The URL can be used to link to this page

Home My WebLink AboutCDN 2019-11-26 Item 2D - Ordinance - Critical Areas UpdateCity of Tukwila Allan Ekberg, Mayor INFORMATIONAL MEMORANDUM TO: Community Development and Neighborhoods Committee FROM: Jack Pace, DCD Director BY: Minnie Dhaliwal, DCD Deputy Director CC: Mayor Ekberg DATE: November 19, 2019 SUBJECT: Critical Areas Code Update ***Please bring your binders**** ISSUE The City of Tukwila is required to periodically review and update its Critical Areas regulations to reflect current best available science (BAS) as required by the Growth Management Act. BACKGROUND All cities in Washington are required to adopt critical areas regulations by the Growth Management Act (GMA). Critical areas, as identified in the GMA include wetlands, frequently flooded areas, streams, geologically hazardous areas (steep slopes), and fish and wildlife habitat conservation areas. Cities are required to include the best available science in developing policies and development regulations to protect the functions and values of critical areas. Tukwila's current critical area regulations were adopted nine years ago in 2010. Washington State Department of Ecology oversees critical area updates and provides direction on BAS. The Planning Commission held a public hearing and finalized their recommendation to the City Council in June 2019. The City Council held a public hearing on September 23rdh, 2019 and sent the item back to the Community Development and Neighborhoods Committee for recommendation. Three written public comments were received at the public hearing. Since the public hearing revised comment letters were received from Halinen Law Office and Cairncross & Hempelmann. Attachment A includes staff response to public comments. Attachment B includes the latest letters from the three parties that provided comments at the city council public hearing. PUBLIC OUTREACH Outreach to affected property owners throughout the City included mailings, webpage updates, stormwater bill inserts, eHazelnut newsletter and an open house. A public open house was held on October 9, 2018 at the Tukwila Community Center. The notice of the open house and the Planning Commission hearing was mailed to all property owners and tenants in Tukwila along with email notices to interested parties and agencies with jurisdiction. Additionally, a website page(www.tukwilawa.gov/criticalareas) was maintained where general members of the public can keep up with the update process. Subsequent to the open house, staff developed a set of policy options and had a work session with the Planning Commission on this item on November 8, 2019. The second work session was held on February 28, 2019. The Planning Commission (PC) held a public hearing on April 11, 2019. The PC started their deliberations on May 23, 2019 and finalized their 73 INFORMATIONAL MEMO Page 2 recommendations to the City Council on June 27, 2019. All background reports including the Gaps Analysis Report prepared by the The Watershed Company and the five staff reports to the Planning Commission are available online. Here is the link to the website. DISCUSSION The Planning Commission's recommended draft is included in a separate binder. Summary of the key revisions is included below: Wetlands 1. Designation: • Reference to State delineation manual removed and replaced with language from WAC 173-22-035, that states identification of wetlands and delineation of their boundaries shall be done in accordance with the approved federal wetland delineation manual and applicable regional supplements. Five year time limit on wetland reports/delineations established. Generally, any delineation done more than five years ago needs to be revisited as wetlands can change significantly in a five-year period due to changes in hydrology, land uses, and plant species composition. Additionally, approved jurisdictional determinations by the Corps expire after five years. Revisiting a wetland delineation that is five or more years old does not necessarily mean a new wetland delineation needs to be done. It means it may be necessary to revisit the site to determine whether the delineation is still accurate or needs to be redone based on current conditions. 2. Rating. - State rating system referenced, which is the Washington State Wetland Rating System for Western Washington (Hruby 2014, Ecology publication No. 14-06-029). To avoid the need for future updates related to rating system versions language added, "or as revised and approved by Ecology". 3. Buffer Widths: Adopt the standard buffer widths recommended by the Department of Ecology; but allow alternate buffer if impact minimization measures are taken AND buffer is replanted. See table below for the current buffer width requirements and the proposed changes required based on habitat score. INFORMATIONAL MEMO Page 3 Wetland buffer width (ft), Ecology 2014, high -intensity land use impact Wetland buffer width (ft), Habitat Habitat Habitat Habitat score current score score score 6-7 Habitat Habitat score Category TMC <6 <6 6-7 score 8-9 8-9 Standard Alternate Standard Alternate Buffer if Standard Alternate Buffer Buffer if Buffer impact Buffer Buffer if impact minimization impact minimization measures taken minimization measures AND buffer is measures taken AND replanted. Also, taken AND buffer is 100 feet buffer is replanted vegetated corridor replanted. between wetland Also, 100 feet and priority vegetated habitats is corridor maintained. between wetland and priority habitats is maintained. 1 100 100 75 150 110 300 225 11 100 100 75 150 110 300 225 111 80 80 60 150 110 300 225 IV 50 50 40 50 40 50 40 Impact minimization measures to qualify for alternate buffers include the following: Disturbance Required Measures to Minimize Impacts Lights • Direct lights away from wetland Noise • Locate activity that generates noise away from wetland • If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source • For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10' heavily vegetated buffer strip immediately adjacent to the outer wetland buffer Toxic runoff . Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered • Establish covenants limiting use of pesticides within 150 feet of wetland • A I integrated pest management Stormwater runoff 0 Retrofit stormwater detention and treatment for roads and existing adjacent development • Prevent channelized flow from lawns that directly enters the buffer • Use Low Intensity Development (LID) techniques where appropriate for more information refer to the drainage ordinance and manual Change in water regime 0 Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns Pets and Human . Use privacy fencing OR plant dense vegetation to delineate buffer Disturbance edge and to discourage disturbance using vegetation appropriate for the ecoregion • Place wetland and its buffer in a separate tract or protect with a conservation easement Dust • Use best management practices to control dust 75 INFORMATIONAL MEMO Page 4 4. Interrupted Buffer: Establishes an administrative waiver process for an interrupted buffer. a) Defines what qualifies as interrupting the buffer: a public or private road; buildings; or parking lots. The criteria for waiver include: i) The existing legal improvement creates a substantial barrier to the buffer function; ii) The interrupted buffer does not provide additional protection of the critical area from the proposed development; and iii) The interrupted buffer does not provide significant hydrological, water quality and wildlife buffer functions relating to the portion of the buffer adjacent to the critical area. 5. Buffer averaging instead of buffer reduction: Replaces buffer reduction provision with buffer averaging. The total area of the buffer after averaging is equal to the area required without averaging and the buffer at its narrowest point is never less than either % of the required width or 75 feet for Category I and II, 50 feet for Category III, and 25 feet for Category IV, whichever is greater. 6. Alterations: No changes to the exemption level. The existing code provides an exemption for certain wetlands that are under 1,000 square feet. The exemption is from sequencing (showing that the impact cannot be avoided or minimized). Mitigation of the impacts is still required per Ecology. Exempt wetlands have to meet the following criteria: a) habitat score under five; b) are not associated with a riparian habitat or Shorelines of the State; c) are not part of a wetland mosaic, and d) do not contain priority habitat. 7. Mitigation Standards: Mitigation ratio for buffer impacts is added at 1:1 8. Wetland and buffer mitigation location: The current code prefers off -site mitigation be located within City of Tukwila's boundaries. However State and federal agencies advocate use of alternative mitigation methods such as mitigation banks or in -lieu -fee programs. In order to be consistent with regulations of these agencies the proposed changes allow for purchase of mitigation credit from an in -lieu fee program or bank, if that is the best choice ecologically for a project. 9. Wetlands buffers associated with restoration projects that include creation of an off -channel habitat projects. For shoreline restoration projects that result in a change in the location of the ordinary high water mark and associated shoreline jurisdiction on the subject property and/or adjacent properties, relief may be granted from Shoreline Master Program standards and use regulations. However, the relief for restoration projects is limited to ordinary high water mark and not buffers of any associated critical areas such as wetlands. Therefore, 76 a new subsection is recommended by the Planning Commission: INFORMATIONAL MEMO Page 5 TMC 18.45.90 Wetlands Uses, Alterations and Mitigation (D) Wetland and Buffer Mitigation Location: 7. Wetland creation for restoration projects may only be approved if the applicant can show (1) that the adjoining property owners are amenable to having wetland buffers extend onto or across their property; or (2) that the on -site wetland buffers are sufficient to protect the functions and values of the wetland and the project as a whole results in net environmental benefit. Watercourses 1. Rating and buffer widths: Ratings nomenclature updated to reflect Washington Department of Fish and Wildlife ratings for simplicity. Type 1, 2, 3, 4 changed to S (Shoreline), F (Fish bearing), Np (Non - fish bearing perennial), Ns (Non -fish bearing seasonal). No change in the buffers of S, F, Ns. The standard buffers of Np could be lowered from 80 feet to 50-65 range with buffer enhancement. Stream Type Watercourse Buffer (ft), TMC S Regulated under Shoreline Master Program F 100 Np Standard buffer 80 Alternate buffer in the range of 50-65 with buffer enhancement Ns 50 2. Buffer averaging vs reduction: Replaces buffer reduction provision with buffer averaging so long as the total area of the buffer after averaging is equal to the area required without averaging and the buffer at its narrowest point is never less than 3/ of the required width. 