COMMENTS FROM THE KEC WORKING COMMITTEE ON THE PROPOSED CAO – continued

9. NO NET LOSS OF ECOLOGICAL FUNCTIONS, NO ADVERSE IMPACT, and MONITORING

The current CAO has two performance criteria for wetland buffer decreases:  (1) “provide as great or greater functions and values as…under the standard buffer”  (also referred to as “equivalent functions and values”) and (2) “no adverse impact” for buffer averaging. The proposed criterion is “no net loss of ecological function” (except this clause is currently used for FWHCAs).

The proposed code uses the single criterion of “no net loss of ecological functions” (except at 19.200.220.C.2.a).

We note that (1) “no net loss” and “ecological functions” are undefined in the code, (2) there are no criteria, methods, or metrics for rating or comparing impacts to ecological functions, and (3) there is no requirement that a report specify how a determination was made. We acknowledge this problem is not new, but also applied to earlier codes.

The lack of methodology regarding “no net loss of ecological functions” is a problem that hampers permitting, as both applicants and appellants lack the certainty of a defined standard.

We are aware of recent reports where the author simply states “there are no adverse impacts” or “there is no net loss” without detailing how the conclusion was arrived at. In other words, the department currently accepts mere ‘hand-waving’ as a substitute for technical analysis.

No adverse impact was deleted as a condition for buffer averaging. Averaging is essentially a 1:1 mitigation that assumes equivalent functionality between ‘takes’ and ‘gives.’ Where equivalency does not exist, the averaging technique fails. The “no adverse impact” clause is a useful guardrail against a failure to check for equivalency. Past department and wetland specialist practices have assumed equivalency and ignored analysis (by ‘hand-waving’), which substantiates the need for a stronger requirement.

Monitoring is addressed in 19.150.436, 19.200.230.F & 19.700, including insertion of a new definition and a requirement for annual reporting. However, monitoring without identification of all ecological functions for critical areas and buffers is incomplete. 19.700.715.B.11 focuses on vegetation only, despite §B.6.h & B.8.c.x calling for a description of functions.

Recommendations.

The lack of definitions, metrics, and methodology for “no net loss of ecological functions” is a serious problem and must be addressed.

 19.200.220.C.2.a & 2.b provide two criteria of ‘great or greater’ and ‘no net loss’ to be met. Applying these clauses requires an understanding of the difference between the two criteria, which are not defined elsewhere. The two criteria approach may not be the department’s intent. Clarification is required.

Restore the requirement of “no adverse impact” to buffer averaging.

Monitoring requirements must identify and address all ecological functions, do so for both critical areas and buffers, and include collection of baseline data. Also, the County must provide for effective review of monitoring reports.

10. MINIMIZE IMPACTS TO WETLANDS

Add additional elements from Ecology’s Wetland Avoidance and Minimization Checklists to Table 19.200.220(F) per

https://fortress.wa.gov/ecy/ezshare/sea/Wetlands/AvoidanceMinimizationchecklist.pdf

Specifically, include the Ecology suggestions for low impact development techniques, construction techniques, and construction timing.

11. AMPHIBIANS & REPTILES

Small, isolated and/or temporary wetlands and wet locations are ecologically critical for amphibian populations and some reptiles (e.g. Pond turtles). The low habitat rating forced on small fish-free wetlands by the rating system discounts their importance for both groups. The exemption of any category III and IV wetlands lacks scientific support.

Amphibians and reptiles are important components of local ecosystems, cycling energy as both prey and predator, juvenile amphibian transport of aquatic micronutrients into terrestrial environments, enhancing of carbon sequestration by adult salamanders, contributing to the biodiversity that lends stability to ecosystem dynamics… Both groups are in catastrophic global decline for familiar local reasons.

Recommendations.

19.200.210.B.3 delete “…can often be replaced with mitigation.”

Delete 19.200.210.C in its entirety.

