). The state enforcement entity is the Department of Ecology—whom some have questioned regarding their ability to act in an expeditious matter in the recent Sudden Valley sewage overflow.
Is this the end of the story? Not quite—nearly all municipalities depend on water resources outside of their political boundaries, and it was only a matter of time before another avenue of protection made it to the State Supreme Court.
City of Tacoma v. Welcker (Washington 1965)
The City of Tacoma obtained a surface water right to divert water from the Green River in 1913. The Green River watershed then became the city’s principal water source. This watershed lies in southeastern King County and is thus a fair distance from the incorporated boundaries of Tacoma.
In a situation reminiscent of Bellingham, the city did not (and still does not) have ownership of much of this watershed.1 However, in contrast to our own unfortunate situation, the Green River watershed lies in the Cascade foothills and is relatively far from Puget Sound urbanization—even today.
In 1961, the U.S. Army Corps of Engineers constructed a flood control and water storage dam across Eagle Gorge on the Green River for the purposes of creating a reservoir. This is referred to as the Howard Hansen Dam and the impounded water behind it is the Howard Hansen Reservoir. Although the city water withdrawal is downstream of the reservoir, this body of water acts as indirect storage for Tacoma’s water supply needs.
While the City of Tacoma owned very little of the watershed land, it had agreements with larger landholders—governmental agencies, railroad, and timber companies—to help protect this water resource.
Buffer Strip Along Shoreline
With the idea that it is cheaper to protect than to purify, the city reasonably desired to acquire all of the smaller parcels of land to complete a buffer strip along the shoreline, which would enable natural filtration of any upslope runoff as well as discouraging recreational use of the newly created Howard Hansen Reservoir.
To this end, the city endeavored to acquire by purchase and condemnation this land adjacent to the reservoir. The condemnation actions were initiated based upon a Tacoma city ordinance, passed on October 23, 1962, which declared that acquisition of these properties was necessary for the purpose of protecting the water supply from pollution.
As with the Cle Elum case, Tacoma referred to statutory law in the Revised Code of Washington to support its right of condemnation. In particular, provisions of RCW 8.12.030 (Condemnation authorized–Purposes enumerated; text is shown in the sidebar) and RCW 35.92.010 (Authority to acquire and operate waterworks; relevant part of text is shown in sidebar) were used to justify this action.
Condemnation Authorized to Protect Water Supply
One of the purposes for which condemnation is authorized in RCW 8.12.030 is to condemn land “within or without the limits of such city” to “protect such supply of fresh water from pollution.”
RCW 35.92.010 further states that a city “may acquire by purchase or condemnation and purchase any properties or privileges necessary to protect its water supply from pollution.” This ability of a public entity to acquire private property is often referred to as the right of eminent domain.
The parties whose land was to be condemned countered in part that they were not utilizing their land in a manner so as to be a threat to the city’s water purity, and even if they were, the city’s chlorination process had proved to be effective at ensuring safe drinking water. The initial condemnation petition was dismissed in King County Superior Court.
While no argument was made that the city had the power of eminent domain to protect its water supply, it was decided that the present condemnation action was arbitrary and capricious due to the lack of a current threat.
1965 State Supreme Court Decision
The dismissal was reversed and remanded by the State Supreme Court on February 18, 1965. The court agreed with the city that the acquisition of a buffer strip to protect its water supply was a reasonable action to protect said water supply in the future, and was therefore not arbitrary and capricious.
To quote from the justices’ decision:
The fact that the water now being supplied by the city is potable and does not exceed tolerable contamination levels, or that such contamination as presently exists cannot be traced to the usage of the lands here involved, in nowise detracts from the wisdom or present necessity of providing reasonable safeguards against a reasonably realistic and foreseeable future danger of contamination. A ‘stitch in time’ has never been considered capricious. And, the fact that expert witnesses may disagree as to the desirability of one method of protection, as opposed to another, does not perforce render one choice arbitrary.
A rehearing was denied on March 25, 1965, and this case has rested in the category of “good law” ever since. The case has been cited many times over the years; most commonly to justify the necessity of eminent domain actions.
Condemnation Requires “Just Compensation”
While Tacoma v. Welcker may still be good law, is this a case we can really expect to help us in our watershed protection efforts? Possibly, but it is unlikely to completely solve our problems for us. While it clearly allows one to argue that the City of Bellingham has a right to condemn lands within its watershed, said lands would not be obtainable without substantial cost—condemnations do require “just compensation.”
