HomeMy WebLinkAbout4249ORDINANCE NO. q?-qq
AN ORDINANCE of the City Council of the
City of Kent, Washington, amending Chapter 11.06
of the Kent City Code, entitled "Critical Areas," to
revise the procedure for allowing the use of
wetland mitigation banks and in-lieu fee programs.
RECITALS
A. Pursuant to the state Growth Management Act, Chapter
36.70A RCW (GMA), the city of Kent ("City") previously amended its
critical areas ordinance (CAO) on July 2L, 2OLS (Ordinance 4159).
B. The city has received numerous permit applications and
inquiries requesting the use of mitigation banking and in-lieu fee
pro9rams.
C. It is the goal of the City to uphold no net loss of wetlands
through the preservation, enhancement, establishment, and restoration of
ecological functions within its watersheds.
D. Mitigation banks and in-lieu fee programs provide a
watershed based approach that may offer an environmentally preferable
option compared to onsite permittee responsible mitigation. The U.S. Army
Amend KCC 77,06.660
Wetland Mitigation Banks
1
Corps of Engineers and U,S. Environmental Protection Agency have
determined mitigation banks and in-lieu fee programs are the preferred
forms of compensatory mitigation because they use a watershed approach,
consolidate resources, reduce temporal loss of functions, and reduce
uncertainty over project success.
E. As currently written, the critical areas ordinance requires
mitigation banks and in-lieu fee programs that are to be used for projects
located in the city to be certified by the U.S. Army Corps of Engineers and
Washington Department of Ecology under applicable federal and state
mitigation rules. Prior to certification of a mitigation bank or in-lieu fee
program, Ecology and the Army Corps are advised by an Interagency
Review Team (IRT), which consists of representatives from the U.S.
Environmental Protection Agency, the National Oceanographic and
Atmospheric Administration, the U.S. Fish and Wildlife Service, the
Washington Department of Fish and Wildlife, as well as representatives
from several local Tribes. One such certified in-lieu fee program is the King
County Department of Natural Resources' "Mitigation Reserves Program,"
which is operated in conjunction with the Washington Department of
Ecology and the U.S. Army Corps of Engineers with review and approval by
the IRT of all mitigation sites that are to be implemented by the program.
At the time of passing this ordinance, the King County Mitigation Reserves
Program (MRP) is the only in-lieu program that is currently available to
projects within the city of Kent. Until another in-lieu fee program or
mitigation bank is approved by the IRT, Army Corps and Ecology, it is
anticipated that the MRP is the program that will be utilized.
F. On May L5, 2OI7, staff made a presentation to the Public
Works Committee at a public meeting to discuss the proposed code
amendment.
Amend KCC 77.06.660
Wetland Mitigation Banks
2
G. The City's State Environmental Policy Act (SEPA) Responsible
Official has determined that the proposed amendment is procedural in
nature and thus categorically exempt from further SEPA review.
H. Under the GMA, the City is required to submit proposed
amendments to its development regulations to the Washington State
Department of Commerce for review and comment. On l4ay 24, 20L7, the
City requested expedited review under RCW 36.704.106 from the
Washington State Department of Commerce regarding the proposed code
amendment. The Washington State Department of Commerce granted the
request for expedited review on June L2, 20L7. No comments were
received from State agencies.
I. On June L2, 20L7, the Economic and Community
Development Committee held a public hearing regarding the proposed
code amendment and recommended to the full City Council adoption of the
proposed code amendment.
J. At its regularly scheduled meeting on June 20,2OL7, the City
Council considered the recommendation of the Economic & Community
Development Committee and voted to adopt the proposed amendment to
the Critícal Areas Regulations.
, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 7. - Amendment. Section 11.06.660 of the Kent City
Code, entitled "Compensating for wetland impacts," is amended as follows:
Amend KCC 77,06.660
Wetland Mitigation Banks
3
Sec. 11.06.660. Compensating for wetland impacts.
A. Condition of approval. As a condition of any approval allowing
alteration of wetlands or wetland buffers, or as an enforcement action, the
director shall require that the applicant engage in the restoration, creation,
or enhancement of wetlands and their buffers in order to offset the
impacts resulting from the applicant's or violator's actions. The applicant
shall develop a plan that provides for construction, maintenance, and
monitoring of replacement wetlands or buffers and, as appropriate, land
acquisition that re-creates as nearly as practicable or improves the original
wetlands in terms of acreage, function, geographic location, and setting.
Compensatory mitigation plans shall be consistent with Wetland Mitigation
in Washington State - Part 2: Developing Mitigation Plans - Version 1
(Ecology Publication No. 06-06-011b, Olympia, WA, March 2006 or as
revised) and Selecting Wetland Mitigation Sites Using a Watershed
Approach (Western Washington) (Publication No. 09-06-32, Olympia, WA,
December 2009), and may incorporate guidance from Calculating Credits
and Debits for Compensatory Mitigation in Wetlands of Western
Washington (Ecology Publication No. 10-06-011, Hruby, 2OL2).