3. Interrupted buffer: Establishes an administrative waiver process for an interrupted buffer. a) Defines what qualifies as interrupting the buffer: a public or private road; buildings; or parking lots. The criteria for waiver include: i) The existing legal improvement creates a substantial barrier to the buffer function; ii) The interrupted buffer does not provide additional protection of the critical area from the proposed development; and iii) The interrupted buffer does not provide significant hydrological, water quality and wildlife buffer functions relating to the portion of the buffer adjacent to the critical area. III. Geologically Hazardous Areas Reference to mapping sources added and protective provisions such as slope vegetation protection and guidelines on erosion control and best management practices included. 77 INFORMATIONAL MEMO Page 6 IV. Fish and Wildlife Habitat Conservation Areas a) The city's list of fish and wildlife habitat conservation areas made consistent with GMA definition b) Reference to mapping sources added. c) A requirement for a habitat assessment prepared by a qualified professional to better reflect BAS so that buffers could be based on site specific conditions. V. Special Hazard Flood Areas Reference added to Special Hazard Flood Areas TMC Chapter 16.52; and floodplain habitat assessment requirements included. VI. Housekeeping Code Amendments Vesting: Language added to clarify that only submittal of a complete building permit vests a project to critical areas code. For instance, if a short plat is approved but homes are not constructed and the code is updated, any future development is subject to the new updated code. An exception added for projects that currently have a preliminary approval but not final approval to be vested until the expiration of the preliminary approval; provided building permits are submitted within five years of the final approval. 2. Expiration of decisions related to critical areas: Five years term limit established for any approvals to be consistent with time limits for permits obtained from the state and federal agencies. 3. Permitted uses changed to permitted activities section 4. Vegetation Management in the Tree, Landscape, Critical Areas and Shoreline Chapter The purpose of these proposed amendments is to provide consistency between the four chapters and address lessons learned during implementation of the newly adopted Tree and Landscape Code. Additionally, applicability sections are added to explain which Chapter applies when there is an overlap. These include regulations pertaining to tree retention, removal and replacement requirements. 5. Reorganization: In order to improve the organization and make it easy to implement the code it is reorganized to sequentially address 1. Mitigation sequencing; 2. What is allowed outright/what requires Special Permission approval; 3. Criteria for approving deviations; 4. Mitigation requirements; 5. Monitoring 6. Penalties for unauthorized alterations: Penalties for illegal clearing in critical areas added. 7. Non -conforming provisions: New non -conforming thresholds for development in the wetland and stream buffers established; and tied to incentives for improving the buffer. a) Allow existing buildings to expand vertically to add upper stories in exchange for buffer enhancement b) Allow lateral expansion to the building side that is opposite of critical area up to a maximum of 1000 sq. ft; in exchange for buffer enhancement. Further this option is 78 INFORMATIONAL MEMO Page 7 limited to situations where the buffer width is at least 75 percent of the required buffer. c) Allow lateral expansion along the existing building lines in exchange for buffer enhancement; and limit the sq. ft. of new intrusion into the buffer to less than 50 percent of the current intrusion or 500 sq. ft, whichever is less. Further this option is limited to situations where the buffer width is at least 75 percent of the required buffer. d) Allow enclosing within existing footprint in exchange for buffer enhancement. 8. Inventory update: Add requirement for the applicant to provide surveyed data for maintenance of the City's Critical Areas inventory map FINANCIAL IMPACT No direct impacts are expected due to these changes. RECOMMENDATION The Committee is being asked to review the public comments and make a recommendation on the revisions requested by the public. Staff will then include any recommended changes by the Committee in the draft ordinance and return to the next Community Development and Neighborhood Committee on December 10, 2019. Also, staff is awaiting an initial determination from the Department of Ecology (DOE) on the proposed changes. If DOE provides any comments, we will bring them forward for the Committee's consideration. ATTACHMENT A. Staff response to public comments B. Public comments: B 1 - Comments from Ion Manea dated September 23, 2019 132- Comments from Halinen Law Office dated November 20, 2019 133- Comments from Cairncross & Hempelmann representing Segale Properties dated Oct 23, 2019 The separately distributed binders contain: 1. Chapter 18.45 (Critical Areas Chapter) showing the bulk of the proposed changes- strikeout/underline version 2. Chapter 18.70 (Non -Conforming regulations)- strikeout/underline version 3. Chapter 18.54 (Tree Chapter)- strikeout/underline version 4. Chapter 18.52 (Landscape Chapter)- strikeout/underline version 5. Chapter 18.06 (Definitions Chapter)- strikeout/underline version 6. Chapter 18.45 (Critical Areas)- clean version 7. Public Comments received at the Planning Commission hearing 8. A matrix of staff responses to the public comments 9. Planning Commission meeting minutes 79 Staff response to public comments ITEM COMMENTATOR SECTION PROPOSED CHANGE COMMENT SUMMARY/STAFF DISCUSSION STAFF RECOMMENDATION 1. Ion Manea, 13407 TMC Planning Commission recommended draft Ion Manea, property owner requested the city to No change. 48th Ave S, Tukwila 18.45.100. deletes the buffer reduction provision with not delete the 50% buffer reduction provisions. E the following buffer averaging provision: He states that replacing buffer reduction with buffer averaging is not based on best available VARIATION OF STANDARD science and is being proposed just for WATERCOURSE BUFFER WIDTH consistency with wetland regulations. He claims 1 Buffer averaging may be allowed by the that the proposed regulations could be Director as a Type 2 decision if the total construed as in non-compliance with TMC area of the buffer after averaging is equal to 18.45.10, 18.45.20 and RCW 36.70a.172 and the area required without averaging and the could be subject of a petition under buffer at its narrowest point is never less RCW.36.70A.290. Staff notes that 2011 than either % of the required width; and the Washington State Department of Ecology's following criteria is met: Green River Temperature Total Maximum Daily a. The watercourse has significant Load assessment is Best Available Science that differences in characteristics that affect its justifies larger buffers and need for shading the habitat functions, and the buffer is streams to address the concern of raising increased adjacent to the higher -functioning temperature of the Green/Duwamish River, area of habitat or more -sensitive portion of which is detrimental to fish. Additionally, the wetland and decreased adjacent to the Washington State Department of Ecology's lower -functioning or less -sensitive portion guidance for the streams that lie within as demonstrated by a critical areas report Shoreline Zone is for buffer averaging rather from a qualified wetland professional. than buffer reduction. b. There are no feasible alternatives to the site design that could be accomplished Mr. Manea is correct in his assessment that without buffer averaging, and the averaged stream buffer averaging is inconsistent with buffer will not result in degradation of the BAS. BAS (WDFW et al.) clearly indicates that wetland's functions and values as wider buffers, which are vegetated with native demonstrated by a critical areas report. species, are essential to lower water c. Compliance with mitigation sequencing temperature, improve water quality by mitigating requirements. of surface water runoff, and provide habitat and d. Compliance with TMC 18.45 Vegetation insect/detritus input to streams. Therefore, Protection and Management section. buffer reduction is also not consistent with BAS. e. Submittal of buffer enhancement plan, Smaller streams that discharge into major mitigation onitoring and maintenance plan tributaries and rivers in this case the Green - Page 1 of 6 ITEM COMMENTATOR SECTION PROPOSED CHANGE COMMENT SUMMARY/STAFF DISCUSSION STAFF RECOMMENDATION along with financial guarantee in Duwamish River) have direct impact on accordance with TMC 18.45. salmonid and other aquatic species through the f. Buffer averaging will not adversely affect water temperature, quality, and nutrient water quality. production. Water temperature and quality is g. No adverse effect to water temperature known to be one of the biggest limiting factors in or shade potential per 2011 Washington salmon recovery. Thus, maintaining healthy State Department of Ecology's Green River buffers on lower order streams is essential to Temperature Total Maximum Daily Load overall salmonid and aquatic habitat. assessment or as amended. Buffer averaging is intended to aid property owners in site development by allowing for some buffer reduction in locations where it is less critical while widening buffers in areas that are more so. For example, a wider buffer adjacent to a parking lot is more important in