Loading...
HomeMy WebLinkAboutR-2005-001 Washington State Department of Transportation Utility Exception Request (re: State Route 24 bridge improvement project).A RESOLUTION RESOLUTION NO. R-2005-01 approving a public agency and utility exception to certain setback and buffer requirements under the Yakima Critical Areas Ordinance (YMC Chapter 15.27) for any critical areas development permit that is issued by the City of Yakima to the Washington State Department of Transportation for the current SR 24 Bridge Project over the Yakima River. WHEREAS, the Washington State Department of Transportation ("WSDOT") applied to the City of Yakima for a critical areas development permit under the Yakima Critical Areas Ordinance (YMC Chapter 15.27) regarding the current SR 24 Bridge Project over the Yakima River ("SR 24 Bridge Project"); and WHEREAS, as part of said permit application and under the criteria of YMC 15.27.540, WSDOT requested that the City grant a public agency and utility exception to certain critical area setback and buffer requirements with regard to the SR 24 Bridge Project; and WHEREAS, on December 22, 2004, and in accordance with YMC 15.27.540, the City hearing examiner held a public hearing regarding WSDOT's request for a public agency and utility exception to certain critical area setback and buffer requirements concerning the SR 24 Bridge Project; and WHEREAS, after consideration of the law, the City staff report and other documents, materials, statements and testimony submitted at the public hearing, the hearing examiner found the criteria of YMC 15.27.540 for the granting of a public agency and utility exception for the SR 24 Bridge Project were satisfied; and WHEREAS, on December 30, 2004, the Hearing Examiner's Recommendation was formally issued in which approval of the requested public agency and utility exception is recommended; and WHEREAS, on January 4, 2005 the City Council reviewed and considered the matter and the Hearing Examiner's Recommendation; and WHEREAS, the City Council determines that the required elements of the public agency and utility exception to the Yakima Critical Areas Ordinance (YMC Chapter 15.27) have been satisfied as to certain setback and buffer requirements applicable to any critical areas development permit that is issued by the City of Yakima to the Washington State Department of Transportation for the SR 24 Bridge Project, and thereby, deems it in the best interest of the City of Yakima to approve this exception, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: 1. Consistent with the December 30, 2004, Hearing Examiner's Recommendation, a public agency and utility exception to certain setback and buffer requirements under the Yakima Critical Areas Ordinance (YMC Chapter 15.27) is hereby approved for any critical areas development permit that is issued by the City of Yakima to the Washington State Department of Transportation for the current SR 24 Bridge Project over the Yakima River. Further, the December 30, 2004, Hearing Examiner's Recommendation (including Findings and Conclusions) is hereby adopted and incorporated herein by this reference. A copy of said Hearing Examiner's Recommendation is attached hereto as Exhibit A. 2. The Director of the Yakima Department of Community and Economic Development is hereby authorized and directed to include a public agency and utility exception to certain setback and buffer requirements under the Yakima Critical Areas Ordinance (YMC Chapter 15.27) for any critical areas development permit that is issued by the City of Yakima to the Washington State Department of Transportation for the current SR 24 Bridge Project over the Yakima River. 3. The public agency and utility exception authorized by this resolution and included with any critical areas development permit issued to WSDOT for the current SR 24 Bridge Project over the Yakima River is expressly subject to and conditioned upon WSDOT meeting and satisfying all conditions specified in any such permit. ADOPTED BY THE CITY COUNCIL this 4th day of January 2005. ATTEST: Paul P. George, Mayor City Clerk CITY OF YAKIMA and WSDOT (Washington State Department of Transportation) EXHIBIT LIST City Council Public Meeting January 4, 2005 Applicant: City of Yakima & WSDOT File Number: Critical Areas Ord #1-04 & Shoreline Permit #1-04 Site Address: Vicinity of SR -24 and the Yakima River Staff Contact: Jeff Peters, Assistant Planner CHAPTER A CHAPTER B CHAPTER C CHAPTER D Table of Contents Resolution Hearing Examiner's Recommendation Staff Report Map EXHIBIT A City of Yakima, Washington Hearing Examiner's Recommendation December 30, 2004 In the Matter of Application for a Critical Areas Ordinance Public Agency Exception Submitted by: Washington State Department Of Transportation To Allow for Construction of a New Bridge and Removal of the Existing Bridge where SR 24 Crosses the Yakima River RECEIVED DEC 3 0 2004 CITY OF YAKIMA PLANNING DIV Critical Areas Ordinance #1-04 (Related Shoreline Permit #1-04) Introduction. The Hearing Examiner conducted a public hearing on December 22, 2004 and has issued this decision within ten business days thereof. Assistant Planner Jeff Peters recommended approval of the application requesting a public agency exception to allow for the construction of a proposed new SR 24 bridge immediately south of the existing SR 24 bridge over the Yakima River and to allow for the subsequent removal of the existing SR 24 bridge. Mr. Joshua Lipski of the law firm of Brown, Reavis & Manning, who represents the City of Yakima (City) and its Department of Community and Economic Development in this matter, presented the staff report which recommended approval of the requested public agency exception. Mr. Gary Beeman, the applicant's Environmental Manager for the South Central Region based in Union Gap, also testified in favor of approving the requested public agency exception from the City's Critical Areas Ordinance (CAO) buffer and setback requirements westerly from the center of the Yakima River which would otherwise prevent the new bridge from being City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 1 constructed and the old bridge from being removed. No testimony or written comments were submitted in opposition to the requested exception. SummarLof Recommendation. The Hearing Examiner recommends approval by the Yakima City Council of this request for a public agency exception to eliminate all the stream and wetland buffer and setback areas that would otherwise exist westerly from the center of the Yakima River in the vicinity of the proposed new SR 24 bridge approach and bridge across the Yakima River, and also in the vicinity of the existing SR 24 bridge approach and bridge across the Yakima River, in order to allow WSDOT's proposed project to proceed as planned. Basis for Recommendation. Based upon the Hearing Examiner's view of the site in the presence of Assistant Planner Jeff Peters on December 21, 2004; his consideration of the staff report, application, exhibits, testimony and other evidence presented at an open record public hearing on December 22, 2004; and his review of the City's Critical Areas Ordinance; the