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BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: May Creek Drainage Improvement
Project
Special Grade/Fill Permit and CAO
Variance
LUA13-000187, V -H, SP
FINAL DECISION
King County has applied for a Special Permit for Grade/Fill and a variance to critical area ordinance
("CAO") regulations for a dredging project to May Creek designed to reduce the duration of one year
flood events for upstream properties. The permits are approved and the expiration date for the grade
and fill permit is extended to eighteen months.
Jennifer Henning, Renton Planning Manager, stated the application is for a special grading and fill
permit and for a variance from the critical areas regulations. The site is within both the city of
Renton and unincorporated King County. This hearing is for the section of the site within Renton.
The site is zoned for one dwelling unit per acre, the city's lowest density for residential uses. The
site is 3.75 acres, but the area within the city, subject to the application, is .84 acres. May Creek, a
class 2 stream, bisects the site. In addition, there is a regulated flood plain, a wetland, and a greens
creek which bisects the site from north to south. This project will result in dredging within May
Creek, and invasive vegetation will be removed to improve the backwater effect and localized
flooding. The actual work will remove 392 cubic yards of material over 160ft of May Creek. In
order to accomplish the work, a bypass channel will be constructed to divert the creek water. Best
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management practices will be utilized to prevent turbidity and keep the water quality high. In the
end, large wood debris would be placed in the work area and vegetative material would be added. A
split -rail fence will be installed at the approved buffers. The work would be limited to the approved
fish windows as dictated by the Department of Fish and Wildlife as part of the hydraulic permit.
This fish window is from June 16th to September 15t'.
Ms. Henning testified that Renton is requiring a special permit for grade and fill because of the
public and agency interests in the project. In regard to the critical areas variance, there may be some
exemptions within Renton code, particularly in regard to invasive species and enhancement of the
area. There are a number of agency permits required, but most of thein have already been issued.
King County conducted a SEPA enviromnental review in September, 2010. A determination of
non -significance mitigated which included five mitigation measures was subsequently issued.
According to Ms. Henning, previously, the planned fencing was barbed wire; however, the applicant
addressed concerns from the city and changed the fencing to split -rail. Once the 'sediment is
removed from May Creek, it will be hauled across 148th Ave to deposition areas on the King
County side of the project. The sediment will be dried out and then reused onsite. The sediment
will not be put on any flood plains. The work will begin in summer 2013 or 2014, depending on the
length of the permit process, and will be conducted Monday -Friday, 7am-7pm. Renton will allow
some work on Saturdays if needed, but no work on Sundays. Renton does not require screening or
fencing for this type of project, but the applicant is proposing a split -rail fence. There will be
temporary noise and dust disturbances. The noise will be short-term. The applicant is addressing
concerns about dust movement by creating rocked entrances on -and -off the site for vehicles.
Additionally, the applicant will use methods such as watering -down to keep the dust manageable.
In terms of impacts to surface water, the applicant will utilize sediment and erosion control
measures. These measures include silt fences, core logs, and scheduling the work during low -flow
periods. Equipment would not be in -stream. The work will occur in sections of 100-500ft lengths.
Copper dams and sump pumps will be used to ensure water quality is acceptable prior to
reintroducing water flow to the channel.
Ms. Henning added that Renton does not anticipate the project will result in a different use of the
site, and the permit will transfer with the property. They are extending the dates of the permit
beyond 6 months because of the fishing period limitations. In regard to the critical areas variance,
city staff found that the flooding will be decreased which will improve welfare. Previous concerns
regarding bank erosion have been alleviated by the current proposal. The project conforms to the
city's comprehensive plan. King County looked at four other alternatives to meet the needs of the
flooding problems; however, these alternatives were not feasible. Construction equipment will use
existing roads and will have rubber tires. Disturbed areas will be resorted. Water work will be
conducted during low flow periods in the summer. No net loss of area, function, or value will occur
in the wetland or stream. 5 -years of monitoring will occur once the project is completed. The
project may affect, but is not likely to adversely affect, certain trout and salmon types. This variance
is the minimum needed to accomplish the applicant's purpose. Best available science was used in
preparing the reports for this project. Exhibit 7 illustrates the sediment that will be removed.
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Exhibit 8 is the landscape plan and shows where the reed canary grass will be removed. Staff is
recommending approval of the permit and variances with two conditions of approval.
The extension period for the grade -and -fill permit expiration is 1.5 years.