mitigating runoff than a buffer next to a building. If an individual property is not able to use the buffer averaging (due to size, grade, etc.) reasonable use exception is still an option for that property owner. TMC 18.45.180 lists Reasonable Use Exception as a Type 3 permit approved by the hearing examiner. Under this provision the applicant demonstrates that strict application of the code prevents any reasonable use of their property, and requests waiver from the critical area provisions for some reasonable use of their property. The applicant is still responsible for mitigation, which could be onsite or offsite. The mitigation is proportional to the impact and has to be meet the nexus and proportionality test. Page 2of6 ITEM COMMENTATOR SECTION PROPOSED CHANGE COMMENT SUMMARY/STAFF STAFF RECOMMENDATION DISCUSSION 2. David Halinen 18.45.80.F. Revisions proposed by the letter dated These comments are submitted by the owner of No change. w/Halinen Law 2 September 23, 2019 submitted at the a property that is along the Interurban Trail and Representing Interrupted public hearing: West Valley Highway. Currently the property is AnMarCo LLC Buffer incumbered with a 100ft buffer that is adjacent 2. Interrupted Buffer: Waiver for interrupted to the Category 2 wetland to the east. The buffer may be allowed by the Director as a Interurban Trail in this area is approximately 12 Type 2 permit if the following criteria are is feet wide. All paved trails in the City are met: between 12 and 14 feet wide. If this change to i) The buffer is interrupted by a paved the proposed code was approved, public or private road; a paved public trail; a approximately 30-35 properties could be legally constructed buildings; or a legally affected and able to apply for the waiver. constructed aeved-parking lots; or some other legally constructed substantial The proposed interrupted buffer section of the improvement. On lots with a primary single- code is to address those area of the City where family residence, Tthis waiver does not there is a wide (2 to 4 lane) paved road, or other apply to a buffer interrupted by a minor large obstruction that eliminates the accessory structures -such as a tool sheds environmental benefit of the buffer to the critical or a garages assosfated; area — trees won't cast shade across the barrier, ii) The existing legal improvement creates a water quality can't be improved because of the substantial barrier to the buffer function; barrier, habitat is adversely effected because of iii)The interrupted buffer does not provide the barrier, etc. A trail that is less than 15ft additional protection of the critical area from across does not create a large enough barrier to the proposed development; and interrupt the shade from a large tree, or the iv) The interrupted buffer does not provide habitat provided by a vegetated buffer, like a 4- significant hydrological, water quality and lane road can (see ii) in the proposed code. wildlife functions. This wamyer does net Trees planted on the other side of the trail (away apply if large trees ether cinnifin from the wetland) will provide shade, habitat, or Rati„e „egetatien exists rain/storm attenuation (and therefore reduced v) Enhancement of remaining buffer is run-off across the trail surface and improved required if feasible. water quality). Revisions proposed via email to the City Since the public hearing David Halinen Council on 11/20/19 discussed the proposed changes with staff. He 2. Interrupted Buffer: Waiver for interrupted submitted revised amendments narrowing the buffer may be allowed by the Director as a scope of interrupted buffer for a particular T e 2 ermit if the following criteria are is section of the Interurban Trail due to the Page 3 of 6 ITEM COMMENTATOR SECTION PROPOSED CHANGE COMMENT SUMMARY/STAFF STAFF RECOMMENDATION DISCUSSION met: i) The buffer is interrupted by a paved presence of the Puget Sound Energy's public or private road; by the segment of easement. He makes a case that due to PSE's the paved public Interurban Trail located right for vegetation trimming and removal on the within the 60-footwide strip of street right -of- west side of the trail adjacent to his client's way and reserved perpetual easements for property, the buffer should stop at the trail's electrical purposes and vegetation cutting, edge. removal, disposal, and management recorded under County Recording No. PSE generally trims vegetation in this area but 9409130817; a legally constructed does not remove it. Wetlands exist all along the buildings; of a legally constructed armed trail. Additionally, the code language is not parking lots; or some other legally crafted for individual properties but is applicable constructed substantial improvement. On city wide. Staff suggested that the applicant lots with a primary single-family residence, consider looking at non -conforming provisions. It Tthis waiver does not apply to a buffer should be noted that the property is a graveled interrupted by a minor accessory structures parking lot and there are stormwater issues, such as a tool sheds or a garages asses+ate6; including a current code enforcement case. ii) The existing legal improvement creates a substantial barrier to the buffer function; iii)The interrupted buffer does not provide additional protection of the critical area from the proposed development; and iv) The interrupted buffer does not provide significant hydrological, water quality and wildlife functions. This waiver does r,et if large frees or ether sigRifiGa- t apply Rative vegetation evicts v) Enhancement of remaining buffer is required if feasible. Page 4 of 6 ITEM COMMENTATOR SECTION PROPOSED CHANGE COMMENT SUMMARY/STAFF STAFF RECOMMENDATION DISCUSSION 3. Cairncross 18.45.160 The critical area buffers widths for those Nancy Rogers representing Segale Properties Make changes noted in red. areas that were altered, created or restored &Hempelmann submitted a comment letter dated September as mitigation (Wetland 10, 1, Johnson representing 23, 2019 at the public hearing. Since then they Creek and the Green River off -channel Segale Properties have worked with staff to revise the language to habitat) at the time of approval of the narrow the scope of vesting and the latest Sensitive Area Master Plan Permit No. L10- comment letter dated October 23, 2019 is 014 (SAMP) shall be vested as shown on attached. [Map Al; provided the adiacent land was cleared and graded pursuant to a city Sensitive Areas Master Plan (SAMP) was approved grading permit; and provided approved for the Tukwila South area further that those mitigation measures (approximately 400 acres south of 1801h) in required by the SAMP were performed and 2010. This approval allowed filling of smaller meet the ecological goals, in accordance wetlands in exchange for enhancing larger with the terms of the SAMP. wetlands located south of S. 200th St. Additionally, an off -channel habitat area was created as mitigation. The request is to vest the project to the buffers approved as part of the SAMP if the land has been cleared and graded and here is the language proposed by Nancy Rogers for the Planning Commission's consideration: The existing provisions for sensitive areas master plan (TMC18.45) allow creation of higher quality wetlands in exchange for filling some small wetlands provided there is a net environmental gain. Given that there will be no incentive to creating wetlands with better habitat value if it will result in larger buffers. 2. Interrupted Buffer: Waiver for interrupted An off -channel habitat area was created as Make changes noted in red. buffer may be allowed by the Director as a mitigation under the SAMP approval. Creation of Type 2 permit if the following criteria are an off -channel habitat area is a significant met: environmental benefit and construction of a i) The buffer is interrupted by a paved levee does interrupt the buffer for an any public or private road; existing or future wetlands associated with the off -channel habitat levee legally constructed adjacent to an off area. Page 5 of 6 •• ITEM COMMENTATOR SECTION PROPOSED CHANGE COMMENT SUMMARY/STAFF DISCUSSION STAFF RECOMMENDATION channel habitat; legally constructed buildings; or legally approved parking lots. This waiver does not apply to accessory structures -such as sheds and garages; ii) The existing legal improvement creates a substantial barrier to the buffer function; iii)The interrupted buffer does not provide additional protection of the critical area from the proposed development; and iv) The interrupted buffer does not provide significant hydrological, water quality and wildlife functions. This waiver does not apply if larger trees or other significant native vegetation exists. v) Enhancement of remaining buffer is required if feasible. Page 6 of 6 Comments to City of Tukwila Critical Areas Code Update Submitted at Public Meeting on September 23d , 2019, City of Tukwila by Ion Manea, owner of 13407 48"' Av S, Tukwila, WA., 98168 property As I have informed City of Tukwila in several meetings and petitions I am not concurring with Critical Area Code update replacement of 50% buffer reduction with buffer averaging for watercourses. I ask City Council to consider my reasoning and supporting evidence that proposed change is not based on best available science (BAS), and that buffer averaging for watercourses in Tukwila is no applicable even by the very definition of Department of Ecology. I respectfully request City of Tukwila to: 1. To take into account my supporting Best Available Science (BAS) and Ecology evidence and maintain the 50% buffer reduction allowance. 