Loading...
HomeMy WebLinkAboutCOW 2007-05-14 Item 4E - Ordinance - Amend Sensitive Area Ordinance (SAO) Mitigation Ratio for Wetland Banks COUNCIL AGENDA SIWOPSIS y I ITEM O. i iG t 1 Meeting Date 1 Preparejl Mayors review Cp Hied review 10 05/14/07 1 JP* 1 6N^^ 1908 I 1 1 1 1 1TEM4INFORMATlON CAS NUMBER: 01— r 4-' I ORIGINAL AGENDA DATE: 5/14/07 AGENDA ITEM TITLE SAO Mitigation Ratio for Wetland Banks CATEGORY E Discussion Motion Resolution Ordinance Bid Award Public Hearing Other Mtg Date 5 -14-07 Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date SPONSOR El Council Mayor Adm Svcs E DCD Finance Fire Legal P&R Police Pl' SPONSOR'S The proposal is to amend the Sensitive Areas Ordinance (SAO) to allow the Director to SUMMARY establish a mitigation ratio that meets the intent of the SAO for specific wetland mitigation banks. REVIEWED BY COW Mtg. E CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DA I B: 4 -24 -07 RECOMMENDATIONS: SPONSOR /ADMIN. Forward Council decision to the Planning Commission Coi�II�IIrrhE Forward to full Council for consideration COST IMPACT [FUND-SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $0 $0 $0 Fund Source: N/A Comments: MTG. DATE I RECORD OF- COUNCIL ACTION 5-14-07 I 1 -MTG= DATE= =ATTACHMENTS 5 -14 -07 1 Information Memo dated 5/8/07 with Attachments 1 Community Affairs and Parks Committee Minutes of 4/24/07 1 1 I I I I 1 I I 1 INFORMATION MEMO To: Mayor Mullet Community Affairs and Parks Committee From: Jack Pace, Acting Community Development Dire• Date: May 8, 2007 Subject: Code Amendment Sensitive Areas Ordinance ISSUE Should the Sensitive Areas Ordinance (SAO) be amended to allow the Director to establish a mitigation ratio that meets the intent of the SAO for specific wetland mitigation banks? BACKGROUND Wetland mitigation banking as a tool for off setting unavoidable impacts to wetlands is increasingly becoming more important, and the City is starting to see proposals for off -site mitigation at banks. A wetland mitigation bank is the consolidation of small, fragmented wetland mitigation projects into a large contiguous site where creation, restoration and enhancement is carried out in advance of the impacts. Banks are established under a formal and rigorous permitting process. The City's current ordinance permits off -site mitigation, and even mitigation outside the city limits of Tukwila, as long as the mitigation site is within the same river basin. The mitigation ratios established in the SAO apply to both on -site and off -site mitigation. The SAO does not address transferring mitigation to a mitigation bank, which uses "credits" as opposed to acreage in determining the amount of mitigation needed. Determining if the amount of mitigation bank credits meets the City's mitigation ratios is not straightforward. Mitigation ratios applied to projects that are carrying out wetland mitigation in conjunction with a development project are typically higher than those ratios in a mitigation bank, because they factor in the element of risk that the wetland mitigation might fail. In wetland mitigation banks, however, the theory is that the wetland will already be mitigated well in advance of any development proposal thus reducing the risk of mitigation failure (if the bank fails, credits cannot be released). Wetland mitigation banks typically take into account the type of mitigation (restoration, creation, rehabilitation, enhancement) as our code does, but in addition, the credits are also based on the type (class) of wetland that has been created, rehabilitated or enhanced, see Attachment A for the relationship between the CL Page 1 of 3 05/08/2007 4:06:00 PM Q:\2007 SAO Amendment \CAP Memo.doc Proposed Code Amendment to Sensitive Areas Ordinance acreage of mitigation, ratio applied and resulting credit value at the Springbrook Creek Bank in Renton. The City recently processed two land use applications submitted by the Washington State Department of Transportation (WSDOT) that provide examples of the problem presented by transferring wetland mitigation to a wetland mitigation bank. WSDOT sought approval to transfer mitigation for impacts to wetlands along Hwy 518 and I -405 to the Springbrook Wetland Mitigation Bank, a mitigation bank area of over 125 acres located in Renton. The location of the highway construction on both Hwy 518 and I -405 and the sensitive areas made it difficult to fmd room to adequately mitigate for wetland impacts in the remaining right -of -way. In addition, the size of the remaining sensitive areas available in the right -of -way would limit the effectiveness of any mitigation implemented. Thus