State of Washington
DEPARTMENT OF FISH AND WILDLIFE
Mailing Address: 16018 Mill Creek Boulevard Mill Creek, WA 98012
(425) 775-1311 Fax (425) 379-2323
February 21, 2006
Roger Wagoner
Berryman & Henigar
720 Third Avenue, Suite 1200
Seattle, Washington 98104-1820
SUBJECT: WDFW Review of Draft Critical Areas Regulations for the Town of Sultan
Dear Mr. Wagoner:
Thank you for providing WDFW the opportunity to review and comment on the town of Sultan Draft Critical Areas Regulations (CAR). We appreciate the time and effort that you have spent researching and writing the draft document. We offer the following comments and suggestions in an effort to help you draft regulations that protects our valuable fish and wildlife resources in Washington State.
The town of Sultan is surrounded by a variety of fish and wildlife resources, including species listed under the federal Endangered Species Act (ESA) such as Chinook and bull trout, and other species with special status such as the bald eagle and Peregrine Falcon. The Skykomish River, which runs adjacent to the town of Sultan, contains a variety of anadromous fish. Anadromous fish are provided special status in regulations promulgated under the Growth Management Act (GMA) per RCW 36.70A.172 and WAC 365-195-925. The Skykomish River is classified as a shoreline of statewide significance and contains bull trout, Chinook, coho, chum, and pink salmon, summer and winter steelhead, rainbow trout, and resident cutthroat trout. Because of this, it will be vitally important that the shoreline planning process proceed and be developed in such a manner to avoid impacts to these species and protect them to the maximum extent possible.
The WDFW commends the town of Sultan for inserting language in the following sections of the Draft CAR that will avoid or help offset impacts to fish and wildlife resources:
Page 3, Section 16.80.060: This subsection contains protective language stating that the director may require fencing, signs, and survey markers to help delineate and identify critical areas.
Page 3, 16.80.070: This section requires that the owner of properties containing critical areas or buffers who wish to develop must file a notice identifying where critical areas are located on the proposed development property.
Page 3, Section 16.80.080: Wording in this section states that critical area tracts shall be used to protect critical areas and buffers by requiring that each owner of a building lot hold the tract in an undivided interest. The tract may be held by the owner, by an incorporated homeowner’s association, or other legal entity, that assures the ownership, maintenance and protection of the tract (Roger, I assume this will help in tracking ownership for the maintenance of critical area tracts as well as potential future buyouts? Let me know if I have misunderstood the wording in this section).
The following sections of the CAR, as written, may not sufficiently protect fish and wildlife. WDFW offers the following comments and recommendations for the protection of valuable fish and wildlife resources:
Page 3, Section 16.80.050.B2 & B4), Exemptions: This section states that relocation of electrical facilities, public sewer and water collection and distribution, cable and telephone lines, pipes, main, and equipment are exempt. A qualifier should be placed in this section stating that the relocation of facilities shall not occur in wetlands, streams, and other waterbodies unless all other alternative sites have been examined and determined to be infeasible. If no other sites exist outside of wetlands, streams, and other waterbodies, mitigation will be required in order to create new undisturbed critical habitat areas.
WDFW recommends that a new section be created below Section 16.80.050, Exemptions. This section should contain designation information and mapping sources that will help project proponents identify whether or not critical fish and wildlife species and habitats are present at a proposed project site. At a minimum, fish and wildlife habitat conservation areas should include 1) Areas with which state or federally-designated endangered, threatened, and sensitive species have a primary association, 2) State priority habitat and areas associated with state priority species, and 3) Habitats and species of local importance. The following map sources should also be identified:
Ø Washington Department of Fish and Wildlife Priority Habitat and Species maps;
Ø Washington State Department of Natural Resources official water type reference maps, as amended;
Ø Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors reports published by the Washington Conservation Commission;
Ø Washington State Department of Natural Resources State Natural Area Preserves and Natural Resource Conservation Area maps;
Ø Washington State Department of Natural Resources Natural Heritage Program mapping data;
Ø Local Sultan or Snohomish County maps.
Page 4, Section 16.80.100, Classification of streams and wetlands: Information contained in the stream and wetlands classification table are not consistent with what is contained in WAC 222.16.031. For example, the interim water-typing guidelines do not distinguish between anadromous and nonadromous fish. The classification is for “fish” only. In addition, for the water-type 3 illustrated in the table, the WAC criteria is greater than 2-feet wide with a gradient less or equal to 16%. The interim WAC defines water-type 4 as perennial nonfish habitat streams and water-type 5 as non-fish seasonal streams. The table should be revised to accurately reflect the interim guidelines.