The time for the city to use its right of condemnation to the extent Tacoma demonstrated in 1962 likely passed long ago. The expense of such action now would likely be prohibitive2, and on the same order as the “pie-in-the-sky” proposal to pump water out of Baker Lake or Ross Lake and pipe it to Bellingham (if such a water right could even be obtained).
It may be possible to use eminent domain in a limited manner to achieve a more limited watershed protection objective. An example would be condemnation of developable lots in the Geneva and Sudden Valley areas to remove these potential development impacts from the watershed.
Water supply protection is a very serious matter, and it is the duty of our city and county governments to tackle it, expeditiously and effectively. It is incumbent upon these governments to develop a sensible, but more comprehensive approach than that which now exists, and to listen to the ideas and concerns of citizens in this endeavor.
As Theodore Roosevelt said, the “greatest good for the greatest number” should be our goal in responsibly protecting our precious water supply resource. He also said, “The shots that hit are the shots that count.”
Footnotes
1. According to Tacoma Public Utility information, the city currently owns approximately 10 percent of its 149,000-acre watershed.
2. For the purposes of rough calculation, if the city were to provide a 0.5-mile buffer around basin 3 alone, it would need to acquire about 16.6 miles of shoreline (basin 3 has about 20 miles of shoreline, but 3.4 miles are already in public hands) along with approximately 5000 acres inland. If we assume the shoreline to be priced at $1000-4000 per front foot (waterfront is expensive), this shoreline alone would cost $87.6 -$350.6 million. The remaining inland area would constitute a far lesser amount (probably on the order of $10-$15 million).
Tacoma authorized only $400,000 to acquire its buffer in 1962. While purchasing the shoreline buffer would eat the lion’s share of the funds, the inland buffer calculations used above may be grossly overstated for Lake Whatcom, because 69 percent of this watershed is already zoned for forestry (2/3 public, 1/3 private)— generally regarded as an ideal watershed land use.
During the 5-plus years since this was published, much additional development has occurred around Lake Whatcom, with increased runoff and continued spills contributing to measureable additional degradation. Sadly, all of the considerable efforts and funds expended since then have not even been able to slow down the rate of raw water degradation, much less stop or reverse it. So, the 2002 story remains as applicable today as it did then. The message is that not all well-intended laws work, and those that do require strong and continuing efforts on the part of both communities and their citizens.
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Both the City of Bellingham and Whatcom County have been under attack for their apparent failure to take significant measures to protect the sole source of drinking water for 85,000 residents—Lake Whatcom. This attack has become shrill with the recent sewage overflows in Sudden Valley and what would appear to be a multi-agency failure to act to stem this flow of raw sewage into the lake.
The four-day December 2001 sewage overflow and spill into the lake from Water District 10 facilities at Sudden Valley went unabated for far too long. It attracted many observers who are right to ask–what is going on here? Isn’t this against the law?
The simply stated cause of this spill was ‘excessive storm water infiltration into Water District 10’s sewer lines due to heavy rainfall’—this despite the recent installation of a large 693,000-gallon detention tank to alleviate exactly this type of situation from happening again, as it has repeatedly done in the past.
Sewage Overflows Under Control?
Now we are told that the situation is, at least temporarily, under control because additional large, portable tanks are on-site to augment the limited capacity of vacuum trucks used to haul excess sewage to the city’s sewer system. The long-term fix being proposed is to install a larger sewer interceptor system to directly connect to the city system. The construction of this new interceptor line has already begun.
Because of existing development, both the detention tank and new sewer interceptor now seem necessary to protect public health; but will they really solve the problem, or merely enable more development to occur so that the same unacceptable situation happens again in the future?
The real problem is not too much rain, because that has been happening in nature for hundreds and thousands of years. The problem is the already excessive and growing development of homes and other impervious surfaces around a public water supply reservoir, which is also being used as a vehicle transportation corridor as well as for swimming, boating and fishing.
By replacing natural vegetation with pavement, runoff volumes can be up to sixteen times greater, causing more flooding and erosion. This increased runoff picks up greater quantities of sediments as well as dirtier pollutants, like pesticides, fertilizers, metals, and fecal matter, on its way to the lake.
Prevention and Protection v. Treatment and Mitigation
Of course, detention/retention systems and treatment devices can be built to mitigate storm water runoff damage, but these are rarely more than 50 percent effective, and they cost all ratepayers big money, not just those who happen to be living in the watershed. Often, these types of facilities are required or built only after a serious problem has already occurred, too late to prevent it.
That is why it makes sense, even in urban areas, like the City of Bellingham, to adopt a policy of prevention and protection over treatment and mitigation regarding the Lake Whatcom watershed. That is also why it makes sense to limit further development in this watershed, outside the city limits.
Are the City’s Hands Tied?