Hearing Examiner makes the following: FINDINGS Applicant. The applicant is the Washington State Department of Transportation (WSDOT), South Central Region, P.O. Box 12560, Yakima, Washington 98909. Location. The location of the bridge to be replaced is on SR 24, which proceeds easterly from Nob Hill Boulevard at the I-82 overpass. The location of the City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 2 proposed new bridge on SR 24 will be at milepost 0.57 about 75 feet southwest or downstream from the existing SR 24 bridge which crosses the Yakima River. The critical areas and shoreline regulations of the City apply to the areas located westerly and northwesterly from the center of the Yakima River in this particular location. Application. This application requests approval for a public agency exception from the City's Critical Areas Ordinance (CAO) buffer and setback requirements along the west side of the Yakima River so as to allow construction of a new SR 24 bridge and removal of the existing SR 24 bridge over the Yakima River. Notices. Although the City's CAO does not require notice of a public hearing to consider an application for an exception to vary CAO buffer and setback requirements for a public agency, notices of the public hearing were nevertheless provided in the following manner which stated that a public hearing would be held before the Hearing Examiner at 9:00 a.m. on December 22, 2004 to consider an application for a variance from CAO stream and buffer requirements: Posting of hearing notice on property Mailing of application and hearing notice Publishing of hearing notice in newspaper December 9, 2004 December 10, 2004 December 11, 2004 Environmental Review. An extensive Environmental Assessment was completed in November of 2003 in accordance with the requirements of the National Environmental Policy Act (NEPA). WSDOT and the City mutually agreed to be co -lead agencies of the project for the purpose of assessing compliance with the State Environmental Policy Act (SEPA). WSDOT and the City issued a Mitigated Determination of Nonsignificance for the project on City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance 141-04 3 August 20, 2004. It contained certain mitigation measures relative to WSDOT's monitoring of the project's impacts upon the City's Wastewater Treatment Plant outfall and upon the flood control levee in that location for 10 years after completion of the bridge under a plan approved by the City and paying its proportionate fair share of mitigation costs for any certain specified types of adverse impacts identified by that monitoring process. Applicable CAO Provisions. Applicable CAO provisions include Subsections 15.27.421(A) and (C) of the CAO which require a 200 -foot -wide undisturbed stream buffer area of natural vegetation from the ordinary high-water mark or the top of the bank of Class I streams such as the Yakima River; Subsection 15.27.421(E) of the CAO which requires an additional minimum 20 -foot -wide setback for all structures in all zoning districts extending from the edge of the required stream buffer area; Subsection 15.27.412(A) of the CAO which requires a 50 -foot -wide wetland buffer area retained in its natural condition extending from the edge of wetlands such as streams, which in this situation would lie within the easterly part of the 200 -foot -wide stream buffer area; Subsection 15.27.412(B) of the CAO which requires an additional minimum 20 -foot -wide setback for structures extending from the edge of the required wetland buffer area, which in this situation would also lie within the easterly portion of the 200 -foot -wide stream buffer area; Section 15.27.540 of the CAO which specifies four criteria to be considered relative to an application for a public agency exception for development proposals that would not otherwise qualify for approval under Part Four of the CAO, which Part Four of the CAO includes the stream and wetland buffer and setback requirements that would prevent this proposed project from qualifying for approval; Section 15.27.249 which defines a "public agency" to City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance # 1-04 4 include, among others, "any agency of the State of Washington"; and Section 15.27.253 which defines "regulated activities" within a wetland or its buffer as "Removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind; Dumping, discharging, or filling with any material; Draining, flooding or disturbing the water level or water table; Driving of pilings; Construction, reconstruction, demolition or expansion of any structure; Destruction or alteration of wetlands vegetation through clearing, burning or planting of vegetation that would alter the character of the wetland; Activities that result in a significant change of water temperature, a significant change of physical or chemical characteristics of wetlands water sources, including quantity, or the introduction of pollutants." Testimony at the. Public Hearing. The three people who testified at the public hearing all favored approval of the CAO exception. Assistant Planner Jeff Peters was the first to testify at the public hearing in favor of the requested CAO buffer and setback exception for this project. He was followed by Mr. Joshua Lipske who presented an excellent staff report which will be supplied with this recommendation for the City Council's consideration, and which is adopted as additional support for this recommendation without repeating all the information it contains verbatim in this recommendation. He was followed by Mr. Gary Beeman who, as the person responsible for NEPA and SEPA compliance and all permits for WSDOT's projects in the South Central Region, testified as to the many environmental reviews and permits involved in this project, as well as the benefits of the project. He did not submit a report or statement to be supplied with this recommendation, but his testimony is also adopted as additional support for this recommendation and it will for that reason be summarized here for the City City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 5 Council's consideration. Mr. Beeman testified that under his direction and guidance, a comprehensive mitigation plan has been developed for this project in coordination with the City and County and other federal, State and local jurisdictions. This project is in compliance with all federal, State and local rules, regulations, ordinances and other legal requirements. This project is not only a benefit to the traveling public, but is also a benefit to the environment with the mitigation options that have been put in place. In conjunction and coordination with NOAA Fisheries, WSDOT has in hand already for this project a U.S. Fish and Wildlife approval, a hydraulic project approval from the Washington State Department of Fish and Wildlife, a 404 permit from the U.S. Army Corps of Engineers, a 401 certification from the State Department of Ecology and an NPDES permit. The only permits that WSDOT is still waiting for are the City's and the County's Shoreline and Critical Areas permits. WSDOT would like to advertise the project for bids in