2. If buffer reduction by 50% provision is repealed and replaced by buffer averaging only to provide explanation for departure from science -based recommendation, and identification of environmental potential risk. Specifically I request to maintain existing TMC 45.100.E 1 as is written: "TMC 45.100 E. VARIATION OF STANDARD WATERCOURSE BUFFER WIDTH — 1. The Director may reduce the standard watercourse buffers on a case -by -case basis, only where the buffer is significantly degraded (due to existing development within the prescribed buffer width, the presence of significant amount of invasive vegetation that impairs buffer function, and/or lack of native vegetation), provided the remaining buffer is enhanced in accordance with an approved buffer enhancement plan, prepared;by a qualified professional, and does not contain slopes 15% or greater. Where a buffer has a variable topography that includes Class I slopes on the landward portion of the buffer, a buffer reduction may be allowed if the proposed reduction is in the area with the Class i slopes, and a 10 foot planted setback from the top of the slope is maintained. Further, a geotechnical review of the proposed buffer enhancement plan must determine that the buffer enhancement can be implemented without destabilizing the slope. The approved buffer width shall not result in greater than a 50% reduction in width. Any buffer reduction proposal must demonstrate to the satisfaction of the Director that it will not result in direct, indirect or long-term adverse impacts to watercourses, and that: a. The buffer is vegetated and includes an on -site buffer enhancement plan prepared by a qualified professional, to retain existing native vegetation and install additional native vegetation in order to improve the buffer function; or 1of10 If there is no significant vegetation in the buffer, a buffer may be reduced only if an on -site buffer enhancement plan is provided. The plan must include using a variety of native vegetation that improves the functional attributes of the buffer and provides additional protection for the watercourse functions. At least five years monitoring will be required. " Buffer averaging has not been designed, evaluated or recommended to be used for watercourse and there is no evidence for its usefulness in improving the function of any critical area. It is environmentally risky. Buffer averaging is permitting only if the buffer has various degrees of degradation along the critical area and only for bridging adjacent critical areas. If these two conditions are not met, which is predominant in developed urban area like Tukwila, and if the 50% buffer reduction option is not available, practically there will be no use of the property or enhancement of the buffer. Under the proposed buffer averaging only, development is impossible, properties will degrade and there will no incentive for buffer enhancement. Unlike the wetlands, for watercourses, there are no alternatives options like off -site mitigation, mitigation banks or in lieu payments or accounts. If buffer averaging is adopted without BAS support, before adoption by ordinance, by law City of Tukwila is required to provide explanation of departure from science -based decision, the potential environmental risks and the public interest in for that decision. If buffer averaging is adopted as the only option for buffer width reduction, my property in Tukwila is render worthless. I worked hard to pay may property, I rezoned it to develop it and to move my business there. There is no methodology for buffer averaging and that alone will be conductive to disputes and even litigation, extending the permitting process and making it more costly and difficult. The proposed code change require demonstration of no adverse affect to water temperature or shade potential will occur to the watercourse using methodology per 2011 Washington State Department of Ecology's Green River Temperature Total Maximum Daily Load (TMDL) assessment or as amended. The publication is just an evaluation report using shade deficit as a proxy in lieu of direct temperature measurements and not clear if that can be used outside the report area that is Green River. Currently, there is no viable alternative to the current 50% buffer reduction provision. There is no compelling reason to repeal it. Furthermore: 1. Proposed watercourse buffer width reducing by averaging is impractical in Tukwila and imposes unnecessary burdens on citizens and that in fact is a land confiscation without compensation or benefit to environment. It will not provide incentive for watercourse buffer reduction with enhancement. 2of10 2. 1 am concern that at this time, there is no scientific and practical evidence that buffer width reduction with averaging is improving wetlands or watercourses functions. 3. 1 disagree that there is any BAS support for buffer averaging for wetlands, let alone for watercourse. Rolling over wetland regulations into watercourse regulation and vice -versa has no valid BAS support and it is risky. Consistency between wetland and watercourse regulation alone is not a valid BAS or practical justification. a. Donna, Bunten, Critical Areas Ordinances Specialist with Washington State Department of Ecology (Ecology) concurs that Ecology's publication indicate lack of scientific information showing that averaging protects wetland functions. She point out that buffer averaging is a tool to help ensure connectivity with adjacent habitat areas without unduly burdening the landowner (personal communication). b. Diane Hennessey, Ecology's NW Regional Wetland Specialist, points out that she is not aware of any studies that discuss limitations of buffer averaging (personal communication). I concur with her that the latest science available and updated information on riparian buffers is that published by Washington State Department of Fish and Wildlife (WDFW), in 2018. c. Tom Hruby, PhD., former Senior Wetland Scientist with Ecology and author of most of Ecology's wetland publications sent me BAS references and pointed me to urban water - streams research (personal communication). However I have been not able to find any reference to buffer width reduction with averaging for water -streams. d. The BAS offered by the City is very sketchy for watercourses and relies entirely on The Watershed Company (TWC) report. However, the report references are mostly for wetlands with no references to watercourses. Furthermore, of 17 references cited by the consultant, 30% are on wetlands, 40% are non water course specific an 30 are consultant's own non peer reviewed reports to other cities (cannot be counted as BAS). By contrast, I have consulted with specialists and I reviewed 34 references and reports (see Reference in Appendix A) with 78% of them W water -stream specifics. In all of them, there is no scientific support for buffer width reduction by averaging. 4. 1 am concerned that in Tukwila buffer averaging method is not applicable because there is not sufficient land (buffer averaging require both width reduction and width increase) in its typical urbanized sites were buffers already extends over a majority of the property area. 5. 1 am concern that buffer averaging will exclude the "interrupted buffer" alternative as proposed in TMC 18.45 code change. 6. 1 am concern that conditions required for application of buffer averaging are not even present in Tukwila (buffer degradation of various degrees), therefore after elimination of the 50% buffer reduction provision, there will be no possibility of buffer reduction, buffer enhancement or property use at all. By all means that is property confiscation. 7. 1 am concern that proposed elimination of 50% buffer reduction, adopting buffer averaging and not allowing confinement of the watercourse alteration for closed conveyance like pipe, culverts, crossing etc. is not based on BAS or other practical eationale and or in compliance with applicable laws. For side by side comparison of buffer averaging vs. 50% buffer reduction please see the case study and the attached drawings 3of10 As it will be demonstrated in the Appendix included with the comments. the proposed buffer averaaina and elimination of the 50% buffer reduction by provision is conductive to complete devaluation of property value and in practice a confiscation without compensation for no aood reason or public interest. The propertv owners work hard to purchase their properties and thev have the riaht to eniov and developed them. As their representatives and elected official and stewards of the Citv affairs, the Citv Council has an obliaation to exercise prudence and due diligence in i=lementina new reaulations that is fair an beneficial to its constituency. Thank you for the opportunity to be part of this participatory democracy, Signature, Ion Mane@ - Tukwila property owner, 13407 48Th Av S, Tukwila., WA, 98168 Date: 09.23.2019 4of10 •E APPENDIX A REASONING AND SUPPORTING EVIDENCE Applicability Considerations Preserving the total buffer area required by buffer averaging, will force some portions of the actual buffer further away from the actual critical area and there will be no incentive to maintain or enhance the extended buffer. Also it is likely that trees planted in the extended buffer will take longer to grow before being able to project shade or protect the critical area itself. It is also likely, that an extended and neglected buffer will be populated by invasive plants producing seeds and trying to expand towards the critical area. As proposed, buffer averaging will make a reasonable use exception meaningless and the combination of 75% minimum width with 100% total area preservation requirements will automatically require buffer width extension to compensate for buffer widths reductions. Buffer averaging is the last resort method for wetlands with no scientific evidence of wetland function improvement. As per Department of Ecology (Ecology) recommendations buffer averaging will exclude other buffer reductions alternatives like interrupted buffer that will be beneficial in highly urbanized area like Tukwila. Assessment for Hydrology, Hydraulics, Geomorphology, Physicochemical, and Biology on a common base for both wetlands and watercourses is appropriate. However, desirable wetlands and watercourses are different at the functional level and their buffer should separately address their unique parameters and characteristics desired for wetlands or watercourses. For instance: • Wetland function is to retain, filter and infiltrate and/slow the runoffs, while watercourses function is conveyance of water and sediment while preventing floods are paramount. While large vegetated surfaces desirable for wetlands, vegetated wetted area of a watercourse could impair its conveyance and sediment transport capacity. • At the hydraulics levels, meandering, riffle, pooling, water speed, wetted perimeter texture and characteristics could have the same beneficial weight as watercourse buffer width. • At the Physicochemical level, water temperature, dissolved oxygen and coli form level could be essential at final discharge of a watercourse in its distributary to be attractive for upstream fish migration. • At the Biological level, warmer temperature could be tolerated or even desirable for terrestrial riparian habitat (reptiles, amphibians) while could be impairing for aquatic habitat (cold water fish). Watercourses and wetland are functional different critical areas. Buffer averaqina has not been desianed. evaluated or recommended to be used for watercourse and there is no evidence for its usefulness for imaroving the function of anv critical areas. Watercourse buffer averagina adaptation for watercourses lust for convenience or reaulation consistencv without assessina the functional consequences is environmentally riskv. 