Ok, this is beginning to make my head hurt...is there a stay or isn't there a stay?

Here's what the Action Taken from Jan. 26, 2010 reports:

"Ordinance staying pro-active enforcement of Whatcom County Code 24.05, On-site Sewage System Regulations, in cases where property owners are otherwise not transferring title or conveying real estate (AB2009-135) (introduced November 10, 2009) No action was taken on this ordinance and A revised ordinance on this issue was introduced later in the evening. The Council did approve a motion to stay proactive pursuit of the inventory until methods are cleared up. Motion carried 5-2, with Weimer and Mann opposed." Excerpt from Action Taken FINAL for January 26, 2010 -- a copy is posted below).

So, if there is a stay, as reported above, does it violate state law?

John Wolpers, Whatcom County Department of Health told Wendy Harris that WCC 24.05 is still in effect. "If the Whatcom County Health Department learns of a violation of the code, we will pursue the matter just as we always have."

But passively sitting back waiting to learn of a violation is very  different behavior from actively monitoring and inspecting on site sewage disposal systems, as provided for in WWC 24.05, (authorized by RCW 70.118.050, which allows counties to adopt more restrictive standards), such as the standards for active monitoring of septic systems that Brenner and Crawford are attempting to repeal.





Background:

Authority for Adoption of more restrictive standards. RCW 70.118.050:

"If the legislative authority of a county or city finds that more restrictive standards than those contained in *section 2 of this act or those adopted by the state board of health for systems allowed under *section 2 of this act or limitations on expansion of a residence are necessary to ensure protection of the public health, attainment of state water quality standards, and the protection of shellfish and other public resources, the legislative authority may adopt ordinances or resolutions setting standards as they may find necessary for implementing their findings. The legislative authority may identify the geographic areas where it is necessary to implement the more restrictive standards. In addition, the legislative authority may adopt standards for the design, construction, maintenance, and monitoring of sewage disposal systems."

In an earlier post, Wendy questioned the County's authority to administratively stay the provisions of WCC 24.05 on the basis that the stay "conflicts with requirements under RCW 70.05.072. Under state law, waiver from on-site sewage system requirements may only be made by the local health officer on an individual, site-by-site basis and only when the waiver is determined to be consistent with the standards and intent of state of board health rules. Quarterly reports must be submitted to the State Health Department for review."

In closing, Harris further asserts, "There is no legal basis for suspending state laws enacted to protect public health and safety, particularly where it is based solely on a County Council error that can be cured within a few weeks. Moreover, an administrative stay on WCC 24.05 contradicts the very function and purpose of the County Health Department."

Additional background information on WAC 246-272A
Purpose of Chapter: WAC 246-272A-0001

Here is Ms. Harris's last round of email on this subject and Mr. Wolper's reply:

Sent: Thursday, January 28, 2010 12:19 AM
Subject: Status of Staying Application of Septic Inspection Requirements

Reference is made to my prior email of 1.26.10 requesting the legal authority relied upon by your Department in “staying” the provisions of WCC 24.05. I am still awaiting your response. Additionally, I would like to know if the Health Department has determined that it lacks authority to stay enforcement of the County’s septic system inspection provisions.

I electronically recorded and reviewed last night's Council meeting, and it is clear that the Council vote included a request that the Administration stay enforcement of septic system inspection, including sending out notice, while it revises and corrects its proposed ordinance. However, the Final County Council Action Taken fails to reference any request for a stay by the Health Department and instead states only that "a revised ordinance on this issue was added to introduction this evening." It also fails to reflect that the Council voted on this proposal, resulting in a 5-2 vote.

Since the official record fails to accurately reflect the events that transpired or the entirety of Council's vote, I am wondering if the Health Department realized it lacked legal authority to administratively suspend enforcement of WCC 24.05 and thus, will not be taking such action.

If the Health Department has declined the Council's request for an administrative stay, the public should be advised. If the Health Department will be staying the County Code provisions, then I continue to request your legal authority.

I look forward to your response.

Sincerely,
Wendy Harris


Whatcom County Health Department's Response To Wendy's email:

----- Original Message -----

From: John Wolpers
To: Wendy Harris
Cc: Regina Delahunt ; wastewatermgmt@doh.wa.gov ; Steve (ECY) Hood
Sent: Thursday, January 28, 2010 12:11 PM
Subject: Re: Status of Staying Application of Septic Inspection Requirements

Hello Wendy,

I have read your email and want to assure you that WCC 24.05 remains in effect. If the Whatcom County Health Department learns of a violation of the code, we will pursue the matter just as we always have.

If you have further questions or concerns, please do not hesitate to contact me.
John


John J. Wolpers
Environmental Health Manager
Whatcom County Health Department
509 Girard Street
Bellingham, WA. 98225
(360) 676-6724 ext. 50808
J Wolpers@co.whatcom.wa.us
Public Health- Always working for a safer and healthier Whatcom County
Whatcom County Action Taken for January 26, 2010