As a water provider to 85,000 citizens, just what control does the city have outside of its boundaries? Some would say that the city’s hands are tied—the vast majority of its reservoir lies outside of its jurisdictional boundaries. The question is: are the city’s hands really tied? Or, do the tools exist for the city to exert its influence over this body of water, which it has a keen interest in preserving?
Here we present two often-cited cases in which a city attempted to apply its interest in water resources outside of its jurisdictional boundaries. These cases only show the obvious legal paths that have been pursued. Using this historical information as a base, we hope that a more thorough mining of legislative and administrative rules will turn up further avenues to pursue.
Water Pollution—Protection From
Our first example comes straight from the Revised Code of Washington (RCW). Over 100 years ago, in 1899—only 10 years after Washington became a State and its constitution adopted—our legislature authorized Chapter 35.88 RCW (Water Pollution—Protection From; the text is shown in the sidebar on the facing page).
Intended as enabling legislation to help cities like Bellingham protect their water supply resources, this RCW was challenged and ultimately found unconstitutional in 1928, a legacy that continues to inhibit effective protection efforts.
That development on an urban scale is inherently inappropriate in a public water supply watershed seems so obvious that even our ancestors knew it as common sense, without needing to scientifically prove or justify it. Maybe that is why our state legislature, back in 1899, passed Chapter 35.88 RCW to avoid problems like this one.
Future Generations
As contemporaries of Teddy Roosevelt, might they have been thinking of the problems, which future generations would have if such protections were not adopted and used? Why else would they even go to the trouble to pass this measure?
It is certain they were not thinking that Chapter 35.88 RCW would be challenged and ruled unconstitutional, only 28 years later, in Brown v. Cle Elum; a decision which continues to limit its use and thereby its intended effectiveness in protecting the Lake Whatcom Reservoir. This limitation has required cities to become more creative and forward thinking in their watershed protection strategies. Our second case, Tacoma v. Welcker, recounts such a strategy, which, unlike Brown v. Cle Elum, has survived the test of time.
Brown v. City of Cle Elum (Washington 1927)
Exercising its police powers, the City of Cle Elum passed an ordinance pursuant to RCW 35.88, to protect its water supply source, the Cle Elum River (near its outlet at Lake Cle Elum, located in a National Forest preserve about six miles northwest of the city).
The main features of this ordinance included:
•Prohibitions against swimming, fishing, boating in the lake;
•Prohibition against dumping raw sewage into any lake, river, spring, stream, creek or tributary which constitutes the source of water supply;
•Prohibition against camping in the watershed;
•No dwelling could be constructed or maintained in the entire (about 23 miles long with a maximum width of 17 miles) watershed, unless said dwelling is provided with a sanitary toilet. Said toilet must be so designed and so kept that the contents of said toilet cannot drain on the surface of the ground or reach the water through the ground;
•Every person who deposits or causes to be deposited any matter or thing whatever, dangerous or deleterious to health, or any matter or thing, which may or could pollute the waters or system, shall be deemed guilty of violation of the ordinance, punishable by fine, imprisonment, or both.
Initial Judgment Reversed
The initial trial in Kittitas County Superior Court [ca 1927] resulted in a judgment awarding an injunction in favor of the plaintiff, Brown, who wanted to continue renting property from the U.S. Government for his cottage, and use the lake for boating, fishing and swimming.
However, the City of Cle Elum appealed to the Washington State Supreme Court and the earlier decision was reversed. In this latter decision, the city’s ordinance was:
• presumed a valid exercise of its police power;
• held not invalid as exercising police power over United States forest preserve;
• held not unreasonable in prohibiting swimming, fishing and boating in the lake.
Additionally, it was found:
•A lessee of land along lake in forest reserve held is not entitled to enjoin the city from enforcing ordinance to protect water supply;
•States may exercise ordinary police power over United States forest reservation for preservation of public health.
Court Predicts Controversy Over Territorial Limits
Portending what was to come on re-argument of this case, the court concluded:
“There looms in the horizon of this controversy a question of far-reaching importance; that is, as to whether or not the Legislature can constitutionally delegate to a city authority to exercise police power beyond its territorial limits and outside the boundaries of property it may own beyond its territorial limits, by the passing and enforcing of ordinances assuming to regulate the conduct of citizens beyond such limits and boundaries. No argument has been presented to us here touching that question, and we purposely refrain from expressing any views thereon. The city’s power is here challenged only upon the two grounds we have noticed: (1) The United States ownership of the lands and waters; and (2) the reasonableness of the ordinance. No other question is here decided.”