February so that all the steps can be completed to finalize a contract to meet the federally -mandated fish windows in June of this year to actually build the Yakima River bridge project. The timeline is very close in order for WSDOT to be able to meet that schedule. So it is requested that the permits be approved by the City so that WSDOT can proceed with this project. History of Proposed Bridge Replacement. Severe "scour" problems necessitated emergency maintenance of the existing SR 24 bridge in 1994, a situation that worsened as a result of a significant 1996 flood. Because of this and also because of a traffic concern, WSDOT in 1998 began preliminary design of a bridge replacement and highway improvement project. Early designs were revised to accommodate the Bureau of Reclamation's wish to implement through the City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 6 bridge design that certain 1994 federal legislation directing the Bureau to improve the Yakima River watershed for fish and other aquatic species. The design was changed in 2001 to lengthen the bridge so as to allow the levees in that area to be moved back in the future. This design allows the river to become wider to improve fish habitat and lower the risk of flooding in keeping with the Floodplain Restoration Project which is supported by the City, the Yakama Nation and other federal, State and local agencies. WSDOT completed a comprehensive report in February of 2003 entitled SR 24 Project Floodplain Consistency Report which analyzes the existing hydrologic conditions in the area of the existing bridge, the risk to the bridge and the flood hazard risks posed by the location of the existing bridge and levee. It evaluated different bridge design options for their consistency with the Floodplain Restoration Project and recommended a "medium long" span of approximately 1,600 feet for the new bridge. In November of 2003 the Environmental Assessment confirmed the need for a new bridge and rejected a number of designs in favor of the one now proposed. WSDOT filed its JARPA application for this proposal with the City on June 1, 2004. On August 20, 2004,. WSDOT and the City as co -lead agencies for SEPA issued a Mitigated Determination of Nonsignificance. Public notice of this application was issued on October 21, 2004. Notices of the December 22, 2004 public hearing before the Hearing Examiner were given by various means between December 9 and December 11, 2004. The hearing was held and this recommendation is provided on December 30, 2004. CAO Public Agency Exception Review Criteria. Subsection 15.27.540(B) of the CAO requires the Hearing Examiner to review an application for a public agency exception and to make a recommendation to the City Council as to whether the following criteria to be considered are in fact satisfied: City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 7 1. Subsection 15.27.540(B)(1) of the CAO: There is no other practical alternative to the proposed development with less impact on the critical areas. Even though Subsections 15.27.421(D) and 15.27.412(A) of the CAO allow the Director of the Department of Community and Economic Development to reduce the width of required stream and wetland buffer areas by up to 50 percent under certain circumstances, the undisputed evidence presented at the hearing was to the effect that such a reduction in buffer areas would still not be sufficient to allow the proposed project to be undertaken. The evidence presented was that filling and grading needs to occur within these buffer and setback areas to support the west side of the bridge; that wetlands on the west side of the river will suffer shading impacts; that pilings will be placed within the river; and that temporary impacts to setback areas will occur during construction. As planned, the new bridge replacing the existing 600 -foot -long two-lane bridge will be a 1,565 -foot -long four -lane bridge that will allow relocation of the existing levee soas to widen the river in order to improve fish habitat and lower the risk of flooding in the area. Constructing a bridge in any location would likely require disturbing natural vegetation growing within 220 feet from a river's bank because the very nature of a bridge is to continue a roadway from one side of a river to the other. Even though it might be possible from an engineering standpoint to design a 1565 -foot -long four -lane bridge that would span the 220 -foot -wide CAO buffer and setback areas on one side without disturbing them, except for shading them, the criteria to be satisfied for this exception is that there are no "practical" alternatives rather than no "possible" alternatives. Though no doubt possible, constructing a bridge that would likely have to be, at least for this comparatively short river crossing, an overkill something analogous to the eighth wonder of the City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 8 world in this particular context in order to avoid disturbing in any manner the west half of the river or the 220 -foot -wide buffer and setback areas west of the bank of the river, would probably not be practical from a cost standpoint in view of the relatively insignificant impacts upon natural vegetation in the area that such an endeavor would avoid. But even if such an endeavor were practical, which the evidence here presented would refute, it would be virtually impossible to remove the existing bridge approach and bridge without disturbing those buffer and setback areas on the west side of the river. Bottom line, under the evidence presented here, there is no other alternative, including the "no action" alternative, which is a practical way to have less impact on the critical areas and still provide the type of benefits by way of enhanced traffic safety, improved fish habitat and better flood control which the proposed project will provide. 2. Section 15.27.540(B)(2) of the CAO: The proposal minimizes the impact on critical areas. The staff report and Mr. Beeman's testimony illustrate how many environmental reviews and permit processes this project has already successfully undergone. They have all been aimed at minimizing adverse environmental impacts in one way or another from different perspectives. The Environmental Assessment completed in 2003 chose this alternative over all others, including the "no action" alternative, because this alternative produces the most benefits with the least harm. The location of the proposed new bridge is within 75 feet of CAO critical areas that have already been disturbed by a bridge approach and a bridge that will be removed so as to allow revegetation of that area next to the new bridge approach and the new bridge. The Environmental Assessment indicates that the proposed design was developed by utilizing City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 9 avoidance and minimization strategies, with input from federal, State and local agencies as well as the public. More specifically as to mitigation measures for impacts on the critical areas, the Conceptual Mitigation Plan set forth as Appendix F of the Joint Aquatic Resources Permit Application (JARPA) form indicates that the proposal minimizes the impact on critical areas by requiring that best management practices will be used during construction and by requiring that utilities will be placed underground in a single corridor. That mitigation plan also includes other mitigation measures such as revegetation with native and shade tolerant species to eliminate potential net loss of function and value associated with wetland impacts; substantial wetlands creation adjacent to impacted wetlands on the City's side of the river utilizing the Washington Department of Ecology's requirement for wetland replacement acreage at a 1:1 ratio; and shoreline restorationefforts in consultation with the Washington Department of Fish and Wildlife. 