off site mitigation makes sense in these two cases. WSDOT proposed withdrawal of a certain number of credits from the bank as the proposed wetland mitigation. Credits in a mitigation bank are based on the net ecological benefit provided and are determined on the basis of Department of Ecology mitigation ratios, the kinds of mitigation carried out at the bank (wetland creation, restoration, and/or enhancement) and the total acreage for each type of mitigation. The number of credits needed for mitigation is based on the type (classification) of the wetland being impacted. The amount of mitigation built into the value of a credit does not directly equate to Tukwila's SAO mitigation ratios, which are based on acreage impacted and do not distinguish between types of wetlands in applying the mitigation ratios. This issue will arise again when applications are submitted for the Strander Blvd. extension, which will disturb Type 1 wetlands. The City of Renton will be requesting permission to carry out wetland mitigation in the Springbrook Wetland Mitigation Bank. WSDOT will also likely want to use the bank for future highway construction in Tukwila. Unless our SAO is amended to permit a determination of the equivalency of a specific bank's credits to the mitigation area required per our SAO requirements we will not be able to ensure that the net ecological benefits at the mitigation bank compensate for the wetland impacts. The CAP discussed this at their April 24 meeting. They had some suggested changes to the code language which have been incorporated into the proposal but did not have a consensus recommendation. DISCUSSION /ANALYSIS /ALTERNATIVES. The argument for carrying out the mitigation at a Mitigation Bank is that mitigation is completed in advance of impacts and generally results in improved hydrologic, water quality and habitat functions in a consolidated location. Studies of wetland mitigation banks have shown this to be true as long as the mitigation bank is maintained and monitored. NG Page 2 of 3 05/08/2007 4:06:00 PM Q:\2007 SAO Amendment \CAP Memo.doc Proposed Code Amendment to Sensitive Areas Ordinance The mitigation bank established by the City of Renton and WSDOT was reviewed and approved by the State Depattment of Ecology, the U.S. Army Corps of Engineers, the Environmental Protection Agency, U.S. Fish and Wildlife Service, and the Federal Highway Administration and underwent rigorous review for compliance with both State and Federal requirements for wetland and stream protection and restoration. This review process is required for the establishment of any mitigation bank. RECOMMENDATION Staff proposes to amend the SAO as identified in Attachment B to permit the DCD Director to establish a ratio of mitigation acreage to wetland bank credit for off -site mitigation proposed in wetland mitigation banks that have been approved by appropriate agencies including the Department of Ecology, Corps of Engineers, EPA and other regulatory agencies. Other options would be to take no action or to give staff direction to amend the SAO in a different way. If the City Council chooses to amend the SAO the next step would be to send this change to the Planning Commission for its review and a recommendation. The City Council will then hold its own public hearing prior to adoption of any changes. Attachment A: Springbrook Creek Mitigation Credit Table Attachment B: Draft Amendment to TMC 18.45.090 Wetland Uses, Alterations and Mitigation NG Page 3 of 3 05/08/2007 4:06:00 PM Q:\2007 SAO Amendment \CAP Memo.doe FINAL f. Springbrook Creek Wetland and Habitat Mitigation Bank Instrument III 4.0 BANK OPERATION Attachment A ii 4.1 CREDIT DETERMINATION mitigation Credits are the "currency" of a mitigation bank. The value of credits that a miti g bank generates equals its net ecological benefit. The 129.37 -acre Springbrook Bank Il includes 116.82 acres that qualify for bank credit. The remaining 12.55 non credit acres have been designated for protection setback and the Trail Zone to minimize disturbances from adjacent roads, development, and the trail through Unit A. Units D and E each have an existing 20 -foot utility easement inside the parcel boundary that will not generate mitigation credit (see Figures 2 -4 and 2 -3). The 45.12 credits expected to be generated at I Springbrook Bank represents the number of acres of impacts to Category II wetlands (Hruby 2004) for which the bank could be used as compensation (Table 4 -1). These mitigation credits will become available as performance standards and other measures are I achieved (see Tables 3 -1 through 3 -4 and Table 