Re-Hearing of Case Favors Brown
Brown v. Cle Elum was granted a re-hearing, and on November 23, 1927, the Washington Supreme Court gave this decision: “Upon re-argument of the case before the court en banc, the question referred to in the foregoing quotation was presented to the court, and after such presentation we are of the opinion that the ordinance in question is unconstitutional.”
Supporting its decision, and citing Article XI, Section 11 of the Constitution (sidebar shows relevant part of Constitution), the court found:
•Penal ordinance protecting water supply from lake, outside city limits, violated Constitution limiting exercise of police power by city to own limits;
•Statutes empowering city to pass penal ordinance affecting water outside corporate limits violated Constitution limiting exercise of police power to city’s limits;
•Municipalities have only delegated legislative powers and Legislature cannot exceed constitutional limits in delegating powers.
Because of this decision, jurisdiction regarding matters of pollution of state waters is left to the state via RCW 90.48 (Water Pollution Control). The state enforcement entity is the Department of Ecology—whom some have questioned regarding their ability to act in an expeditious matter in the recent Sudden Valley sewage overflow.
Is this the end of the story? Not quite—nearly all municipalities depend on water resources outside of their political boundaries, and it was only a matter of time before another avenue of protection made it to the State Supreme Court.
City of Tacoma v. Welcker (Washington 1965)
The City of Tacoma obtained a surface water right to divert water from the Green River in 1913. The Green River watershed then became the city’s principal water source. This watershed lies in southeastern King County and is thus a fair distance from the incorporated boundaries of Tacoma.
In a situation reminiscent of Bellingham, the city did not (and still does not) have ownership of much of this watershed.1 However, in contrast to our own unfortunate situation, the Green River watershed lies in the Cascade foothills and is relatively far from Puget Sound urbanization—even today.
In 1961, the U.S. Army Corps of Engineers constructed a flood control and water storage dam across Eagle Gorge on the Green River for the purposes of creating a reservoir. This is referred to as the Howard Hansen Dam and the impounded water behind it is the Howard Hansen Reservoir. Although the city water withdrawal is downstream of the reservoir, this body of water acts as indirect storage for Tacoma’s water supply needs.
While the City of Tacoma owned very little of the watershed land, it had agreements with larger landholders—governmental agencies, railroad, and timber companies—to help protect this water resource.
Buffer Strip Along Shoreline
With the idea that it is cheaper to protect than to purify, the city reasonably desired to acquire all of the smaller parcels of land to complete a buffer strip along the shoreline, which would enable natural filtration of any upslope runoff as well as discouraging recreational use of the newly created Howard Hansen Reservoir.
To this end, the city endeavored to acquire by purchase and condemnation this land adjacent to the reservoir. The condemnation actions were initiated based upon a Tacoma city ordinance, passed on October 23, 1962, which declared that acquisition of these properties was necessary for the purpose of protecting the water supply from pollution.
As with the Cle Elum case, Tacoma referred to statutory law in the Revised Code of Washington to support its right of condemnation. In particular, provisions of RCW 8.12.030 (Condemnation authorized–Purposes enumerated; text is shown in the sidebar) and RCW 35.92.010 (Authority to acquire and operate waterworks; relevant part of text is shown in sidebar) were used to justify this action.
Condemnation Authorized to Protect Water Supply
One of the purposes for which condemnation is authorized in RCW 8.12.030 is to condemn land “within or without the limits of such city” to “protect such supply of fresh water from pollution.”
RCW 35.92.010 further states that a city “may acquire by purchase or condemnation and purchase any properties or privileges necessary to protect its water supply from pollution.” This ability of a public entity to acquire private property is often referred to as the right of eminent domain.
The parties whose land was to be condemned countered in part that they were not utilizing their land in a manner so as to be a threat to the city’s water purity, and even if they were, the city’s chlorination process had proved to be effective at ensuring safe drinking water. The initial condemnation petition was dismissed in King County Superior Court.
While no argument was made that the city had the power of eminent domain to protect its water supply, it was decided that the present condemnation action was arbitrary and capricious due to the lack of a current threat.
1965 State Supreme Court Decision
The dismissal was reversed and remanded by the State Supreme Court on February 18, 1965. The court agreed with the city that the acquisition of a buffer strip to protect its water supply was a reasonable action to protect said water supply in the future, and was therefore not arbitrary and capricious.
To quote from the justices’ decision:
The fact that the water now being supplied by the city is potable and does not exceed tolerable contamination levels, or that such contamination as presently exists cannot be traced to the usage of the lands here involved, in nowise detracts from the wisdom or present necessity of providing reasonable safeguards against a reasonably realistic and foreseeable future danger of contamination. A ‘stitch in time’ has never been considered capricious. And, the fact that expert witnesses may disagree as to the desirability of one method of protection, as opposed to another, does not perforce render one choice arbitrary.
