.

Dunes City attacks Woahink Lake -- again     11-26-12

Concerned citizens   10-31-12

 Presentation to City Council    8-9-12

Orca:  LUBA Agrees: Dunes City Must Have A Septic Ordinance  6-27-12

Newspaper reports on Dunes City Remand  6-9-12

LUBA Decision  6-5-12

Petitioners brief in LUBA appeal 3-14-12     City Responds 4-4-12

Latest from ORCA  2-23-12

ORCA Letter to the Dunes City Council  11-9-11

ORCA Letter to the Dunes City Planning Commission  10-26-12

ORCA Letter to the Dunes City Council  8-10-11

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Dunes City Attacks Woahink Lake--Again! 

The Dunes City City Council dislikes the septic maintenance requirements the town prudently put into place a few years ago, and is seeking again to repeal it.  Ordinance 203, as it is called, requires mandatory septic inspections and pumping if needed at least once, and regular checkups thereafter. Why?  Because not everyone will comply with a voluntary program, and then all Woahink Lake users suffer.  The lake, and its connected wells, creeks and springs, is the drinking water for Dunes City residents. The town has no sewer system; all residents use septic.  Therefore, the town must rely on enforcement to keep the lake clean.
    City Council tried in 2011 to repeal Ordinance 203 and substitute a future voluntary education program. Woahink Lake Association and ORCA appealed the decision to the Land Use Board of Appeals (LUBA) and won, reinstating the mandatory program.  LUBA held that any program in Dunes City must show that it positively affects water quality, or else it does not comply with the City's Comprehensive Plan.  203 can, and has, shown that it works; a hypothetical, voluntary educational program would be very unlikely to do so.  Nevertheless, City Council began the process of considering a new ordinance, which would again substitute a voluntary educational program for effective enforcement. However, this time they propose to place the issue on a ballot before the voters at a special election in Spring 2013.  If City Council insists on seeking to again jeopardize Woahink Lake, ORCA will continue to defend the mandatory septic requirements, working with local residents whose health and clean water depend on a strong septic ordinance.

Cameron La Follette ~ ORCA ~ November 2012 Newsletter

 

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LUBA Agrees: Dunes City Must Have A Septic Ordinance 

The Land Use Board of Appeals agreed with ORCA and the Woahink Lake Association that Dunes City must have a septic maintenance ordinance, and that the City's new education ordinance did not meet the requirements of the Comprehensive Plan. We argued that the Comp Plan policy, which requires septic maintenance, would not be met by leaving no ordinance in place for a year while some kind of "education program" is developed. LUBA agreed. The court also noted that there was evidence to show that septic maintenance under Ordinance 203 unquestionably improved water quality in the lakes. LUBA made it clear that the City will have to show how any alternative to Ordinance 203 does the same. It would be very difficult for an education program, on its own, to make such a showing. Nobody in Dunes City wants contaminated water, of course. ORCA and WLA hope to begin working with the City, now that 203 is back in the driver's seat, to make it more effective, and ensure the lakes' future in providing clean drinking water.

 

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Dunes City Refuses to Negotiate to Protect Water Quality

Oregon Coast Alliance and Woahink Lake Association have taken Dunes City to the Land Use Board of Appeals (LUBA) over the City's decision to repeal Ordinance 203, because it is essentially a back-door effort to amend the City's comprehensive plan without going through the public process. Ordinance 203 set up a septic inspection program which required initial pumping and regular inspections thereafter. This program was critical, as Dunes City residents live around Woahink and nearby lakes, and drink the same waters. ORCA and WLA wrote to the City, suggesting we suspend the legal action and begin negotiations for how best to protect the lakes' water quality. We have had no reply, save communication that the City merely continued moving ahead with the lawsuit. We wrote to Dunes City a second time with concerns for open government, stemming from meetings held regularly in 2011 at the library in nearby Florence by Dunes City City Councilors and Planning Commission members, among others. Though it seems there was no quorum present at these meetings, they certainly violated the spirit of the Public Meetings Law. ORCA and WLA again suggested a meeting with Dunes City officials to work on protecting water quality, instead of continuing private meetings that do not honor an open government philosophy. We have had no response, but our offer remains open. Surely it is better to collaborate on protecting the drinking water than to risk the state or federal government imposing regulations to avoid a public health emergency.

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ORCA:     Oregon Coast Alliance

P.O.Box 5464 ,       Charleston OR 97420

(503) 391-0210           http://www.oregoncoastalliance.org

Protecting the Oregon Coast

August 10, 2011

Dunes City City Council

P.O. Box 97

Westlake , OR 97493

 

Re: Proposed Dunes City Ordinances 210 and 211

Sent via electronic mail  

Dear City Council members,

Oregon Coast Alliance is an Oregon non-profit corporation whose mission is to protect and restore coastal natural resources, and work with coastal residents for sustainable communities. We write this testimony on our own behalf and our members’ behalf.

