Making Swales, Part 5: Concerns About Compliance with City and State Regulations

In spreading the word about our swale making event, I sent the announcement to a number of people and organizations we thought might be interested in attending.

From one of those people we received back a reply – from Eli Mackiewicz, Engineering Technician,City of Bellingham Public Works Department. In his letter Eli, expressed concern about how the earth moving aspect of making swales could impact environment and neighbors, and whether or not we are aware of city and state regulations for such activities. Eli brought up some important points, and was very friendly about it, but also seemed to not understand very well the purpose and strategy of swales (which I tried to briefly explain in my reply). In our workshop, Brian Kerkvliet pointed out that sometimes the Public Works strategy of “rain gardens” is perhaps not as robust as it could be. Might it help if public works engineers were trained in permaculture?

Posted with Eli’s permission, here is…

1. Eli’s letter to us, followed by

2. My response, and finally

3. Eli’s response back:

Hi David,

Thanks so much for forwarding this along. I, both personally and professionally, support your effort and have no doubt that your work has the best of intentions. However, I would be abdicating my responsibilities as a water quality professional working for the City if I didn’t make a few quick suggestions to ensure that things get done the right way. You don’t have any responsibility to listen to my advice – so take this with a grain of salt… (and, of course, if you don’t live within City limits you can stop reading now…)
First, I would be very careful that you aren’t digging these swales in a wetland or wetland buffer. If you gave me the address, I could search for any known wetlands we have in our inventory. Disturbance of a wetland is a very serious action and is generally heavily regulated. Plus, digging swales in a wetland could be worse for the environment and water quality. The City, State, and Army Corps of Engineers has the right to order you to reverse any work you do that harms a wetland, even if the work – or its impact – isn’t discovered for many years after you’ve done it.
Secondly, you have to be careful that your swales don’t push water onto your neighbors’ property. Although the City does not regulate this activity, State Law expressly prohibits new projects taking water from your property and dumping onto your neighbor, and if they complained about your work they would likely win in court. Just a head’s up.
Finally, earthwork (digging swales, grading, clearing) in excess of 500 square feet within the City requires a stormwater permit and inspection. I don’t know if you’ve submitted for a permit or not, and I can’t make you do it, but if a neighbor calls or an inspector comes across the work you would be shut down and fined. This has been the law since 1998. All earthwork requires erosion and sediment controls to prevent the exposed soil from being washed away during a rain storm. I understand that you have good intentions, but intentions are not considered in the permitting process, only the facts. To protect our water resources, we have to ensure that all work is held to the most environmentally-protective standards, which are very stringent in Bellingham. I hope you understand the purpose.
Please don’t hesitate to let me know if you need references or resources for any of the above.

Eli Mackiewicz

Engineering Technician, CESCL

Homeowner Incentive Program
City of Bellingham Public Works Department

Public Works Operations: (360) 778 – 7700
Direct 778-7742

emackiewicz@cob.org

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Hello Eli,
Thank you for your reply and sharing your concerns about compliance with city and state regulations, as well as care for environment and water quality.

We are not in a wetland area (I checked the city map of wetlands and made sure). The swales will be installed near the highest elevations on our property. It does not collect water there like a pond, or swamp, or wetland, but because it does not drain well, it is not dry enough in spring to plant a garden where we would like.

The swales are being designed to catch, store, sink, and spread the water on our own property – to put it to best use, rather than finding ways to drain it off or shunt it onto neighbors property.  These are NOT ditches designed to divert water. Two consultants have provided the opinion that a significant part of the excess water on our property now is due to runoff from neighbors to either side, where they have several large buildings with downspouts going right onto the ground and heading our way, as well as possibly from a neighbor’s fountain that may be leaking.

Our swales will be dug on contour to hold the water, and the soil we dig up will be used to make a berm to absorb the water from the swales. The berms will be planted with mostly edible plants to take up that water. So we’ll have raised garden beds, and reduced need for using city water.  Spillways will be created to direct excess water to the next swale, with the final balance directed to the low spot on the property where the water naturally runs.

Our swales (likely 2, but 3 max)  will be small and shallow – gentle curves appropriate for an urban property, and definitely less than 500 sq. feet.

Thank you again for taking the time to reply. It was good to get your feedback, and I hope I have assuaged your concerns.

 David
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Hi David,

Thank you for the well-reasoned response and your protective approach to this project. I wish you nothing but the best of luck in your efforts. As someone whose job it is to help homeowners in the Lake Whatcom Watershed do voluntary projects for stormwater and nutrient management, I have seen great projects go sideways due simply to a lack of forethought (sometimes on my part, too). It sounds like you have it all under control and have taken into consideration all of the appropriate planning steps. I applaud your effort, which is above and beyond the typical homeowner-level approach – although with your training, it looks like you’re trying to raise that bar. Good on you.

 

If you are working with a consultant, landscape designer, or contractor who has not yet heard of the opportunities to get involved with our pool of motivated homeowners, please feel free to pass my information along. Information about the program I administer, the Homeowner Incentive Program (HIP), can be found on the City’s website, here.

 

Regarding your neighbors’ drainage, the best hope I can offer is that City Code will require them to manage that runoff when/if the roof is replaced (replacement means structure and shingles, not just shingles) – as long as they do the right thing and get a permit. That, I cannot guarantee, of course. Our code allows “historical” drainage systems (which were originally designed in ye olden days when we treated rainwater like a waste product instead of a resource) to stay in place as long as they are not modified. Modern, low-impact systems are much more thoughtfully designed to both manage runoff and reuse rainwater for beneficial purposes. Perhaps your effort will be the impetus that motivates your neighbors to bring their drainage system up to 21st century standards.

 

If you need help on your project, be it a confirmation of something you’re pretty sure is right or a request for information about a new or emerging strategy which you know nothing about, please don’t hesitate to call or email me anytime. While I can only supply financial assistance for Lake Whatcom Watershed homeowners, I can provide technical assistance to any City resident, at their request.

 

Good luck on your project and the training. You can tell all of your participants the same thing I told you about free technical assistance being available – even if they don’t live in the City proper. Thanks again for your thoughtful reply to my initial email.

Sincerely,

Eli Mackiewicz

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