A rehearing was denied on March 25, 1965, and this case has rested in the category of “good law” ever since. The case has been cited many times over the years; most commonly to justify the necessity of eminent domain actions.
Condemnation Requires “Just Compensation”
While Tacoma v. Welcker may still be good law, is this a case we can really expect to help us in our watershed protection efforts? Possibly, but it is unlikely to completely solve our problems for us. While it clearly allows one to argue that the City of Bellingham has a right to condemn lands within its watershed, said lands would not be obtainable without substantial cost—condemnations do require “just compensation.”
The time for the city to use its right of condemnation to the extent Tacoma demonstrated in 1962 likely passed long ago. The expense of such action now would likely be prohibitive2, and on the same order as the “pie-in-the-sky” proposal to pump water out of Baker Lake or Ross Lake and pipe it to Bellingham (if such a water right could even be obtained).
It may be possible to use eminent domain in a limited manner to achieve a more limited watershed protection objective. An example would be condemnation of developable lots in the Geneva and Sudden Valley areas to remove these potential development impacts from the watershed.
Water supply protection is a very serious matter, and it is the duty of our city and county governments to tackle it, expeditiously and effectively. It is incumbent upon these governments to develop a sensible, but more comprehensive approach than that which now exists, and to listen to the ideas and concerns of citizens in this endeavor.
As Theodore Roosevelt said, the “greatest good for the greatest number” should be our goal in responsibly protecting our precious water supply resource. He also said, “The shots that hit are the shots that count.”
Footnotes
1. According to Tacoma Public Utility information, the city currently owns approximately 10 percent of its 149,000-acre watershed.
2. For the purposes of rough calculation, if the city were to provide a 0.5-mile buffer around basin 3 alone, it would need to acquire about 16.6 miles of shoreline (basin 3 has about 20 miles of shoreline, but 3.4 miles are already in public hands) along with approximately 5000 acres inland. If we assume the shoreline to be priced at $1000-4000 per front foot (waterfront is expensive), this shoreline alone would cost $87.6 -$350.6 million. The remaining inland area would constitute a far lesser amount (probably on the order of $10-$15 million).
Tacoma authorized only $400,000 to acquire its buffer in 1962. While purchasing the shoreline buffer would eat the lion’s share of the funds, the inland buffer calculations used above may be grossly overstated for Lake Whatcom, because 69 percent of this watershed is already zoned for forestry (2/3 public, 1/3 private)— generally regarded as an ideal watershed land use.
Thursday, August 16, 2007
Growth Management 102: Dealing With Uncertainty -And Fantasy!
Insanity: doing the same thing over and over and expecting a different outcome - Albert Einstein
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Bellingham's 1995 Comp Plan -ratified in 1997- utilized a 5% to 25% Market Factor related to land availability, parcel size, infrastructure cost, and developer preference for lower density development. It also utilized a 50% inflation factor for the demand side. This 50% inflation factor was later reduced by the Growth Hearings board to 25%.
The final combined Market/Safety factor range used for the 1995 Comp Plan was 30% to 50%. This range was applied to the entire City + UGA capacity equation to give a range of capacity estimates that fed into the Land Use portion of the Comp Plan.
Contrast that with the City's current proposal for overall safety factor of 17 percent, that combines a recommended 25 percent for some areas and 0 percent for others. [Note: Twenty five 25 percent is the highest safety factor allowed by the Growth Management Hearings Board, without inviting their additional scrutiny] No 'fantasy safety factor'!
In between then and now, the City's actual land use is probably not too far from the amount projected, notwithstanding it has not been nearly as efficient as is desired. To answer this question accurately, we need to also consider changes in zoning between 1995 and today in the City and UGA; where new housing units have been built and at what density; and differences between the 1995 and 2006 methodologies. But, whatever it turns out to be, it was achieved under the circumstances of existing zoning, policy, regulations, jurisdictional control and several changes - some substantial. Together, all these elements -and the 'market'- explain our land use performance. Can the City's land use effiency be improved? You bet it can! But first some habitual patterns need to be identified and changed to achieve more certainty.
Here are some ideas for consideration:
• Neither the County nor the City has closely monitored what has happened in the past several years since the 2000 Census and OFM mandated population 'assignments' were made. It is suspected that more growth than 'assigned' has gone to places like Birch Bay, Kendall, the small cities, and the unincorporated areas. If that is so, then deducting any excess from what is expected to be accommodated by Bellingham would be fair. Initially, Bellingham did agree to the ambitious goal of trying to accommodate over 50% of total County projected growth, even though it currently represents only 40% of County population, excluding its UGA population of about 13,000. Maybe over 50% for Bellingham is unrealistic? But, adjusting Bellingham's 'share' of the growth might help the City, but would it help the County?
