Wednesday, January 20, 2010

January 26, 2010 – Issue of the Week

Let’s talk poop!

Council members Barbara Brenner and Sam Crawford have introduced an ordinance to significantly weaken the septic system inspection requirements that have been in place for a couple of years now. We will have a public hearing on this proposal at our January 26th meeting, so I will try to provide enough background so you can make your mind up about this proposal. To be totally transparent here let me say right up front that I have already made my mind up about their proposal, and I think it stinks, which is quite appropriate for the subject.

Background – In 2005 and 2006 the state legislature and State Department of Health recognized that many marine areas of the state were being impacted by poorly maintained and failing septic systems. They passed legislation (RCW 70.188A) and rules (WAC 246-272A) to address this these problems by requiring local health jurisdictions and health officers to develop plans to protect our water resources by implementing, at a minimum, the state rules.

In response to these state mandates, and our own concerns about bacterial pollution in Lake Whatcom, Drayton Harbor, Portage Bay, etc the County Council did a major revision of our local septic system regulations to provide for the state required inventory and inspection of all septic systems in the county. The regulations that were ultimately passed went beyond the state’s inspection requirements by requiring that a licensed septic specialist do the initial inspection of each septic system. The Council majority at the time felt that such initial professional inspections were necessary to ensure that we received an accurate baseline of data on the location and operating status of the 30,000 estimated septic systems in the county. The Council also approved a Local Management Plan for Septic Systems (click here to download), which was approved by the State Department of Health.

The ordinance that Council members Brenner and Crawford have drafted is targeted at removing the professional inspection requirements and all ongoing inspections of any type. Click here to download their proposed ordinance and click here to see how that would change the county code. I believe this is mainly in response to the many complaints the county has received about the cost of these professional inspections ($140 - $300).

Discussion of Need – There is a substantial amount of scientifically collected data that supports the need to identify and reduce bacterial pollution coming from septic systems. Under the federal Clean Water Act the State Department of Ecology has initiated Total Maximum Daily Load (TMDL) studies for Lake Whatcom, the Nooksack River, and Drayton Harbor because of fecal coliform pollution levels above water quality standards set to protect public health. Because of similar fecal coliform pollution levels Whatcom County has been required by state law to form shellfish protection districts in Drayton Harbor, Portage Bay and most recently Birch Bay to develop recovery plans to reduce the pollution. Fecal Coliform is just one type of bacteria, but its presence is an indication that other harmful types such as E. Coli and various viruses are also present. Fecal Coliform comes from a variety of sources with livestock being perhaps the main source throughout the county. Even so there is ample evidence that septic systems are a significant source. High levels of measured bacterial pollution in specific locations along Fishtrap Creek, Wildcat Cove, and the south shore of Drayton Harbor were all controlled when failing septic systems were identified and fixed. To help determine the source of bacterial pollution in Drayton Harbor DNA testing of the bacteria was done, and human fecal bacteria was found in 13 of the 24 sites tested in both the streams leading to the harbor as well as the harbor itself. Drayton Harbor may be the most studied area in the county, and a good deal of those studies and data are available on the Public Works website here.

Discussion of Cost – It is certainly true that there is a cost to people who have septic systems. The professional inspections run in the $140 - $300 range, and if you have to have your system pumped (normally every 3-5 years) that would be about an additional $300. Under our current rules for a normal gravity based septic system a person willing to take a free class and inspect their own system would have to pay the inspection fee once every nine years. Assuming they pump their system twice during that same time that amounts to an average worst case cost of $100/year. For someone who decides to have their system professionally inspected every three years (current inspection cycle) that cost would be $167/year. For comparison a person moving to the City of Blaine and paying for sewer service would average over $80/month or $960/year. Even if you amortize in the cost of replacing a septic system every 25 years ($15000/25 years = $600/year) these new inspection requirements aren’t particularly onerous compared to what the majority of citizens who live in our seven cities pay.

The County Health Department is working hard to come up with grant money to start a low interest loan program with Shore Bank so people who need to do costly repairs can get some financial assistance. This is certainly something that everyone would welcome. Anyone know how the cities help people who can’t pay their sewer bills?