Dunes City on January 14, 2010 enacted Ordinance 203, entitled “Septic System Maintenance.” This created Chapter 157 in the Dunes City ordinance code. Dunes City is currently considering Ordinances 210 and 211, which would repeal Ordinance 203 directly or render it ineffective, thus ending Dunes City ’s proactive septic maintenance program. The reason for Ordinance 203 is simple: many Dunes City residents live in the vicinity of Woahink and/or Siltcoos Lakes , and the majority of Dunes City residents use Woahink Lake , Siltcoos Lake , Little Woahink Lake, Woahink Creek and/or the Siltcoos River as their source of drinking water. Dunes City has a water right for Woahink Lake , and provides permits to residents who apply for water use; other residents obtain water from nearby sources as listed above, or from wells. All these sources are vulnerable to contamination from failing septic systems.  

Woahink, Little Woahink, Siltcoos Lakes and their tributaries are all near one another, and hydrologically connected in the manner well understood in dunal lake ecosystems. Sandy soils are porous. Therefore, to protect against contamination of the drinking water supply, the City enacted Ordinance 203. Oregon Coast Alliance notes that there have been at least two Public Health Advisories listed for Siltcoos Lake in the recent past, in September 2007 and October 2008.

It is simply good policy to have a drinking water ordinance in place that requires prudent care of septic systems in the area, as any overflow, leakage or failure would seep into one or another of the connected lakes, or their tributaries, and very easily foul the drinking water supply.

Oregon Coast Alliance opposes both Ordinance 210 and Ordinance 211, for several reasons.

Dunes City is Fulfilling a Critical Need for Septic Oversight

Ordinance 211 states, “The State of Oregon has reserved unto itself, unless it has entered into an agreement with one of its counties pursuant to ORS 454.725, jurisdiction over wastewater disposal systems in the state of Oregon…” and continues by noting that the State has entered into such an agreement with Lane County for the oversight of waste disposal systems.

Ordinance 211 fails to note that the Department of Environmental Quality (DEQ)’s rules also require that the owner of an on-site wastewater treatment system maintain that system in working order. OAR 340-071-120(2). The county, as agent for DEQ, is prohibited from allowing any system to operate in contravention of DEQ rules or otherwise discharge untreated wastewater into ground, surface or public waters. OAR 340-071-130(1-4). Owners must at all times maintain and operate their systems in accordance with DEQ rules. OAR 340-071-130(13).1

Oregon permits local ordinances to be enacted which are stricter than state law, if the ordinance follows the requirements in state law. Nothing in Oregon statute prohibits a municipality from proactively enacting legislation to require inspection, evaluation and pumping of septic systems. The only matter pre-empted by the State of Oregon or Lane County is the authority to permit new wastewater treatment systems. There is no pre-emption of maintenance of existing septic systems.

OAR 340-071-0120 specifically authorizes DEQ to enter into agreements with local governments, which then authorizes the local entity to become DEQ’s agent in permitting onsite wasterwater systems. The purpose of this Rule is to protect public waters from public health hazards. However, this power does not eliminate the power of municipalities to pass an ordinance stricter than DEQ or a delegated County may have for wasterwater inspection and evaluation. On the contrary, OAR 340-071-0130 lists the responsibilities of a local agent, and enumerates the responsibilities and prohibitions of “any person” with respect to wastewater. Given that such requirements are mandatory, it is perfectly in accordance with the law that Dunes City enact a septic evaluation and maintenance ordinance. It essentially implements the requirements of OAR 340-071-0130 that neither Lane County nor DEQ has the staff or resources to undertake. 

Existing systems are subject to review at any time under DEQ statutes. “Any person” may request such a review on any system. OAR 340-071-155. DEQ or the agent must produce a report on the system including any evidence that the system may be 1 OAR 340-071-130(13) Operation and maintenance. Owners of onsite systems must operate and maintain their systems in compliance with all permit conditions and applicable requirements in this division and must not create a public health hazard or pollute public waters..malfunctioning.2   A failing system must be immediately repaired. OAR 340-071-215(1).  Needed repairs must go through the same application process as for initial systems, and are subject to the same approval criteria. OAR 340-071-160(2). Before the system can be put back into use, the repairs must qualify for a “Certificate of Satisfactory Completion” just the same as new systems. If a failing system cannot be repaired, it must be decommissioned. OAR 340-071-185. Dunes City ’s ordinance is thus fulfilling state law requirements in an appropriate and extremely necessary manner; it is far preferable to require regular septic maintenance and pumping than for DEQ or its agent to step in only at the time of septic failure, when damage has already occurred. DEQ does require a permit renewal every few years, but it does not require a septic owner to demonstrate whether the system is failing or is working well. The owner need only demonstrate that the septic system in use has not been changed to another kind or size. Thus, Dunes City ’s ordinance fills a critical gap: neither DEQ nor Lane County has an active program of septic maintenance and oversight.  The Dunes City Comprehensive Plan Requires a Septic Ordinance

