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HomeMy WebLinkAbout05/03/1988 Study Session MAY 34,-l988 327 MAY 3, 1988 STUDY SESSION ' ' • . • . 1. ROLL CALL - • • The • City Council met- in session on this date at 2:00 P.M. in the Council Chambers of City Hall, Yakima, - Washington. Mayor Pat Berndt, presiding, Council 'members Clarence 'Barnett, Henry Beauchamp,- Lynn Buchanan, Lynn Carmichael and Bernard Sims present. City Manager Zais, City Attorney Vanek, City Clerk Roberts and "- Deputy City Clerk Toney' present. Council member Foy absent and excused. • 2. . INVOCATION The Pledge of Allegiance was led by-Council'member -`Carmichael. 3. OPEN DISCUSSION FOR THE GOOD OF THE-ORDER - Council- member -- Carmichael 'announced that the Visitors and Convention Bureau Board of Directors workshops will be rescheduled during the month-of June. Council members will- be- advised of that date when it is known. - Council member Carmichael stated last week she accepted a-plaque on behalf of the City of Yakima in recognition of. the City's outstanding support' of the recruiting and retention mission'of the 81st I- nfantry Brigade (Mechanical) Washington Army National Guard,. The plaque was presented to Mayor Berndt. Mayor Berndt read a proclamation designating May •6, 1988 "Yakima Nurse Recognition Day" in recognition of the commitment nurses make to •-our -community's health.- Registered Nurse, Lee' Toth, Yakima • Valley'Memorial accepted-the proclamation and distributed an 'informational-packet to Council members regarding the nursing - shortage. Mayor Berndt read a proclamation designating- the month - -of May "Bicycle Safety Month" in the City of Yakima. She encouraged all bicycle riders to wear safety helmets for protection. The proclamation was , accepted , byy•Firefighter 'Dave Bachmann who commented briefly-about the Bicycle - Safety Coalition formed earlier this year and the- importance -of , safety helmets. Council''member ' :Buchanan stated the young -people should be-informed of the proper . - side of'-the street on -which they should -be riding their.bicycles. Mayor= Berndt read a-proclamation 'designating the week'of May 2 -8, 1988 • "National -'Drinking 'Water- Week " =inl the Cit• Yakima. The proclamation -was accepted by , Water—Superintendent Ty Wick, who - stated the American Water Works Association and the League of Women Voters are working to focus on drinking water and to make people aware of the importance organically clean water. 111 Council' member 'Carmichael referred - -to" the- letter provided to Council-'members- - - members - from r `Mr . -• ; & Mrs/ Paul 'Kocher - regarding the proposed - business - development at 24th & Nob Hill - Boulevard and asked if it should.be•fbrwarded to someone who has knowledge of the Matter'-referred -to -in the letter.- City Manager- -Zais stated , a copy -of 'the' letter has been forwarded to Don- -Skone in • the Planning Department.. - -•- - 4. AUDIENCE' PARTICIPATION .• - 5. ••CONTINUED'DISCUSSION ON LEGAL QUESTIONS REGARDING'WATER AND SEWER COMPREHENSIVE PLANS /NPDES PERMIT-RENEWAL-- -- WITH LEGAL COUNSEL (PLEASE `-'BRING BLUE NOTEBOOK - COMPREHENSIVE• WATER AND SEWER PLAN REVIEW DATED-APRIL-12,.1988)- City ManageriZais stated representatives from Preston Thorgrimson's office are present to'respond to Council's inquiries -on the Water A/AD /1 • - 328 MAY 3, 1988 and Sewer Comprehensive Plans., Mr. Zais suggested beginning with Section 1 -H and discuss each section and category that follows. He introduced Forrest Walls and Dave Hall and asked Mr. Walls to comment briefly on the history of Preston, Thorgrimson's legal firm's involvement with the City. Mr. Walls stated he began work for the City in 1964 and was involved in drafting legislation to improve the City's irrigation system, and since that time has been involved in many other areas. He suggested beginning today's discussion with the issues raised in their letter to the City dated April 4, 1988, relating to the Comprehensive Plan for the sewer system. Council member . Barnett referred to the 1976 agreement.for the Wastewater Treatment and Regional Service with Yakima, Yakima County, Terrace Heights and Union Gap, which states the City of Yakima is obligated to provide sewer service and collection services in the urban area if those services are sought or if an outside utility agreement has been signed. Mr. Barnett asked if the citizens receive the services, and later refuse to annex to the City, can the City refuse to provide the services even though the agreement has been signed. Mr. Walls referred to page three of the letter, the second paragraph from the bottom, the last sentence, .which states a court would find an underlying obligation on the part of the City to provide sewer service assuming their compliance • with the annexation requirements. He stated he believes it would be a matter of procedure that the annexation would come first and then the sewer service. City Manager Zais stated the Department of Ecology (DOE) and Environmental Protection Agency (EPA) would then become involved. and suspend any action by the City;, to deny sewer service in order to keep untreated sewage from contaminating the ground or the river. He stated both of those agencies have authority over the City in such matters. City Attorney Vanek stated the outside,.utility agreements have been enforced around the State by cities_ bringing a declaratory judgement against individuals refusing to sign the .annexation request, seeking to have the court.declare that their signature on the outside utility ; agreement