CRITICAL AREAS CITIZEN REVIEW COMMITTEE

Critical Areas Ordinance Committee wraps up today; new process for next phase

The Critical Areas Ordinance Committee will do a final review of work they have finished on the proposed regulations for upland parcels in San Juan County. The committee meets from 8:30 to 3:30 p.m. Thursday, May 21 in Islanders Bank Administration Building in Friday Harbor.

At the San Juan County Council May 18 meeting, the council gave Senior Planner Shireene Hale the go-ahead to proceed with drafting critical area regulations for shoreline areas. She will be taking the recommendations of the CAO Committee, as well as those from the San Juan Initiative policy group, and preparing a discussion draft of amendments to the county's shoreline policies and regulations.

Three informational meetings will be held on June 15, 16 and 17 to begin the public review process. Both the upland and shoreline regulations will be discussed.

Maps, showing the location of the various Critical Areas, will be provided at the meetings. Scientists will be present to answer questions and provide information on wetland and shoreline habitats. County staff will be available to answer questions on the draft regulations and associated legal requirements.

Hale says these meetings are just the beginning of the broader public involvement process, and there will be additional opportunities for input and discussion following the meetings.

For those that wish to review the scientific documents associated with protection of Critical Areas, can e-mail Hale their name and address. She will send you a CD containing the reports.

If you would like to schedule a time to discuss your questions or ideas, or if you would like to arrange for a presentation to a community organization, please give call 370-7569.

Informal discussion times on Lopez and Orcas Islands are still to be arranged.

Critical Areas Citizen Review Committee meeting on Orcas Thursday

The Critical Areas Citizen Review Committee will meet from 9:30 a.m. to 2:30 p.m. Thursday, January 24 in the Parlor Room at the Orcas Hotel. The agenda includes completion of the groundwater protection proposal. Tom Cowan will facilitate the meeting.

AGENDA:

9:30 Agreement on agenda and approval of December 6, 2007 meeting notes

9:40 Citizen Input

9:55 Complete Committee’s groundwater protection proposal – Facilitated by Tom Cowan

11:45 Citizen Input

12:00 Lunch

12:30 Complete Committee’s groundwater protection proposal

1:55 Promotion of meetings/ public involvement (discussion)

2:15 Citizen Input

2:30 Adjourn

Strategy for Protecting Groundwater in San Juan County

In 1990 the Washington State Legislature adopted the Growth Management Act (GMA). This statute included a requirement that local jurisdictions adopt policies or regulations that protect the ecological functions and human values of “Critical Areas”. Critical Areas include Critical Aquifer Recharge Areas (CARAs), Frequently Flooded Areas, Geologically Hazardous Areas, Wetlands, and Fish and Wildlife Habitat Conservation Areas.

In 1995, the Washington State legislature amended the GMA to require that local governments consider the Best Available Science (BAS) in designating and protecting Critical Areas (RCW § 36.70A.172(1)). In 2000 the State Office of Community Trade and Economic Development (CTED) adopted procedural criteria to implement these changes and provided guidance for identifying BAS. According to this guidance, BAS means current scientific information derived from research, monitoring, inventory, survey, modeling, assessment, synthesis, and expert opinion that is:

• Logical and reasonable
  
  
• Based on quantitative analysis
  
  
• Peer reviewed
  
  
• Used in the appropriate context
  
  
• Based on accepted methods
  
  
• Well referenced

State laws and regulations regarding the protection of Critical Areas are found in RCW 36.70A and WAC 365-195. These requirements have been clarified by a number of Growth Management Hearings Board and Court decisions which are cited at the end of this document. Following is a summary of the Critical Area requirements of the Growth Management Act (GMA) and associated court and growth board decisions:1

1. Ensure there is no net loss to the functions and values of critical areas. Identify potential risks to these areas and adopt measures to reduce that risk. Prevent adverse impacts when possible; mitigate impacts that cannot be avoided.2,3
   
   
2. Substantially consider the best available science (BAS). If the science is inadequate, or if there is uncertainty that the regulations will prevent harm to critical areas, be conservative, monitor the activity and associated critical areas, and be prepared to make changes if harm to critical areas is detected. 4, 5, 6, 7
   
   
3. Base departures from BAS on specific evidence and a justifiable rationale documented in the record. Identify potential risks and additional protection measures to limit the risks to critical areas, and establish a monitoring program that can detect changes to critical areas. 7
   
   
4. If monitoring is part of a critical areas protection program, it must have clearly identified goals, objectives, performance standards, and benchmarks against which to measure harm to critical areas.
   
   
5. Give special consideration to protection measures for anadromous fisheries (e.g. salmon). Implement applicable recommendations of the Salmon Recovery Plan.8
   
   
6. Identify existing and proposed non-regulatory measures that protect and preserve critical areas (e.g. tax incentives, educational programs, voluntary land preservation).
   