Under the land use laws, Ordinance 203 likely qualifies as a “second-level” land use ordinance. ORS 197.015 (11) defines “land use regulation” as, among other things, “any…land division ordinance adopted under ORS 92.044…or similar general ordinance establishing standards for implementing a comprehensive plan.” Let us then turn to ORS 92.044 (1)(b), the standards governing approval of plats and plans, which requires taking into consideration the location and surrounding area of a subdivision or partition. ORS 92.044 (1)(b)(E) includes requirements for “Facilitating adequate provision of…water supply, sewerage, drainage…or other needs.” Since inadequate septic maintenance will likely lead to continuing health advisories such as those already issued for Siltcoos Lake in 2007 and 2008, with the result that drinking water may have to be trucked in from outside sources, the proper functioning of Ordinance 203 is critical to Dunes City’s efforts to meet the requirements of the land use laws. Though it is a septic maintenance ordinance rather than an ordinance for providing drinking water, its regulation directly affects provision of drinking water in the manner described above.

Ordinance 203’s direct relationship to the land use laws is buttressed by the fact that the Dunes City Comprehensive Plan contains several policies that focus specifically on protection of the drinking water supply. Most especially applicable are policies B8, E1, 2 340-071-0155 (3) - The agent must: (a) Examine the records available on the existing system, including all permit records and pumping and other maintenance records; (b) Conduct a field evaluation of the existing system; and (c) Issue a report of findings to the applicant. The report must address the information obtained relevant to system performance such as age; usage; records of installation, maintenance, and repairs; type, size, capacity and condition of components; evidence of any failures; other relevant information (e.g., condition of repair area if known); and a complete sketch of the system showing location and distances of major components..E2, E3, E5, E6 and I10. Of all these, the most directly on point is policy E6, which states, “The City shall adopt a program to improve maintenance of septic systems for the benefit of all residents.”

This is as clear and unambiguous as language can be. Both Ordinance 210 and 211 would either remove a section of, or amend, the Dunes City Zoning Code. Prior to taking such action, the City Council must first determine whether the repeal or amendment of Ordinance 203 is consistent with the Dunes City Comprehensive Plan. Oregon law prohibits a municipality from adopting a zoning code provision that makes provisions of the Comprehensive Plan redundant or meaningless. Both Ordinance 210 and 211 would do exactly that: render meaningless the Comprehensive Plan Policies cited above. Oregon law also prohibits “back door” attempts to amend the Comprehensive Plan through findings used to amend the zoning code. If a local government wishes to amend its Comprehensive Plan policies, it must do so directly, before changing a zoning code provision that reduces required regulation. In other words, to amend the Comprehensive Plan, Dunes City must go through all required steps, including a finding of consistency with all statewide planning goals through a post-acknowledgement plan amendment (PAPA). As part of the process, the City must also demonstrate compliance with all relevant state and federal laws.  

Thus, passage of Ordinance 210 or 211 will amend the Comprehensive Plan in a prohibited manner, circumventing the required public process.

Dunes City Must Meet Goal 5 and Goal 6 Requirements

The Dunes City Comprehensive Plan has components reflecting the requirements of both Goal 5 and Goal 6 of the land use laws.  Goal 5 requires, among other things, identification of fish and wildlife resources associated with the lakes in the area covered by the Plan. The continuing contamination problems of Siltcoos Lake clearly have an adverse effect on fish and wildlife of the Lake , and thus Dunes City , by repealing or hamstringing Ordinance 203, will be acting in a manner inconsistent with Goal 5. This will apply equally to Woahink and/or Little Woahink Lakes, should they also begin to experience wastewater contamination after a repeal of Ordinance 203.

Goal 6 deals specifically with air, water and land resource quality. The Goal has language requiring that waste and process discharges from future development, when combined with existing  development, neither violate nor threaten to violate state or federal environmental quality statutes. The Goal strongly recommends that Comprehensive Plans investigate methods of implementing the Goal, including enforcement of local health and safety ordinances.

Furthermore, Comprehensive Plans, to implement Goal 6, must consider the carrying capacity of the land, air and water; find ways of buffering land uses that will cause conflicts; and coordinate with river basins described in environmental quality statutes and rules.   Siltcoos Lake is currently listed as a 303(d) limited water body for aquatic weeds and/or algae under the federal Clean Water Act, and has been since 1998. No Total Maximum Daily Load (TMDL) has been set for the Lake . That means DEQ cannot authorize any new or increased discharges that would increase the weed problem until the TMDL is completed. See Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9 th Cir. 2007). Increased nutrient loads from failing or overloaded septic systems could very likely cause additional weed problems, as phosphorus and other nutrients are the primary cause of such weeds.

Ordinances 210 and 211, if either are enacted, will potentially allow new or increased discharges of nutrients into Siltcoos Lake as a result of failing or poorly maintained septic systems. This will clearly be in violation of both Goal 6 and the federal Clean Water Act.  