constitutes signature of the annexation petition. He • stated this has occurred in the city of Spokane. Council member Barnett asked why the City goes to the additional step of obtaining the second signature for annexation? Mr. Vanek stated the original Council policy was drafted in such a manner in 1968 to . require a personal undertaking on the part of the property,owner as.well as the obligation that ran with the property. He indicated there have been occasions where the original property owner has signed the • outside utility agreement, but the, subsequent property owners have not transferred the outside utility agreement into their name when _the property was purchased. City Manager Zais stated there is another option; that being the requirement that a citizen annex to the City prior to services being provided. He commented there are some jurisdictions that have adopted this policy. He stated within the next month or•so, staff will be presenting this entire issue to Council .along with some plans for annexation strategy, the cost benefit of annexation in.the urban area, and a review of the entire annexation policy question of the City. Mayor Berndt stated one of the issues that has complicated the irrigation system is the 65 separate L.I.D.'s and asked Mr. Walls to address this. Mr. Walls referred to Section II-G which contains the letter. of October 23, ,1986, dealing with water rights. He stated the.burden of that letter is that the City does not lose it's water rights by .consolidating the districts. He stated he believes the water rights are assets of the City and not the individual districts, and therefore the question of what happens to the water rights is a matter of water right law independent of the . districts. He stated basically that is a question of whether or not we put that, water to a beneficial use, and otherwise.comply with the water right statute. He stated the reason the word • "probably" is in there is that to some extent it is a question of fact. If we do something different to the irrigation system, but still use the water in a beneficial way, then I think we would keep the rights. But the extent to which we continue to use the water and whether it is considered a beneficial use are questions of A/AD /2 MAY j,' 19 8 - 329 fact. Mr. Walls stated he put the word "probably" in there ' .. because' 1- don ='t know- all of -the'. facts involved, `but -from a legal standpoint -. the - "City'would , be in= a position'- td retain- -those water rights. Council •member Barnett referred= to the July 25th'letter which states"-•the' -City can create-an •irrigation 'utility by- ordinance to replace - .the'-'existing irrigation' districts. However, it also states if general obligations bonds are to -'be issued an election -must be: held before- creating the-utility:-He stated-on= the other •-" hand;.-he thought he recal'led'reading that one main functions of the utility was for the puLposs of issuing general obligation bonds. Mr. Walls stated he would not definitely say that the election •had• -to be held - prior- to creating the '-utility'; but it certainly would'`require -an election - for - general-- obligations bonds before you -could issue the -- bonds'. - He•-stated -he thinks the intent -of-the' letter-is that if -you- are dependent on general obligation bonds to fund then the election should be held before you begin -selling-the- bonds. -He -stated` if you- are looking at revenue bonds, he thinks an election would not--be . .required. Council member Barnett stated if you did establish a utility, not knowing- you--might-want to issue general obligation-bonds;''you could still' establish a' utility and the utility then could later do it. Council'member Barnett 'asked why would -the City °want- to-establish a utility when the City would stilh be able -to set-different-rates in different areas under a utility. He stated this is the same thing 'we - are doing' right now-'under —the. separate districts. Mr -. Walls -stated' - he- thinks-- -there -Would be'- a couple of reasons for establishing a utility-.°He stated -he thinks -a principal advantage of "creating ;a utility for- the - irrigation •system would be --to put the City in-a posture where it could - finance, on'a -long term-basis, the capital improvements that would be needed to rehabilitate the system. He- stated the difficulty with the system: of districts that • • we . have now- is - there= • -is no mechanism 'to fund . long •term types of ' improvements`.' With a 'utility such- as a water or sewer-' - utility, the • - City- would ; be able to include in -`our rates -and charges - the debt service- =on'- -bonds -'issued to- fund these kinds of improvements up • front. He - statedL. that would= be -;the = advantage -of a = utility. - Council member. Barnett asked . -if your could' still have areas or •districts with the different rate structures.' - Mr.