5of10 91 Best Available Science Considerations WAC 365-190-080 (2) requires that: "Counties and Cities must include the best available science as described in chapter 365-195 WAC, ... when developing policies and regulations that protect critical areas..." Criteria for obtaining the best available science (BAS) (1) Consultation with state and federal natural resources agencies and tribes (2) County or City compilation of scientific information , County or cities should have on record: (a) Specific policies and regulation adopted (b) Relevant Sources of BAS used for decision making (c) Any non scientific information for policy and regulations that depart from scientific -based recommendations. According to TMC 18.45.020 B, "Nonscientific information may supplement scientific information, but is not an adequate substitution for valid and available scientific information". (BAS) Department of Ecology's Appendix 8-C ( July 2018) Guidance on Widths of Buffers and Ratios for Compensatory Mitigation for Use with the Western Washington Wetland Rating System, 2014 states: "There is no scientific information available to determine if averaging the widths of buffers actually protects functions of wetlands" Until validation BAS validation of buffer averaging, it the current 50% buffer reduction provision of TMC 18.44 should be maintained while still in compliance with BAS. The current TMC 18.44 will allow a property owner to apply for a buffer reduction permit to develop 50% of the existing and enhance the remaining critical area. For watercourses in highly urbanized areas like Tukwila, the parcels are of small size, and some buffers extend over the whole property. Under the current code, watercourse buffer reduction may allow use of 50% of the buffer with enhancement mitigation in the remaining buffer. Under the proposed 75% width and total area conditions tl" e development may become impossible and no further enhancement for wildlife of human habitat. Furthermore, the methodology of for buffer averaging is not clear and it will further escalate the cost of permitting and open the door of disputes with applicants. This will be contrary to the purpose of TMC 18.45 including balance of the rights of individual property owners with the preservation of the environmentally critical areas. The proposed buffer reduction by averaging without supporting BAS is in non compliance with TMC 18.45.10, TMC 18.45.20 and RCW 36.70A.172 and could be the subject of a petition under RCW 36.70A.290. It will be more fair and constructive and in concordance with the purpose of the TMC 18.44 to maintain the 50% reduction rule as is now and until further determination on buffer averaging applicability. 6of10 92 Case studv: Property development with 50% buffer reduction vs. buffer averaaina Consider 200 ft long property bordering a Type F watercourse and 100 ft landward width, that is a 100 ft x 200 ft = 20,000 sqft degraded, non vegetated buffer on a vacant'land. A. With 50% buffer reduction Under current code, 50% buffer reduction will resulting buffer width is 50% and have 200 ft x 50 ft = 10,000 sqft enhanced buffer and a 10,000 sqft developable land. If development will be used for low density residential project (LDR) the following needs to be deducted form the 50ft x 200 ft developable land: Buffer setback 15 ft x 200 ft = 3,000 sqft Side setback 5 ft x 200 ft = 1,000 sqft Rear setback 10 ft x 30 ft = 300 sqft Front setback 20 ft 20 ft x 30 ft = 600 sqft The buildable land after setback reductions is: 180 ft x 30 ft = 5,400 sqft but for a 20,000 sqft LDR lot the maximum building size is 4,000 sqft. A large house is possible 65 ft away from the water -course and separated by 15 ft vegetated buffer setback (better than a degraded buffer) and an enhanced 50 ft functional buffer. In total the functional buffer of 65 ft x 200 ft = 13,000 sqft buffer that is better that 20,000 sqft degraded buffer it replaces. If the new buffer is 25% more functional,than the old one, there is a net improvement for the critical area. Furthermore, reasonable use exception with further watercourse of buffer enhancement is possible and may be more beneficial for wildlife and human habitat development See Figure 1 of Appendix A A. With buffer averaging Under proposed code, buffer averaging is allowed only if there are functional differences within watercourse reach and the buffer will be increased adjacent to high functional area and will be decreased in lower functional area and there will be improved watercourse protectid°n. According to buffer averaging total area condition, for each linear feet of buffer reduction to 75% an equal linear feet of buffer increase to 125% to be provided. No enhancement is required. For the same 100 ft wide parcel, the increased buffer width will be125 ft, and encroaching onto the next property. Assuming that expansion into the next property is granted in exchange to tax liability or acquisition, and a 50% split between 75% and 125% width buffers with no enhancement we have: 75 ft x 125 ft = 7,500 sqft degraded buffer (0-75 ft from watercourse) 100 ft x 100 ft = 10,000 sqft degraded buffer (0-100 ft from watercourse) 25 ft x 100 ft = 2,500 sqft more degraded buffer (100-125 ft from water course) 25 ft x 100 ft = 2,500 sqft developable area (75-100 ft fro"watercourse) There is no evidence that new buffer (more distant from critical area will) be an improvement over the old one. For instance if new trees are planted, the ones in the distant buffer will need a longer time to reach heights that project the same shade on the critical areas if they were planted in than existing buffer. Assuming the new buffer offers tha same level of protection as the old one, the net result after buffer averaging for the same 100 ft x 200 ft parcel will be: 20,000 sqft of degraded buffer (7,500 + 10,000 + 2,500) 2,500 sqft instead of 10,000 sqft allowed under current rule If development will be used for low density residential project (LDR) the following needs to be deducted form the 25ft x 200 ft developable land: Buffer setback 15 ft x 100 ft = 1,500 sqft Side setback 5 ft x 100 ft = 500 sqft Rear setback 10 ft x 5 ft = 50 sqft 7of10 93 Front setback 20 ft 20 ft x 5 ft = 100 sqft The buildable land after setback reductions is: 5 ft x 30 ft = 150 sqft developable area land For a 2,500 sqft LDR lot the maximum building size is 875 sqft so 150 sqft building is quite sufficient accommodate a log bench for bird watching. See figure 2 in Appendix A To summarize, the choices are: 1. No development: 20,000 sqft degraded buffer ( undevelopable property but tax liability) 2. 50% buffer reduction: 10,000 sqf functional buffer + 10,000 sqft developable property (+ increased revenue for City and County = better Tukwila) 3. Buffer averaging: 22,500 sqft degraded buffer + 150 sqft developable land (no incentive even to consider) REFERENCES: Wetlands: 1. Wetlands in Washington State, Volume 1: A Synthesis of the Science Ecology Publication #05-06-006, 2005 2. Wetlands in Washington State , Volume 2: Guidance for Protecting and Managing Wetlands, Ecology Publication #05-06-008, 2005 3. Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Western Washington, by Thomas Hruby, PhD , Washington State Department of Ecology, 2012 4. Washington State Wetland Rating System for Western Washington, by Thomas Hruby,PhD, SEA Program, Washington State Department of Ecology 5. Appendix 8-C Guidance on Widths of Buffers and Ratios for Compensatory Mitigation for Use with the Western Washington Wetland Rating System, 2014 ' 6. Appendix 8-C (July 2018) Guidance on Widths of Buffers and Ratios for Compensatory Mitigation for Use with the Western Washington Wetland Rating System, 2014. Watercourses: 7. Fostoria Basin Storm Water Quality Management Plan, by Herrera Environmental Consultants, Inc., 1996 8. Habitat Limiting Factors and Reconnaissance Assessment Report Green/Duwamish and Central Puget Sound Watersheds by Water Resource Inventory Area 9 and Vashon Island, King County), and Washington State Conservation Commission 9. The Effects of Temperature on Steelhead Trout, Coho Salmon, and Chinook Salmon Biology and Function by Life Stage, Implications for Klamath Basin TMDLs by Katharine Carter Environmental Scientist California Regional Water Quality Control Board North Coast Region, August 2005 10. The Effects of Dissolved Oxygen on Steelhead Trout, Coho Salmon, and Chinook Salmon Biology and Function by Life Stage by Katharine Carter Environmental Scientist California Regional Water Quality Control Board North Coast Region, August 2005 11. Salmon Creek Watershed Bacteria and TurbidityTotal Maximum Daily Load (Water Cleanup Plan) Detailed Implementation Plan, Prepared by: Dave Howard Washington State Department of Ecology Water Quality Program Vancouver Field Office 2108 Grand Blvd. Vancouver, Washington 98661- 4622 March 2005 Ecology Publication Number 05-10-037 12. City of Tukwila Comprehensive Land Use Plan, Natural Environment Chapter Regulatory Background Report, 2015 Growth Management Act Update to Comprehensive Plan, Planning Commission Draft June 2013 13. Fish habitat in fresh water streams, by Lisa C Thompson, UC Cooperative Extension Anadromous and Inland Fisheries Specialist, UC Davis and Royce Larsen , UCCE Farm Advisor, San Luis Obsipo County, ANR Publication 8112, university of California, Division of Agriculture and Natural Resources, UC, Peer Reviewed, 2004 14. Board Manual - 02/2002 Determining Fish Use for the Purpose of Typing Waters M13-1 Section 13, Washington State Forest Practices Board Manual, 2002 8of10 15. Green/Duwamish River Watershed Pollutant Loading Assessment, Technical Approach Appendices, by Tetra Tech, Inc., 2014, EPA Region 10, Ecology 16 Tide Gate Modifications for Fish Passage and Water Quality Enhancement Tillamook Bay National Estuary Project 613, by Jay Charland, 1998 17. PCB Source Control Investigation of the City of Tukwila Stormwater System Jorgensen Pipe Discharge Area City of Tukwila, WA, by PBS Engineering + Environmental, Project No. 40407.011, Prepared for: Prepared for Ryan Larson, Public Works Department, City of Tukwila, 2008 18. City of Tukwila, Shoreline Master Program Update, Shoreline Restoration Plan by ESA Adolfson, 2009, Ecology Grant #G0600234 19. City of Tukwila 2013 Surface Water Comprehensive Plan Prepared forTukwila, CH2MHILL, 2013 20. Puget Sound Hatcheries, for Steelhead, Coho Salmon, Chum Salmon, Sockeye Salmon & Pinck Salmon, Puget Sound treaties & Washington Department of Fish and Wildlife, 2004. 