Repeal of Ordinance 203 Will Likely Trigger A Building Moratorium

If Dunes City repeals or renders ineffective its septic maintenance ordinance, it is failing to address the existing problems causing algae and weeds in Siltcoos Lake , which most probably include increased phosphates from poorly maintaned septic systems. A similar problem may well develop on Woahink or Little Woahink Lake as well as a result of lack of septic maintenance. This failure on the City’s part may very well affect the City’s ability to grant additional building permits in the near future. DEQ has the authority to cease issuing new septic permits in situations where additional development will add to the pollution load. See OAR 340-071-0460 (1).

Essentially, this effort to repeal or severely restrict Ordinance 203 is initiating a de facto moratorium on new development in Dunes City , once water quality problems reach a point that DEQ and/or Lane County exercises its authority over new septic permits. 

Conclusion

Ordinance 203 is an excellent ordinance that accomplishes several things very effectively: (1) It complies with Dunes City Comprehensive Plan policies on water quality and septic maintenance; (2) It complies, and is consistent with, Land Use Goal 5 and Goal 6, as well as state and federal environmental quality statutes; (3) It provides a critical service of septic oversight that neither DEQ nor Lane County are able to regularly fulfill; (4) It complies with DEQ requirements for protections of Siltcoos Lake, which is a water-quality-limited lake required by law to have a program in place for pollution reduction.

It would be short-sighted for Dunes City to fail to oversee and maintain the septic systems of its residents, who enjoy Woahink and Siltcoos Lakes and other nearby waterbodies by both living on their fringes and drinking water from them. ORCA urges the City Council to deny both Ordinance 210 and 211 and retain Ordinance 203 as part of the Dunes City zoning code..Many thanks for the opportunity to testify. Please enter this testimony into the record of this matter, and notify ORCA of any further action taken by Dunes City.  

Sincerely,  

Cameron La Follette

Land Use Director  

pdf file here  

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From ORCA's site

Dunes City Seeks to Repeal Septic Maintenance Ordinance That Protects Drinking Water

The residents of Dunes City, just south of Florence, mostly live around Siltcoos and Woahink Lakes. All residents are on a septic system, as Dunes City has no sewer. Now, these same residents get their drinking water primarily from the two lakes and their tributaries. Some have private water rights or private groundwater wells, but a majority use Dunes City's water right on Woahink Lake. So, Dunes City residents live around the lakes and rivers that provide their drinking water. The lakes, rivers and groundwater are hydrologically connected in the manner familiar for dunal ecosystems. It is common sense that the City should pass, and enforce, a fairly strict septic maintenance ordinance.

In 2010, the Dunes City City Council did exactly that. The septic ordinance requires every septic system to pass an initial inspection, which includes mandatory pumping (Dunes City Code sec. 157.060). Only by pumping can the inspector see if there are cracks or potential hidden failures in the septic tank. Subsequent inspections are required at least every five years, and Dunes City must keep records of the inspection results (Dunes City Code sec. 157.050). This ordinance fulfills the tersely and clearly worded language of the City's Comprehensive Plan, which states in Policy E8: "The City shall adopt a program to improve maintenance of septic systems for the benefit of all residents."

However, since passage of Ordinance 203, new members of City Council have been elected, some of whom oppose these requirements, either because of mandatory septic pumping or for other reasons. At an August 2011 City Council meeting, the City was poised to consider a repeal the septic ordinance, and another proposal that would have drastically amended it to remove the requirement for mandatory pumping — cutting the essence from the existing law that maintains water quality. At the last minute the hearing was cancelled.

Oregon Coast Alliance opposes these efforts to repeal or drastically amend the septic ordinance. For one thing, Dunes City certainly has the power to pass a stricter local ordinance than DEQ or Lane County has, in order to protect its drinking water. Second, septic maintenance is a weak spot in both DEQ and County regulation, yet it is perfect for local oversight, and very necessary. Last, Dunes City cannot amend its Comprehensive Plan by the back door route of eliminating its septic ordinance. If the City wants to amend its Plan, it must do so directly, with all the public process required.

ORCA will continue working with concerned Dunes City residents to protect the drinking water supply, and the integrity of Woahink and Siltcoos Lakes, through the septic ordinance and other effective means. We hope the residents can agree that septic maintenance, when you live around the lakes that provide your drinking water, is absolutely essential. ORCA hopes that a conversation can begin in Dunes City about the ways to ensure the drinking water is safe and septic systems are functioning properly.

1. Dunes City septic maintenance ordinance 2010

2. Dunes City septic ordinance repeal proposal

3. ORCA testimony on Dunes City septic ordinance

4. Lane County Drinking Water report 2010

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For more on water quality through proper planning 

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October 26, 2011

 

Dunes City Planning Commission

P.O. Box 97

Westlake , OR 97493  

Re: Proposed Dunes City Ordinances 210a and 211a

Sent via electronic mail

Dear Planning Commission members,  

Oregon Coast Alliance is an Oregon non-profit corporation whose mission is to protect and restore coastal natural resources, and work with coastal residents for sustainable communities. We write this testimony on our own behalf and our members’ behalf.