Applicant Testimony
Doug Chin, Project Manager, stated that on October 18, November 14, and November 15, 2011,
King County held meetings with the Department of Ecology. On February 9, 2012, King County
provided documentation in response to Dr. Patricia Olson's August 15, 2011 memorandum (exhibit
24d). The documentation clarified the benefits of the project along with information on post -project
changes on flow durations and frequencies. In addition, King County provided information about
sediment transport to Lake Washington, backwater effect at the creek foot bridge, methods for
assessing sediment transport, data from ongoing downstream properties. On April 2, 2012, a field
meeting was held with agencies and the downstream property owners. At this meeting, Patricia
Olson represented the Department of Ecology. On May 22, 2012, an analysis by Dr. Olson (exhibit
24g) stated that the May Creek project would not likely create an increase in bank erosion. On June
14, 2012, the DOE sent a letter to King County (exhibit 24h) which confirmed that King County
properly addressed all of the DOE's previous concerns regarding the project. On August 1, 2012, an
analysis by King County staff (exhibit 241) found that the values used by Dr. Olson were reasonable.
On November 14, 2012, King County Department of Permitting issued a clearing and grading
permit for the project. Exhibit 25 is a DOE issued water quality certification for the project. No
design changes have resulted from the additional analysis. In regard to the Muckleshoot Indian
Tribe concerns over mitigation measures for habitat impacts, King County is proposing additional
measures over habitat impacts in the valley in the form of payment to a Tribe program. This
mitigation measure has preliminary been detennined to be acceptable. King County is currently
working on the documentation to formalize the proposal. Mr. Chin submitted the flood hazard
certification as exhibit 37. In conclusion, King County requests approval of the pen -nit and
variance.
Exhibits
Exhibits 1-36 identified in a revised April 15, 2013 exhibit list submitted by Jennifer Henning
were all admitted into the record during the 4/16/13 hearing. In addition, a flood hazard
certification for the project was admitted as Exhibit 37 during the hearing.
1. Applicant. King County Water and Land Resources Division
2. Hearing. A hearing was held on April 16, 2013 at 1:00 pm at the Renton City Hall City
Council Meeting Chambers.
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Substantive:
3. Description of Proposal. King County requests a Special Permit for Grade/Fill in order to
improve in -stream flow conditions along the reach of May Creek between approximate river mile
("RM") 4.3 and 4.9. The project would result in the removal of approximately 392 cubic yards of
accumulated sediment from approximately 162 lineal feet of the May Creek Channel, and the
removal of obstructive vegetation (reed canary grass and willow branches) for approximately 540
lineal feet of river channel. The project is located in May Valley on the south side of SE May
Valley Road near the cities of Newcastle and Renton. The project within Renton would occur on a
parcel that is approximately 3.75 acres. The project site contains a Category 3 wetland and a Class
2 salmonid stream (May Creek). The Category 3 wetland is about 140 acres in size and about 25
acres of the wetland is located in the project area. Work proposed for the wetland area appears to
be limited to the construction of temporary access roads and the removal of canary grass and
willow trees. As mitigation for removing sediment and vegetation, 15 feet of riparian/wetland
vegetation would be planted on both sides of May Creek, and also outside City limits.
Enhancement would include approximately 0.24 acres of off -channel alcoves, reed canary grass
suppression, planting with native vegetation and large woody debris placement. All dredged
materials will be deposited on site, eliminating the need for truck export. Additional vehicular
access during project installation within the wetland and floodplain will be provided using rubber
tired or tracked equipment. SEPA environmental review was conducted by King County as lead
agency.
The applicant also requests a variance to RMC 4-3-050(E)(2), which prohibits the disturbance of
critical areas or their buffers. The applicant cannot avoid violating this provision because the
proposal involves the dredging of May Creek and the removal and introduction of plant species to
the creek and associated wetland.
4. Adverse Impacts. There are no significant adverse impacts associated with the proposal. The
only impacts of concern are erosion/flooding impacts to downstream. properties and adverse
environmental impacts to May Creek and its category 3 wetland. Although compatibility with
adjoining uses has not been raised as an issue in the record, it is germane to the conditions of
approval and is addressed below as well.