•Walls stated that is correct. He stated the reason this would be an - advantage over the present system is that the City has much broader discretion- in -it's rate setting powers -in -oper-ating a- =util -ity than pit would have- :under the -present -districts. He • .'said with the present 'districts, you are confined to allocating-maintenance and operating'-' costs - •to • the individual-- districts: He stated'-with a utility you -would - retain the -ability' to allocate cost- on an -individual -basis,' but -you -would - have- much' broader discretion in doing' that with the effect- being that you- -could 'have - fewer - classes of ''customers: and- fewer rate categories and possibly move to a situation where-- you' have a -single rate-,-' simply •because you' have a 'Very broad rate=setting authority-under utility that you don't have 111 in operating under these irrigation districts,. Council member Beauchamp asked what -responsibility DOE and -'-EPA has to communities such as Selah, Union -Gap and- other'communities - regarding the• monitoring of projects Mr'-- Walls - -stated i the point he was trying to make in . the-' letter•" about the :duty - of -the -City to :provide sewer service was in- order to make distinction between an affirmative legal duty - -to: provide that servi the negative ' things that might - happen to the :: City -- if• 'we ' didn't. ' He-Stated DOE and -the- other regulatory agencies have - the power to impose hardships on"- theCity if- certain things are .not done, but= -that is different: than - -an- affirmative legal duty --to provide the- service. -He explained- that—is-why he looked principally at the- itself-as providing the ._ affi=rmative .. •legal duty Tas a part of the contract between -the City and those .other " communities. He -' -added tt- is disadvantageous- to operate in a way . that violates DOE and other regulatory agency• guidelines.- He state if-the- was - willing- to-. absorb - -the - disadvantages;• - it - not -be the affirmative- - legal duty: He said - the - 'affirmative-' - legal' - duty is 'found in• -that' contract and not in-the regulations, He stated the A/AD /3 • • MAY 3, 1988 330 • specific answer to Mr. Beauchamp's question is "yes, they do have an obligation_to the individual entities fairly." Council member Barnett referred to Section I -H, page 4, table 11 -7 wherein the sewer plan talks about an adjusted capital cost recovery charge ,(CCRC), but they- also add .a new CCRC with the explicit purposes of a funding mechanism for new •trunk "sewers. He asked him to comment on ,the new CCRC which is to contain a mechanism to construct future trunk sewers between 1993 and 2025. Mr. Walls stated he would like to have an opportunity to review this and send Mr. Barnett a letter on this issue. Council member Barnett referred to page 5 of the April 4th letter, • which indicates the agreement should be reviewed to determine if the CCRC -can be increased to those already connected and paying by installment. Mr. Barnett stated also feels a review should be • made of the impermissible. rate discrimination. Mr. Walls stated he will follow up on these_ two requests and report back to Council. • • .Council member Barnett referred to the April 4th. letter, page 6, and asked if the transfer of the source of water will effect any water rights. Mr. Wallsstated it should.,not, as long as,the City can continue to put the water to beneficial use. Council member Barnett stated assuming the water rights are lost, - is the City or the property owner the one to lose the rights. Mr. Walls stated he thinks the City loses them; he thinks they are _assets of the City. He stated he thinks the property owner has a right to the of service. . Council member Barnett stated assuming the City, did have a savings of .water that did not receive a beneficial use and the State _decided,_ after a number of years and appropriate public hearings, those water rights reverted back to the•State; Staff commented • during a previous. meeting that those water rights,can.be reserved. Mr. Barnett asked Mr. Walls to explain how these water rights can • be reserved so they cannot be taken away? Mr. Walls stated he will . have to this issue more thoroughly prior to commenting on this. Council member Buchanan asked• if there is a difference in the ownership of the water rights between the people in the main part of town and those who annexed in the last fifteen or twenty years out on the west side of the City. Mr: Walls stated when these irrigation districts were formed over the years and in the course of being formed the City acquired a water right with reference to a particular irrigation district, there is no property ownership on the part of the residents of that irrigation district simply because it was acquired for their district. He stated the City owns them but the property owners have a right to continuity of service. Council member Barnett stated the .comment has been made that no consideration would be given to transfer water from one intake to another prior to completion of the Acquavella case, and he believes some of the aspects of the Plan should not be presented for Council consideration prior to that time. Water Superintendent Ty Wick stated the City made application to add another point of diversion to our existing water rights from the Nelson Bridge to . • the Water Treatment Plant at Rowe Hill. He indicated staff was told the only. way to accomplish that was to seek an interim order from a judge allowing the City to do this.. He stated however, this would not be binding and could be thrown out when the time comes to make their final judgment in the adjudication process. Council member Barnett asked if Council would be treading on dangerous ground_ by making a decision on some of these issues before the decision' on the Acquavella case is made? Mr. Walls stated he would assume that it would not affect water rights that are not in controversy of that case. Council member Barnett stated on page 2 of the October 23rd letter by Mr. Walls,, the letter talks about approval of the supervisor of water resources must be given for A/AD /4 • MAY 3, 1988 331 such ,a transfer._ He stated he interprets , that to, mean we can't take additional water from the 'Water Treatment ,Plant_,until they approve. the transfer from the Diversion Dam to the.Water Treatment • Plant In ,response to Mr. Barnett's question, Mr. - Wick., stated if the City a to move forward. on this, issue., we will just, have to wait and see what happens., He stated he City is wasting 50i or more of the water that is being put into our system, and he believes there is, a very good chance, that will,_,be lost in r the adjudication case. as we hav not taken steps to correct this satiation.. Mr. Barnett asked for clarification .as, to. what issue the Acquavella case is going to resolve. 