• The Bellingham Land Supply Analysis focused on Option 4 of the EIS, which called for some combination of infill and expanded UGA to meet projected population needs. But, most of the same assumptions used in the EIS also went into the land supply methodology that was used. So, predictably, this careful, lengthy process -based on actual land use history- came to the conclusion that Bellingham needed 1400 more acres to accommodate its 'assigned' growth, including 200 acres designated for Industrial use. However, all five of the 5-year Review Areas totaling 2200 acres were recommended to the County for its determination as to where the 1400 acres would come from. No 'fantasy analysis'!
• The allowance used for future Parks, Recreation & Open Space is probably overstated for several reasons. The six-year PRO Plan update is set for 2008 at which time questions about adjustments to the needed level of service, financial sustainability, inclusion of the entire UGA in addition to Bellingham, collection of Parks Impact Fees, impact on Greenways 3 levy, how future trail corridors and 'anchor' parks can be planned with more certainty, what constitutes our Parks system and what does not [e.g. wetlands, critical areas, watershed acquisitions], and the like must be done. Since these considerations do impact the land supply analysis significantly, some allowances based on informed estimates should be generated before final land supply decisions are made. These questions were not adequately addressed during the analysis due to time constraints, the newness of some of the elements and questions asked, and the uncertainty of knowing which new UGA lands might be added -literally a 'chicken and egg' situation. No 'fantasy Parks LOS'!
• In the existing UGAs the City had to assume that development would occur at the lowest densities allowed, because it doesn't have the authority or tools in place to demand otherwise. No 'fantasy analysis'! Granted, this is a low target, but based on past performance, it is at the limit of certainty. Assuming a mid-range density will occur in the UGAs would drastically change the land supply analysis, but it would also take a leap of faith -or making real changes- to make certain. UGA land is County land, has County zoning and regulations, and is not under City jurisdiction. Interlocal Agreements are good, but currently they don't provide the certainty the City needs to change its land supply analysis. The City has taken steps to use the tools it has, like extending water & sewer into the UGA only upon the certainty of annexation, but unfortunately because of its past lax policy, still allows lower than desired urban densities amonting to 'urban sprawl'. The real irony here is that only if new UGA land is allowed, will the new City policy be able to manifest itself quickly! A new UGA would essentially amount to a 'clean slate', upon which real urban densities and planning can be made much more certain.
• The waterfront redevelopment has significant potential for infill, in addition to its value for cleaning up a contaminated area, providing access to the Bay and attracting businesses and jobs. But, it also carries significant uncertainty. Again, different analyses show different ranges of housing densities and timing. The City again used the lowest allowed density as its assumption to accommodate growth, but with all of it as infill, to which the City will be able to both set the new zoning and use its regulations to monitor results. Other redevelopable areas near the waterfront redevelopment like Old Town are treated in the same manner, with the main uncertainty being the timing. No 'fantasy timing'!
• The planners at CTED tell us that the so-called 'safety factor' was dreamed up in the early 1990s before government had the computer and GIS capability for monitoring land supply. This technology has changed in the past 15 years, and now better monitoring of actual land use is preferred iover the use of a safety factor. Six Washington Counties are actually required to carefully monitor their land supply, but Whatcom County could decide to do it without being required to do so. With the known variability in underlying assumptions and the resultant compounding of uncertainty, land supply monitoring just makes more sense than continuing the practice of best guessing what will occur during the next 20 years, even though reviews do happen every 7 years. But, monitoring does cost money and takes time to set up, test and become a reliable tool. It's great to embrace such a good idea, but it is wishful thinking to simply rely on it happening in advance! We will still need to start out with a good faith, informed estimate so we have something to track against, then later phase in something better. No 'fantasy monitoring', because once a rural area is up-zoned we can't easily rescind it! [same problem the City has in existing neighborhoods, even including those that might make good urban centers] So, the thought is good, but real data is needed, along with real authority to actually achieve what is planned! We don't have the luxury of saying-in the words of Star Trek Commander Jean-Luc Picard- 'Make it so'!
• The 'safety factor' has served its purpose by being there mainly to cover up some underlying vagueness and uncertainties in how land will be used, as well as the timing of it. But, in many respects it has become a concept similar to 'papering over' an ugly or defective wall, or painting over rust and dirt. As in both these analogies, the safety factor should not be a substitute for good [surface] preparation, because it is a wasteful practice that won't last and won't satisfy. It is a derivative concept, not a basic one.