4 -3). The precise number of credits actually generated by the Springbrook Bank cannot be determined until the project is constructed and the success of restoration and enhancement activities is assessed by the I BOC. The final number of credits will be deteituined by the BOC and will be based on achievement of the performance standards. II Table 4.1. Credit Potential Mitigation Treatment Acreage Ratios* Mitigation Credits 1 I Unit A Unit B Unit C Unit D Unit E Total 0.05 0.12 9.27 8.35 17.79 Wetland Rehabilitation 52.14 3:1 6.64 10.39 I 0.35 17.38 I Wetland Enhancement Type I 4.69 4:1 I 1.17 I 1.17 Wetland Enhancement -Type II 2.63 5:1 1 0.53 I 0.53 I ii Forested Wetland Enhancement 25.22 5:1 I 4.65 0.40 5.05 Riparian Upland Enhancement 6.56 4:1 0.16 0.37 1.11 1.64 I l Upland Habitat Enhancement 7.80 5:1 1.56 I 1.56 Buffer Enhancement 9.89 I I I Trail Zone 2.66 I I I I Totals 129.37 6.85 I 10.88 17.00 0.93 9.46 I 45.12 I I The ratio of acreage to credits is the number of credits established per acre of mitigation activity in first column. The number of mitigation credits that Springbrook Bank will generate for each mitigation treatment. Each credit can compensate for the toss of a typical acre of Category II wetland. 1 4.2 APPROVING PERFORMANCE STANDARDS FOR CREDIT RELEASE Springbrook Bank is expected to generate 45.12 credits that will be eligible for release as I the associated performance standards are met and approved by the BOC (Tables 3 -1 through 3 -4), with the exception that no credits may be released until a BOC- approved Memorandum of Agreement and Instrument are signed by the Sponsors, Ecology, and the mil Corps, and until a BOC- approved conservation easement is placed on the property title Chapter 4 August 2006 111 Bank Operation Page 4 -1 ATTACHMENT B PROPOSED AMENDMENT TO SENSITIVE AREAS ORDINANCE 18.45.090 Wetlands Uses, Alterations and Mitigation A. No use or development may occur in a Type 1, Type 2 or Type 3 wetland or its buffer except as specifically allowed by TMC Chapter 18.45. Any use or development allowed is subject to review and approval by the Director. Where required, a mitigation or enhancement plan must be developed and must comply with the standards of mitigation required in TMC Chapter 18.45. B. Alterations 1. Alterations to wetlands are discouraged and are limited to the minimum necessary for project feasibility. Requests for alterations must be accompanied by a mitigation plan, are subject to Director approval, and may be approved only if the following findings are made: a. The alteration will not adversely affect water quality; b. The alteration will not adversely affect fish, wildlife, or their habitat; c. The alteration will not have an adverse effect on drainage and /or storm water detention capabilities; d. The alteration will not lead to unstable earth conditions or create an erosion hazard or contribute to scouring actions; e. The alteration will not be materially detrimental to any other property; and f. The alteration will not have adverse effects on any other sensitive areas. 2. Alterations are not permitted to Type 1 wetlands unless specifically exempted under the provisions of TMC Chapter 18.45. 3. Alterations to Type 2 wetlands are prohibited except where the location or configuration of the wetland provides practical difficulties that can be resolved by modifying up to .10 (one- tenth) of an acre of wetland. Mitigation for any alteration to a Type 2 wetland must be provided at a ratio of 1.5:1 for creation or restoration and 3:1 for enhancement and must be located contiguous to the altered wetland. 4. Isolated Type 3 wetlands may be altered or relocated only with the permission of the Director. A mitigation or enhancement plan must be developed and must comply with the standards of mitigation required in TMC Chapter 18.45. CL Page 1 of 5 05/08/2007 10:11:00 AM Q:`\2007 SAO Amendment\Draft Amendment.doc Proposed Amendment to TMC 18.45.090 5. Mitigation plans shall be completed for any proposals for dredging, filling, alterations and relocation of wetland habitat allowed in TMC Chapter 18.45. 