Dunes City on January 14, 2010 enacted Ordinance 203, entitled “Septic System Maintenance.” This created Chapter 157 in the Dunes City ordinance code. Dunes City considered Ordinances 210 and 211 earlier this year, and ORCA provided testimony in opposition to both proposals.  

The Planning Commission is currently considering Ordinances 210a and 211a, which would also repeal Ordinance 203 directly or render it ineffective, thus ending Dunes City’s proactive septic maintenance program. The reason for Ordinance 203 is simple: many Dunes City residents live in the vicinity of Woahink and/or Siltcoos Lakes , and the majority of Dunes City residents use Woahink Lake , Siltcoos Lake , Little Woahink Lake, Woahink Creek and/or the Siltcoos River as their source of drinking water. Dunes City has a water right for Woahink Lake , and provides permits to residents who apply for water use; other residents obtain water from nearby sources as listed above, or from wells. All these sources are vulnerable to contamination from failing septic systems.  

Woahink, Little Woahink, Siltcoos Lakes and their tributaries are all near one another, and hydrologically connected in the manner well understood in dunal lake ecosystems. Sandy soils are porous. Therefore, to protect against contamination of the drinking water supply, the City enacted Ordinance 203. Oregon Coast Alliance notes that there have been at least two Public Health Advisories listed for Siltcoos Lake in the recent past, in September 2007 and October 2008. It is simply good policy to have a drinking water ordinance in place that requires prudent care of septic systems in the area, as any overflow, leakage or failure would seep into one or another of the connected lakes, or their tributaries, and very easily foul the drinking water supply.  

Oregon Coast Alliance opposes both Ordinance 210a and Ordinance 211a, for several reasons. First, we reiterate our opposition as laid out in August 2011 testimony to the Dunes City City Council concerning proposed Ordinances 210 and 211. None of those reasons have changed or lost their value in the public policy debate over septic maintenance. Proposed Ordinance 210a has not been changed from the earlier proposed Ordinance 210. However, Ordinance 211a has been substantially changed, so we add a discussion of the most recent amendments.

Ordinance 211a Cannot Fulfill Requirements with an Educational Program

Ordinance 211a would repeal existing ordinance 203 and replace it with an educational program for septic system maintenance, to be implemented within one year of adoption. The proposal contains no further language, guiding principles, standards or criteria other than this one line concerning the nature of the educational program. The “Whereas” clauses remain the same, except that a new one has been added, which states: “Whereas it is in the best interests of Dunes City residents to establish an educational program to ensure adequate septic system maintenance…”

This shift to repeal of Ordinance 203 by replacing it with education is patently a means of softening the blow of the repeal. However, it addresses none of the objections to the repeal, nor meets the requirements of Policy E6 of the Dunes City Comprehensive Plan.

There is certainly nothing wrong with an educational program; it would be appropriate and helpful to implement such a program as regards septic maintenance. However, it would not, and cannot by its nature, fulfill the Comp Plan requirement for septic maintenance. This is especially noteworthy because the 211a language makes no guarantee, or even effort, to show that there is any relationship at all between the educational program and actual septic maintenance, nor any showing of how such a connection might be made. It merely asserts in the “Whereas” clause that an educational program will “ensure” adequate maintenance. Such an empty statement, with no relationship designed to bridge education and septic maintenance, is valueless for the purpose it purports to fulfill.

 

In considering the impact of an educational program, we should also contemplate Dunes City’s resources. An educational program costs money that the City may not have available. Any educational program, to be effective, requires at least: (1) implementing ordinance(s) specifying the nature of the program, the City department(s) responsible for it, the lines of authority in oversight of it, and so on; (2) city staff to implement the program, or at least to oversee the volunteers implementing it; (3) educational materials such as brochures, fliers, booklets, etc.; (4) money for the costs of the program. The history of Dunes City ’s educational programs shows that they are often volunteer-led, small scale and sometimes recreational in orientation. This admirably suits some educational programs, but not one purporting to take the place of mandatory septic maintenance.. Since proposed ordinance 211a contains no language whatsoever concerning the actual working of an educational program, we are left in doubt as to the effective and comprehensive nature of it, if it ever gets underway.  

There appear to have been some problems implementing Ordinance 203, especially in maintaining proper records and ensuring that all residents have access to septic information and a list of inspectors. However, these are the normal problems one might expect in implementing a new program; they are not a reason to repeal it. The best educational materials available to Dunes City will be the reports and results of the septic inspections required by the current law: Dunes City Code sec. 157.060( C)(5) requires every owner by March 2012 to submit to the City an inspection report, mapping and pumping of all septic systems on their property. It would be most unwise of Dunes City to repeal Ordinance 203 prior to even having fully implemented its requirements – among other things, such an action would make clear the City’s unwillingness to follow its own acknowledged Comprehensive Plan.  