3. Section 15.27.540(C) of the.. CAO: _ There is -a mitigationplan indicating how the proposal will minimize the impact on critical areas. Although this is one of the listed criteria for consideration, it is not mandatory and it does not appear to apply to a public agency exception. The exact wording of this provision in Section 15.27.540(C) is that "A mitigation plan may be required from the utility indicating how the proposal will minimize the impact on critical areas." In any event, there is a mitigation plan indicating how this proposal will minimize the impact on critical areas set forth in Appendix F of the JARPA application discussed in the previous section. City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 10 4. Section 15.40.540(D) of the CAO: There is a clear showing that the proposal will protect the public health and safety or repair damaged critical areas where use of category I and II wetlands or their buffers providing habitat for endangered or threatened species will be allowed. Here the use of Category II wetlands that provide habitat for some threatened species of salmon will be allowed, but there is in the evidence submitted for this matter a clear showing that the proposal will satisfy this criteria. It is clear under the evidence submitted for this review that the proposal will protect the public health and safety in more than one way. First, the present bridge is a threat to the public health and safety because it is failing structurally and could wash out in a flood. The Environmental Assessment for this project states at page 3: "Bridge Scour — The current bridge has inherent design deficiencies aggravated by shallow bridge footings bearing on alluvium in the Yakima River channel. The shallow bridge footings on alluvium streambed materials do not support the natural changes in Yakima River flows or recent flood events in this stretch of the river. The natural changes (river morphology) in the Yakima River flow patterns coupled with the existing SR 24 Yakima River Bridge's pier design have increased flow constrictions and energy at the bridge, further exacerbating the scour conditions on the bridge footings. The WSDOT has had to place protective riprap around the bridge footings several times between 1994 and 1999 to slow the Yakima River's undercutting effects on the existing bridge pier foundations. The existing bridge footings have the potential to wash out in a major flood event." Secondly, the design of the bridge and of the highways leading to the bridge in its present location is no longer safe for the traveling public, and constructing the proposed new bridge with different highway approaches, four lanes of travel and City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 11 shoulder widths in compliance with current standards would clearly protect the public health and safety. The Environmental Assessment states at page v: "Current existing traffic volumes exceed the highway design capacity during peak travel periods. These problems strand motorists and freight resulting in substantial safety hazards to the traveling public, travel delays and impacts to the local economy. These impacts to the traveling public and movement of goods remains at risk as long as these problems exist. These problems are expected to increase proportionate to future predicted traffic growth. The WSDOT has determined that level of service (LOS) standards that fall below "C" in unincorporated Yakima County and LOS level "D", within the City of Yakima, are strong indicators of deficient traffic conditions for the traveling public. At several intersections throughout the SR 24 project limits LOS levels are currently at LOS "D" and predicted 2025 congestion, without change, will fall to LOS "F". Public Safety — An eight-year traffic accident record (1994 to 2001) on SR 24 showed approximately 179 accidents on this stretch of highway, of which 131 were intersection related and 48, were mainline highway related. The project falls within the definition of a High Accident Corridor (HAC) for the years 1994, 2000, and 2002. In addition, a three-year traffic accident report (1999 to 2001) showed approximately 69 accidents occurred on the I-82 on/off ramps with 61 of these related to intersections. Design Deficiencies — The following design deficiencies exist on SR 24 and the I-82 interchange in the project area: ➢ Does not meet current state standards of one -mile intersection spacing between Keys Road and Riverside Road. ➢ Existing uphill grades are deficient for truck traffic entering SR 24 from southbound (SB) Keys Road to appropriately accelerate to traffic speeds on SR 24. ➢ Does not meet current state standard for turning radii, taper distances, and storage lengths of intersections throughout the project limits. ➢ The spacing, capacity, and traffic volumes between South 18th Street and South 22nd Street, in the area over the I-82 interchange, are the major cause of the congestion during peak periods. City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 12 ➢ The existing horizontal and vertical alignments do not meet the State standards for sight distance. ➢ The existing bridge width, with 12 -foot lanes and 4 -foot shoulders, does not meet current state standards (State standards are 12 -foot lanes with 8 -foot shoulders)." Thirdly, constructing the proposed new bridge with different highway approaches, four lanes instead of two lanes, wider shoulders in compliance with current standards and 1,565 feet long rather than 600 feet long would clearly protect the public health and safety. Although the configuration of the highway leading to and from the bridge, the number of lanes and the width of the shoulders are obvious safety features of the new bridge, the length of the new bridge is an equally -important feature that protects the public health and safety. Not only does the longer bridge benefit the fish habitat by allowing levees to be moved back to widen the river, the Environmental Assessment points out at page 52: "A new bridge span in this range (1,200 to 1,600 feet) would not preclude Yakima County from implementing floodplain restoration and flood risk reduction actions in this area. In terms of floodplain function, a longer bridge would allow Yakima County to pursue relocation options for the existing flood control levees. Levee relocation would reduce the existing river constrictions, reduce or eliminate existing backwater