'Mr. Wick stated the Acquavella case is going to decide a priority date for people who have . water rights and then - they are, going to .try to quantify how ._ much water is actually - taken and but : beneficial use They also want to know how much property or area that water is being applied to They have set a tandard that pasture lands and rotating crop type use ses of the water are going to ,receive about four acre feet per water. Crops such , -as apples.: and other } ? perennial crops receive about 4.5 acre feet per water. This standard has been determined to satisfy the needs for - irrigation ,during a one year time priod Mr Wick stated if we are using 10 acre feet and we are leaking out half of it, they are . going to allot 4 , acre _ feet _and ,the City ,is going to have to . ., take appropriate measures to ` capture ,what is being , Mr. Barnett stated the letter__ f ..Octo b er 23rd indicates the, transfer must go to , the supervisor but the , staff memo says; ,they will not consider the transfer until the completion of the Acquavella case. Mr. Barnett stated he is not sure how to ask ,the question and make it any more , than he has . stated it already. Mr. Wick stated . normally in a , case such as •this, , the matter would be taken to the Department of Ecology tor a ,ruling, however, ,since the City is involved in adjudication• the DOE will not make any ruling at this time Mr. Barnett asked what restriction does this place on the City as, far as implementing any part of ,the plan; is concerned? Mr. Wick stated it depends - on how forcefully we want to pursue one of these areas. Mr. Stouder stated the DOE 's is, based on the political arena and when the City. was , initially ..,diseussing the opportunity of a variety of rights,, we, got some indication that DOE was . willing to look. ,at that ,_ favorably. Mr. Stouder stated it, is his opinion that they were doing, anything . possible to help us not pursue the Rattlesnake Creek, project. If 'there were other opportunities, that they, could encourage, us to do, • they were willing to do that. He, stated, then for , whatever reasons, in the political arena, thy decided they cannot make this decision and threw ; it back to the legal. , arena. He . stated he _ believes the reason the -City is the legal arena is because the political arena h a s broken down. There ,has, not been ,an ability to develop a , consensus , or_ iwork , things ,out through _negotiations, so the issue ended up in court. T he second part of the ,answer is that anything we do regarding water rights potentially could be subject to litigation by someone. He ; stated this, is. a ; very; emotional, as well : as dollars and cents issue-, and he suspects at ,one point in , any, decision that .is,made regarding water alternatives, you are assessing where the . legal .._ risks ,are. Thirdly,_' ,,he stated municipalities have.some special abilities in ,this area, both ,, ly and politically. He . stated, without . .,,being overly ,,simplistic, if the. City acts instead of. reacting,. we, can dictate in .a situation like this,. . He stated, he, is . not suggesting that Council take any_,, action .today, but. reminded them that they are acting ,.for.the .interest. of 50- 80,000 urban residents,, and that if there are "' needs they feel have to. be . addressed, • that.,,the action taken begins to i nullify' some Of `the . risks, taken as . long, as those actions , are _ reasonable . Mr . Stouder stated he will ..loo k into Mr. • r Banett's . questions with • Mr. „Walls. ,; , N City Manager Zais. :asked Council, to look at the letter from Mr. Walls . under tab .II• G .which. outlines. . the . different. options • available to the City. He n ,stated if Council decides -, launch the Pilot Program in incremental stages by taking 150 homes a year for . the next five. years, that. might .allow_ you to .reach some decision five years from now on whether , that system, might_ be ;abandoned in five _years. ,In >"the. meantime,. ,if the .City . decided , not do that, A/AD /5 MAY 3, 1988 332 • we have lost that much time to consider another option. We have lost the time that it would help us to be prepared for forming an irrigation utility or of new small districts. Council member Barnett stated this relates back• to what he is trying to bring out in his questions as to whether or not.the City really wants to abandon the- irrigation system prior to conclusion of the Acquavella case. Mr. Zais stated he does not think the Council is prepared to make that decision today, even if the Acquavella case was not underway. He the Acquavella case might well reduce the City's options, but he feels Council must consider all of them. Mr. Stouder attempted to rephrase Mr. Barnett's questions for clarification. He asked what happens to the legal rights on the • question or points of diversion when it goes to court, and • secondly, what happens when you change the pipe through the water -'is transmitted? Does someone lose some rights that would •be addressed through the adjudication? He if you change the pipe the water is-going through, it doesn't change the legal basis for that water. He stated one question is, what happens when you change the point in the river and the other is what happens when you change the pipe in the public right -of -way or on personal property. Mr. Walls stated what he believes Mr. Barnett'is asking is if we change' from irrigation to domestic use, is that a change - of use that requires-this process to be gone through and if so, what difficulties are posed by the fact that that particular administrator isn't deciding right now? He asked Mr. Barnett if that is stated correctly; and Mr.'Barnett responded, "that sounds pretty good to me'." Mr. Zais stated it seems to him that the letter in terms of the context of options, one that` had previously thought about was this consolidation question, --and the likelihood • of that working to our advantage and it just did not-'seem feasible. Mr. Walls stated that is correct. He•reviewed the memorandum of April -25, 1986, which asks can .the City consolidate the various irrigation districts? He stated' there is no statutory authority for it; we might be'able• to do it under our home power, but we cannot be sure of that, and the outcome of a test case is doubtful and therefore, it is probably not a desirable thing to do. He stated having suggested that,he offered the other alternatives, one of which is forming an irrigation utility, the second•is forming new irrigation districts,- and the third is abandonment of the irrigation systems and reliance- on_the' domestic water system. He 'stated each one of -these alternatives works from a legal standpoint; -each' one has shortcomings' and advantages. He said whether or - not the Council pursues any one of these depends on the policy decision. on the part of the Council as to the desirability of rehabilitating the irrigation system and the, Council's . perception of the public acceptance-of doing so and paying for it. He added these kinds of judgements will dictate which course the Council takes. • • Council - member- Barnett referred .to the wording • on page 9 of the • memorandum which states • "providing such action does not conflict with any specific agreements. He asked if someone would have to review these specific agreements before this could be considered? • Mr. Walls stated he is not aware of any specific agreements or contracts that would restrict the City's ability. He explained he included this wording because it occurred` to him that over the more than sixty years there might be some agreements of this nature. Council member Barnett referred to the `the local • irrigation districts, and asked if that is why this wording was included.-Mt. 'Walls stated there would not necessarily be an agreement of any kind entered into in forming an L.I.D. Mr. Barnett asked staff if there are any separate contracts and Mr. Wick stated he recently. looked back through several of the agreements, particularly in the 308 System, and the process used at that time is very similar' to the process that is in place today. He stated there is no other type of agreement other than formation of the L.I.D. and putting .it into place.. City Manager Zais stated in summary, Council should be thinking about those choices outlined by Mr. Walls' and pursuing those investigations and evaluations. He stated it is staff's collective A/AD /6 MAX 3, 1988 333 _ view that in ;light of the uncertainty, we should not lose time . because within the next five years we might have to make a choice and we need to .have the facts, research and information.available to make a decision on one of these courses.of action with regard to the irrigation system from a legal standpoint. ' City Attorney .,Vanek asked Mr. Walls to .summarize the 'financial .vehicles that apply to each one of the, options because that is critical in each .choice. Mr. stated -forming an: irri . utility. would have the advantage of allowing the City to finance .improvements through the issuance of revenue bonds. He. stated we could make capital expenditures now, and pay. them over a period _ of time He explained the City. stated we can't do that 'with our =irrigation districts as currently formed because that was done when they,were originally formed and the statutes don't allow us to do that again., We can only continue to pay maintenance and operation .costs. He stated that is the good thing about an irrigation .utility. The, drawback is that unlike other utilities, we don't . have a convenient way of keeping people as customers of the _,_utility. He stated there .in no .mechanism.. for collecting from people, who do not want the service.. He added that is a disadvantage to.an irrigation utility He said it is' conceivable that ,it could be met by, combining it with the. water /sewer utility :but that has:.