With the information available as of March 2012, Dunes City could perhaps compile information similar to that completed by the South Coast Watershed Council and others in the Port Orford area for Garrison Lake . Garrison Lake is bordered by many buildings using septic systems, and has had nutrient-loading increases that may be caused by septic problems. The Watershed Council and colleagues (such as the Garrison Lake Restoration Committee) compiled data and a map showing the age and inspection status of all buildings around the Lake . The Garrison Lake map is an attachment to this testimony.

The Garrison Lake information makes it clear that maintaining water quality in coastal lakes is a fairly common problem, but resources exist to pinpoint the issue and address it effectively. Dunes City is in an excellent position, because it already has a mandatory septic maintenance ordinance. A combination of mandatory pumping, inspection, accurate record-keeping and education is probably the best solution to maintaining the water quality of Woahink, Little Woahink and Siltcoos Lakes so essential to Dunes City residents. A vague mandate for “an educational program” will not fulfill Dunes City ’s Comprehensive Plan requirements for septic maintenance, nor provide the means for sustaining the necessary water quality level in the lakes.

Dunes City is Fulfilling a Critical Need for Septic Oversight  

Ordinance 211a states, “The State of Oregon has reserved unto itself, unless it has entered into an agreement with one of its counties pursuant to ORS 454.725, jurisdiction over wastewater disposal systems in the state of Oregon ...” and continues by noting that the State has entered into such an agreement with Lane County for the oversight of waste disposal systems.

Ordinance 211a fails to note that the Department of Environmental Quality (DEQ)’s rules also require that the owner of an on-site wastewater treatment system maintain that system in working order. OAR 340-071-120(2). The county, as agent for DEQ, is.prohibited from allowing any system to operate in contravention of DEQ rules or otherwise discharge untreated wastewater into ground, surface or public waters. OAR 340-071-130(1-4). Owners must at all times maintain and operate their systems in accordance with DEQ rules. OAR 340-071-130(13).  Oregon permits local ordinances to be enacted which are stricter than state law, if the ordinance follows the requirements in state law. Nothing in Oregon statute prohibits a municipality from proactively enacting legislation to require inspection, evaluation and pumping of septic systems. The only matter pre-empted by the State of Oregon or Lane County is the authority to permit new wastewater treatment systems. There is no pre-emption of maintenance of existing septic systems. OAR 340-071-0120 specifically authorizes DEQ to enter into agreements with local governments, which then authorizes the local entity to become DEQ’s agent in permitting onsite wastewater systems. The urpose of this Rule is to protect public waters from public health hazards. However, this power does not eliminate the power of municipalities to pass an ordinance stricter than DEQ or a delegated County may have for wastewater inspection and evaluation. On the contrary, OAR 340-071-0130 lists the responsibilities of a local agent, and enumerates the responsibilities and prohibitions of “any person” with respect to wastewater. Given that such requirements are mandatory, it is perfectly in accordance with the law that Dunes City enact a septic evaluation and maintenance ordinance. It essentially implements the requirements of OAR 340-071-0130 that neither Lane County nor DEQ has the staff or resources to undertake. Existing systems are subject to review at any time under DEQ statutes. “Any person” may request such a review on any system. OAR 340-071-155. DEQ or the agent must produce a report on the system including any evidence that the system may be malfunctioning. A failing system must be immediately repaired. OAR 340-071-215(1).

Needed repairs must go through the same application process as for initial systems, and are subject to the same approval criteria. OAR 340-071-160(2). Before the system can be put back into use, the repairs must qualify for a “Certificate of Satisfactory Completion” just the same as new systems. If a failing system cannot be repaired, it must be decommissioned. OAR 340-071-185. Dunes City ’s ordinance is thus fulfilling state law requirements in an appropriate and extremely necessary manner; it is far preferable to require regular septic maintenance and pumping than for DEQ or its agent to step in only at the time of septic failure, when damage has already occurred. DEQ does require a permit renewal every few years, but it does not require a septic owner to demonstrate whether the system is failing or is working well. The owner need only demonstrate that the septic system in use has not been changed to another kind or size. Thus, Dunes City ’s ordinance fills a critical gap: neither DEQ nor Lane County has an active program of septic maintenance and oversight.

The Dunes City Comprehensive Plan Requires a Septic Ordinance

Under the land use laws, Ordinance 203 likely qualifies as a “second-level” land use ordinance. ORS 197.015 (11) defines “land use regulation” as, among other things, “any...land division ordinance adopted under ORS 92.044...or similar general ordinance.establishing standards for implementing a comprehensive plan.” Let us then turn to ORS 92.044 (1)(b), the standards governing approval of plats and plans, which requires taking into consideration the location and surrounding area of a subdivision or partition. ORS 92.044 (1)(b)(E) includes requirements for “Facilitating adequate provision of...water supply, sewerage, drainage...or other needs.” Since inadequate septic maintenance will likely lead to continuing health advisories such as those already issued for Siltcoos Lake in 2007 and 2008, with the result that drinking water may have to be trucked in from outside sources, the proper functioning of Ordinance 203 is critical to Dunes City ’s efforts to meet the requirements of the land use laws. Though it is a septic maintenance ordinance rather than an ordinance for providing drinking water, its regulation directly affects provision of drinking water in the manner described above.