A. Erosion/Flooding Impacts. As to erosion/flooding impacts, the proposal was denied in
2012 due to what the hearing examiner determined to be unresolved questions regarding
impacts to downstream properties. Downstream property owners presented a memo from
Dr. Patricia Olson, a hydraulic scientist from the Washington State Department of
Ecology. In her memo Dr. Olson cited numerous flaws in the hydraulic studies prepared
for the project, stating that the analysis may under -represent the amount of sediment
transport (and hence potential for erosion and flooding) created by the proposal. The
applicant was given an opportunity to rebut the concerns expressed by Dr. Olson in her
memo, but the examiner still concluded that the applicant had not sufficiently addressed
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all the problems raised by Dr. Olson. The proposal was denied without prejudice and the
applicant was invited to reapply if they could satisfactorily resolve the concerns raised by
Dr. Olson, or successfully submit their studies to third party peer review. Since denial,
the applicant has worked with the Department of Ecology and Dr. Olson to address her
concerns. Dr. Olson has now taken the position that the hydraulic studies and modeling
done by the applicant were appropriate and that from those studies she is able to conclude
that "the May Creek project will not likely create a measurable increase in bank
erosion." See Ex. 24(G), p. 1. Given that there is now no evidence or reasonable
inferences to contradict Dr. Olson's conclusions on bank erosion, it must be determined
that the proposal will not create any downstream erosion or otherwise adversely affect
downstream properties.
B. Critical Areas. As to impacts to May Creek and its wetland, those impacts have been
thoroughly assessed and completely mitigated in the Stream and Wetland Impact Analysis
and Mitigation Plan, Ex. 13. The report, written by two environmental engineers,
concludes that the proposal would achieve no net loss in of habitat functions in the May
Creek sub -basin. This would be accomplished by enhancing approximately five acres of
riparian buffer and riverine wetland. The enhancements would include planting native
riparian/wetland vegetation, reed canary grass suppression, construction of two off -
channel alcoves, placement of large woody -debris (76 pieces), and installation of snags in
the wetland. Impacts to the wetland caused by the construction of temporary access roads
and removal of canary reed grass and willow trees are considered only temporary and no
permanent impacts are anticipated. The proposed vegetation removal in the stream would
degrade riparian habitat by reducing canopy cover, organic inputs, prey sources, bank
stability and future large wood recruitment. The enhancements and mitigation
recommended in the Ex. 13 plan are designed to more than compensate for these adverse
impacts.
A biological evaluation for the proposal has evaluated impacts to any protected species
that may be adversely affected by the proposal. See Ex. 20. The report concludes that the
proposal will adversely affect essential fish habitat for coho salmon, but that the proposed
mitigation and best management practices will limit the scope and scale of the impacts,
and no large-scale deleterious effects are expected to occur. Further, it appears that the
adverse impacts to the fish habitat will only be temporary as a direct result of the
dredging activities and that the habit functions will improve over current conditions over
time. For these reasons, it is concluded that the proposal will not have a significant
adverse impact on protected species or their habitat.
The proposal will also not adversely affect water quality. The water quality of the stream
will be protected by diverting the stream from the dredging area during dredging
operations. All in -stream work is also only proposed during summer low flow periods
(June 15 to September 15). Best management practices, including silt fences and coir
logs, will be implemented to prevent sediment -laden stormwater from entering the stream
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or wetland. Best management practices will also be employed to ensure that groundwater
water quality is not adversely affected. Construction and post -construction monitoring of
surface water and ground water impacts will be conducted as described in Section 6.2 of
the Stream and Wetland Impact Analysis and Mitigation Plan, Ex. 13 as well as the Post -
Construction Monitoring Plan, Ex. 22.
C. Compatibility with Adjoining Uses. The construction activities associated with the
proposal do not appear to create any compatibility problems with other properties in the
vicinity, but as discussed below there is limited infonnation on these impacts.
Compatibility concerns are reduced to a certain extent by virtue of the fact that there are
few residences close to the project. The aerial photographs of Exhibits 35 and 36 reveal
that much of the surrounding area is vacant, except for a handful of homes to the north,
east and west and a more densely developed subdivision to the south along NE 26th St.
The greatest area of concern on compatibility is truck traffic. 392 cubic yards of
sediment will be dredged from May Creek and then hauled to other portions of the project
site or on a King County site east of 148th Ave SE. Trucks and other equipment will be
needed to move the sediment as well as to haul to and from the site for purposes of
removing invasive species and introducing native species of plants. There does not
appear to be any information in the record on how many truck trips would be generated
by this work. The staff report notes that trucks would access the site from 148th Ave SE.