21. Southgate Creek Sedimentation Assesment , prepared for City of Tukwila, by CH2MHILL, 2010 24.Sediment removal from Freshwater Salmonid Habitat -Guidelines to NOAA Fisheries Staff for the Evaluation of Sediment Removal Actions from California Streams. NOAA Fisheries - Southwest Region, 2004 22. Stormwater System Work Plan to Control Storm Water Drain Discharges from Boeing Plant 2, Seattle/Tukwila, Washington, Prepared for The Boeing Company by Golder Associates Inc., 2010 23. Introduction to Fishway Design by Chris Katopodis, P.Eng., Freshwater Institute Central and Arctic Region Department of Fisheries and Oceans 501 University Crescent Winnipeg, Manitoba Canada, 1992 24. Green River Temperature Total Maximum Daily Load , Water Quality Improvement Washington State Department of Ecology, 2011, Publication No. 11-10-046 25. A Function -Based Framework for Stream Assessment & Restoration Projects, Environmental Protection Agency, Publication EPA 843-K-12-006 2012 26. Temperature Criteria for Fresh Water Fish: Protocol and Procedures, Environmental Protection Agency, Publication EPA 600/3-77-061 27. Gilliam Creek Basin Stormwater Management Plan by Herrera Environmental Consultants, Inc. and RW Beck 28. Green/Duwamish River Watershed Pollutant Loading Assessment Technical Approach, By Tetra Tech, Inc., Submitted to U.S. Environmental Protection Agency, Region 10 and Washington Department of Ecology , 2014. 29. Riparian Ecosystems, Volume 1: Science Synthesis and Management Implications, Priority Habitats and Species Document of the Washington Department of Fish and Wildlife, Final Version, May 2018 30. Riparian Ecosystems, Volume 2: Management Recommendations, A Priority Habitats and Species Document of the Washington Department of Fish and Wildlife, Pubic Review Draft, May, 2018 31. Modeling Stream Shade: Riparian Buffer Height and Density as Important as Buffer Width. DeWalle, David R., 2010. Journal of the American Water Resources Association (JAWRA) 32. Integrating Humans into Ecology: Opportunities and Challenges for Studying Urban Ecosystems by Marina Alberti John M. Marzluff Eric Shulenberger Gordon Bradley Clare Ryan Craig Zumbrunnen, BioScience, Volume 53, Issue 12, December 2003, 33. Restoring streams in an urbanizing world by Emily S. Bernhardt and Margret A. Palmer, Freshwater Biology (2007) 52, 738-751 34. Western Rivers in Urban Areas --Unique Ecosystems Todd L. Harris, James F. Saunders III, and William M. Lewis, Jr. Metro Wastewater Reclamation District 9of10 95 50'—'0" PROPERTY LINE L50% BLUFFER REDUCTION 600 SQFT DEVELOPABLE LAND 0 R U D U E E E w loo—o" 10,000 SO ,ET FUNC,,T,],,,,QNAL BUFFER �J— cy Ld SHADE 0- SHADE TREES SHADE TREES DE TREES SHADE TREES Q2 TYPE F WATRECOURSE I PROPERTY LINE FIGURE 2 loo'—o" I loo'—o" 125 FT BUFFER EDGE (IF NEIGHBOUR ALLOW) PROPERTY LINE 25'[—Oq"2,500 7 z SQFT DEJVLOPABLE AREA 75 FT BUFFER EDGE IZ I BUFFR AVERAGING I a- 100 —D" 20)000 SQFT DEGRADED BUFFER to �7 a� I ui I a- 0 (If CL TYPE F WATRECOURSE PROPERTY LINE PROPERTY LINE 100 FT BUFFER EDGE Z-00'—O" NO DEVELOPMENT lool—o" UNDEVELOPED VACANT LAND I I 20,000 SQFT DEGRADED BUFFER ui 0 u, Z: Of CL ch: LLJ CL 0 CL CL TYPE F WATRECOURSE PROPERTY LINE a I HALINEN LAW David L. Halinen, P.E., Attorney at Law davidhalinen@halinenlaw.com L j. Seattle ° 206.443.4684 ® Tacoma ° 253.627.6680 , Fax • 253.272.9876 , Cell ° 206,713.0992 Halinen Law Offices, P.S. 1019 Regents Blvd Ste 202 Fircrest, WA 98466-6037 = halinenlaw.com November 20, 2019 [Replaces and supersedes the Nov. 19, 2019 version of this letter] VIA EMAIL Tukwila City Council 6300 Southcenter Boulevard, Suite 100 Tukwila, WA 98188-8548 Re: The Proposed Update of the Tukwila Environmentally Critical Areas Code My Client AnMarCo's Modified Request for Revisions to the "Interrupted Buffer" Paragraph in paragraph 2 of Section 18.45.80 (Wetlands Designations, Ratings and Buffers) of the Planning Commission's Recommended Draft of the Code Update Dear Council Members: As you will recall, both I and critical areas consultant Emmett Pritchard of Raedeke provided both written and oral public testimony to the full City Council during the September 23, 2019 public hearing concerning the "Interrupted Buffer" paragraph set forth as paragraph 2 of Section 18.45.80 (Wetlands Designations, Ratings and Buffers) of the Planning Commission's Recommended Draft of the Update of the Tukwila Environmentally Critical Areas Code. After phone calls with Tukwila Planning Supervisor Minnie Dhaliwal regarding (1) AnMarCo's original proposal for revisions to the Planning Commission's recommended text for "Interrupted Buffer" paragraph, (2) her explanation that our original proposal in relation to paved trails as a buffer interruption would relate to all the many paved trails throughout the City and would be unacceptable, (3) her comment to me that there are special circumstances along the segment of the Interurban Trail that runs along the east side of the Interurban Trail near AnMarCo's property, and (4) my suggestion to her of a much -narrowed scope of AnMarCo's initial request relating to paved trails, I am writing to propose and explain a much -narrowed paved trail -related proposal within paragraph 2, a proposal relating only to the segment of the Interurban Trail and area subject to Puget Sound Energy's easements for vegetation removal lying within the 60-foot-wide strip of street right-of-way and reserved easements in the 1994 right-of-way deed from PSE to the City. AnMarCo's Modified Requested Revisions to the Interrupted Buffer Paragraph AnMarCo's modified proposal for revisions to paragraph 2 of Section 18.45.80 is hereby revised to state as follows (with all of AnMarCo's cumulative requested revisions color - illustrated by means of MS Word's "track changes" feature and with the modified proposed revisions also yellow -highlighted): 97 Tukwila City Council November 20, 2019 Page 2 2. Interrupted Buffer: Waiver for interrupted buffer may be allowed by the Director as a Type 2 permit if the following criteria are is --met: i) The buffer is interrupted by a paved public or private road; by the segment of the paved public Interurban Trail located within the 60-foot- wide strip of street right-of-way and reserved perpetual easements for electrical purposes and vegetation cutting, removal. disposal, and management recorded under County Recording No. 9409130817, by legally constructed buildings; ef—by a legally constructed aeved parking lots: or by some other legally constructed substantial improvement. On lots with a primary single-family residence, Tthis waiver does not apply to a buffer interrupted by a minor accessory structures such as a tool sheds or a a*d-garages associated; i_i) The existing legal improvement creates a substantial barrier to the buffer function; ii_i) The interrupted buffer does not provide additional protection of the critical area from the proposed development; and iviri) The interrupted buffer does not provide significant hydrological, water quality and wildlife functions. This Elees iiat appiy if large [Foos v_+v) Enhancement of remaining buffer is required if feasible. The PSE Reserved Easements to Cut, Remove and Dispose of Any and All Brush, Trees and Other Vegetation within the Right -of -Way Strip Please recall that, on page 3 of my September 23, 2019 letter to the Council, I addressed the 60-foot-wide strip of street right-of-way that the City acquired from Puget Sound Energy by virtue of the above -referenced recorded Right of Way Deed, an acquisition that is subject to perpetual reserved easements, including an easement for overhead and underground power transmission facilities and a reservation of easement rights that include the right to cut, remove and dispose of any and all brush, trees, and other vegetation upon that parcel on a continuing basis. I attached a copy of that recorded instrument to my earlier letter and have attached it to this letter as well for your reference. PSE's Exercise This Summer of Its Reserved Easements Right to Cut, Remove and Dispose of Vegetation within the Rijzht-of-Way Just this last summer, PSE exercised its vegetation removal rights with a vegetation removal operation along segments of the street right-of-way and easement, not only along more than half of the subject nearly 600-foot length of the narrow AnMarCo parcel but also east of and along a segment of property to the north near Strander Boulevard. At the public hearing, Emmett Pritchard submitted his September 23, 2019 memo with two attached color aerial photos (pages 2 and 3 of his memo) and attached color ground -level Tukwila City Council November 20, 2019 Page 3 photos into the public hearing record. On page 3 of his memo submittal, the more close-up aerial photo (Aerial Photo 2, on which the AnMarCo parcel is outlined in red) had been taken some time before this summers vegetation removal. His ground -level Photos 1, 2, and 3 on pages 4, 5, and G, respectively, of Mr. Prichard's submittal make clear that PSE's vegetation removal operation along part of the east side of the paved trail removed vegetation nearly to the ground su face along more than half of the east side of the AnMarCo property as well as along the east side of private property near Strander Boulevard. (Note in Photos 1, 2, and 3 that the major PSE overhead powerlines are directly above the strip of the recently -removed vegetation.) This year's PSE vegetation removal did not extend the entire length of the road right-of- way the City