• not . been explored. City Attorney Vanek stated the .critical thing is that, with the irrigation districts it is an assessment against, the property and has nothing to do with the amount of irrigation water used If the. people don't pay the . assessment;,.. a lien,is filed against the..property that eventually can -.,be assessed . against the property. .He stated :people have no .right to withdraw from the district 'unless. they can meet the • ordinance criteria, which is basically to asphalt the entire property and have no beneficial -.use for the water. He • stated if ..the City institutes the utility district, which is a, rate base and is ,,not•.an .assessment .against the property, people say "I choose.. not to u_se_the • irrigation water or I .choose to use some other service." The City would have no compelling people to stay in the irrigation utility under the..legal structure just Outlined by Mr. Walls.. Mr. Walls stated if the City forms new irrigation districts,we could form them.in such a way that we could • • • pay capital costs pay for'them over a_period of time. We would then again be in a posture of being able ta assess the maintenance and operation costs just as is done now, and wouldhave certainty . ,of that income; but, on. the other had-we would ,perpetuate the . present.system, .albeit perhaps.with a smaller number of districts.. He•stated to form new irrigation districts the City ,.. would have to .go through a formation procedure subject.€o protest just as the City does now for L.I.D.s. for streets,•.sidewalks, etc. That would be a policy decision the Council would have to make. The third . method is abandonment of the irrigation system and ' reliance on. the, domestic, water system. : - stated.. as far as financing is concerned, we would perhaps. finance expansions to the III domestic water system, but there again we would be doing that on the basis, of rates and charges, which would go to pay debt service . on revenue, bonds.. F City Manager Zais i _ introduced Dave Hall of•Preston Thorgrimson's office who responded _to Council .members : questions. about the • NPDES. Council: member. Barnett- .referred. to, .the letter dated J .February 28th, Item No 3 . which is a 'question _ asking 'if DOE is obligated to financially. assist Yakima in meeting the new requirements? Mr. Barnett stated he,- . ..found... no .response. to that . question ; asked .. that has •been'determined. Mr. Hall stated • unfortunately ; ,.the new ,requirements don' t_ include. a. corresponding obligation on_the.part of. DOE.: ; He: stated ._there is money;.available ;through the grant process that the,City goes through periodically to. - obtain funding . , -Mr.. Stouder stated staff has met with the Department , of , Ecology, ; in an .attempt to obtain funding • for some of .the,, improvements slated. for 1988 and.1989. He'stated the City i; • .already has obtained a trust fund .loan in the amount :: of ' $940, 000 . He explained that .when the City first.met with the Department of :Ecology one of-the: positions, -the •City. took . in negotiations was that • •since..their.. initial funding in .the late 70's, or early 80's was to AAD/7 • MAY 3., 1988 334 - `bring the Sewage Treatment Plant up to secondary' sewage: treatment - standards of - 20- MGDs . a • day to serve a certain amount of 'population; and since -that- was not achieved due to;'-technical - reasons; DOE - 'is obligated - to provide us funding• to' reach that treatment capacity. He - stated staff was' interested in- 'pursuing that with the Environmental Protection Agency and higher up the federal' ladder, but they are very reluctant to -have that question raised' because perhaps 'many communities around- - the'United States • - would have that same argument. 'Because of-that political arena that - has a higher ' legal potential arena, there seems `to be some - interest'by them to help us. On the other hand, there was a law 'passed - to provide some additional funding,- what we centennial funding`, however, the- regulations now 'being-written -for that funding are beginning to . exclude Yakima -even though 'it's clear - that - the legislative intent'was to provide opportunities for the "Yakimas' and ~'Spokanes. He - explained that -part of this -' 1ong answer is to say that 'there' there are political 'arenas and ' there -are legal arenas ;''and while'it may not"•be a legal issue at this point that says the DOE as-an obligation to serve us,= we think from a Political/legal-'potential situation, we have some leverage that ' they are obligated-to 'serve Yakima. Council member Barnett asked on what'basis• would -the centennial funds be written: to exclude Yakima from making an application for those funds. Mr. Stouder • - stated it is not ius' by ourselves, - it's Puget - 'Sound" sand their - ' tremendous need to achieve secondary 'sewage treatment - versus the " the State. Puget Sound has not achieved secondary sewage treatment and they are now 50% federal` funding- where we were `'in the 85 -90 % so' that as a political tact'ic'they are trying to : do "everything -they can • to make sure that whatever State or Federal ''money - 'becomes' available, the Money-will get to Puget' 'Sound first: stated our concern is that there will be no - `'funding -- available if Puget Sound receives 'all-of it. -He stated the .. argument ` we - -- are° 'making is that we - -could --have 'delayed our 'obligations to the federal' law in meeting' secondary sewage - treatment just as Seattle and Puget Sound has -done,:and- we would `'have had 20 `million dollars more to 'spend -on'other issues. The • City of Yakima stepped forward in the 70's 'and early 80'-s', met the • obligations of the federal law and ' now' we= are being - 'penalized by being - excluded 'from further funding-opportunities- to meet -- • obligations of the law. The fact - that Puget - Sound didn't ' their obligations is their problem, - and -as- opposed'to being - • 'rewarded with all of the-funds, we -argue "that- they should be _ penalized:'He stated- it is apolitical debate we are engaged in with DOE staff'and he suspects it will desk in the next •'session for some clarification. -'He= commented as we `it', the legislative intent - • and Puget Sound's administrative agenda are'in conflict. City' Manager