BILL REQ. #:  H-1683.1 

Read first time 02/21/2005.   Referred to Committee on Natural Resources, Ecology & Parks.

     AN ACT Relating to urban creeks; and adding a new chapter to Title 35 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that:
     (1) This chapter will protect our urban environment and help with the recovery of threatened salmon within urban areas.
     (2) Creek systems connect urban neighborhoods with the natural environment. Creek systems should be a top priority for our environmental stewardship because they provide salmon and wildlife habitat and open space.
     (3) The degradation of creeks in our urban areas has reduced their flood-carrying capacity, resulting in severe damage to downstream properties and to critical fish and wildlife habitat, threatening the extinction of salmon within urban creeks.
     (4) This flooding impact is especially severe when creek segments are directed into underground pipes rather than through natural, open channels. In most circumstances, the pipes also create fish passage barriers, which are illegal and must be removed under state law.
     (5) Removing a creek from an underground pipe and redirecting it into a natural, open channel abates the ongoing harm by restoring the creek's flood-carrying capacity, water quality benefits, and fish and wildlife habitat. A creek's historic channel contains soils uniquely suited for flood control, and a creek should be redirected into its historic channel if available.
     (6) This chapter requires private property owners to restore creeks only when carrying out major creekside development. This is required to abate ongoing impacts and to mitigate the direct, indirect, and cumulative impacts of major creekside development, which include increased impervious surfaces, pollution, lighting, noise, trampling, pollution, and shading.
     (7) This chapter will reduce ongoing flooding and property damage caused by creek degradation. It will also restore fish and wildlife habitat and remove fish passage barriers. Thus, this chapter is necessary to protect the public health, safety, and welfare and is authorized under Article XI, section 11 of the state Constitution, as well as through specific authority under RCW 35.21.090 and elsewhere in state law.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Adjacent" means a creek or its buffers are beneath a right-of-way abutting the parcel.
     (2) "Buffer" means the buffer required under local or state law. For a creek that is underground or being daylighted, buffers must be a minimum of fifty feet wide on each side of the creek, except that buffer averaging is allowed.
     (3) "City" means a city with a population of five hundred thousand or greater.
     (4) "Creek" includes any stream or watercourse located in a city with a population of five hundred thousand or greater that flows year-round or potentially supports or historically supported salmonids. This definition applies equally to portions of a creek that have been placed in a pipe or culvert, or that have been relocated, straightened, channelized, or otherwise altered, and applies regardless of whether the watercourse is regulated by the city's critical areas ordinance or shorelines master program.
     (5) "Daylighting" means restoring a creek segment that was previously directed into a pipe or drainage or sewer system by redirecting it into a natural, open channel.
     (6) "Development" means development or redevelopment.
     (7) "Development approval" includes any permit, master use permit, or other approval required as a condition of changing the use of the property or constructing any structure on the property.
     (8) "Fish passage barrier" includes (a) any culvert failing to meet the standards under WAC 220-110-070(3) or (b) any other impediment to fish passage. This determination assumes the removal of downstream man-made fish passage barriers.
     (9) "Floodable wetland bench" or "floodway" is a strip of wetland bordering a creek channel that is designed to inundate during high stream flows to provide shelter to fish and decrease downstream flooding.
     (10) "Long-term creek restoration plan" means a plan that, at a minimum, has the following components:
     (a) The city's objectives for creek restoration, including at a minimum the policies set forth in section 7 of this act;
     (b) A plan, timeline, and identification of funding source for accelerating the city's creek restoration programs and implementing the policies set forth in section 7 of this act;
     (c) A plan and eighteen-month timeline during which the city must evaluate strategies and adopt regulations to further reduce storm water pollution and impacts to creek ecosystems. Strategies to be evaluated include requirements of low-impact development, pervious pavement, increased buffer widths, wetland restoration, increased use of infiltration, and restrictions on pesticide and fertilizer on parcels draining to creeks;
     (d) A plan and eighteen-month timeline during which the city must update existing creek protection regulations, including critical areas regulations and shoreline master programs;
     (e) A plan and eighteen-month timeline during which the city must phase out the use of pesticides, herbicides, and fungicides on city-owned land within two hundred feet of creeks;
     (f) A plan and twenty-year timeline for daylighting creeks on parks and other public property;
     (g) A plan, regulatory framework, and long-term timeline for daylighting creeks on private property;
     (h) A plan and timeline for conducting education and outreach to creekside property owners concerning creek and riparian function and best management practices; and
     (i) A plan and timeline for specific and proactive joint planning and information exchange with other political jurisdictions sharing responsibilities for creeks that flow entirely or partly within the city.
     Where an existing city program or document satisfies one or more of these requirements, the program or document may be incorporated into the plan by reference.
     (11) "Major creekside development" means a project that satisfies each of the following criteria:
     (a) A commercial, multifamily residential, mixed-use, or light or heavy industrial development, subdivision, or short plat that exceeds the state environmental policy act (chapter 43.21C RCW) exemption thresholds set forth in city ordinance;
     (b) Proposed on a parcel having a combined area of over one-half acre; and
     (c) At least one such parcel or right-of-way contains a creek or its buffer or is adjacent to a creek or its buffer.

