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King County Programmatic Habitat Assessment

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King County Programmatic Habitat Assessment King County Programmatic Habitat Assessment June 2012 Water and Land Resources Division Department of Natural Resources and Parks King Street Center 201 South Jackson Street, Suite 600 Seattle, WA 98104-3855 206-296-6519 Fax 206-296-0192 Acknowledgements Department of Natural Resources and Parks River and Floodplain Management Section Contributing Staff: Sylvia Aro, Administrative Specialist Steve Bleifuhs, Manager Priscilla Kaufmann, Co-Lead, Project/Program Manager, Countywide Policy and Planning Unit Brian Murray, Supervisor, Countywide Policy and Planning Unit Ken Zweig, Project/Program Manager, Countywide Policy and Planning Unit Scientific and Technical Support Section Contributing Staff: Gino Lucchetti, Co-Lead, Environmental Scientist Ruth Schaefer, Environmental Scientist Jennifer Vanderhoof, Environmental Scientist Stormwater Services Contributing Staff: Curt Crawford, Manager Ken Krank, Supervising Engineer Doug Navetski, Senior Engineer Mark Wilgus, Senior Engineer Agriculture and Forestry Program Kathy Creahan, Manager Claire Dyckman, Program/Project Manager Rick Reinlasoder, Program/Project Manager Wastewater Treatment Division Contributing Staff: Steve Hirschey, Water Quality Planner Department of Development and Environmental Services Director’s Office Contributing Staff: Harry Reinert, Special Projects Manager Information Services Contributing Staff: Paul McCombs, GIS Specialist, Master Land Use Services Division, Critical Area Review Contributing Staff: Steve Bottheim, Supervisor, Land Use Services Division Pesha Klein, Acting Supervisor, Critical Areas Review Greg Wessel, Environmental Scientist Department of Public Health Community Environmental Health Contributing Staff: Gregory Bishop, Health and Environmental Investigator David Koperski, Health and Environmental Investigator We gratefully appreciate the guidance provided by staff at FEMA, Region X. Executive Summary King County Programmatic Habitat Assessment King County National Flood Insurance Program Biological Opinion . Compliance Submittal and Programmatic Habitat Assessment Introduction On September 22, 2008, National Marine Fisheries Service (NMFS) issued a biological opinion (Bi-Op) concerning implementation of the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program (NFIP). The Bi-Op was issued following a formal consultation between NMFS and FEMA pursuant to Section 7 of the Endangered Species Act and consistent with judicial order in NWF v. Federal Emergency Management Agency (FEMA). The Bi-Op focused on the effects of the NFIP on species of Puget Sound salmon and killer whales that are currently listed under the federal Endangered Species Act (ESA) as threatened or endangered. The main focus of the Bi-Op was whether activities conducted under the NFIP are likely to jeopardize recovery of ESA-listed species in the Puget Sound region or adversely modify their critical habitats. Analysis focused on whether a cause and effect relationship exists between activities fundamental to the NFIP and habitat changes that adversely affect listed species and their critical habitats. The Bi-Op found that implementation of the NFIP is likely to jeopardize the continued existence of Puget Sound Chinook salmon, Puget Sound steelhead, Hood Canal summer chum salmon, and Southern Resident killer whales, and is likely to adversely modify Puget Sound Chinook salmon, Hood Canal summer-run chum salmon, and Southern Resident killer whale critical habitat. Within the Bi-Op, NMFS described reasonable and prudent alternatives (RPA) that FEMA could take to avoid the likelihood of jeopardy to ESA-listed species or the adverse modification of designated critical habitat. Following the issuance of the Bi-Op, FEMA developed a model ordinance to provide one option for how communities can meet the requirements of the Bi-Op. To maintain eligibility under the NFIP, King County and other communities were required to comply with the Bi-Op by September 21, 2011 through one of three options: Adopting the model ordinance; Demonstrating compliance through a checklist and accompanying narrative, or via a comprehensive programmatic assessment of the effects of implementing its regulations and other programs that affect floodplain habitats; or Demonstrating compliance on a permit by permit basis. Background In September 2010 King County submitted a checklist and supporting documentation to demonstrate how their current regulations comply with the elements of the RPA required by the Bi-Op. FEMA responded to King County’s submittal in February 2011, requesting additional informational to demonstrate compliance with some of the requirements set forth in the Bi-Op. Areas where King County’s regulations are not consistent with the Bi-Op include: A 165 feet buffer rather than Bi-Op required 250 feet buffer on shorelines of the state and a 200 feet buffer on fish bearing streams wider than 5 feet that are not shorelines of the state; The Bi-Op standards of retaining 65 percent native vegetation and not more than 10 percent effective impervious area on parcels of land within the floodplain, but beyond (outside) of the Protected Area.1 1 A sixty-five percent native vegetation retention standard is in King County code but not being implemented due to ruling by Washington State courts. 