Page 6, 16.80.120, Standard buffer width requirements for streams and wetlands: The riparian buffers proposed by the town of Sultan are considerably less than those recommended by WDFW in its publication titled “Management Recommendations for Washington’s Priority Habitats: Riparian.” This document is based on a synthesis of scientific literature, and it represents WDFW’s view of “best available science” regarding an important component in the protection of riparian areas across Washington State. The town of Sultan has not provided any scientific analysis or support that demonstrates the proposed buffers will adequately protect the functions and values of riparian areas. The riparian buffers proposed would likely result in significant adverse impact of fish and wildlife species, including species that may be listed as endangered, threatened, or sensitive.
The town of Sultan is adjacent to the Skykomish River, which is classified as a Shoreline of Statewide Significance. WDFW recommends buffers no less than 250 feet along large waterbodies with this classification. This is of utmost importance because of the reliance of both fish and larger wildlife species that rely on waterbodies not only for feeding and foraging, and rearing, but for migration corridors, as well. The town should establish buffers based on information outlined in the above-mentioned document. Management recommendations contained in the “Riparian” document outline recommended buffer widths based on species that potential will use the site. For example, if elk are observed in areas around waterbodies, habitat should be provided within 1,000 feet of the water and should contain at least 40% of the area in cover. For salmonids, a minimum buffer of 150 feet is recommended, although depending on soil types and slope, this could be expanded to 250 feet or more.
Buffer widths should also be based on floodplain information. Floodplains within the Town and UGA should be mapped and identified. Developments along rivers and streams in floodplains can have significant impacts on waterbodies, and exacerbate flooding events by restricting the movement of water. Collecting flood information will be especially important in areas within the vicinity of Sultan because according to the National Weather Service, Advanced Hydrologic Prediction Service, four out of five historical flooding events have occurred since 1980, with one event in 1980, two in 1990, and another in 2003 (prior to that, the last one was in 1933). According to the Service, if the town of Sultan experiences flooding over 21.0 feet, it would cause flooding that would inundate roads, residential areas, and farmland. Extensive erosion would be likely. According to a study by Wigmosta et al. 1994, the typical suburban development in the Pacific Northwest is estimated to have approximately 90% less storage capacity than under naturally forested conditions and although impervious surfaces themselves do not generate pollution, they are the major contributor to hydrologic impacts that affect urban streams (May et al., 1991). Areas containing floodplains should not be developed and the town of Sultan should identify ways in which development can be avoided or greatly reduced by investigating one or more of the following options:
Ø Property tax incentives to encourage conservation on private land
Ø Purchasing or transferring development rights
Ø Develop and promote rural residential stewardship planning
It will be important that the town of Sultan identify and prioritize floodplains (or channel migration zones, if appropriate) so that development can be planned in such a manner so as to avoid impacts to fish and wildlife resources.
Page 6, Section 16.80.130, Single-family residence on existing legal lots with streams or wetlands: This section, as written, may not adequately protect fish and wildlife resources. Language should be inserted that states any impacts to fish and wildlife buffers must be fully mitigated so as to achieve no net loss of habitat. In addition, WDFW recommends that the following language be included:
Ø Critically important vegetation and/or habitat features such as snags and downed wood must be preserved to the greatest extent feasible
Ø Access to habitat buffer areas should be limited by installing fencing or planting dense vegetation.
Ø Include seasonal limitations to construction activities based on fish and wildlife present at the site.
Ø Establish a timetable for periodic review of mitigation activities if mitigation is required at the site.
Ø Low impact development (LID) designs should be incorporated to the greatest extent possible. If no LID designs are incorporated, project proponents must provide an explanation, with documentation, as to why it is not feasible.
Addressing LID designs will be very important. Much of the physical damage to urban streams is due to watershed paving because pervious forestland is replaced by impervious surfaces such as rooftops and roads and less permeable surfaces such as compacted lawns and parks. This increase imperviousness results in larger and more frequent floods and decreased runoff time (Finkenbine et al, 2000). Some example of LID designs are:
Ø Create graded swales and plant trees in amended soils to help provide stormwater retention
Ø Amended soils: adding topsoil, if necessary, mixed with organic matter, in order to improve retention of stormwater runoff.
Ø Permeable pavement for parking lots, driveways and alleyways.
Ø Grass parking lots with interlocking plastic grids.
Ø Rooftop rainwater harvesting
Ø Collection and reuse of residential stormwater runoff
Page 7, Section 16.80.140: Critical area study content requirements for streams and wetlands: WDFW recommends that the following language be incorporated into this section:
Ø A critical areas report shall be prepared by a qualified professional who is a biologist with experience preparing reports for the relevant type of habitat.
Ø Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species hat have a primary association with habitat on or adjacent to the project area and as assessment of potential impacts to the use of the site by the species;
Ø A discussion of any federal, state, or local special management recommendations, including WDFW habitat management recommendations that have been developed for species or habitats located on or adjacent to the project area;
Ø A detailed discussion of both direct and indirect potential impacts on habitat by the project, including water quality impacts.
WAC 222-16-031, should be identified under item number for clarification purposes. WDFW recommends that subsection 4B should be revised to require a description of streams and wetlands within 300 feet of the property development.