NEW SECTION.  Sec. 3   The city shall adopt a long-term creek restoration plan.
     (1) Within six months after the effective date of this section, the city shall prepare a draft long-term creek restoration plan. The city shall involve the public and interested organizations in creating the draft plan and shall consider public comments and any existing watershed plans. The city shall hold public meetings and solicit comments from the public and interested organizations on the draft plan and shall adopt a final plan within twelve months after the effective date of this section.
     (2) The goal of the long-term creek restoration plan is to adopt objectives and timelines for restoring creeks and carrying out the policies and directives of this chapter.
     (3) The city shall restore creeks in accordance with the long-term creek restoration plan.

NEW SECTION.  Sec. 4   Developers are required to assist in creek restoration when building a major creekside development.
     (1) Applicants proposing a major creekside development are required to restore the creek running on or adjacent to the development site, satisfying the requirements of section 6 of this act. This requirement must be stated as a condition on any development approval issued to the project. The city shall decide whether such restoration will be carried out by the applicant under the city's supervision or through a city effort funded by the applicant, and shall support the project consistent with subsection (3) of this section.
     (2) Each applicant for a major development on creekside property shall submit a creek restoration plan as part of its application for development approval. That plan must include a city-approved engineering plan for conducting the restoration required by this chapter concurrent with the development, and the basis for any exemptions requested under section 6(2) of this act. Any public notice issued regarding the major development shall elicit comments on the restoration plan and its consistency with this chapter.
     (3) The department of fish and wildlife shall coordinate the restoration efforts required by this section and the city shall contribute to such projects to the extent necessary to avoid a constitutional taking of private property and as deemed appropriate to create incentives for restoration. At a minimum, the city shall ensure that development potential on the site is not lost due to the restoration project and shall grant open space credit. The city may also purchase the creek corridor and/or provide loan financing, grants, or other valuable benefit such as density bonuses to support the restoration project to the extent deemed appropriate and allowed by law. The city and the developer should agree upon ownership and maintenance responsibilities for the restored creek, and wherever possible the restored creek should be transferred to public ownership.

NEW SECTION.  Sec. 5   The city shall ensure that creeks are restored concurrently with major creekside development.
     (1) In the event that the city should fail to enforce section 4 of this act, for whatever reason, the city shall carry out creek restoration as defined in section 6 of this act concurrently with any major creekside development. In accomplishing this, the city shall use all of its authority, including that under RCW 35.21.090. The city shall in such event prepare and solicit comments on the creek restoration plan as set forth in section 4(2) of this act.
     (2) A creek that is directed through a pipe or that contains a fish passage barrier satisfies the definition of a natural watercourse that is obstructed, broken, inoperative, inadequate, and liable to cause damage to public or private property. To the extent allowed by law, the city shall require a property owner to either daylight such a creek or remove such a barrier, or both, during a major creekside development, or after giving required notice shall carry out the same and bill the costs to the property owner.

NEW SECTION.  Sec. 6   (1) For the purposes of sections 4 and 5 of this act, restoration required during major creekside development includes:
     (a) Planting native vegetation and removing invasive species;
     (b) Within the creek buffers, establishing wetland areas, floodable wetland benches, or other means to slow the rate of water, unless topography or other existing structures make such restoration impractical;
     (c) Removal of fish passage barriers, if such barriers exist on or adjacent to the development site; and
     (d) Daylighting the creek on the development site, if the creek presently flows through a pipe or culvert section fifty feet or longer, exclusive of a right-of-way crossing, that is either:
     (i) On the development site; or
     (ii) Under a street or right-of-way adjacent to the site, if the creek's channel was on the development site at any time prior to being moved to its present location.
     The creek must be daylighted for the entire length in which it runs on or adjacent to the development site, except that daylighting is not required where it is necessary that the creek cross a right-of-way or an existing structure that is to remain as part of the development.
     (2) The city or a private party may obtain an exemption from the requirements of subsection (1)(c) or (d) of this section by proving either (a) that the creek segment in question, if restored as required under this section, would have insufficient surface area and/or flow to provide rearing or refugia habitat for juvenile salmonids, assuming removal of downstream man-made fish passage barriers; or (b) that so much of the creek downstream is in pipes that the segment in question will as a practical matter never become accessible to salmonids.
     (3) Any party wishing to apply for an exemption under this section must submit with the creek restoration plan a written opinion from the department of fish and wildlife certifying that this exemption standard is met, based upon best available science, and pay the costs for such an opinion. Public comment must be solicited on the exemption request. The granting of such an exemption is appealable to the superior court. In such appeal, the parties supporting the exemption shall bear the burden of proving that the standards for granting an exemption are met based upon clear and convincing evidence.