   
7. Apply new regulations to preexisting uses if harm to critical areas is identified; identify and mitigate impacts resulting from authorized exemptions. Enhancement of degraded critical areas is optional. (Does not apply to agricultural uses which are exempted for three years in accordance with Substitute Senate Bill 5248).7, 9, 10
   
   
8. Ensure compatibility with the Shoreline Management Act and associated State guidance.10
   
   
9. Monitor and enforce BMP’s designed to protect critical areas.11
   
   
10. Evaluate the success of the program and adapt it as necessary to protect critical areas. 12
    
    
11. Allow for reasonable use of land.
    
    
12. Requirements must be roughly proportional and connected to impacts to critical areas.
    
    
13. San Juan County is currently reviewing the science, regulations, policies, potential management strategies and funding options related to the protection of groundwater. This evaluation is summarized in Chapters 1 and 2 of a document entitled San Juan County Best Available Science for Critical Areas

Following is a summary of the actions recommended by the San Juan County Council-appointed Critical Areas Citizen Review Committee. This proposal is based on what is currently known about groundwater and critical areas, the program evaluations presented in the Best Available Science document, and the management options which have been identified thus far.

Some of these actions could be implemented now - others require additional research and consideration of impacts to other types of critical areas which will be analyzed in the coming months.

1. Continue implementing the Council adopted Water Resources Management Plan and the Board of Health approved On-site Sewage System Operation and Maintenance Program Plan (SJ County Health & Community Services Dept. (H&CS)).

2. Partner with other counties and cities and encourage the State legislature to a) remove the financial penalties of the Growth Management Act for jurisdictions that are, to the best of their ability, working to come into compliance with the requirements of the GMA, and b) change the focus of State grant programs to emphasize getting all Puget Sound communities up to a basic level of environmental protection and to increase the emphasis on preventing environmental degradation, which is more cost effective than after the fact remediation (County Council).

Staff note: In the interest of making good use of Committee and staff time, the Committee may want to consider removing item 2a. from this proposal. Even if a majority of the Committee agreed to this item, and the County pursued it, chances are slim the State legislature could be convinced to remove the financial penalties for noncompliance with GMA. Given the extreme limits on County resources and staff time it might be better to focus on the things we can do that are more likely to be successful at protecting groundwater resources.

County Wide Groundwater Protection Measures

3. Implement the following ground and drinking water protection measures Countywide. Given the complex, interconnected geology of the County, the overall susceptibility of groundwater to contamination, the limited amount of recharge available, and the need to protect surface water systems from contamination, these general measures are an important component of a comprehensive drinking water protection program. Some of these measures could be adopted now; those that are related to protection of other types of Critical Areas should however wait until subsequent analyses are completed.

1. A general prohibition of new landfills (with the possible exception of landfills for inert waste such as brick and concrete); wood treatment and metal plating facilities; facilities that process or dispose of radioactive substances on site; and facilities that treat and/or dispose of hazardous waste on site (SJ County Community Development and Planning Dept. (CDPD).
   
   
2. A requirement that the use of pesticides, petroleum products and hazardous chemicals be minimized and that they a) be used in accordance with the manufacturer’s directions, b) be stored, handled and disposed of in a manner that prevents them from coming in contact with the ground surface, or with ground or surface water, and c) that they not be disposed of in floor drains, drywells, septic or sewage disposal systems Use in accordance with the manufacturers directions would not constitute disposal (CD&P and H&CS).
   
   
3. A requirement that permit applications plans for commercial, industrial, institutional and public facilities be reviewed for compliance with the above requirements (CD&P).
   
   
4. In coordination with the existing hazardous waste reduction/ collection program, develop an information and education program designed to reduce the use of pesticides, fertilizer and other chemicals, and to raise awareness of proper handling and disposal methods. Seek funding for these activities and provide voluntary technical assistance. (CD&P).
   
   
5. Improve hazardous waste collection and storage capabilities on outer islands (PW).
   
   
6. Identify and map areas of potential sea water intrusion (H&CS). Following are the criteria for identifying areas of potential seawater intrusion from County Code Chapter 8.06.

g. Establish a county wide groundwater monitoring network. In areas where the County Water Resources Committee identifies nitrates as a contaminant of concern, collect nitrate samples biannually. Coordinate sampling with those conducted by public water supplies and by the Conservation District. If the annual average nitrate concentration of a well exceeds 2.5 mg/l or if the county hydrogeologist determines a risk of contamination exists, the County will investigate the source of the contamination and identify the most appropriate strategy to reduce the nitrate source(s). If septic systems appear to be the source of the contamination the Health and Community Services Department will work with property owners to identify and implement actions to reduce the contamination. Actions could include requiring the use of proprietary on-site sewage systems with enhanced nitrate removal capability and/or connection to sewer if available. If nitrate levels continue to rise and reach 5 mg/l then corrective action will be required. Establish a requirement that all new wells be tested for ????? (H&CS).

h. Change the existing variance procedure in the County Unified Development Code to allow extension of sewer to areas where the State Department of Health and the County Health and Community Services Department declare it is necessary to protect basic public health, safety and the environment. Extension of sewer outside Urban Growth Areas must conform to the requirements of RCW 36.70A.110.(CD&P)

i. Begin conducting environmental compliance inspections to ensure that new development is adhering to approved plans and to existing requirements for managing stormwater and protecting critical areas. Increase permit fees to cover the cost of inspections Potential cost of $175 to $350 per permit per year depending on the number of inspections conducted per site(CD&P).