Page 9, Section 16.80.160.A1-4 & 7, 8, Allowed development activities in streams, wetlands, and buffers: As written, this section could have significant impacts on fish and wildlife. WDFW highly recommends that a clarifier be included in the first sentence that states development will only be allowed within critical areas provided no other feasible location exists (an exception would be for restoration and enhancement activities). In addition, the project proponent should be required to provide justification, with documentation, as to why the development must occur in the stream or wetland buffer area.
Page 10, Section 16.80.160.C1c (regarding buffer averaging): A 35-foot buffer may have significant impacts to fish and wildlife resources. WDFW recommends that the town of Sultan adopt buffers contained in the WDFW publication Management Recommendations for Washington’s Priority Habitats, Riparian for all new development projects.
Page 10, Section 16.80.160.C2 (regarding buffer averaging): This subsection allows a reduction of the buffer if the applicant can demonstrate that buffer enhancement will provide more functional value after the buffer is reduced. Unless the project proponent can provide documentation, based on past research, that buffer enhancement can provide better habitat functions after it is reduced, buffer reductions should not be allowed unless the existing buffer widths adhere to the recommendations outlined in Table 3 (page 87) in the Management Recommendations for Washington’s Priority Habitats, Riparian. Further reducing buffers that are inadequate may have significant impacts on fish and wildlife.
Page 11, Section 16.80.160.D4& 5 (regarding buffer averaging): Although WDFW recognizes the importance of environmental educational facilities, structures should not be allowed in buffer areas. Allowing buildings or other structures in buffers are not consistent with the purpose and intent of buffers – namely, to allow uninterrupted vegetative corridors. By allowing structures (and added impervious surfaces) the function of the buffer system will be negatively compromised. For the same reasons, utility lines and facilities should also be prohibited in buffers. Although utility lines have a small footprint (piling), trees and bushes must be kept trimmed so as not to interfere with electrical lines. Because of this, # 4 and # 5 should be deleted from this subsection.
Page 11, Section 16.80.180.C, Stream and wetland performance standards: This sentence states that toxic runoff from new impervious areas shall be routed away from wetlands or streams. Although rerouting toxic runoff in one area may avoid impacts at the site, off-site impacts may occur. WDFW recommends rewording as follows: “Toxic runoff from new impervious areas shall be 100% contained.” This will be especially important because the Wallace River, one of the larger tributaries to the Skykomish River, is included on the 1998 303(d) list of impaired waterbodies for temperature (Ecology, 2002 as quoted in the March 10, 2003, Draft City of Sultan Shoreline Characterization)
Page 14, Section 16.80.250, Habitat management plan: The mapping sources identified in subsection A should be expanded to include those mentioned above on page 2. Subsection D should also include wording requiring that 1) potential cumulative impacts be evaluated and 2) that an adaptive management strategy be implemented to avoid ongoing impacts at the site after the development is complete.
The Washington Department of Fish and Wildlife wishes to thank you again for the opportunity to provide comments on your proposed CAR. We sincerely hope that you will find these comments constructive in your final deliberations. Please don’t hesitate to contact me at the number listed below with any questions that you have regarding the comments and recommendations contained in this letter. I would be more than happy to sit down with you and discuss some of the above-mentioned issues in greater detail.
Sincerely,
Pamela Erstad, PHS/GMA Biologist
Washington Department of Fish and Wildlife
16018 Mill Creek Blvd
Mill Creek, Washington 98012
Phone: 425.379.2308
Fax: 425.379.2323
E-mail: erstapke@dfw.wa.gov
Cc: David Brock, WDFW Region 4 Office
Bob Everitt, WDFW Region 4 Office
Millard Deusen, WDFW Headquarters
Steve Penland, WDFW Headquarters
Jeffrey Kamp, WDFW
Laura Casey, NWDOE
References
Draft – City of Sultan Shoreline Characterization. Prepared by Adolfson Associates, Inc. 5309 Shilshole Avenue NW. Seattle, Washington 98107.
Finkenbine, J.K., J.W. Atwater, and D.S. Mavinic, October, 2000. Stream Health After Urbanization, Journal of the American water Resources Association, Vol. 36, No. 5.
May, Christopher W., Richard R. Horner, James R. Karr, Brian W. Mar, Eugene B. Welch. 1991. The Cumulative Effects of Urbanization on Small Streams in the Puget Sound Lowland Ecoregion. Puget Sound Research 98’ Proceedings.
Knutson, K.Lea and Virginia L. Naef. Management Recommendations for Washington’s Priority Habitats, Riparian. WDFW, December 1997.
Wigmosta, M.S., S.J. Burgess, and J.M. Meena. 1994. Modeling and Monitoring to Predict Spatial and Temporal Hydrologic Characteristics in Small Catchments. USGS Water Resources Technical Report No. 137.