6. Isolated wetlands formed on fill material in highly disturbed environmental conditions and assessed as having low overall wetland functions may be altered and /or relocated under TMC Chapter 18.45. These wetlands may include artificial hydrology or wetlands unintentionally created as the result of construction activities. The determination that a wetland is isolated is made through the Type 2 permit process. A mitigation or enhancement plan must be developed and must comply with the standards of mitigation required in TMC Chapter 18.45. C. Mitigation Sequencing. Applicants shall demonstrate that reasonable efforts have been examined with the intent to avoid and minimize impacts to wetlands and wetland buffers. When an alteration to a wetland or its required buffer is proposed, such alteration shall be avoided, minimized or compensated for in the following order of preference: 1. Avoidance of wetland and wetland buffer impacts, whether by finding another site or changing the location of the proposed activity on -site; 2. Minimizing wetland and wetland buffer impacts by limiting the degree of impact on site; 3. Mitigation actions that require compensation by replacing, enhancing, or substitution shall occur in the following order of preference: a. restoring wetlands on upland sites that were formerly wetlands; b. enhancing significantly degraded wetlands; c. creating wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of exotic introduced species or noxious weeds. D. Mitigation Plans. 1. The mitigation plan shall be developed as part of a sensitive area study by a specialist approved by the Director. Wetland and /or buffer alteration or relocation may be allowed only when a mitigation plan clearly demonstrates that the changes would be an improvement of wetland and buffer quantitative and qualitative functions. The plan shall follow the performance standards of TMC Chapter 18.45 and show how water quality, wildlife and fish habitat, and general wetland quality would be improved. 2. In order to achieve the City's goal of no net loss of wetland functions and acreage, alteration of wetlands will require the applicant to provide a restoration or creation plan to compensate for the impacts to the wetland and will compensate at a ratio of 1.5 to 1. 3. Impacts to wetlands may be mitigated by enhancement of existing significantly degraded wetlands, however, in order to achieve the City's goal of CL Page 2 of 5 05/08/2007 10:11:00 AM Q:\2007 SAO Amendment\Draft Amendment.doc Proposed Amendment to TMC 18.45.090 no net loss of wetland functions and acreage, mitigation through enhancement must be compensated at a ratio of 3:1. Applicants proposing to enhance wetlands must produce a sensitive area study that identifies how enhancement will increase the functions of the degraded wetland and how this increase will adequately mitigate for the loss of wetland area and function at the impact site. An enhancement proposal must also show whether existing wetland functions will be reduced by the enhancement actions. 4. The DCD Director may determine the number of wetland mitigation bank credits required to meet the mitigation ratios established in this Chan ter through a Type 2 decision if: a) off -site mitigation is proposed in a Wetland Mitigation Bank that has been approved by all the appropriate agencies including the Department of Ecology, Corp s of Engineers, EPA or other regulatory agencies; and bl the applicant provides a justification for the number of credits proposed; and c) the mitigation achieved through the number of credits rea aired meets the intent of this Chapter. E. Mitigation Location. 1. On -site mitigation shall be provided, except where the applicant can demonstrate that: (a) On -site mitigation is not scientifically feasible due to problems with hydrology, soils, waves or other factors; or (b) Mitigation is not practical due to potentially adverse impact from surrounding land uses; or (c) Existing functional values created at the site of the proposed restoration are significantly greater than lost wetland functional values; or (d) That established regional goals for flood storage, flood conveyance, habitat or other wetland functions have been established and strongly justify location of mitigation at another site. 2. Off -site mitigation shall occur within the same watershed where the wetland loss occurred. 3. Mitigation sites located within the Tukwila city limits are preferred. However, the Director may approve mitigation sites outside the city upon finding that: (a) Adequate measures have been taken to ensure the non development and long -term viability of the mitigation site; and (b) Adequate coordination with the other affected local jurisdiction has occurred. CL Page 3 of 5 05/08/2007 10:11:00 AM Q:\2007 SAO Amendment\Draft Amendment.doc Proposed Amendment to TMC 18.45.090 4. In selecting mitigation sites, applicants shall pursue siting in the following order of preference: (a) Upland sites that were formerly wetlands; (b) Idled upland sites generally having bare ground or vegetative cover consisting primarily of exotic introduced species, weeds or emergent