A large number of truck trips along 148th Ave SE could adversely affect the few homes
abutting 148th Ave SE to the south of the project area. Given that 392 cubic yards is not
an exceptionally large amount of fill, from the limited information in the record the best
that can be concluded is that the proposal will not generate a significant amount of truck
traffic that will adversely affect neighboring homes.
The staff report also notes that some of the equipment on-site will generate noise up to 90
decibels. These noise levels could adversely affect neighboring properties, but the City
has extensive noise standards that set a legislative standard on acceptable noise levels for
all construction projects. See Chapter 8-7 RMC.
No screening, fencing, landscaping or fencing are required for the proposal and none is
necessary because there is nothing to suggest that the proposal will create any adverse
aesthetic impacts except for the presence of construction equipment for a limited period
of time between June 15 through September 15. There is little potential for dust
generation since the sediment will be moist, but best management practices are proposed
to control any remaining dust impacts. Gravel construction entrances to the project site
are also proposed to prevent the tracking of dirt and dust onto local streets. No drainage
problems at the project site (as opposed to downstream, which is addressed in FOF No.
5(A)) are evident from the record and none could be reasonably inferred.
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Procedural:
1. Authority of Hearing Examiner. RMC 4-9-080(F)(2) provides that the hearing examiner is
responsible for granting special permits for fill and grade. The code section provides that a special
permit is required for the depositing of minerals or materials such as sand, gravel and rock. The
proposed dredging will involve the depositing of dredged materials on site, so a special use permit is
required and subject to review by the Examiner. RMC 4-8-080(G) also classifies variances
associated with hearing examiner land use review as Type III permits subject to hearing examiner
review. As further noted in RMC 4-8-080(G), the hearing examiner is required to make a final
decision on both the special grade and fill permit and the variance request and both decisions are
appealable to the City Council.
Substantive:
2. Applicable Standards. RMC 4-9-080(F)(4) governs the criteria for special fill/grade permits.
RMC 4-9-250(B)(10) governs the criteria for the CAO variance. Applicable criteria are quoted
below in italics and applied through corresponding conclusions of law.
RMC 4-9-080(F)(4):... To grant a special permit, the Hearing Examiner shall make a determination
that.. the proposed activity would not be unreasonably detrimental to the surrounding area. The
Hearing Examiner shall consider, but is not limited to, the following:
i. Size and location of the activity.
ii. Traffic volume and patterns.
iii. Screening, landscaping, fencing and setbacks.
iv. Unsightliness, noise and dust.
v. Surface drainage.
vi. The length of time the application of an existing operation has to comply with
nonsafety provisions of this Title.
3. As noted in the criterion above, the six factors listed above are designed to assist the hearing
examiner in determining whether or not the proposed clearing and grading "would not be
unreasonably detrimental to the surrounding area. " From this language it appears that the
primary issue of concern would usually be truck traffic, noise, dust and other adverse impacts
generated by major clearing and grading operations. It is evident that convoys of trucks were
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envisioned navigating through neighborhood streets. Yet all of the extensive information in the
record focuses almost exclusively upon downstream erosion and critical area impacts.
Downstream erosion impacts are certainly relevant to the issue of impacts to the surrounding area
and are addressed in Finding of Fact No. 5(A). However, the record has been lacking on the afore-
mentioned truck traffic, dust, and noise impacts. There is apparently no estimate provided on the
number of truck trips that will be generated by the proposed dredging operations. However, from
the limited information in the record it has been detennined in Finding of Fact No. 4(C) that the
proposal will not adversely affect properties in the surrounding area considering all of the factors
listed in the criterion above. Further, as determined in Finding of Fact No. 4(A), the proposal will
also not adversely affect downstream properties with erosion impacts and as determined in Finding
of Fact No. 4(B) the proposal will not adversely affect May Creek or on-site wetlands.
As to the length of time of the application, RMC 4-9-080(F)(10) requires that work commence with
six months of approval. Staff recommends that this be extended to 1.5 years because the applicant
can only do the work during low summer flows. For this reason, the expiration date set by RMC 4-
9-080(F)(10) is extended from six months to 1.5 years.
RMC 4-9-250(B)(10)(a): ... in lieu of the variance criteria of subsection B5 of this Section,
applications for public/quasi-public utilities or agencies proposing to alter aquifer protection,
geologic hazard, habit, stream and lake or wetland regulations shall be reviewed for compliance
with all of the following criteria:
a. Public policies have been evaluated and it has been determined by the Department
Administrator that the public's health, safety and welfare is best served;
4. The proposal is designed to reduce flooding caused by May Creek and as determined in
Finding of Fact No. 4 there are no significant adverse impacts as mitigated. For these reasons the
public health, safety and welfare is served by the proposed variance.