Zais asked Mr-: Hall to summarize his view of the - permitting regulations that have been issued and compliance to the • - ' requirements placed on the City. ' • ` - 'Mr. Hall stated' the draft NPDES'permit for -'the City of Yakima has a number of conditions that have not been included in- past Yakima NPDES permits, such as biomonitoring, -, priority pollutant scans, -` development of a treatment program,-possibly dechlorination, all of which are' fairly- expensive: Because these new conditions will result ' in significant- -additional expenses; , both' capital - expenditures and fairly significant on -going administrative and operational expenditures, he stated- Chris Waarvick asked him to review the conditions and specifically-to look at the question j of whether 'DOE has the legal authority to require - ''these' types of conditions in it's NPDES He stated' it is important to 'understand, first''of that the'State's Water Program is a delegated program; the NPDES permit system. is a. creature of the Federal Clean Water - Act: The Federal Government, , the'' EPA that delegates that'program to the State which `further' develops the program, administers - and enforces it,-the-program' developed by the State must be consistent with and at least as' strict as'the Federal • program:' The EPA' then' 'retai'ns the oversight function- which simply . means that it coordinates- and Federal" programs. ; -Tt can, in • certain conditions, -intervene- in. the State - permitting and or A/AD /8 MAY 3, 1988 335 appeals process and it can, under certain conditions, veto DOE's issuance` of the NPDES permits if the permit "doesn't accomplish the purpose of the `Federal or State program. This is relevant to the " Yakima situation,`because DOE has indicated to us" that most of the ' pressure' to include these new conditions - is originating with the "'EPA. EPA is directing DOE to include these types of conditions '' - that are bei included in Yakima's draft permit on a state -wide `basis as permits come up for "renewal in' order to implement recent 1_ amendments to the Federal.Clean Water Act and "a series of State and Federal Water `'Quality Initiatives. Both the 'State and Federal .programs "contain a fairly broad range of `,conditions in the permits they - issue ` to 'achieve the' goals and policies of the State and ` Federal programs.; There have been a number - of federal eases that address the specific questions of - types of - limits that exist on r ' ` this ,authority. Because of the "similarities' between "the State and �' Federal programs 'these' cases provide a fairly; accurate - view of how the Same issue would be resolved at a State level. While they `consider`a broad range of factors, they all essentially; come to the same" conclusion,. which is that conditions must be reasonable. It ' means that conditions must be reasonably calculated to further the ' fairly ambitious and broad' goals and policies of legislation, so "that, in they may not appear to be reasonable at ail; you have to' look ' at 'them in context. Secondly/ the courts' ` - have been inclined to give great deference to the implementing 'agency, EPA or DOE, in 'their determination of what . types" of conditions are `;reasonable to ' further the _programs they 'are promoting, Therefore, • ' 'challenges ' the reasonableness of : conditions have been and will continue to be very difficult.`" He stated he has` looked at the specific conditions in the Yakima permit, and while ,a number of the factors that go into that kind of determination, the determination as, to whether or not those kinds of `conditions are reasonable, are � technical'," are bas on en cons ' and a re outside 'the scope 'of ' his review:' He offered`' a few observations: first of all, the conditions are 'fairly consistent`,with rece amendments to the State and-Federal programs and water quality ',initiatives being carried out by the agencies. Secondly,that,if the courts have �to cost held alone, which' is One aspect_ of these conditions that ; really jumps `out at you., this is generally not `sufficient to • *render a 'condition- unreasonable unless 'the' condition fails to ' relate: to or further the policy :or the requirement of the act. Council member Barnett stated setting` cost aside, - - but looking • at . the time schedules for many of these programs that are a requirement of this permit, some of these deadlines seem very tight and unreasonable in that they have to be impleme within fourteen calendar days of a' date that they have established. He asked Chris Waarvick if, he. thinks these dates are j , reasonable, and could be accomplished if the money, was available "right now? ' Mt. ' Waarvick ,stated; "some of them could be, `but - given the constraints of our`. budget,' process, ( no. Mr. Barnett asked what - hap if th schedule can't be met? "Mr. Waarvick reminded Mr. Barnett that ; City is already under Executive: Order and many of II ,those time ,frames have gone by y in terms of action on the Comprehensive 'Sewer Plan: He stated' they take''' into consideration the good faith effort on the part of the City'' to meet those deadlines. . Mr: Barnett asked Mr. Hail if staff is '_ going to have great difficulty in complying with all of 'these programs and dates that ` have been established, - can't' this - be directed back to - them as being unreasonable? Mr. ' Hal stated the ' timing factors 'are often given onsideration, as opposed to the conditions themselves,; and it is ' -- conceivable that there may be room for negotiation wheri'it comes to implementation of the