effects, improve flood storage capacity, and reduce the risk of life and property loss during future flood events." Even though this provision requires either of two alternative positive benefits to justify approval of a public agency exception to the CAO buffer and setback requirements, this proposal clearly satisfies both positive benefits by also repairing damaged critical areas. Revegetation, habitat restoration and creation of new habitat will repair damaged critical areas, as will the suggestions of the National Oceanic and Atmospheric Administration (NOAA) Fisheries agency City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 13 which is the federal agency charged with implementing the Endangered Species Act. NOAA Fisheries issued a Biological Opinion for this project set forth in Appendices F and G of the Environmental Assessment which received the formal concurrence of the U.S. Fish and Wildlife Service and which has been incorporated into the plan and the design of this project. More specifically, the Environmental Assessment states at pages 61 and 62 that no less than the following 18 mitigation measures will be required for this project, most of which will protect or repair damaged critical areas: "Temporary — The WSDOT will also use the following conservation measures to avoid or minimize temporary impacts to the fish/wildlife/ESA species: ➢ The removal of mature native trees (> 8 inch diameter at breast height) will be limited to the minimum project limits allowed. ➢ All roadway excavation and embankment slopes, including excavation and embankment slopes that are partially completed to grade, will be prepared and seeded during the first available planting period or finished grade. ➢ A Temporary Erosion and Sedimentation Control (TESC) Plan will be developed and maintained throughout the life of the construction phase to minimize the impacts to habitat and species from the project action. ➢ Project clearing limits will be flagged or fenced with temporary construction fencing. ➢ Covering or otherwise protecting slopes will be completed until permanent erosion -control measures are working. ➢ Wetlands and other sensitive areas will be delineated with construction and silt fencing prior to the start of construction. ➢ All excavation will be completed during low -flow periods and in the appropriate WDFW [Washington Department of Fish and Wildlife] work window as provided in the Hydraulic Project Approval (HPA). ➢ Project construction will adhere to WDFW and WSDOE [Washington State Department of Ecology] permit conditions designed to minimize impacts to fish, wildlife, and water quality. ➢ Construction and demolition of the bridges will include BMP's [Best Management Practices] designed to isolate work activities and protect waters of the state. City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance # 1-04 14 ➢ Water pumped from the work isolation area will be discharged into an upland bio -filtration area or disposed of at an approved site. ➢ Discharges of deleterious material into potential fish rearing areas or areas with submerged vegetation will be prohibited. ➢ Water quality monitoring and reporting will be completed to assure compliance with permit requirements during the life of the construction phase. Permanent — The following mitigation measures shall be used: ➢ Replanting, at a minimum, 120 black cottonwood seedlings with 80% survival rate in the first two years. Replacement of dead seedlings will continue for a five-year period. ➢ Surveys through the winter of 2003 and 2004 to confirm occupancy of bald eagles. This will also be helpful in determining distribution of bald eagles within the Yakima River Reach between Selah and Union Gap. Report findings will be forwarded to USFW (U.S. Forest Service) for review and comment. ➢ Construction activities within 500 -ft of the Yakima River Riparian corridor (from the edge of trees or greenway trail) will only take place during the appropriate bald eagle work window (October 31 to March 31). ➢ Use of drilled shafts/bridge foundation instead of spread footing will reduce the area of streambed disturbance and improve the critical scour baseline conditions of the existing Yakima River Bridge. ➢ The WSDOT will consult with the Washington Department of Fish and Wildlife (WDFW) on the placement of all adequately sized removed woody vegetation from the project limits as fish and wildlife habitat. ➢ All disturbed soil areas will be replanted to contribute to the overall improvement of the baseline conditions within the project area." Consistency of the Proposed Use with Development Regulations and the Com . rehensive Plan under. the Criteria : Re + uired b ,Subsection 16.06.020B of the Yakima Miu iicipat ,Code is dete inec :by consideration of the following factors: City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 15 a) The types of land uses permitted at the site include the proposal as a replacement of an existing bridge, which is part of the State's existing highway system, with a new bridge immediately adjacent to the existing bridge which will be removed so that there will be no change in the land use of the area where SR 24 crosses the Yakima River. b) The density of residential development and the level of development, such as units per acre or other measures of density, will remain the same since one bridge will merely replace another. c) The availability and adequacy of infrastructure and public facilities is not an issue here. A bridge is infrastructure rather than a use requiring same. The replacement of an existing bridge with a new bridge having an improved design to benefit traffic safety, fish habitat and flood control, and having four lanes instead of two lanes, will constitute an improvement of the transportation infrastructure and public facilities in the affected area. d) The characteristics of the development are consistent with applicable development regulations, including the recommended exception to Critical Areas buffer and setback regulations. The characteristics of the development are also consistent with the comprehensive plan insofar as the existing SR 24 bridge with its structural problems will be replaced by a much better bridge with more lanes crossing from the City into Yakima County. Specifically, this improvement will be consistent with goal T1 of the comprehensive plan which is to provide efficient, safe and economical means of transportation and consistent with policy T2.8 thereof which is to plan and operate the City's transportation system in cooperation with, among others listed, the Washington State Department of Transportation and Yakima County. City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 16 CONCLUSIONS 1. The Hearing Examiner has jurisdiction to make recommendations to the Yakima City Council regarding applications for a public agency exception to the City's Critical Areas buffer and setback requirements. 2. Although there are no specific public notice requirements for the public hearing before the Hearing Examiner to consider an application for a public agency exception to the City's Critical Areas requirements, public notice was given by mailing, posting and publishing the time and date of the hearing. 