Ordinance 203’s direct relationship to the land use laws is buttressed by the fact that the Dunes City Comprehensive Plan contains several policies that focus specifically on protection of the drinking water supply. Most especially applicable are policies B8, E1, E2, E3, E5, E6 and I10. Of all these, the most directly on point is policy E6, which states, “The City shall adopt a program to improve maintenance of septic systems for the benefit of all residents.”  This is as clear and unambiguous as language can be. Both Ordinance 210a and 211a would either remove a section of, or amend, the Dunes City Zoning Code. Prior to taking such action, the City Council must first determine whether the repeal or amendment of Ordinance 203 is consistent with the Dunes City Comprehensive Plan. Oregon law prohibits a municipality from adopting a zoning code provision that makes provisions of the Comprehensive Plan redundant or meaningless. Both Ordinance 210a and 211a would do exactly that: render meaningless the Comprehensive Plan Policies cited above.

Oregon law also prohibits “back door” attempts to amend the Comprehensive Plan through findings used to amend the zoning code. If a local government wishes to amend its Comprehensive Plan policies, it must do so directly, before changing a zoning code provision that reduces required regulation. In other words, to amend the Comprehensive Plan, Dunes City must go through all required steps, including a finding of consistency with all statewide planning goals through a post-acknowledgement plan amendment (PAPA). As part of the process, the City must also demonstrate compliance with all relevant state and federal laws.  

Thus, passage of Ordinance 210a or 211a will amend the Comprehensive Plan in a prohibited manner, circumventing the required public process.  

Dunes City Must Meet Goal 5 and Goal 6 Requirements

The Dunes City Comprehensive Plan has components reflecting the requirements of both Goal 5 and Goal 6 of the land use laws.  Goal 5 requires, among other things, identification of fish and wildlife resources associated with the lakes in the area covered by the Plan. The continuing contamination problems of Siltcoos Lake clearly have an adverse effect on fish and wildlife of the Lake ,.and thus Dunes City , by repealing or hamstringing Ordinance 203, will be acting in a manner inconsistent with Goal 5. This will apply equally to Woahink and/or Little Woahink Lakes , should they also begin to experience wastewater contamination after a repeal of Ordinance 203.  

Goal 6 deals specifically with air, water and land resource quality. The Goal has langauge requiring that waste and process discharges from future development, when combined with existing development, neither violate nor threaten to violate state or federal environmental quality statutes. The Goal strongly recommends that Comprehensive Plans investigate methods of implementing the Goal, including enforcement of local health and safety ordinances.  

Furthermore, Comprehensive Plans, to implement Goal 6, must consider the carrying capacity of the land, air and water; find ways of buffering land uses that will cause conflicts; and coordinate with river basins described in environmental quality statutes and rules. Siltcoos Lake is currently listed as a 303(d) limited water body for aquatic weeds and/or algae under the federal Clean Water Act, and has been since 1998. No Total Maximum Daily Load (TMDL) has been set for the Lake . That means DEQ cannot authorize any new or increased discharges that would increase the weed problem until the TMDL is completed. See Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007).

Increased nutrient loads from failing or overloaded septic systems could very likely cause additional weed problems, as phosphorus and other nutrients are the primary cause of such weeds.  

Ordinances 210a and 211a, if either are enacted, will potentially allow new or increased discharges of nutrients into Siltcoos Lake as a result of failing or poorly maintained septic systems. This will clearly be in violation of both Goal 6 and the federal Clean Water Act.  

Repeal of Ordinance 203 Will Likely Trigger A Building Moratorium

If Dunes City repeals or renders ineffective its septic maintenance ordinance, it is failing to address the existing problems causing algae and weeds in Siltcoos Lake , which most probably include increased phosphates from poorly maintaned septic systems. A similar problem may well develop on Woahink or Little Woahink Lake as well as a result of lack of septic maintenance. This failure on the City’s part may very well affect the City’s ability to grant additional building permits in the near future. DEQ has the authority to cease issuing new septic permits in situations where additional development will add to the pollution load. See OAR 340-071-0460 (1).

Essentially, this effort to repeal or severely restrict Ordinance 203 is initiating a de facto moratorium on new development in Dunes City , once water quality problems reach a point that DEQ and/or Lane County exercises its authority over new septic permits.  

Conclusion

Ordinance 203 is an excellent ordinance that accomplishes several things very effectively: (1) It complies with Dunes City Comprehensive Plan policies on water quality and septic maintenance; (2) It complies, and is consistent with, Land Use Goal 5 and Goal 6, as well as state and federal environmental quality statutes; (3) It provides a critical service of septic oversight that neither DEQ nor Lane County are able to regularly fulfill; (4) It complies with DEQ requirements for protections of Siltcoos Lake , which is a water-quality-limited lake required by law to have a program in place for pollution reduction.