Insert new 19.300.310.B.3.a.iv “Most amphibians are migratory species while most local reptiles are more parochial. Both use wetland and upland habitats for food resources and/or reproductive purposes. Amphibians depend on fishless wetlands and wet areas of all sizes and durations, from temporary to permanent, to carry larval forms through metamorphosis followed by unimpeded migratory movement to wooded uplands for growth to maturity. Habitat management plans shall address impacts to amphibians and reptiles, including obstructive construction techniques (including stormwater management and timing of landscape modification).

12. SHARED-USE-PATHS & ROADS

A typical regional trail design is a shared-use-path (SUP). A shared-use-path is, by any measure, a road. SUPs require construction of a road bed and adherence to stormwater codes. They are vehicle capable and, indeed, the SUP at Port Gamble Forest Heritage Park was being designed for logging trucks. SUPs are significant construction projects that are much more similar to roads than trails. It is most appropriate that regional trails be placed in the Road/Street Repair and Construction sections.

Regional trails are specified as non-motorized transportation facilities. This identification supports and is consistent with placing regional trails in the Road/Street Repair and Construction sections.

Essentially, the current CAO makes destruction of critical areas, with no net loss, acceptable as long as advocates for non-motorized transportation believe that those plans are more important than the critical areas. This is the type of effort that Washington regulation and the CAO’s purpose is meant to prevent. The burden on non-motorized plans should be to avoid critical areas and buffers.

Recommendation.

Move 19.200.225.F.6  to new subsection 19.200.225.C.5.

Move 19.300.315.I.6 to new subsection 19.300.315.M.6.

13. FERTILIZERS and PESTICIDES

The current exemption for pesticide use is too broad. Pesticides should be a technique of last resort. Per EPA pesticides is the general term that includes herbicides, biocides, insecticides, etc.

In addition, the prohibition should apply equally to wetlands and their buffers. Wetlands are high use habitat areas for multiple species. Amphibians, who use wetlands for reproduction and growth, are particularly sensitive to pesticides.

Recommendations.

New section:

19.200.220.F. Fertilizers and Pesticides. No fertilizers may be used in wetlands or their buffers. Pesticides, which includes herbicides, cannot be used in wetlands or their buffers, except under the following three conditions. First, only those pesticides approved by the U.S. EPA or Washington Department of Ecology for use in wetland environments and applied by a licensed applicator in accordance with the safe application practices on the label can be used. Second, use of pesticides is only to be allowed against invasive species. Third, the pesticides can only be used when other control measures are not possible or other measures would cause more damage to habitat and animals than the pesticides.

Revision:

19.300.315.F. Fertilizers and Pesticides. No fertilizers may be used in fish and wildlife habitat conservation areas or their buffers. Pesticides, which includes herbicides, cannot be used in fish and wildlife habitat conservation areas or their buffers, except under the following three conditions. First, only those pesticides approved by the U.S. EPA or Washington Department of Ecology for use in fish and wildlife habitat conservation area environments and applied by a licensed applicator in accordance with the safe application practices on the label can be used. Second, use of pesticides is only to be allowed against invasive species. Third, the pesticides can only be used when other control measures are not possible or other measures would cause more damage to habitat and animals than the pesticides.

14. LOWER UGA BUFFER

We do not support the lower riparian buffer within Urban Growth Areas proposed in Table 19.300.315. We are not aware of any science that supports this blanket decrease. Staff offered a rationale that buffers in more developed areas, such as UGAs, are more likely to be degraded. That proposition has not been supported and should, in any case, be addressed on a case-by-case basis. If anything, retaining larger buffer widths is even more important for protection of critical areas near developed areas.

15. PROCEDURAL ITEMS

The proposed code refers to Type I and Type II processes as “administrative.” Per Title 21, a Type I is a ministerial process, whereas Type II is an administrative process. We understand a ministerial process allows no discretion in making a decision and that this distinction is important from an administrative law point-of-view. Correct where mis-stated.

19.100.145 states a “special use review” is an administrative process that may be appealed. However, the section fails to identify a decision process per Title 21 and fails to require public notification. This section should require public notification and identify the decision process.

END