acquired from PSE. Other segments along the road right-of-way will undoubtedly have similar removal of vegetation in future years as part of PSE's ongoing need to protect its overhead power lines from the threat of vegetation fires below the powerlines damaging the lines. Summation The ongoing need for periodic vegetation removal by PSE within the easement along the paved Interurban Trail itself is an interruption of wetland buffers extending from wetland areas lying to the east of the Interurban Trail. Taken together, the paved Interurban Trail and PSE's perpetual need for vegetation removal along the subject segment of the Interurban Trail within the road right-of-way and easements strip create a very significant buffer interruption, one that reasonably should be reflected in paragraph 2 of Section 18.45.80. Not including the subject requested modification of AnMarCo's original paved trails interrupted buffer provision will unfairly burden the owners of the parcels of property abutting the west side of the road right-of-way and easement because, with the buffer interruption caused by the paved Interurban Trail segment and PSE's ongoing need for vegetation removal within the right-of-way and easement strip, the outside edge of the ordinarily -required buffer extending into those abutting private parcels will provide extremely little or no environmental benefit. Please consider and approve this modified request in view of Goal 7 of subsection B of Planning Commission -recommended Section 18.45.10 (Purpose) of TMC CHAPTER 18.45. With the Commission's recommended revision to that goal, Goal 7 will state as follows: 7. Balance the private rights of individual property owners with the preservation of environmentally critical areas. Sincerely, H - NEN LAW OFFICES, P.S. David L. Halinen .• Tukwila City Council November 20, 2019 Page 4 Attachments: (1) Copy of Right -of -Way Deed, (2) the September 23, 2019 Raedeke Associates color Technical Memorandum with attached annotated photos, and (3) a two -page November 20, 2019 letter from Raedeke Associates' Emmett Pritchard relating to this letter cc: Jim Blais, AnMarCo LLC (via email with attachments) Emmett Pritchard, Raedeke Associates (via email with attachments) Minnie Dhaliwal, Tukwila Planning Supervisor (via email with attachments) Andrea Cummins, City of Tukwila Environmental Specialist (via email with attachments) 100 Wetland & Aquatic Sciences Wildlife Ecology Landscape Architecture November 20, 2019 Tukwila City Council 6300 Southcenter Boulevard, Suite 100 Tukwila, WA 98188-8548 RE: Council Proposed Update of the Tukwila Environmentally Critical Areas Code R.A.I. Project #2019-053-002 Dear Council Members: On September 23, 2019, I provided both written and oral testimony to the Tukwila City Council concerning the "Interrupted Buffer" paragraph set forth as paragraph 2 of Section 18.45.80 of the Planning Commission's Recommended Draft of the Update of the Tukwila Environmentally Critical Areas Code. My September 23`d testimony presented - the findings of my firm's reconnaissance of wetlands and buffer conditions in the vicinity of the AnMarCo property with respect to a wetland located on the east side of the Interurban trail and within the Puget Sound Energy (PSE) easement. My testimony was based on information collected during investigations of the site conducted by members of my staff during June and August, 2019 and by myself on September 20, 2019. I have since been provided and reviewed for accuracy a copy of Mr. David Halinen's letter dated November 20, 2019 regarding the proposed update of the Tukwila Environmentally Critical Areas Code. I agree with statements made in the letter regarding buffer conditions and recent vegetation removal within the wetland buffer by PSE within a portion of their easement fronting a substantial portion of the AnMarCo property and within a portion of their easement to the north near Strander Boulevard. In addition, based on the presence of a maintenance/access road stemming east and southeast from near the midpoint of the east side of the AnMarCo property, and extending through the PSE easement from the Interurban trail connecting with the Oregon -Washington Railroad and Navigation Company railroad line to the east, it appears likely that maintenance of this portion of the PSE easement occurs on a more frequent basis than along other portions of the easement. Thank you for the opportunity to submit this additional information to you. If you have any questions you may contact me directly at (206) 525-8122. 2111 N. Northgate Way, Ste 219 Seattle, WA 98133 206-525-8122 raedeke.com 101 Tukwila City Council November 20, 2019 Page 2 Respectfully submitted, RAEDEKE ASSOCIATES, INC. Emmett Pritchard, Principal Wetland Ecologist 102 ;3 Filed for Record at Request of PUGET SOUND POWER & LIGHT COMPANY Real Estate Department P.O. Box 97034 Bellevue, WA 98009-9734 RIGHT OF WAX DEED The PUGET SOUND POWER & LIGHT COMPANY, a Washington corporation (hereinafter referred to as "Puget"), for and in consideration of Ten & No/100 Dollars ($10.00) and other good and valuable consideration conveys and quit claims to THE CITY OF TUKWILA, a Washington municipal corporation, (hereinafter referred to as "the City", the following described real estate for street right of way, situated in the County of King, State of Washington: A strip of land sixty (60) feet in width lying 30 feet on each side of the following described centerline: Beginning at the Southeast corner of Lot 2 of Short Plat 084-85 filed with the City of Renton under Recording Number B702039008 in the Northwest quarter of Section 25, Township 23 North, Range 4 East, W.M.; thence North 01'21'49" West 14 along the East line, also being the West margin of the Puget Go Sound Electric Railway 100 foot wide right of way, of said G short plat 219.98 feet to the centerline of Tract "X" and the True Point -of Beginning of this centerline description; thence Easterly along a curve to the left whose radius is 1,000 feet and bears North 01039,24" East through a central angle of 04'28'02" and an arc length of 77.91 feet; thence Qj continuing Easterly along a curve to the right whose radius equals 1,000 feet and bears South 02'48138" East through a central angle of 01*15,51" and an arc length of 22.06 feet to the East margin of said Puget Sound Electric Railway 100 foot wide right of way and the terminus of said centerline. Puget herein reserves unto itself, its successors and assigns, for the purposes hereinafter set forth, a perpetual non-exclusive easement (the "Easement" herein) over, under, along, across and through the above described real estate (the "Property" herein) subject to the following terms and conditions: 1. glectrical Purposes. The right to construct, operate, maintain, repair, replace, improve, remove, enlarge and use one or more existing and future electric transmission and/or distribution systems over and/or under the Property, together with all necessary or convenient appurtenances thereto, which may include but not be limited to the following: a. Overhead facilities. Poles and/or towers with crossarms, braces, guys and anchors; electric transmission and distribution lines; fiber optic cable, communication and signal lines; transformers. b. Undergrcund facilities. Underground conduits, electric transmission and distribution cables, vaults, manholes, switches and transformers; semi -buried or ground mounted facilities such as pads, transformers and switches; fiber optic cable, communication and signal lines. Puget may, from time to time, construct such additional facilities as it may require for its systems. Provided, however, that no such enlargement or replacement of Puget's existing systems nor any construction of future facilities shall be of a nature, or in a location, which is inconsistent with the City's use of the Property for street right of way. 103 2. Access Purposes. The right of access over, across and along the Property to enable Puget to exercise its rights under the Easement. Puget shall repair or reasonably compensate the City for any damage to Property, including damage to roads, trails, driveways and fences caused by the exercise of such right of access. 3. Property Clearing and Maintenance Purposes. The right to cut, remove and dispose of any and all brush, tree's and other vegetation presently existing upon the Property. Puget shall also have the right to control, on a continuing basis and by any prudent and reasonable means, the establishment and growth of brush, trees and and other vegetation upon the Property which could, in the opinion of Puget, interfere with the exercise of Puget's rights under the Easement or create a hazard to Puget's systems. The City shall be entitled to no compensation for the value of trees cut, trimmed, removed or disposed of 4. The City's Use of the Property. The City shall not construct or maintain any structure or other improvement on the Property which will interfere with Puget's rights under the Easement herein, cause a violation of the National Electric Code or any other applicable law or regulation, or create a hazard to Puget's electrical systems or operations. Before the commencement of any work on the Property which would result in a change of the existing ground elevation, the City shall submit to Puget, for its review and acceptance, a set of plans and specifications detailing the proposed work. 5. Indemnity. Puget agrees to indemnify the City from and against liability incurred by the City as a result of Puget's negligence in the exercise of the rights herein reserved by Puget, but nothing herein shall require Puget to indemnify the City for that portion of any such liability attributable to the negligence of the City or the negligence of others. Q6. Succesoozo and Assigns. Puget reserves the right to M assign, apportion or otherwise transfer any or all of its rights, T4 benefits, privileges and interests reserved herein and otherwise 8 arising under this document. Without limiting the generality of the foregoing, the rights and obligations of the parties shall inure to the benefit of and be binding upon their respective successors and assigns. IN WITNESS WHEREOF, said co o tion has c�.used this instrument to be executed this day of `1.t Pt_`' _ 1994. ACCEPTED AND APPROVED CITY OF TUKWILA By: Its: Approved as to orm: City Attorney PUGET SOUND POWER & LIGHT COMPANY By: Director Real atate & Facilities 104 D- 14 C"3 RIGHT OF WAY DEED PUGET SOUND POWER & LIGHT COMPANY CITY OF TUKWILA _ STATE OF WASHINGTON ) ) SS. COUNTY OF KING // 1 On this (- day of 1C,lP 1994, before me, the undersigned ARNOLD J. TOMAC, to me known to be the Director Real Estate & Facilities of PUGET SOUND POWER & LIGHT COMPANY, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute the said instrument. •.WITNESS my hand and official seal hereto affixed the day and ,year fi'rst.above written. 