That’s enough for one evening. I will try to add more in the coming days. Let me know what you think.


A couple of things that I forgot to mention yesterday.

First of all I did not state clearly that the ordinance that Council members Brenner and Crawford have introduced is clearly not legal. State regulations require ongoing inspections of septic systems in the county, and their proposed ordinance would remove this requirement so would be in conflict with state regulations. Not sure how they plan to make that align with the oath we all took to defend the laws of the State of Washington. I suspect when this is pointed out by staff or myself they will amend the proposed ordinance to only get rid of the professional inspection requirements instead of all inspection requirements. This will require the ordinance to be re-introduced and another hearing. Seems like two veteran council members should have vetted this better since they have been working on this for nearly a year now.

So ultimately this comes down to whether septic system owners should ever have to prove, by an independent inspection, that their systems are operating correctly. My belief is that most people will hire a professional anyway because they just won't want to deal with it themselves. Others would take the classes and do a fine job of inspecting their own systems. Unfortunately, there is evidence from other places that a large enough group of people will somehow fudge on the inspections to impact our local water quality.

For example, the Center for Watershed Management contains a great article from Urban Lake Management which states:

"After construction, long-term maintenance of the septic system is typically the responsibility of the individual homeowner. This is less than ideal, since studies have suggested that only about half of all septic owners maintain their systems according to recommended guidelines (i.e., annual inspection and pumpout of the septic tank every three to five years (Swann, 1999; Gomez et al., 1992)."

Other counties in Washington State who originally adopted regulations that did not require professional inspections are now considering amending their regulations to require such professional regulations because of what they consider significant numbers of homeowners not properly inspecting their systems.

Finally, there seems to be some belief that failing septic systems are only a concern near streams where bacterial pollution can cause restrictions to shellfish harvest. While that is a real concern it certainly is not the only one. We really only test for fecal coliform in our local waters, but the presence of human bacteria also indicates that a wide range of other chemicals known to be present in septic system are also being discharged into our local surface and groundwater. These chemicals can include a wide variety of chemicals from household products, heavy metals, caffeine, and pharmaceutical drugs. Failing systems in areas of drinking water wells can also lead to a variety of human diseases. For instance from the same article referenced above:

"Many reports of disease outbreaks are linked to ground water contamination by septic system effluent. In fact, effluent from septic systems is the most frequently cited source of ground water contamination leading to diseases such as acute gastrointestinal illness, hepatitis A, and typhoid (US EPA, 1986)"

This article is a great read and can be downloaded by clicking here.

**********UPDATE 1/23 ***********************

I have not really talked at all about what has been found here in the county during the first few years of inspections. As is spelled out in the Plan the inspection program has been phased in slowly starting in marine areas most at risk from bacterial pollution. The Health Department started with the Drayton Harbor watershed in 2007 because it is designated as a Marine Recovery Area. From there the program was implemented in Birch Bay, Chuckanut Bay, Lummi Island and Point Roberts. To date 6,277 septic systems have been inspected out of an estimated 30,000 systems.

Since the program started in Drayton Harbor that area probably has the highest percentage of systems inspected at just over 70%. Of the 2170 systems inspected there, about 71% passed the inspections, about 25% needed maintenance, and 2.8% systems were failing. These numbers represent good news for Draton Harbor since an inspection program along the shores of Drayton Harbor ten years earlier had a significantly higher failure rate. There is some speculation about how the numbers for the remaining 30% (800-900 systems) of the systems will come in. Have these people not yet responded because they have missed the multiple notices, don't have the money, or know they have problems?

County-wide over 6000 systems have been inspected so far. The overall percentages are: 65% passed, 31 % needed maintenance, 4% were faling. Here is a chart:
A 4% failure rate may seem pretty insignificant, but remember there are many examples of a single failing system dramatically affecting water quality. Those 247 failing systems represent tanks that probably hold at least 247,000 gallons of human sewage. A very general rule of thumb is that for each person in the house about 100 gallons/day goes down the drain. If 2 people live in each of those 247 houses with failing systems that amounts to over 18 million gallons of sewage a year that may not be getting treated correctly. If that same failure rate of 4% holds true across the entire county, that would amount to over 85 million gallons of poorly treated sewage each year!