 It would be short-sighted for Dunes City to fail to oversee and maintain the septic systems of its residents, who enjoy Woahink and Siltcoos Lakes and other nearby waterbodies by both living on their fringes and drinking water from them. ORCA urges the City Council to deny both Ordinance 210a and 211a and retain Ordinance 203 as part of the Dunes City zoning code.

As an alternative, we suggest that Dunes City amend proposed Ordinance 211a so that it does not repeal Ordinance 203, but does set up an educational program about the importance of septic maintenance in support of Ordinance 203. This would give residents the opportunity to explore and better understand the reasons for the mandatory pumping, inspections and record-keeping required under the current law.

Many thanks for the opportunity to testify. Please enter this testimony into the record of this matter, and notify ORCA of any further action taken by Dunes City .  

Sincerely,

Cameron La Follette

Land Use Director

pdf file here  

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Garrison Lake Watershed Septic Map September, 2011 Map Color Key

Red: septic inspection or permit not current

Blue: 2001-2009 date of installation or major repair

Green: 1991-2000 date of installation or major repair

Yellow: 1985-1990 date of installation or major repair

Pink: wetlands (from National Wetlands Inventory)

Tan: City of Port Orford

372 tax parcels outside the City of Port Orford

110 parcels (30%) do not have buildings 262 parcels have buildings

85 (32%) parcels have septic systems inspected as of 1985 or more recently

176 parcels assumed to have been built or inspected more than 25 years ago.

Information from City of Port Orford and South Coast Watershed Council

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Dunes City City Council

P.O. Box 97

Westlake, OR 97493

 

Nov. 9, 2011

 

Re: Proposed Dunes City Ordinances 210a and 211a

Sent via electronic mail

 

Dear Members of City Council,

Oregon Coast Alliance submits this additional testimony to you for consideration oat the hearing of Ordinance proposals 210a and 211a. As part of this testimony, we resubmit the letter we sent to the Planning Commission on the same proposals, dated Oct. 26, 2011, along with the attachment of the map and statistics of Garrison Lake.

In this additional letter, ORCA would like to urge City Councilors to consider the Dunes City septic maintenance debate as a problem in how best to protect a common resource for the benefit of all residents. The waters of Woahink and Siltcoos Lakes (and the associated streams and groundwaters) are a resource held in common. That is to say: the waters are used by many people for drinking water and other amenities, but are not owned by them. This can lead to a situation in which all wish to benefit from the resource, but none wish to pay the costs of protection. If this is not legislated, the inevitable result is that the resource – drinking water, in this case – becomes degraded.

That would mean more sophisticated and costly water filtration systems for Dunes City residents, Honeyman State Park, and any businesses that also use the same water supply.  Dunes City residents have the opportunity, through Ordinance 203, to maintain an across the-board fair law that requires every resident to bear approximately the same cost of protecting the resource for the benefit of all. It is natural and expected that one whose septic system is failing be required to pay for its upgrade or repair, for his own benefit and that of all other residents who share the waters. In this case, the “commonality” of the resource is even greater than residents alone, as visitors to Honeyman State Park, which receives more than one million visitors per year, also drink the water of Woahink Lake. 

Any degradation of Woahink Lake’s water may eventually also increase filtration or treatment costs to the Park, and thus to Oregon taxpayers. 

The most current figures compiled under Ordinance 203 indicate the success of Dunes City’s septic maintenance program. The law requires an initial mandatory pumping and inspection of all septic systems, and also requires Dunes City to keep records of the septic program. The record-keeping has not been fully implemented, but current data shows that as of summer 2011 there are about 781 septic systems in Dunes City, of which about 69% have complied with the law. There has been some confusion; some of those who have obeyed the law have had their septics pumped but not evaluated; others the reverse. But 69% is a fairly good showing of compliance, and indicates that people in Dunes City do care about the water quality the lakes on which they depend for drinking water, recreation, fishing and other amenities. It is especially noteworthy that of the 534 households that have complied thus far, 65 had failed septics, or needed replacements or repairs. That certainly indicates Ordinance 203's success in protecting Dunes City's drinking water supply. 

Other communities on the coast face similar struggles to protect water quality in coastal lakes important to area residents. Port Orford, for example, has been concerned about Garrison Lake, which is on its border. The South Coast Watershed Council and its partners compiled some data, and a map, of Garrison Lake's shoreline outside the City as of September 2011. ORCA submitted this information in prior testimony to the Planning Commission. Of 262 parcels having buildings on Garrison Lake’s shoreline, only about 32% have septic systems inspected in 1985 or more recently. All the others were probably built and/or inspected more than twenty-five years ago.  

Dunes City, with its existing septic ordinance and data showing nearly 70% compliance, is an example of what can be done by a community focused on protecting its critical water resources for the good of all. Oregon Coast Alliance hopes the City will continue this proud achievement — and perhaps build on it by adding an educational component to Ordinance 203 in order to expand understanding and willingness of residents to work together for the common good.

Thank you for the opportunity to testify.

Sincerely,

Cameron La Follette

Land Use Director

pdf file here

 

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For more on water quality through proper planning