1 King County National Flood Insurance Program Biological Opinion . Compliance Submittal and Programmatic Habitat Assessment Rather than provide FEMA additional information to contrast County regulations and Bi-Op requirements, King County decided to demonstrate compliance by conducting a comprehensive programmatic habitat assessment (PHA) in accordance with the Matrix of Pathways and Indicators consultation guidance document (NMFS 1998) for making Endangered Species Act effects determinations. This PHA is a comprehensive review of King County’s regulations for development that will be reviewed and approved by King County in the floodplains mapped on FIRMs. The PHA used assumptions that reflect the most likely location and extent of development that might occur in King County’s floodplains based on zoning and allowed land uses at full build-out. The goal of the PHA was to comprehensively assess the combined net effect of development regulated by the County and the County’s protection and restoration actions in mapped FEMA floodplains on ESA- listed species and their habitats in order to make appropriate ESA and Magnusson-Stevens Act (MSA) effects determinations for species covered under those acts. The PHA approach was chosen over other Bi-Op options in order to provide a comprehensive view of the effects of the County’s actions on ESA species and their habitats, as well as a highly relevant land use and land cover database for use in floodplain management and salmon recovery that would also serve as a framework for assessing floodplain land cover and land use change over time. The permit-by-permit approach was not selected due to potential technical and administrative complexities and costs to landowners and the County, and the limited utility and assessment of effects that such an approach would provide. The Bi-Op’s model ordinance was not adopted because of certain elements, such as buffer requirements that would result in buffers 35 to 85 feet wider than the County’s current standards in many areas (see Appendix A for justification of the County’s buffer widths). The justification to adopt the Bi-Op’s Model Ordinance additional protections, including larger buffers, was not clear from the County’s perspective, given the County’s relatively recent and extensive work at assessing the science basis, risks and adequacy of its new Critical Areas Ordinance (CAO) and updated Shoreline Master Plan (SMP). In 2005 the County initiated a new highly restrictive set of comprehensive environmental protections under the CAO. The CAO included much larger and more extensive buffers than previously required. The CAO’s standards prioritized protection of salmon habitats and habitat-forming processes and were substantively based on the County’s Best Available Science, which was both peer-reviewed and, ultimately, legally challenged and affirmed through Washington State Courts. More recently, after a multi-year planning process, the County adopted a new Shoreline Master Plan (SMP) in 2010, although it awaits final approval from Washington Department of Ecology before implementation. The SMP incorporates CAO regulatory protections while further defining and limiting shoreline uses to those that are strictly water dependent. Analysis conducted as part of the SMP update indicated that the County’s shorelines are likely to experience no net loss of ecological function of shorelines and should be restored relative to the current condition.2 The PHA did not review regional land uses that are identified in K.C.C. chapter 21A.08 for which a special use permit is required. These regional land uses are generally large and hard to site, therefore the special use permit is approved by the King County Council rather than the 2 It should be noted, that the ESA standard is “no adverse impact” which is a different and, typically, more restrictive standard than Washington State’s “no net loss.” 2 King County National Flood Insurance Program Biological Opinion . Compliance Submittal and Programmatic Habitat Assessment Department of Development and Environmental Services, and requires an extensive review process and ability to add additional conditions of approval. This PHA also did not assess mineral extraction activities
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