B. Goal. The overall goal of any compensatory mitigation project shall
be no net loss of overall wetland acreage or function and to replace any
wetland area lost with wetland(s) and buffers of equivalent functions and
values. Compensation shall be completed prior to wetland destruction,
where practicable. Compensatory mitigation programs shall incorporate
the standards and requirements contained in
KCC 11.06.550 and 11.06.560.
Amend KCC 77.06.660
Wetland Mitigation Banks
4
C. Preference of mitigation actions. Mitigation for lost or diminished
wetland and buffer functions shall rely on the types below in the following
order of preference:
1. Restoration (re-establishment and rehabilitation) of wetlands:
a. The goal of re-establishment is returning natural or
historic functions to a former wetland. Re-establishment results in a gain in
wetland acres and functions. Activities could include removing fill material,
plugging ditches, or breaking drain tiles.
b, The goal of rehabilitation is repairing natural or historic
functions of a degraded wetland. Rehabilitation results in a gain in wetland
function but does not result in a gain in wetland acres. Activities could
involve breaching a dike to reconnect wetlands to a floodplain.
2. Establishment (creation) of wetlands on disturbed upland
sites such as those with vegetative cover consisting primarily of nonnative
species. Establishment results in a gain in wetland acres. This should be
attempted only when there is an adequate source of water and it can be
shown that the surface and subsurface hydrologic regime is conducive to
the wetland community that is anticipated in the design.
a. If a site is not available for wetland restoration to
compensate for expected wetland or buffer impacts, the approval authority
may authorize creation of a wetland and buffer upon demonstration by the
applicant's qualified wetland scientist that:
i. The hydrology and soil conditions at the
proposed mitigation site are conducive for sustaining the proposed wetland
Amend KCC 77.06.660
Wetland Mitigation Banks
5
and that creation of a wetland at the site will not likely cause hydrologic
problems elsewhere;
ii. The proposed mitigation site does not contain
invasive plants or noxious weeds or that such vegetation will be completely
eradicated at the site;
iii. Adjacent land uses and site conditions do not
jeopardize the viability of the proposed wetland and buffer (e.9., due to
the presence of invasive plants or noxious weeds, stormwater runoff,
noise, light, or other impacts); and
iv. The proposed wetland and buffer is designed to
be self-sustaining with little or no long-term maintenance.
3. Enhancement of significantly degraded wetlands in
combination with restoration or creation. Enhancement should be part of a
mitigation package that includes replacing the altered area and meeting
appropriate ratio requirements. Enhancement is undertaken for specified
purposes such as water quality improvement, flood water retention, or
wildlife habitat. Enhancement alone will result in a loss of wetland acreage
and is less effective at replacing the functions lost. Applicants proposing to
enhance wetlands or associated buffers shall demonstrate:
a. How the proposed enhancement will increase the
wetland's or the buffer's functions;
b. How this increase in function will adequately
compensate for the impacts; and
Amend KCC 77.06.660
Wetland Mitigation Banks
6
c. How all other existing wetland functions at the
mitigation site will be protected.
D. Acreage replacement and enhancement ratio. Wetland alterations
shall be replaced or enhanced using the formulas in the table below;
however, the director may choose to double mitigation ratios in instances
where wetlands are filled or negatively affected as a result of code
violations. The first number specifies the acreage of wetlands requiring
replacement and the second specifies the acreage of wetlands altered.
These ratios do not apply to remedial actions resulting from illegal
alterations.
NOTE: Category I, II, and III wetland alterations can also be made by a
combination of creation of new wetlands and enhancement of existing
wetlands within the range of the ratios set out in the table so long as a
minimum one to one creation ratio is met (for example, creation of new
Amend KCC 77.06.660
Wetland Mitigation Banks
7
Category and Type of
Wetland Impacts
Re-establishment
or Creation
Re-establishment or
Creation (R/C) and
Enhancement (E)
Category IV 1.5: 1 1:1 R/C and 1:1E
Category III 2:t 1:1 R/C and 2:1E
Category II 3:1 1:1 R/C and 4:1E
Category I 6:1 1:1 R/C and 10:1E
Category I Wetlands of
High Conservation Value
Not considered
possible
R/C Not considered
possible
Category I Bog Not considered
possible
R/C Not considered
possible
wetlands at a one and one-half to one ratio along with enhancement of
existing wetlands at a ratio of five to one may be acceptable for a Category
I wetland).
E. Decreased replacement ratio. The director may decrease the
required replacement ratio where the applicant provides the mitigation
prior to altering the wetland, and a minimum acreage replacement ratio of
one to one is provided. In such a case, the mitigation must be in place,
monitored for three growing seasons and be deemed a success prior to
allowing any alterations.
F. Buffer mitígation ratios. Impacts to buffers shall be mitigated at a
one to one ratio. Compensatory buffer mitigation shall replace those buffer
functions lost from development.