RMC 4-9-250(B)(10)(b): Each facility must conform to the Comprehensive Land Use
Plan and with any adopted public programs and policies;
5. The proposal is consistent with and implements Comprehensive Plan policies EN -2 and
EN -4 by minimizing erosion impacts and naturalizing a degraded stream.
RMC 4-9-250(B)(10)(c): Each facility must serve established, identified public needs;
6. The proposal is designed to prevent what has proven to be repeated flooding of residential
and agricultural properties.
RCW 4-9-250(B)(10)(d): No practical alternative exists to meet the needs;
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7. As identified in the staff report, the proposal is the alternative that will cause the least
disturbance to critical areas while still reducing the flood reduction objectives of the proposal
and remaining financially feasible.
RMC 4-9-250(B)(10)(e): The proposed action takes affirmative and appropriate measures to
minimize and compensate for unavoidable impacts;
8. As determined in Finding of Fact No. 4(B), all impacts have been fully mitigated.
RMC 4-9-250(B)(10)(f): The proposed activity results in no net loss of regulated wetland or
stream/lake area, value, or function in the drainage basin where the wetland, stream or lake
is located;
9. As determined in Finding of Fact No. 4(B), the proposal results in no net loss in wetland
or stream habitat functions. The proposal will also improve upon the flood reduction function
of streams and wetlands.
RMC 4-9-250(B)(10)(g): The proposed activities will not jeopardize the continued existence
of endangered, threatened or sensitive species as listed by the Federal government or the
State;
10. As determined in Finding of Fact No. 4(B), the proposal will have any significant adverse
impacts on any protected species.
RMC 4-9-250(B)(10)(h): That the proposed activities will not cause significant degradation
of groundwater or surface water quality;
11. As determined in Finding of Fact No. 4(B), the proposal will not adversely affect
groundwater or surface water quality.
RMC 4-9-250(B)(10)(i): The approval is the minimum variance necessary to accomplish the
desired purpose;
12. The applicant maintains that no further reduction in critical area disturbance can be
achieved without compromising the flood reduction objectives, of the proposal and there is
nothing in the record to suggest otherwise.
RMC 4-9-250(B)(10)0): The proposed variance is based on consideration of the best
available science as described in WAC 365-195-905; or where there is an absence of valid
scientific information, the steps in RMC 4-9-250F are followed.
13. The proposal clearly employs best available science. The proposal has been subjected to
an impressive number of scientific studies prepared by qualified experts. These studies, in
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particular the sediment transport studies, have been subject to rigorous peer review by DOE
and subjected to close public scrutiny as well.
The applications for a Special Permit for Grade and Fill and a CAO Variance from RMC 4-3-
050E.2 for the May Creek Drainage Improvement Project; Project File No. LUA10-065, V -H,
SP, are approved subject to the following conditions:
1. Compliance with the mitigation measures contained in the Mitigated Determination of
Non -Significance, issued by the King County Water and Land Resources Division,
Department of Natural Resources and Parks, dated September 8, 2011 (Exhibit 12).
2. The applicant shall comply with the Stream and Wetland Impact Analysis and Mitigation
Plan (Exhibit 13, Revised September 2011) throughout and following construction.
3. The applicant shall comply with the Post -Construction Erosion Monitoring Plan, Ex. 22.
The expiration period for the Special Permit for Grade and Fill is extended from six months to 18
months as regulated in RMC 4-9-080(F)(10).
DATED this 30th day of April, 2013.
City of Renton Hearing Examiner
1
RMC 4-8-110(E)(9) and/or RMC 4-8-110(F)(1) provides that the final decision of the hearing
examiner is final subject to appeal to the Renton City Council. RMC 4-8-110(E)(9) requires
appeals of the hearing examiner's decision to be filed within fourteen (14) calendar days from the
date of the hearing examiner's decision. A request for reconsideration to the hearing e examiner
may also be filed within this 14 day appeal period as identified in RMC 4-8-110(E)(8) and RMC 4-
8-100(G)(4). A new fourteen (14) day appeal period shall commence upon the issuance of the
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reconsideration. Additional information regarding the appeal process may be obtained from the
City Clerk's Office, Renton City Hall — 7a' floor, (425) 430-6510.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
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