NEW SECTION.  Sec. 7   The following applies to cities with a population of five hundred thousand or greater:
     (1) Creeks and their buffers must be restored as a means to reduce flood damage to downstream property and to fish and wildlife habitat and to promote salmon recovery.
     (2) In the few instances where creeks are being directed through underground pipes, the creek shall be redirected into a natural, open channel, except where it crosses a public right-of-way.
     (3) The opportunity to restore and daylight a creek on private property comes very infrequently, usually only during a major creekside development. A city must take advantage of these rare opportunities by ensuring that creeks are restored and daylighted during major creekside development.
     (4) The city shall protect the opportunity to restore creeks by prohibiting any future development over creeks or their buffers.
     (5) Where a creek was previously removed from its historic corridor and diverted into a pipe at a location where it cannot be restored (e.g., a location now covered by a building or road) or into a storm water or sewage system, the city shall protect the opportunity to restore the creek by prohibiting any future development over the creek's historic corridor or, if requested by the parcel owner, an alternative corridor on that same parcel.
     (6) The city should increase floodable wetland benches (floodways) in creeks to reduce downstream flooding impacts and enhance habitat.
     (7) The city shall remove fish passage barriers from creeks.
     (8) The city shall provide for the education of property owners on maintaining creek and riparian function.

NEW SECTION.  Sec. 8   Development may not be allowed to preclude future creek restoration. Under this chapter, creek restoration is a long-term strategy, except where required to be concurrent with major development. To preserve the potential to restore all creeks in the future, the city shall grant no development approval that is inconsistent with the policy stated in section 7(4) or (5) of this act.

NEW SECTION.  Sec. 9   (1) The intent of this chapter is to accelerate the restoration of creeks within a city. This accelerated restoration effort shall supplement existing creek restoration programs of the city, which shall be maintained at least at their current levels.
     (2) The city shall create a creek restoration account to fund the costs of this chapter. Within six months after the effective date of this section, the city shall complete a study of new revenue sources available to fund the creek restoration account. Within three months after the study's completion, the city shall adopt the funding mechanisms it finds most appropriate.
     (3) The additional cost to be incurred by the public shall not be greater than five dollars per household per year within a city required to comply with this chapter. Property owners, businesses, and institutions are also required to assist in funding the creek restoration account, and such a contribution shall also be reasonably limited. This new revenue source and the funds in the account may be used to finance bonds for creek restoration projects to the extent deemed appropriate and allowed by law.

NEW SECTION.  Sec. 10   Within six months after the effective date of this section, a city required to comply with this chapter must prepare a supplemental environmental impact statement for its comprehensive plan that specifically addresses the impact of ongoing development and city activities on creeks. It shall evaluate the impact of increased impervious surfaces, lighting, noise, trampling, pollutants, storm water runoff, and shading, and shall serve as a basis for requiring mitigation of creek impacts.

NEW SECTION.  Sec. 11   (1) The legislature declares that this chapter responds to an emergency posed by ongoing flooding, property damage, and environmental impacts of degraded and piped creeks. This requires abatement of these ongoing impacts. Thus, the restoration requirements imposed by this chapter cannot be defeated by vested rights.
     (2) Notwithstanding any court construction of subsection (1) of this section, the following vesting rule is enacted by this section. Applications for a major creekside development, as defined in this chapter, shall vest upon submission of a fully complete building application, which shall be construed strictly, and shall at a minimum satisfy the requirements of RCW 19.27.095 and shall also include a creek restoration plan as required by this chapter, a storm water management plan, and a plan for complying with the federal clean water act, the federal endangered species act, and all other applicable environmental laws. This subsection applies notwithstanding the previous issuance of a master use permit, general development plan, or site plan approval.

NEW SECTION.  Sec. 12   The mandates of this chapter create nondiscretionary duties for the city and its agencies, and any resident of the state or organization has standing to seek enforcement of this chapter by mandamus or other action. If the city is found to be in violation of the mandates of this chapter or to have issued any development approval or exemption that is inconsistent with this chapter, the party bringing the action to enforce this chapter is entitled to recover only the reasonable costs and attorneys' fees incurred in maintaining such an action.

NEW SECTION.  Sec. 13   This chapter is to be liberally construed to advance the purposes of this chapter.

NEW SECTION.  Sec. 14   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 15   Sections 1 through 14 of this act constitute a new chapter in Title 35 RCW.