schedule. "If the DOE did not agree to that and it got -.into a* litigation' situation where - the' schedule was appealed',' the appeal' would go . td the Pollution Control Hearings Board. Council member Barnett asked if the City would have to reach the state of litigation or might they grant an extension of time as long' as we show an effort ?, Mr. Stouder stated, yes, Council might recall we, didn't receive an order even though we have been • A/AD /9 MAY - 3,'1988 336 • but of compliance for both water a sewer plans b y the fact that we didn't have any, and we did not receive an order'to do one until we initiated the process. He stated the local`DOE office has issued orders to do things that they could have,.issued at any time, but issued those orders only when they saw that we were politically • ' ready and financially able'and committed to doing something. He stated they worked very well with us. When we have fallen behind in the schedule . that we have given them; which that schedule has changed a number of times since we started, they occasionally write us a letter saying we'are out of schedule with the schedule we gave them •so we give them a new schedule and they became very accommodating. Mr. Stouder stated we are facing`the ,same issue on ' drainage; they have informally said you _ aren't_ meeting the State obligations on the Drainage Plan, and we are to issue an order. Our response has been, okay, issue `that order to us to do a Drainage Plan when you have money to do so, and - they agreed. I The point being.that so far, they worked very well_with us in following our willingness or our intent, and they see that we have good faith in doing things, and in fact we do. This community is ' doing m ore . comprehensive utility planning than most any area in the State right now. Seattle is ten years behind us.. I am confident, ,- - that:at least in the short term, we have good relationships to work out'sane of these issues so they do not end up in court, however, at any time saneone'else could walk into DOE and say these turkeys are out of compliance, issue them an order and let's get on with it. Again,' it ,is a very political arena we are playing.. in most of the time on these issues. Council member` 'Barnett referred to .page 9 of the permit which indicates that March 1st, 1989 the,City has to have an interlocal agreement among the users giving the City the authority to'implement a pre- treatment program'. He stated suppose 'for argument, they don't sign an interlocal agreement giving us . the auth t implement a pre - treatment program; can we break our agreement with them? Mr. Waarvick_ stated'they have already signed. Mr; Hall stated there are really two answers to that question. The first is that a' condition' that turned out to be impossible, with legal constraints like that, it would probably ' not be enforced. The 'other is that the four party agreement that you are already a member to, pretty much gives the City all the authority they need to get by this obstacle. . 'Mr. Waarvick stated Council does not have the four party agreement in the information provided to them, - however, there_is a condition called special waste under that agreement. . Council member Barnett interjected that we haven't implemented the pre treatment. program and that is why_ he asked that question. -Mr. Waarvick stated that is correct; "' but it Jocks: as though • ', someone .knew what one would look like when they wrote the four 'party agreement. Mr. Hall said in fact that condition that Chris is referring to is lifted straight from the federal pre- treatment regulations, that were in effect at .the time the agreement was I/ drafted. , -. . Mayor Berndt asked if there were any further questions. Council member Barnett stated as he understands it, we will receive further information on some of'these issues that have been raised. Mr. Stouder stated after• the series of meetings and public hearings, based on the minutes that the City Clerk's office - is keeping' - and various notes that staff has made, we will try to identify what we think are the unclear issues at this point, and ' ' let you look at those to see if we have identified, them all and then start work on' them. He stated we will wait until we have ' concluded the public hearing process and_then back for another research effort. 6. OTHER BUSINESS Water Superintendent Ty Wick gave a brief - update on the current `situation with the #308 irrigation system. He stated the system was shut down again on Monday around 11:00 A.M. and is still out A/AD /10 ..MAY, 3, 1988 • 337 of service. 'Staff is .still in the, process of determining the extent of damage` to the 34 inch transmission main, but it appears • they will have to replace approximately 20 feet, possibly more, of the 34 inch main behind Castlevale School. 'He stated he does not expect the system to be operational until early next week. 7.. EXECUTIVE SESSION REGARDING PENDING AND7PROSPECTIVE.LITIGATION { It was, MOVED .by seconded by Sims, to move into Executive . Session for, the .pu c rpose of discussing pending .and. prospective litigation -for approximately 1 30 minutes, with adjournment _`thereafter to 7:00 P.M. this evening. Unanimously. c by voice z., vote. Foy absent. 8. ADJOURNMENT TO 7:00 P.M.,. MAY 3, 1988 - g .the coripletion*'of the Executive Session,, the meeting was • adjourned*at the hour of 4:35 P.M. 61 -11- r� READ AND CERTIFIED 'ACCURATE BY �,, COUNCIL. DATE / ATTEST: COUNCIL Ma • DAT CITY CLERK MAYOR Minutes prepared by.Barba'ra - J. Toney, Deputy City Clerk.. - ' v + • • • • .. .. • A/AD/ 11