vegetation; (c) Other disturbed upland; (d) Existing degraded wetland. F. Mitigation Standards. The scope and content of a mitigation plan shall be decided on a case -by -case basis. As the impacts to the sensitive area increase, the mitigation measures to offset these impacts will increase in number and complexity. The components of a complete wetlands mitigation plan are as follows: 1. Baseline information of quantitative data collection or a review and synthesis of existing data for both the project impact zone and the proposed mitigation site; 2. Environmental goals and objectives that describe the purposes of the mitigation measures. This should include a description of site selection criteria, identification of target evaluation species and resource functions; 3. Performance standards of the specific criteria for fulfilling environmental goals, and for beginning remedial action or contingency measures. They may include water quality standards, species richness and diversity targets, habitat diversity indices, or other ecological, geological or hydrological criteria; 4. A detailed construction plan of the written specifications and descriptions of mitigation techniques. This plan should include the proposed construction sequence and construction management, and be accompanied by detailed site diagrams and blueprints that are an integral requirement of any development proposal; 5. Monitoring and or evaluation program that outlines the approach for assessing a completed project. An outline shall be included that spells out how the monitoring data will be evaluated by agencies that are tracking the mitigation project's progress; 6. Contingency plan identifying potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates project performance standards have not been met; and 7. Performance security or other assurance devices as described in TMC 18.45.210. G. Mitigation Timing. Mitigation projects shall be completed prior to activities that will permanently disturb wetlands and either prior to or CL Page 4 of 5 05/08/2007 10:11:00 AM Q:\2007 SAO Amendment\Draft Amendment.doc Proposed Amendment to TMC 18.45.090 immediately after activities that will temporarily disturb wetlands. Construction of mitigation projects shall be timed to reduce impacts to existing wildlife, flora and water quality, and shall be completed prior to use or occupancy of the activity or development. The Director may allow activities that permanently disturb wetlands prior to implementation of the mitigation plan under the following circumstances: 1. To allow planting or re- vegetation to occur during optimal weather conditions; 2. To avoid disturbance during critical wildlife periods; or 3. To account for unique site constraints that dictate construction timing or phasing. H. Permitted Uses Subject to Exception Approval. Other uses may be permitted upon receiving a reasonable use exception pursuant to TMC 18.45.180. A use permitted through a reasonable use exception shall conform to the procedures of TMC Chapter 18.45 and be consistent with the underlying zoning. CL Page 5 of 5 05/08/2007 10:11:00 AM Q:\2007 SAO Amendment\Draft Amendment.doc Community Affairs Parks Committee Minutes Aoril 24. 2007 Paae 2 The Committee agreed that there is not a "quick fix" to fit this problem. They agree that Council does not desire to revamp the entire code, but rather identify a possible area of regulation in order to avoid future concerns such as the complaint brought forth at the March 27 and April 9 Community Affairs and Parks meetings (also see Council minutes of April 10, 2007). Additionally, the Committee was in consensus of the desire expressed by full Council for this issue not to consume an inordinate amount of staff time. Dennis commented that he believes that the simplest solution to this issue is to increase the rear setback to 15', 25' for a three -story and then consider accessory buildings. Dennis requested that Jack secure a copy of the Seattle Code regarding garages and accessory structures and how they pertain to allies, etc. and submit this information to the agenda packet for full Council review at the May 14 COW. The Committee feels strongly that this issue needs to be discussed with full Council. The following three proposals will be taken to Council for discussion and consideration: 1. Leave the Building Height Code as is, with no changes 2. Increase rear setback to 15' for every residence 3. Increase rear setback to 15' feet for two -story, and 25' for three -story The Building Height limitation would cover any structure in the LDR Zone that requires a building permit. In addition to bringing