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Home My WebLink AboutCity Council Meeting - Council Workshop - Minutes - 01/17/2012 �✓ KENT WINMNOTON Kent City Council Workshop January 17, 2012 Council Members Present: Albertson, Higgins, Perry, Ranniger, Ralph, Thomas The meeting was called to order at 5:30 p.m. by Council President Higgins. Intergovernmental Issues. Council members reported on regional meeting attendance and discussed regional committees. Legislative Update. Michelle Wilmot gave an update on legislative issues affecting the city. q I National Pollutant Discharge Elimination System (NPDES) Update. Shawn Gilbertson of Public Works Environmental Engineering gave a presentation on NPDES permits, requirements, compliance, potential sanctions, and the new Phase II permit. He explained Low Impact Development, and outlined the next steps in moving forward. National Wildlife Federation (NWF)/Federal Emergency Management Agency (FEMA) Lawsuit. City Attorney Brubaker gave a presentation explaining the background and current status of this issue, and outlining potential impacts to the city. He said the Law Department is investigating options to address the city's interests and will continue to monitor 3 developments. The meeting adjourned at 6:40 p.m. Brenda Jacober, CIVIC City Clerk 1/17/2012 NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM Permit Implementation and Upcoming Challenges Shawn Gilbertson 410411 City Council Workshop NPDES Coordinator :E. k January 17,2012 Federal Clean Water Act NPDES Permits 01 S79:Fd D ) Z d2 ECOLOGY F�T�L P�U��`� 'oke�kR o'VYaFhIngCAa MT Developers and Businesses NPDES Permits o Industrial facilities 1 1/17/2012 N PDES Permits o Aquatic Mosquito Control N PDES Permits o Construction activities y NPDES Permits o Municipalities - Cities & Counties o a « 2 1/17/2012 NPDES Requirements • Formal Stormwater Education Program ONLY RAIN REPORT SPILLS K l C1 .3 VVN :C 1 a i e p E ru 253.856.5600 NPDES Requirements • Public Involvement Opportunities NPDES Requirements • Respond to all spills and illicit discharges Over 80 Spills and Illicit Discharges-2011 3 1/17/2012 NPDES Requirements • Development and Construction Stormwater Regulations and Oversight pt hl,tier Ill NPDES Requirements • Inspection and Maintenance of Stormwater System r-, yy ■I ._ re ' I UIIII��_ IiIN.. -1' ZA B� s 18,000+ Catch Basins t0 t'.4 NL ST Kp §l'f f]Y )04 iA WX HC% ........._......_...................................._......................._.......... .._............._.....`4...._..........._._...._ II!•+IrTn�{ 4 1/17/2012 1 Square Mile of Catch Basins m ., s� •.•'+, 44- �' s i w gr+v o �4a • re w; Catch basin issues discovered during NPDES inspections g �-HY Reconstruction of catch basin A 2 5 1/17/2012 Catch Basin and Manhole Repair Drying, aerating & screening material for use as topsoil Maintenance of Stormwater Ponds x : w. 6 1/17/2012 Illicit connections discovered during NPDES€_inspections Disconnection of an illicit connection k � m Cleaning up a spill 7 1/17/2012 Permit Compliance o Clean Water Act Lawsuits CWA Sec 505: 11 any citizen may commence a civil action against any person and any other governmental agency who is alleged to be in violation of any provisions of the CWAii paraphrased from CWA "Group uses lawsuits to help clean up Sound Citizens take aggressive stand against pollution" Seattle Pl-Jan 2009-m:Puget Soundkeepers Alliance NPDES Lawsuits • Clark County- by Rosemere Neighborhood Assn. • $500,000 spent in defense/negotiations • Pierce County - by Waste Action Project • Settlement(Consent Decree): • hire an additional 14.5 FTEs dedicated to NPDES • $52,500 in fees, etc. (not including legal expenses) • send regular reports to Waste Action Project(so now they are reporting to Ecology and the Waste Action Project) NPDES Lawsuits • Others Recently Served with Notice of Intent - - Kitsap County •City of Black Diamond •City of Pullman •City of