3. This project was reviewed under both the National Environmental Policy Act and the State Environmental Policy Act. On August 20, 2004, a Mitigated Determination of Nonsignificance was issued by WSDOT and the City as co -lead agencies. 4. The evidence presented at the open record public hearing satisfied the criteria for approval of a public agency exception to the Critical Areas buffer and setback requirements so as to eliminate same in the vicinity of the proposed construction of the new SR 24 bridge approach and bridge and in the vicinity of the proposed removal of the existing SR 24 bridge approach and bridge over the Yakima River. RECOMMENDATION The Hearing Examiner recommends that the Washington State Department of Transportation's application for a public agency exception eliminating all of the City's Critical Areas stream and wetland buffer and setback requirements that City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 17 otherwise would exist westerly from the center of the Yakima River in the vicinity of the proposed construction of the new SR 24 bridge approach and bridge over the Yakima River, and in the vicinity of the proposed removal_ of the existing SR 24 bridge approach and bridge over the Yakima River, be APPROVED by the Yakima City Council. DATED this 30th day of December, 2004. City of Yakima & WSDOT Replacement of SR 24 Bridge SR 24 Crossing of Yakima River Critical Areas Ordinance #1-04 18 L-. Gary M. Cuillier, Hearing Examiner Application for Public Agency Exception To Certain Critical Area Setback and Buffer Requirements Staff Report The Washington State Department of Transportation (WSDOT), proponent of the SR 24 Bridge Project, has applied to the Department of Community and Economic Development for an exception to certain setback and buffer requirements of the City's Critical Areas Ordinance that would otherwise prohibit approval of the SR 24 Bridge Project development. Specifically, WSDOT seeks application of the Public Agency and Utility Exception, YMC § 15.27.740, to allow issuance of a critical areas development permit under YMC § 15.27/00. In the absence of this exception, a critical areas development permit cannot be issued for the project as it will not comply with the above referenced setback and buffer requirements. The Department has reviewed the materials submitted in support of this application and has provided its analysis of this application below. In summary, the Department concludes that the SR 24 Bridge Project meets the required elements of the Public Agency Exception, as there are no practical alternatives to the proposed development, the proposal minimizes impact on critical areas, comprehensive mitigation activities are an element of the project and the proposed project will substantially improve public safety and alleviate certain environmental concerns. The following documents are included with this Staff Report (Chapter A) for consideration by the Hearing Examiner: 1. Maps of Relevant Locations [Chapter B] Joint Aquatic Resources Permit Application Form (JARPA) submitted by WSDOT June 1, 2004 [Chapter C] 2. SEPA Mitigated Declaration of Nonsignificance and Adoption of Existing Environmental Documents for SR 24 1-82 to Keys Road, submitted by co - lead agencies WSDOT and City of Yakima August 20, 2004 [Chapter D] 3. SR -24, 1-82 to Keys Road Environmental Assessment (November 2003) [Chapter E] 4. SR 24 Yakima River Bridge Monitoring Plan by WSDOT, October 2004 [Chapter F]. 5. November 17, 2004 letter from City of Yakima to Mr. Donald Whitehouse, P.E., WSDOT Regional Administrator, RE: SR24 Bridge Pier Removal (Chapter G]. Other documents are also available for review at the Hearing Examiner's discretion, including but not limited to: 1. WSDOT SR 24 Yakima River Bridge 24/5 Backwater Report prepared by WSDOT Headquarters Hydraulic Office June 22, 2004 2. SR 24 Project Floodplain Consistency Report, February 2003 1 Background Summary The Washington State Department of Transportation (WSDOT) has proposed to replace the SR 24 Bridge that crosses the Yakima River at SR 24 Milepost 0.57, as described in the three attached documents (SR 24 Environmental Assessment, SEPA Mitigated Declaration of Nonsignificance (MDNS) and JARPA Application). The development of the SR 24 Bridge Project, as currently proposed, has a long history. In 1994, emergency maintenance was performed to address severe "scour" problems at several of the SR 24 Bridge piers. A significant 1996 flood event exacerbated the scour problems. Concern over traffic congestion and bridge safety led WSDOT to begin the preliminary design of the bridge replacement and highway improvements in 1998. Early bridge designs were revised in response to federally -led efforts to widen the Yakima River floodplain. Federal legislation passed in 1994 directs the Bureau of Reclamation to take steps to improve the Yakima River watershed for fish and other aquatic species. One of the projects identified by the Bureau for addressing this need was widening the Yakima River floodplain in the area between Selah and Union Gap. It was recognized that widening the floodplain by moving levees confining the river channel would significantly improve fish habitat, and would also lower the risk of flooding in the area. A number of federal, state, and local agencies, including the City of Yakima and the Yakama Nation actively support the Floodplain Restoration Project. In 2001, the design of a new SR 24 bridge was reconsidered by WSDOT to potentially facilitate the Floodplain Restoration Project. Agencies involved in the planning process supported a significantly longer bridge span to facilitate moving the flood control levees both upstream and downstream of the bridge. In February of 2003, WSDOT completed a comprehensive report entitled SR 24 Project Floodplain Consistency Report. This report analyzes existing hydrologic conditions and the risk to the existing bridge and other flood hazard risks posed by the existing bridge/levee alignment. It evaluates several bridge design options for their consistency with the Floodplain Restoration Project. The Report recommends a "medium -long" span of approximately 1600 feet to best facilitate the Floodplain Restoration Project. A shorter span was rejected because it would preclude moving the levees. In November 2003, the SR -24, 1-82 to Keys Road Environmental Assessment confirmed that replacing the bridge was necessary to improve public safety, minimize adverse environmental impacts and address transportation needs. The Environmental Assessment studied and rejected a number of alternatives before settling on the current recommended design. The selected alternative includes construction of a new bridge approximately 75 feet downstream of the existing bridge. The new bridge will be 1565 feet long with four travel lanes, central median, new utility conduits, and a bicycle/pedestrian lane. The bridge deck and most other major supporting components of the old 600 -foot, two-lane SR 24 Bridge will be removed after construction of the new bridge. A Finding of No Significant Impact was issued by