G. Wetland mitigation bank or in-lieu fee program. The city may
approve mitigation banking or in-lieu fee mitigation as a form of
compensatory mitigation for wetland impacts when the provisions of this
chapter require mitigation and when the use of a mitigation bank or in-lieu
fee program will provide equivalent or greater replacement of wetland
functions and values when compared to conventional permittee-
responsible mitigation. Mitigation banks and in-lieu fee programs shall only
be used when it can be demonstrated that they provide significant
ecological benefits, including long-term conservation of critical areas,
important species, habitats, or habitat linkages, and when they are
documented to provide a viable alternative to the piecemeal mitigation for
individual project impacts to achieve ecosystem-based conservation goals.
Mitigation banks and in-lieu fee programs shall not be used unless they are
certified in accordance with applicable federal and state mitigation rules
Amend KCC 77,06.660
Wetland Mitigation Banks
8
H. Wetland type. In-kind compensation shall be provided except that
out-of-kind compensation may be accepted where:
1. The wetland system to be replaced is already significantly
degraded and out-of-kind replacement will result in a wetland with greater
functional value.
2. Technical problems such as exotic vegetation and changes in
watershed hydrology make implementation of in-kind compensation
impracticable.
3. Out-of-kind replacement will best meet identified regional
goals (e.9., replacement of historically diminished wetland types).
I. Advance mitigation Mitigation for projects with pre-identified
impacts to wetlands may be constructed in advance of the impacts if the
mitigation is implemented according to federal rules, state policy on
advance mitigation, and state water quality regulations.
J. Location. Compensatory mitigation actions shall be conducted onsite
or within the same sub-basin as the impact site unless the applicant can
demonstrate that:
1. The hydrology and ecosystem of the original wetland and
those who benefit from the hydrology and ecosystem will not be
substantially damaged by the onsite loss.
2. Onsite compensation is not feasible due to problems with
hydrology, soils, or other factors.
Amend KCC 77.06.660
Wetland Mitigation Banks
9
3. Compensation is not practical due to potentially adverse
impacts from surrounding land uses.
4. Existing functional values at the site of the proposed
restoration are significantly greater than lost wetland functional values.
5. Adopted goals for flood storage, flood conveyance, habitat, or
other wetland functions have been established and strongly justify location
of compensatory measures at another site.
K. Offsite compensafion. Offsite compensation shall occur within the
Green River watershed, unless:
1. Established watershed goals for water quality, flood storage
or conveyance, habitat, or other wetland functions have been established
by the city and strongly justify location of mitigation at another site;
2. Credits from a state-certified wetland mitigation bank are
used as compensation, and the use of credits is consistent with the terms
of the certified bank instrument; or
3. Fees are paid to an
compensate for the impacts.
approved in-lieu fee program to
L. Offsite compensation sife selection. When considering offsite
mitigation, preference should be given to using alternative mitigation, such
as a mitigation bank, an in-lieu fee program, or advanced mitigation.
Applicants shall pursue siting in the following order of preference
Amend KCC 77.06.660
Wetland Mitigation Banks
10
1. Upland sites which were formerly wetlands or significantly
degraded wetlands. Such wetlands are typically small; have only one
wetland class; and have one dominant plant species or a predominance of
exotic species.
2. Idle upland sites generally having bare ground or vegetative
cover consisting primarily of exotic introduced species, weeds, or emergent
vegetation.
3. Other disturbed upland.
M. Timing. Where feasible, compensatory projects shall be completed
prior to activities that will disturb wetlands, or immediately after activities
that will temporarily disturb wetlands, or prior to use or occupancy of the
activity or development which was condítioned upon such compensation.
Construction of compensation projects shall be timed to reduce impacts to
existing fisheries, wildlife, and flora.
N. Completion of mitigation construction. On completion of
construction, any approved mitigation project must be signed off by the
applicant's qualified professional and approved by the department. A
signed letter from the professional will indicate that the construction has
been completed as approved, and approval of the installed mitigation plan
will begin the monitoring period if appropriate.
SECTION 2, - Severabilíty. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
Amend KCC 77.06.660
Wetland Mitigation Banks
11
SECTION 3. - Corrections by City Clerk or Code Reviser. Upon
approval of the city attorney, the city clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering;
or references to other local, state or federal laws, codes, rules, or
regulations.
SECTION 4. - Effective Date. This ordinance shall take effect and
be in force five (5) days from and after its passage and publication, as
provided by law.
Rh¡{ts *lqúruJ9
ATTEST:
KIMBERLEY oTo, CITY CLERK
APPROVED AS TO FORM:
M BRUBAKER, CITY ATÏORNEY
,19 -.{,,a¡"2
\Fiti,'
PASSED:
APPROVE O: J-{}
PUBLISHE o, Jb
day of
day of
day of
-L^*!
.lrr,*-¿
20t7.
2017
20t7.
Amend KCC 77,06.660
Wetland Mitigation Banks
I2
I hereby certify that this is a true copy of Ordinance No. 4L4Q
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
SEAL)
KÏ BERLEY KOM CLERKI
Amend KCC 77,06.660
Wetland Mitigation Banks
13