I received some interesting comments and great suggestions for improvements to this program from a licensed septic system designers earlier today. He was a member of the advisory committee to the Board of Health when this program was first starting to be designed. You can download his comments by clicking here.

**********UPDATE 1/27/10**************

At the Council meeting last night Council member Brenner said that the ordinance that she and Council member Crawford introduced back in November, (and that a number of advisory committees and government agencies had spent significant time reviewing and commenting on), was not the ordinance that she had meant to bring forward. She had a new version she wanted to work off of (click here to download it), which is actually better. The County attorney made it clear that the Council could not pass the new version since it was significantly different than what had been out for public review, and that it would have to be introduced and another public hearing held. So we had the pleasure of setting through a couple of hours of raucous testimony about septic system programs for the wrong ordinance that everyone agreed was illegal and could not be passed.

When that was done the Council majority wanted to pass an interim ordinance making the professional inspections go away. Again the County attorney had to tell them that was not legal. At that point the Health Department stood up and spoke on behalf of the County Administration that they could just administratively quit enforcing those provisions of the septic rules until the Council majority could figure out what they really wanted and pass it legally. There was a motion from the Council to direct the Health Department to quit enforcing the professional inspection provisions of the septic ordinance, and that passed 5-2 with Ken Mann and myself opposed.

So, at one of our next meetings we get to start again on this re-write of the septic ordinance, and then get to have another public hearing to gather input. To the Shellfish Protection District advisory committees, the Marine Resource Committee, the City of Blaine, the Department of Ecology and others who took time to review the science and write comments on this mistakenly introduced ordinance I would have to say save your breath next time around. In the meantime, I'm heading out to buy some new knee high rubber boots and maybe a pitchfork.

Saturday, January 9, 2010

January 12, 2010 - Issue of the Week

This will be the first County Council meeting of 2010, and the first meeting for new Council members Ken Mann, Kathy Kerschner and Bill Knutzen. Our packet is relatively light this week with only 292 pages of material to review (not including items for introduction). There are a number of interesting items in the packet this week, but there are two items that seem to be of the most long term interest. One is the reorganization of the Council itself, where we choose new officers and make committee assignments. The other is the appointment of new members to the Planning Commission. The Planning Commission appointments is the issue I will choose for this week "Issue of the Week."

The Planning Commission (PC) is one of the most important advisory committees that the Council has. The PC is made up of nine members - three from each council district. These people volunteer at least two evenings a month, plus all the time required for background reading, to review a wide range of land use proposals.

The purpose of the Whatcom County Planning Commission is to provide citizen review and recommendations on planning related matters to the County Council, as provided for in Whatcom County Code Chapter 2.31. The Commission assists the Planning Division in carrying out its duties, including assisting in the preparation and execution of the Comprehensive Plan and recommendations to the Department for the adoption of official controls and/or amendments.

We thought we would be appointing 4 commissioners at this meeting, but with the recent death of Sean Wilson we may be appointing 5 (this is not clear to me at this point). We have received an unprecedented 31 applications for these positions. To check out the applications for yourself you can download them by clicking here.

There are a number of problems with our appointment process, especially when we receive so many applicants. The main problem I have is that the application forms that people are asked to fill out does not provide enough information to really make a good selection. As a person who has been in a position to do a lot of hiring I can say that I wouldn't hire a person for the most basic position with this pitiful level of information, let alone someone who will be helping craft land use regulations for the entire county. Luckily some people provide additional information, but most do not.

There is no interview process and I don't have time to contact this many people to find out more about them. I will try to get the application requirements changed this coming year, but for now I am stuck with the information I posted the link for above. To help focus who I should be concentrating my investigations on I normally put together a quick rating sheet to try to compare each candidate on what I believe to be pertinent knowledge and skils for the position. I have done that for these 31 applicants and you can check out my first crack at this rating by downloading the rating sheet by clicking here. Of course this may not be a fair representation of their actual abilities, but it is the best I can do with the limited information they provided.