the federal lead agency for NEPA, the U.S. Department of Transportation, Federal Highway Administration. In 2003, the National Oceanic and Atmospheric Administration (NOAA) Fisheries agency issued a Biological Opinion analyzing the impacts on salmonid fish species currently listed as "threatened" under the Endangered Species Act. NOAA Fisheries approved 2 the SR 24 Bridge Project, while imposing "reasonable and prudent conditions" that require WSDOT to perform a number of activities to avoid and mitigate impacts to the threatened species and its habitat. The Biological Opinion and supporting ESA documentation are included in Appendices F and G of the Environmental Assessment. WSDOT and the City have mutually agreed to be co -lead agencies of the project for purposes of assessing compliance with the State Environmental Policy Act (SEPA). On August 20, 2004, the City and WSDOT issued a Mitigated Determination of Non - Significance (MDNS) for the Project. The MDNS constitutes a finding that the project will not adversely impact the environment provided certain mitigation measures contained in the MDNS are followed by WSDOT before, during and after construction. On June 1, 2004, WSDOT filed with the City its joint application for Shoreline, Critical Areas and Flood Damage Prevention Permits, called a "Joint Aquatic Resources Permit Application Form" or "JARPA Application." Public notice of this application was issued on October 21, 2004. The City is in the process of reviewing these applications and, with regard to the Critical Areas Development Permit, must find that the project is in compliance with the City's Critical Areas Ordinance. As described below, the SR 24 project will not comply with several buffer and setback requirements in the CAO. This noncompliance will preclude issuance of a critical areas development permit, unless a public agency exception, which is akin to a variance, is issued. The public agency exception would allow the City to issue a critical areas development permit for the project. Critical Areas, Setbacks and Buffers The SR 24 Bridge Replacement project will cross the Yakima River, which is both a "shoreline" subject to the Shoreline Management Act, Ch. 90.58 RCW and the City's Shoreline Master Program (SMP) and a "critical area" under the City's Critical Area Ordinance. The City's shoreline and critical areas jurisdiction over this project extends from the western bank to the midpoint of the river. Consequently, the SR 24 Bridge project will require permits under both the SMP and the CAO. The natural riverbanks average five to ten feet in height above the low flow water surface elevation and are moderately steep and unstable. During average and low flow periods, the river consists of two active channels separated by discontinuous large, semi- permanent, alluvial gravel bars. Alluvial sand, gravel, and cobble deposits mantle the riverbanks in the project area. Riparian vegetation along the river corridor averages approximately 120 feet in width along the western bank of the river at the project site, which is roughly divided into northern and southern sections by the existing SR 24 Bridge. Vegetation along the northern section of the site is generally dense and consists predominantly of cottonwood and willow canopy with a fair amount of underbrush. The riparian vegetation along the southern section, downstream of the existing bridge, has a less dense canopy and more underbrush than the northern section. The City of Yakima has adopted Critical Areas Ordinance (CAO) at YMC Ch. 15.27. The City's CAO requires a structural setback and vegetative buffer of undisturbed soil and native vegetation for wetlands, based on their official classification. The Yakima River at the location of the proposed project is considered a Class I Stream/River and, as such, qualifies as a wetland. 3 Generally, according to YMC § 15.27.510, a development buffer of 200 feet has been established, as measured from the ordinarily high water mark of the stream or, if not discernable in the field, from the top of the bank. In addition, a 20 -foot minimum setback from the edge of the buffer has been established for all structures. The new SR 24 Bridge would not comply with this buffer or setback requirement. The CAO, at YMC § 15.27.412.A, provides for an additional 50 -foot wetland buffer for Category II Wetlands of Low Intensity Use, and a 20 -foot setback for all structures measured from the upland edge of the wetland buffer. The SR 24 Bridge will also not comply with this buffer and setback requirements. If these buffer requirements are strictly applied, the SR 24 project cannot proceed. The bridge and its west bank approach will be located within required buffers and structural setbacks. Filling and grading will occur within these setback and buffer areas to support the west side of the bridge, wetlands on the west side of the river will suffer shading impacts, pilings will be placed within the river, and temporary impacts to setback areas will occur during construction. All environmental impacts will be mitigated either by avoidance and minimization, repair, and/or creation of new wetlands in the vicinity of the west side of the bridge. Impacts to wetlands and planned mitigation activities are detailed in WSDOT's JARPA Application at Appendix F, Conceptual Mitigation Plan. Nevertheless, in the absence of a procedural mechanism allowing noncompliance with the buffer and setback requirements, the SR 24 project cannot be permitted under the CAO. Public Agency Exception to CAO Standards According to YMC § 15.27.740, if the application of CAO development standards, including setbacks and buffer requirements, would prohibit a project proposed by a public agency or public utility, the agency or utility may apply to the Director for an exception to these standards. Public agency is defined at YMC § 15.27.4139 to include local governments, state and federal agencies and tribes. The application for this exception is to be heard by the Hearing Examiner, who shall review the application and supporting documents and make a recommendation to the City Council based on the following criteria: 1. There is no other practical alternative to the proposed development with Tess impact on the critical areas, and 2. The proposal minimizes the impact on critical areas. A mitigation plan may be required indicating how the proposal will minimize the impact on critical areas. In addition, as described in YMC § 15.27.740.D, the public agency exception "shall not allow the use of those category I and II wetlands or their buffers providing plant associations of infrequent occurrence or habitat for federal or state endangered or threatened species or species needing special protection or for utilities including regional retention/detention facilities except where there is a clear showing the facility will protect public health and safety or repair damaged critical areas." 