Of course, there are still some who see the safety factor differently and have come to rely upon it, but most would likely agree it is there to cover up a series of other uncertainties, which have the cumulative effect of obscuring what we need to see clearly. No 'fantasy certainty'! I believe the safety factor might easily be reduced to zero, but only if much more certainty can be gained in other, more basic ways, by making some of the changes suggested above. That ought to be the real task of any reconciliation meeting between the County and City - to render the use of the safety factor redundant, because it is no longer needed. And, this can be done, provided each party honestly seeks to treat the real underlying problems and not just an easy symptom -the safety factor- that owes its existence to other root causes.
No one can claim to know everything there is to know about this subject, and it is certain that more information - honestly communicated - would be helpful. Coming up with ways to allow the City more control over development in the UGAs, plus an opportunity to set up TDR/PDR/RDR systems that work to relieve development pressure from Lake Whatcom, AG lands and other lands that need preserving. These steps alone, would dramatically reduce the amount of additional UGA needs, and maybe eliminate it entirely! Again, every time more certainty can be introduced, the better the chance that GMA goals can be met. No 'fantasy knowledge'!
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"If we are to solve the problems that plague us, our thinking must evolve beyond the level we were using when we created those problems in the first place." - Albert Einstein
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Bellingham's 1995 Comp Plan -ratified in 1997- utilized a 5% to 25% Market Factor related to land availability, parcel size, infrastructure cost, and developer preference for lower density development. It also utilized a 50% inflation factor for the demand side. This 50% inflation factor was later reduced by the Growth Hearings board to 25%.
The final combined Market/Safety factor range used for the 1995 Comp Plan was 30% to 50%. This range was applied to the entire City + UGA capacity equation to give a range of capacity estimates that fed into the Land Use portion of the Comp Plan.
Contrast that with the City's current proposal for overall safety factor of 17 percent, that combines a recommended 25 percent for some areas and 0 percent for others. [Note: Twenty five 25 percent is the highest safety factor allowed by the Growth Management Hearings Board, without inviting their additional scrutiny] No 'fantasy safety factor'!
In between then and now, the City's actual land use is probably not too far from the amount projected, notwithstanding it has not been nearly as efficient as is desired. To answer this question accurately, we need to also consider changes in zoning between 1995 and today in the City and UGA; where new housing units have been built and at what density; and differences between the 1995 and 2006 methodologies. But, whatever it turns out to be, it was achieved under the circumstances of existing zoning, policy, regulations, jurisdictional control and several changes - some substantial. Together, all these elements -and the 'market'- explain our land use performance. Can the City's land use effiency be improved? You bet it can! But first some habitual patterns need to be identified and changed to achieve more certainty.
Here are some ideas for consideration:
• Neither the County nor the City has closely monitored what has happened in the past several years since the 2000 Census and OFM mandated population 'assignments' were made. It is suspected that more growth than 'assigned' has gone to places like Birch Bay, Kendall, the small cities, and the unincorporated areas. If that is so, then deducting any excess from what is expected to be accommodated by Bellingham would be fair. Initially, Bellingham did agree to the ambitious goal of trying to accommodate over 50% of total County projected growth, even though it currently represents only 40% of County population, excluding its UGA population of about 13,000. Maybe over 50% for Bellingham is unrealistic? But, adjusting Bellingham's 'share' of the growth might help the City, but would it help the County?
• The Bellingham Land Supply Analysis focused on Option 4 of the EIS, which called for some combination of infill and expanded UGA to meet projected population needs. But, most of the same assumptions used in the EIS also went into the land supply methodology that was used. So, predictably, this careful, lengthy process -based on actual land use history- came to the conclusion that Bellingham needed 1400 more acres to accommodate its 'assigned' growth, including 200 acres designated for Industrial use. However, all five of the 5-year Review Areas totaling 2200 acres were recommended to the County for its determination as to where the 1400 acres would come from. No 'fantasy analysis'!
• The allowance used for future Parks, Recreation & Open Space is probably overstated for several reasons. The six-year PRO Plan update is set for 2008 at which time questions about adjustments to the needed level of service, financial sustainability, inclusion of the entire UGA in addition to Bellingham, collection of Parks Impact Fees, impact on Greenways 3 levy, how future trail corridors and 'anchor' parks can be planned with more certainty, what constitutes our Parks system and what does not [e.g. wetlands, critical areas, watershed acquisitions], and the like must be done. Since these considerations do impact the land supply analysis significantly, some allowances based on informed estimates should be generated before final land supply decisions are made. These questions were not adequately addressed during the analysis due to time constraints, the newness of some of the elements and questions asked, and the uncertainty of knowing which new UGA lands might be added -literally a 'chicken and egg' situation. No 'fantasy Parks LOS'!