these proposals to full Council, staff will also submit a cursory review of existing permits as impacted by each proposal, and the Seattle Code as requested above. DCD staff recommends that no changes be made to the City's current code. FORWARD TO MAY 14 COW FOR DISCUSSION. B. SAO Mitigation Ratio Amendment DCD staff brought forth a proposal to modify the existing Sensitive Areas Ordinance (SAO) to allow the DCD Director to make case by case waiver of strict compliance with the City's current mitigation ratios if off -site mitigation is proposed in a wetland mitigation bank that has been approved by certain regulatory agencies. After discussion, Dennis Robertson expressed his opposition to this request as it appears that the ordinance is being changed for one specific example in this situation, the exception is WSDOT. He stated that off -site mitigation should be here in Tukwila, and although he is sympathetic that the current regulations will cost the government more money, he does not feel that the government should exclude itself from environmental impacts. Additionally, he is concerned with leaving complete decision making authority on each case to the discretion of the director rather than having specifications set forth in the ordinance. Jack Pace clarified that the idea of utilizing the administrator /director decision is not new to the SAO, and that the proposed amendment is not in violation of the spirit of the SAO. Additionally, the director would utilize an established chart, based on wetland type at which we are mitigating loss, to arrive at his/her decision. This is not a decision that the director would make at his/her own discretion without predetermined regulations. Jack stated that it is the intent of the City to ensure a cumulative impact verses small wetland areas, and the amendment would allow for this type of decision making following a best available science approach. Community Affairs Parks Committee Minutes April 24. 2007 Pape 3 Questions were raised about flexibility on ratio calculation; providing developers with some level of predictability; holding the City to a higher standard than the State in reference to acreage verses quality /functionality; and buying credits rather than measuring acreage and DCD determining those credits Committee members recommended that staff clarify some of the proposed amendment language regarding regulatory agencies in addition to discussing this with the full Council. FORWARD TO MAY 14 COW FOR DISCUSSION. C. Mini Park Acquisition at 56XX S. 133rd Bruce provided a brief overview of the history of the property acquisition in question which has previously come before the Community Affairs and Parks Committee as well as the COW. In 2004, Todd Heistuman and Eric Reinhardt, property owners of said land, offered to donate one -half of the purchase price of the property, which was then valued at $150,000. Staff secured $75,000 in funding from the King County Conservation Futures Grant allowing the City to purchase the land. Due to delays, the land was not purchased. Since 2004, the market value of the property has increased substantially, and is currently valued at $385,000. Todd and Eric are now ready to sell, and have expressed continued interest in donating one -half of the purchase price of the property. Unfortunately, the City only has $75,000 of grant funds budgeted for the purchase, leaving an additional $117,500 of the price unfunded. The City would need to appropriate a total of $117,500 in order to acquire the land. Staff is seeking an appropriation recommendation from the Committee to purchase the property. The Committee believes that this is a policy decision that requires discussion among the entire Council. Todd and Eric may bring additional information regarding purchase options to the COW. FORWARD TO MAY 14 COW FOR DISCUSSION. D. Update on Comn Plan Amendments Due to DCD director transitioning, Jack Pace, Acting DCD Director will provide an update on Comp Plan Amendments within two months. INFORiMATION ONLY. E. 2007 First Ouarter Report The Committee did not have comments regarding the 2007 First Quarter Reports. Bruce stated that the scope of work has been released for the Parks Plan, and he will be bringing it to the next Community Affairs and Parks Committee meeting. Jack shared that DCD is working with Parks and Recreation on the Walk and Roll program, and that they are preparing for a very busy summer. INFORMMATION ONLY. III. ANNOUNCEMENTS IV. MISCELLANEOUS Meeting adjourned at 6:32p.m. Next meeting: Tuesday, May 15, 2007 5:00 p.m. Conference Room 3 Committee Chair Approval Minutes by KAM.