Spokane 8 1/17/2012 Potential Sanctions • Loss of Federal funds • Loss of State and Federal Grant Opportunities • EPA fines - up to $37,500/day per violation • Ecology fines - up to $10,000/day New NPDES Phase II Permit o Currently under review 0 5-year permit terms o Current: 2/2007 - 2/2012 o Interim: 3/2012 - 7/2013 o Next 5-yea[ August 1, 2013�- July�31,�2018� Draft Permit - Significant Changes o Low Impact Development o Operations and Maintenance o Stormwater Monitoring 9 1/17/2012 Low Impact Development o Why LID? o Techniques/BMPs o Green roofs o Minimize hard surfaces o Raingardens o Pervious Pavement Low Impact Development -1-11 rnt,�"*_A Low Impact Development "... to make LID the preferred and commonly-used approach to site development." -Draft Phase II Permit section S5.C.4 10 1/17/2012 Low Impact Development o Concerns? o Location, location, location o Design standards o Maintenance needs o Longevity o Conflicts with fire protection Low Impact Development "Ballard's rain gardens:A green experiment gone wrong" Seattle Pl,412011 Low Impact Development o Code revisions o Surface Water Design Manual o Training for ■ Development Review staff • Design Engineers ■ Inspectors • Maintenance staff ■ Developers ■ Consultants 11 1/17/2012 Operations and Maintenance o Inspect annually and maintain all: ■ Ponds, Vaults, Bioswales o Inspect and maintain at least 2 times: ■All catch basins Monitoring o Regional Stormwater Monitoring o Buy-in option' o Kent's share - $77,402 / year o To go it alone would be prohibitively expensive Moving Forward o Draft permit is highly contentious o Environmental groups ■ Say draft permit is not protective enough o Municipalities o Too much, too fast o Legislative bills propose delay o Keep City Council informed 12 1/17/2012 Questions or Comments? 13 1 National Flood Insurance Program Biological Opinion Compliance City of Kent January 17,2012 Background of Biological Opinion: The Endangered Species Act (ESA) Section 7 of the ESA requ, ._ -nency to consult with the National Marine Fisheries Sera 3 kV,1:-5)when an action of the agency"may affect"a marine species listed as"endangered"or "threatened"under the ESA. The Federal Emergency Management Agency(FEMA)administers the National Flood Insurance.Program(NFIP),which makes flood insurance available for development to flood-prore communities. Chinook and chum salmon,steeihead and bull trout.and orca are listed species in the Puget Sound region. Consultation with NMFS under the ESA can result in the issuance of a comprehensive guid-=nce docume-,-a"P.ological Opinion". Original Complaint: National Wildlife Federation (NWF) v, FEMA - 2004 'V • NWF argued that FEMA violated the ESA by not consulting with 4110, NMFS on implementation of the NFIP,due to the impact of local development on listed species. t Court ordered FEMA to initiate consultation, but allowed it to continue to issue flood insurance In consultation process, NMFS determined a Biological Opinion (BiOp)was warranted. 1/17/2012 National Flood Insurance Program Biological Opinion Compliance - �=� NMFS issued a Phase ., " One BiOp fnr FEMA's . � � ,; - administ2tion of the 3a.`.,, NFIP in Puget Sound �,._ :�; If FEMA complies with '# the terms of the BiOP, y 1 the agency action ,_�4k a �, =� should comport with k �,�_� y:= the relevant portions National Flood Insurance Program Biological Opinion Compliance • Requires avoidance or 4.-� ," mitigation for impacts to Endangered Species � ~ fir- Primarily Chinook �- - Salmon and Puget �°� Sound Orca Whales National Flood Insurance Program Biological Opinion Compliance: "Reasonable and Prudent Alternatives" ESA requires a BiOp to provide a"reasonable and prudent alternative"(RPA)to the proposed federal agency action,that avoids jeopardy to listed species. NMFS'2008 BiOp t FEMA contained 7 RPA elements; the most releva�to the City of Ken[is RPA#3: modification of.