j. Concurrently with the review and update of the County’s critical area protection programs, review and revise the sections of the Unified Development Code (SJCC Title 18) pertaining to stormwater management, lot coverage and impervious area. Some actions must be coordinated with the other four types of Critical Areas and require additional research and discussion to develop a workable approach. Actions that should be adopted now include:

• Adopt the Puget Sound Action Team 2005 Low Impact Development Manual as an acceptable alternative to the Western Washington Stormwater Management Manual. In the interim develop a policy implementing this option. Staff note: It appears the Western Washington Stormwater Manual already permits the use of the PSATs LID manual as a State approved alternative, but this could be clarified in the San Juan County Code (see attached excerpt from Section 1.6.1 of the Western Washington Manual). At the last meeting there was also discussion regarding the requirement for an engineer to perform stormwater calculations – this requirement may be a result of State laws governing those who design wastewater treatment systems. More information and research is needed on this issue.
  
  
• Requiring clearing and grading permits for all projects with the potential to negatively affect private or public property, groundwater or natural resources. The amount of soil that must be moved before a clearing and grading permit is required is currently set at 500 cubic yards or approximately 50 dump truck loads of soil. This is a significant amount of bare soil to manage and if adequate erosion control measures are not installed and maintained throughout the life of the project, significant damage could occur to neighboring property, County ditches, streams, wetlands and nearshore areas.
  
  Staff note: It appears the Western Washington Stormwater Manual already requires a plan review if more than 2,000 square feet of impervious area is created, or more than 7,000 sq. ft. of soil is disturbed. See attached excerpt from the manual.
  
  
• Implementing impervious area requirements for Villages, Hamlets, Island Centers, and modifying existing requirements in Rural Farm Forest land use zones, and for parcels less than 5 acres in Rural Zones. Newly created lots should be adequately sized so that stormwater runoff generated on the property can be managed on the property.
  
  
• Developing a risk assessment methodology and making compliance easier and less costly for small projects on low risk sites.
  
  
• Better defining County requirements and their relationship to State guidance.
  
  
• Developing a system of financial guarantees for projects with a high risk of environmental degradation to assure that erosion is controlled, that approved plans are implemented, and that wetlands, streams, and nearshore areas are not damaged.
  
  

4. Clarify in the regulations that commercial, industrial, institutional and public facilities that generate non-domestic wastewater (that is wastewater not produced in showers, restrooms or kitchens) be served by an appropriate wastewater treatment system or facility, approved by the agency with jurisdiction (CD&P and H&CS). Additional Regulations Within CARAs

5. Delineate the following as Critical Aquifer Recharge Areas (CARAs):

a) Wellhead protection areas for Group A and B public water supplies.

b) Areas with a high susceptibility to contamination as shown in the San Juan County Best Available Science for Critical Areas Figure 5.

c) Critical Water Resource Areas designated by the County Board of Health.

This approach was selected because it will allow the County to focus limited resources in the areas needing the greatest protection and because it is legally defensible. This approach is not entirely compatible with the State guidance provided in the Critical Areas Assistance Handbook, which suggests that Critical Aquifer Recharge Areas include both moderate and highly susceptible areas, but that does not appear to be a requirement, and to be effective the protection program must be commensurate with the resources available.

Staff considered adding a vulnerability component to the CARA designation (e.g. areas zoned for commercial and industrial uses) but the County Code allows cottage enterprises with up to six employees, utility uses (e.g. a power generation plant) and essential public facilities in nearly all land use zones, and it was felt this approach would be legally difficult to defend. For example identical businesses could be located in areas with a high susceptibility to contamination, and they would be treated differently simply because they were in different land use zones.

Staff also considered drawing CARA boundaries based on the predominate characteristics of each area, and while this approach would be easier to administer, and would result in a better looking map, that too would be difficult to defend. Some parcels of land with medium susceptibility to groundwater contamination would end up within a CARA, while others with high susceptibility would be excluded (CD&P and H&CS).

6. Replace the existing regulations in County Code Section 18.30.140.B with a more specific requirement that commercial, industrial, institutional and other facilities using, storing or handling pesticides, petroleum products and other chemicals that can be a health hazard in drinking water use approved Best Management Practices (BMPs). An acceptable set of BMP’s will need to be identified, the requirements will need to be phased in over a period of time, and technical assistance will need to be provided to affected facilities. Within CARAs periodic inspections (every 2-3 years) will be necessary to comply with the requirements of the Growth Management Act. If possible these inspections should be coordinated with the operational inspections conducted by the County Fire Code Official.

For businesses that choose to use standard, pre-approved BMP’s staff propose that a hyrdogeologic evaluation not be required. This is a change from the current regulations, which state that an evaluation can be required of any facility that stores, uses, handles or produces hazardous substances or hazardous waste products. A facility that proposes a management practice that has not been pre-approved however, should be required to provide a hydrogeologic evaluation and documentation showing that their proposed approach will protect groundwater quality (CD&P).

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