1 / - Notary Public in and for the State of Washington, residing My commission expires FILED FOR RECORD AT nEQUEST OF: Pi.IGET POWER RE,"%L EST;1 E DEPART.'JE%W P.O. FOX 97034 BELLEVUE, WASHINGTON 98009.9734 105 106 Wetland & Aquatic Sciences Wildlife Ecology Landscape Architecture September 23, 2019 TECHNICAL MEMORANDUM AnMarCo LLC c/o Merlino Properties Attn: Jim Blais From Emmett Pritchard, B.S. Principal / Wetland Ecologist Raedeke Associates, Inc. RE: Interurban Trail Existing Conditions Documentation RAI Project No. 2019-053-002 Per your request, this technical memorandum provides documentation of our investigation of existing conditions of the asphalt -paved Interurban Trail in the vicinity of a parcel of property owned by AnMarCo LLC at 17024 West Valley Hwy in the City of Tukwila, Washington (APN 252304904). The purpose of this memo is to document trail conditions in order to demonstrate that the investigated section of the Interurban Trail is an example of legally improved public right-of-way that warrants consideration as a buffer interruption under the currently proposed code update to Chapter 18.45 "Environmentally Sensitive Areas" that is now under review by the Tukwila City Council. We investigated the paved Interurban Trail in the vicinity of the subject property on June 5, August 8, 2019 and further on September 20, 2019. As part of our investigation, we walked southward along the trail from Strander Boulevard to a trail crossing by a railroad sidetrack segment (of the Oregon -Washington Railroad and Navigation Company railroad line) located approximately 180 feet south of the subject property. We observed several wetlands between the railroad line and the Interurban Trail along the investigated trail segment. At the time of our site investigations, we photo -documented the Interurban Trail and conditions of adjoining wetland buffers on both sides of the trail. Photographs taken during our investigations are provided below. In addition, we measured the paved trail width at ten equally -spaced locations along the investigated portion of the trail. Based on our measurements, we found the investigated segment of the paved trail to be an average of 12.4 feet in width. 9510 Stone Avenue N. Seattle, WA 98103 206-525-8122 www.raedeke.com 107 terurba I nterurba r , �7- ------------ T==— Owl vi lima th,;eirle: n 1 40 e Elrth _0,A) ft AnMarCo LLC, c/o Mr. Jim Blais, Merlino Properties September 23, 2019 Page 3 I Google Earth Aerial Photograph 2. Developed area along the west side of the paved Interurban Trail in the vicinity of the AnMarCo parcel at 17024 West Valley Hwy. O CD o AnMarCo LLC, c/o Mr. Jim Blais, Merlino Properties September 23, 2019 Page 4 rnoto 1. Interurban Trail facing to the south. Developed conditions along the west side of the paved Interurban Trail along the northern extent of the AnMarCo parcel at 17024 West Valley Hwy. August 8, 2019. AnMarCo LLC, c/o Mr. Jim Blais, Merlino Properties September 23, 2019 Page 5 Photo 2. Interurban Trail facing to the south. Developed conditions along the west side of the Interurban Trail along the southern extent of the AnMarCo parcel at 17024 West Valley Hwy. The wetland buffer on the east and west sides of the trail had been recently cleared by PSE (and work appeared to still be underway on the east side). August 8, 2019. N AnMarCo LLC, c/o Mr. Jim Blais, Merlino Properties September 23, 2019 Page 6 Photo J. Interurban Trail facing to the north. Maintenance vehicle accessing the Interurban Trail near Strander Boulevard (north of the AnMarCo Parcel). Recent vegetation maintenance by PSE on east side of the trail. August 8, 2019. AnMarco LLC, c/o Mr. Jim Blais, Merlino Properties Draft of September 23, 2019 Page 7 Photo 4. Interurban Trail facing to the south. Maintenance vehicle utilizing the Interurban Trail approximately 500 feet south of the AnMarCo parcel at 17024 West Valley Hwy. Access from Strander Boulevard or S. 180th Street. August 8, 2019. CH&CA] RNCROSS&HEMPELMANN ATTORNEYS AT LAW 524 2nd Ave., Suite 500 office 206.587.0700 Seattle, WA 98104 fax 206.587.2308 www.cairncross.com October 23, 2019 VIA F.MAIT. Minnie Dhaliwal City of Tukwila 6300 Southcenter Blvd.,# 100 Tukwila, WA 98188 miiinie.dhaliwal@tukwilawa.gov Re: Proposed Amendments to the Critical Areas Ordinance Update Dear Ms. Dhaliwal: As you know, this firm represents Segale Properties LLC ("Segale") and we previously submitted comment letters regarding the Critical Areas Ordinance Update on behalf of Segale. In response to feedback from you, we submit this supplemental comment letter proposing revised language to the Critical Areas Ordinance. As detailed in prior letters, Development of Tukwila South currently is governed by a long-term Development Agreement and a Sensitive Areas Master Plan. Some regulations are vested during the term of the Development Agreement, while others are not, and when the Development Agreement term expires, any regulations adopted by the Council now will apply. As a result, Segale is keenly interested in and impacted by the proposed Critical Areas Ordinance Update. Segale proposes two amendments to the Critical Areas Ordinance Update. First, Segale proposes a new subsection to TMC 18.45.160 to address the circumstance where critical area buffers within Tukwila South have already been set by an approved Sensitive Areas Master Plan and adjacent lands to those buffer boundaries have already been cleared and graded. As a result, these adjacent lands do not provide any ecological benefit and do not merit inclusion within buffers that will be expanded under the Critical Areas Code Update. This is the case with Tukwila South where Segale has spent years installing the necessary infrastructure and re- grading the land adjacent to the buffers set by an approved Sensitive Areas Master Plan. There is no added benefit to labelling as buffer previously graded and filled lands, some of which are vertically separated by up to 20 feet from the critical area, but there would be a negative impact on the ability to build on the previously graded lands. nroeers cairncross.com direct: (206) 254-4417 (03842I32.DOCX;4 ) 115 Minnie Dhaliwal October 23, 2019 Page 2 This preparation work for development was done consistent with the Development Agreement, an approved Sensitive Areas Master Plan, City -approved grading permits, and an issued Section 404 Permit and Section 401 Certification. Segale also performed mitigation work required by the Sensitive Areas Master Plan. This mitigation work was designed to ensure functionality and required monitoring confirmed it is functioning, as required by the approved Sensitive Areas Master Plan. The proposed new subsection to TMC 18.45.160 assures that later Building Permit applications for development on these previously graded and filled lands will not be subject to expanded buffers under the newly adopted Critical Areas Ordinance. We previously submitted language for your review to address the above concern, but we have since revised that language in a manner we believe is now acceptable to City Staff. We therefore recommend that the following language be added as a new subsection to TMC 18,45.160 (new text is shown underlined): The critical area buffers widths for those areas that were altered, created or restored as mitigation (Wetland 10 1 Johnson Creek and the Green River off - channel habitat) at the time of approval of the Sensitive Area Master Plan Permit No L10-014 (SAMP) shall be vested as shown on [Map A]; provided the adjacent land was cleared and graded pursuant to a city approved grading permit; and provided further that those mitigation measures required by the SAMP were performed and meet ecological goals, in accordance with the terms of the SAMP. * Map A is included as Exhibit A to this comment letter. The second requested amendment to the Critical Areas Ordinance is to address the intent behind the Code as to which existing improvements serve to interrupt and terminate a buffer. As drafted, the proposed identical amendments at TMC 18.45.080.F.2.i and TMC 18.45.100.E.2.i, provide that existing paved public or private roads, buildings, and parking lots interrupt the buffers for wetlands and watercourses, respectively. During the Planning Commission's final meeting reviewing the Shoreline Master Program update, City Staff indicated that this provision also meant that any river levee would also interrupt the buffer. Segale recommends that intent be made explicit by adding "levees" to the list of improvements that interrupt a buffer. Segale proposes TMC 18.45.080.F.2.i. and TMC 18.45.100.E.2.i be amended as follows (new text is shown underlined, against the current draft text): 2. Interrupted Buffer: Waiver for interrupted buffer may be allowed by the Director as a Type 2 permit if the following criteria are met: i) The buffer is interrupted by a paved public or private road; existing or future levee legally constructed adjacent to an off -channel habitat; legally constructed {03842132.DOCX;4 } 116 Minnie Dhaliwal October 23, 2019 Page 3 buildings; or legally approved parking lots. This waiver does not apply to accessory structures such as sheds and garages. We recommend the above amendments to the Critical Areas Ordinance Update to assure adequate protection to the existing rights of Tukwila property owners. Thank you again for your continued efforts throughout this process. Very truly yours, / Nancy Bainb ' ge Rogers NBR:alw Cc: Ann Marie Soto Mark Segale Mike Pruett {03842132.DOCX;4 117 Exhibit A TMC 18.45.160, Map A (attached) nrogers(Rwairncross.com direct: (206) 254-4417 118 (03842132.DOCX;4 ) "MAP -A" GRAPHIC SCALE CfTY OF 'WKWU F �6 -.-.HIC SCALE (U VICINITY MAP 'nth W V) 0.ILI 0 ---Zz A78— 5 CrrY OF KENT li J-1 I V z m �' \ �� \ ViNa CoLtm El 0 CRITICAL AREA TRACTS U) ~�� I \� _ TUKWLA SOUTH OVERLAY ZONING BOUNDARY vi