�;nimum floodplain management criteria. ❑Availability and 2tes of insurance depend on cities meeting or exceeding development standards articulated by FEMA RPA#3 requires FEMA to revise these standards so that cities prevent or minimize specific habitat degradation in order to maintain NFIP eligibility 1/17/2012 National Flood Insurance Program Biological Opinion Compliance: The"Three Door"Approach FEMA provided three options :: , � for focal jurisdictions to meet compliance with RPA#3: drafted by FEMA "��"� Checklist _ 1 3).Consult with Federal �� ,, .,_ ""D� Agencies for every floodplain development permit Compliance must be met by September 22,2011 National Flood Insurance Program Biological Opinion Compliance: Kent's"Door 2"Submittal 4 jurisdictions haveadopted the Model Ordinance so far(Door 1). 6 jurisdictions have been approved by FEMA under the "checklist"option(Door 2). ❑Demonstrating that existing development regulations are equally as protective of habitat as the Model Ordinance Approximately 36.more jurisdictions,includino Citv of Kent,have requested approval from FEMA under the Door 2 approach. - Still pending under FEMA review - If approved,minor changes to city code would be required for implementation - In the interim,FEMA 5[ill continuing to issue flood insurance;Kent applying the BiOp to Floodplain " development on apermit-by-permit basis: National Wildlife Federation vs. National Flood Insurance Program - Allegations December 21,2011 � ` FEMA failed to fulty implement ;� '� " the BiOp as prescribed,by the tt� deadline � �X'��' � �� .�� •FEMA is still issuing new insurance policies despite BiOp ' non-compliance 1/17/2012 National Wildlife Federation vs. AM National Flood Insurance Program - Allegations Continued ��/n' •FEMA failed to ensure that aII �.,�'f .,,� floodplain development since ,�„ `,�.,,�� f� ,-^" ,g„ September2o08 complies with the BiCp(via oversight of local . ., �. permitting) �� •FEMA should disregard all -'� '" levees certified by the Corps _ (due to vegetation policy),but b="� FEMA claims if's outside their jurisdiction National Wildlife Federation vs. National Flood Insurance Program - Relief Requested ,1� In addition to asking the court to � declare FEMA to be in violation of the ESA,NWF requesting 2 preliminary injunctions: ,Itr I ..__.. 1. Prohibiting FEMA from issuing flood insurance for new development projects in all jurisdictions covered in the Biop(including Kent). 2. Prohibiting FEMA from processing any changes to flood maps that would result in a reduction of the floodplain, as currently mapped. Potential Impacts to Kent .Potentially major delay of levee accreditation efforts .Potential for flood map to remain unchanged,even if �° levees certified to remove flood - hazard from certain areas •� ' 'g` •Potentially major delay of flood "" ,� insurance issuance for new development --'-' .Potential to effectively halt ,_ , new development in the City ' .Flood insurance discount for '� property owners may be affected if �� - _ " Community Rating System(CRs)is changed Potential Impacts to Kent ,I -If FEMA holds our"door#2"submittal's' 4n to a strider standard or gets rid of the "3-door approach"entirely,we may have to adopt code changes such as: -Larger stream buffers .More restrictive development standards in the floodplain .Lower density zoning -Separate FEMA approval of each development permit Next Steps City of Kent has not received approval of Door 2 submittal to FEMA. - No guarantee that even"approved"jurisdictions will be able to rely on existing regulations if the court holds the 3-door approach invalid,however City of Kent not a party to lawsuit between NWF and FEMA. - Law Department in the process of investigating options to address the City's interests: • Intervention in the lawsuit? • Joint effort with other similarly-situated cities? • urge FEMA to request"re-opening"of the BiOp? Hearing on preliminary injunction in early February,2012. - City will continue to monitor in the meantime