• In the existing UGAs the City had to assume that development would occur at the lowest densities allowed, because it doesn't have the authority or tools in place to demand otherwise. No 'fantasy analysis'! Granted, this is a low target, but based on past performance, it is at the limit of certainty. Assuming a mid-range density will occur in the UGAs would drastically change the land supply analysis, but it would also take a leap of faith -or making real changes- to make certain. UGA land is County land, has County zoning and regulations, and is not under City jurisdiction. Interlocal Agreements are good, but currently they don't provide the certainty the City needs to change its land supply analysis. The City has taken steps to use the tools it has, like extending water & sewer into the UGA only upon the certainty of annexation, but unfortunately because of its past lax policy, still allows lower than desired urban densities amonting to 'urban sprawl'. The real irony here is that only if new UGA land is allowed, will the new City policy be able to manifest itself quickly! A new UGA would essentially amount to a 'clean slate', upon which real urban densities and planning can be made much more certain.
• The waterfront redevelopment has significant potential for infill, in addition to its value for cleaning up a contaminated area, providing access to the Bay and attracting businesses and jobs. But, it also carries significant uncertainty. Again, different analyses show different ranges of housing densities and timing. The City again used the lowest allowed density as its assumption to accommodate growth, but with all of it as infill, to which the City will be able to both set the new zoning and use its regulations to monitor results. Other redevelopable areas near the waterfront redevelopment like Old Town are treated in the same manner, with the main uncertainty being the timing. No 'fantasy timing'!
• The planners at CTED tell us that the so-called 'safety factor' was dreamed up in the early 1990s before government had the computer and GIS capability for monitoring land supply. This technology has changed in the past 15 years, and now better monitoring of actual land use is preferred iover the use of a safety factor. Six Washington Counties are actually required to carefully monitor their land supply, but Whatcom County could decide to do it without being required to do so. With the known variability in underlying assumptions and the resultant compounding of uncertainty, land supply monitoring just makes more sense than continuing the practice of best guessing what will occur during the next 20 years, even though reviews do happen every 7 years. But, monitoring does cost money and takes time to set up, test and become a reliable tool. It's great to embrace such a good idea, but it is wishful thinking to simply rely on it happening in advance! We will still need to start out with a good faith, informed estimate so we have something to track against, then later phase in something better. No 'fantasy monitoring', because once a rural area is up-zoned we can't easily rescind it! [same problem the City has in existing neighborhoods, even including those that might make good urban centers] So, the thought is good, but real data is needed, along with real authority to actually achieve what is planned! We don't have the luxury of saying-in the words of Star Trek Commander Jean-Luc Picard- 'Make it so'!
• The 'safety factor' has served its purpose by being there mainly to cover up some underlying vagueness and uncertainties in how land will be used, as well as the timing of it. But, in many respects it has become a concept similar to 'papering over' an ugly or defective wall, or painting over rust and dirt. As in both these analogies, the safety factor should not be a substitute for good [surface] preparation, because it is a wasteful practice that won't last and won't satisfy. It is a derivative concept, not a basic one.
Of course, there are still some who see the safety factor differently and have come to rely upon it, but most would likely agree it is there to cover up a series of other uncertainties, which have the cumulative effect of obscuring what we need to see clearly. No 'fantasy certainty'! I believe the safety factor might easily be reduced to zero, but only if much more certainty can be gained in other, more basic ways, by making some of the changes suggested above. That ought to be the real task of any reconciliation meeting between the County and City - to render the use of the safety factor redundant, because it is no longer needed. And, this can be done, provided each party honestly seeks to treat the real underlying problems and not just an easy symptom -the safety factor- that owes its existence to other root causes.
No one can claim to know everything there is to know about this subject, and it is certain that more information - honestly communicated - would be helpful. Coming up with ways to allow the City more control over development in the UGAs, plus an opportunity to set up TDR/PDR/RDR systems that work to relieve development pressure from Lake Whatcom, AG lands and other lands that need preserving. These steps alone, would dramatically reduce the amount of additional UGA needs, and maybe eliminate it entirely! Again, every time more certainty can be introduced, the better the chance that GMA goals can be met. No 'fantasy knowledge'!
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"If we are to solve the problems that plague us, our thinking must evolve beyond the level we were using when we created those problems in the first place." - Albert Einstein
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