This is as far as I have gotten in the selection process so far. I hope to contact some of the top people on my list next and possibly some of their references. We also are receiving letters and emails regarding some of these people so I am also reading that material. If you have any thoughts on this process or any of the candidates feel free to send me a post.

Thanks for all the comments and recommendations people have passed along. It appears that at least one applicant - Bob Weisen - has been removed for not being eligible because of a new legal opinion from the Prosecutor's Office. Here is the email from the Council Clerk explaining this.

"Dear Councilmembers:

I have just become aware of a legal opinion issued by Randy Watts that states, in summary, that once a person has served two consecutive full terms on a board, committee, or commission, there is a lifetime ban from them ever going back onto that board, committee, or commission. The crucial word here is consecutive. Someone could serve one term, take a term off, come back for a term, and on and on for a lifetime. However, once they have served two consecutive terms, they're out forever!!!"

I think that this lifetime ban after two consecutive terms makes no sense. Many of our committees need experienced people and often go wanting for people to fill the positions. While I agree that new blood is always good, many times no one new comes forward. Unfortunately, Mr Watts opinion apears to be correct to me, and it will take a charter amendment to fix this.

Here is the language from the Charter Section 2.23:
Terms of members of boards and commissions shall be limited to two (2) consecutive full terms.

****UPDATE**** 1/12

Just received two new late applying candidate applications for the Planning Commission
. You can check them out by downloading them by clicking here and here.

****UPDATE**** 1/12 10:15 PM

The Council meeting is over and here are the new Planning Commission members.

District 1:
Jeff Rainey.

District 2:
Gary Honcoop.

District 3 (2 vacancies):
Rod Erickson
Michelle Luke

I voted for the folks that rated highest based on planning qualifications on my rating scale - Dykes, Harris, Friedlob, Lee. You can argue that my scale is not perfect, but at least there were some criteria to justify a choice. Not sure what the other Council members based their votes on since there is no discussion or sharing of their criteria. You be the judge.

******UPDATE 1/17/10*******

Well, what I thought was a pretty easy topic for my first blog entry just never seems to end. Turns out that the Council screwed up the appointment process and we have to do it all again. The Whatcom County Code is clear that applicants have to be nominated at one Council meeting and then appointed at the next unless two thirds of the Council votes to suspend that rule. Either way no one was ever officially nominated, so we have to try again. On top of that the code says that the names of nominees have to appear on the Council's agenda, so it would appear that two of the late applicants (Scott Hulce and Michelle Luke) were not even eligible since their names were not included in our packet.

While the Council (including me) is ultimately responsible, these errors are nothing new. For years late applications have been accepted, nominations and appointments were made at the same meeting, and people were appointed whose names were never published in the agenda. Like I said way up at the top of this blog - the system for these appointments is a mess and needs a serious fix. Not only is the process not defined very well and even then not followed, it also is apparent that some on the Council don't take very seriously the importance of these advisory positions and people's qualifications to serve.

Below are the relevant portions of the County Code that were not followed. Hopefully we can get it right next time around.

Appointment of non-councilmembers to boards, commissions and committees.

For appointment by the council of non-councilmembers to those boards, commissions and committees performing either an administrative or a legislative function, councilmembers shall make nominations and provide information about their nominees, in writing, if possible, at a regularly scheduled council meeting. Nominations for appointment to any position having a residency requirement as to councilmanic district shall be made only by the councilmembers from the district or the councilmember at large. Voting on these nominations shall be at the next regularly scheduled council meeting unless the council, by a two-thirds vote, requests otherwise. Such appointments shall be made by majority roll call vote of the council.

2.03.075 Review of nominees and executive appointees.

C. The names of recommended appointees by the executive, and the names of nominees by council members, shall be published on the agenda for the council meeting at which action is to be taken in filling a position or confirming an appointment.