4 A. Application of the YMC § 15.27, Part Four, and specifically the CAO's setback and buffer requirements, would prohibit development of the SR 24 Bridge Project. Design plans for the new SR 24 Bridge necessarily include activities that will take place within the 220 and 70 foot combined setback/buffer areas applicable to the SR 24 Bridge Project. YMC § 15.27.510.D provides that in certain circumstances, the Director of Community and Economic Development may reduce the buffer by up to 50%. However, 50% reduction in buffer and setback requirements is still insufficient to allow SR 24 Bridge construction to proceed. In sum, the strict application of the setback and buffer requirements will prohibit development of the SR 24 Bridge Project. B. There is no other practical alternative to the proposed SR 24 Bridge Project with less impact on the critical areas and proposal minimizes the impact on critical areas. Alternatives to the current design for the new SR 24 Bridge have been studied exhaustively over the last several years. Early designs of a new SR 24 Bridge were rejected as inconsistent with developing plans to relocate the Yakima River levees to benefit endangered fish species and reduce flood hazards. The 2003 SR 24 Project Floodplain Consistency Report and the 2003 Environmental Assessment also reviewed alternatives, including a "no action" alternative, to determine the environmentally appropriate approach to addressing the project's needs. Alternatives that may have had less impact on critical areas were rejected because they either failed to address public safety concerns (e.g., no action alternative), did not allow for levee relocation and therefore precluded the environmental and public safety benefits associated with levee relocation, and/or did not provide transportation benefits. As shown in the Environmental Assessment, final design of the project was developed using avoidance and minimization strategies, with the input of federal, state and local agencies and the public. This is consistent with the requirements of the National Environmental Policy Act, under which the Environmental Assessment was performed. To minimize impacts to critical areas, best management practices will be used during construction and utilities will be placed underground in a single corridor, as described in the Conceptual Mitigation Plan, Appendix F of the JARPA application. Mitigation measures will also include: (a) revegetation with native and shade tolerant species to eliminate potential net loss of function and value associated with wetland impacts; (b) substantial wetlands creation adjacent to impacted wetlands on the City's side of the river utilizing the Washington Department of Ecology's requirement for wetland replacement acreage at a 1:1 ratio; and (c) shoreline restoration efforts in consultation with the Washington Department of Fish and Wildlife. 5 The Environmental Assessment also includes discussion of mitigation for all elements of the project. In addition, the SEPA analysis of the SR 24 Bridge Project concluded that the project would not cause adverse environmental impacts provided certain mitigation measures are implemented by WSDOT before, during and after construction. WSDOT has committed to these measures, which include in part: 1. WDOT shall develop a monitoring plan by which WSDOT will monitor the impact of the new bridge, including, but not limited to removal of the old bridge and construction and operation of the new bridge, on the downstream, west bank flood control levee from the new bridge to a point adjacent to the City of Yakima Wastewater Treatment Plant (WWTP), and on the WWTP outfall. WSDOT shall submit the monitoring plan to the City for review and approval and shall implement the approved monitoring plan and provide monitoring results to the City on a periodic basis. Prior to construction, WSDOT will conduct monitoring to establish existing conditions. Monitoring will be conducted for 10 years after bridge construction is complete. 2. If monitoring identifies adverse impacts to the flood control levee or WWTP outfall that is caused exclusively by the bridge, including but not limited to removal of the existing bridge and construction and operation of the new bridge, WSDOT shall be responsible for all necessary mitigation. 3. If monitoring identifies adverse impacts to the flood control levee or WWTP outfall caused by the bridge and other related and foreseeable actions, WSDOT shall enter into an inter -agency agreement by which it will pay its "fair share" of mitigation costs based on proportionate impacts The mitigation package and other conditions required by the City in its role as permitting agency will be finalized when and if the permits sought under the JARPA application are issued. C. The Project includes a comprehensive mitigation plan to address impacts to Critical Areas. Although a mitigation plan need not be provided in all cases where the Public Agency exception is authorized, the SR 24 project does include a comprehensive mitigation strategy, as discussed above. As noted, the primary requirements of the mitigation plan are impact avoidance/minimization practices, revegetation of impacted wetlands, creation of new wetlands and shoreline habitat restoration efforts. The City will finalize mitigation requirements and other conditions when and if it issues shoreline permits and a critical areas development permit under § 15.27.700 of the CAO. D. The Project avoids and mitigates for potential impacts to ESA threatened species and there is a clear showing that the facility will protect public health and safety. There are a number of species of salmonids and other species listed as threatened under the Endangered Species Act (ESA) for the project area. As summarized in the Environmental Assessment, page 54, the project design has been the subject of 6 extensive review by resource agencies to ensure ESA values, including impact avoidance and mitigation mechanisms, have been incorporated. NOAA Fisheries, the federal agency charged with implementing the ESA for the threatened salmonids at issue, has issued a Biological Opinion approving the project with conditions and the U.S. Fish and Wildlife Service has formally concurred. The Biological Opinion and supporting ESA documentation are included in Appendices F and G of the Environmental Assessment. The conditions required by NOAA Fisheries in the Biological Opinion have been incorporated into the SR 24 Project Plan and project design. Accordingly, substantial mitigation for temporary impacts caused during construction and for permanent impacts to habitat will be provided, as summarized in the Environmental Assessment, page 61- 62. Also, as described in preceding sections above, habitat restoration, revegetation and creation of new habitat will act to minimize and eliminate impacts to threatened species and to critical area habitat generally. In addition, the 2003 Environmental Assessment determined that a replacement bridge is necessary to protect the public health and safety. The Assessment concluded, for instance, that due to the "inherent design deficiencies aggravated by shallow bridge footings ... the existing bridge footings have the potential to wash out in a major flood event." Also, the frequency of traffic accidents indicates that the configuration and restricted capacity of the existing bridge and related exchanges are dangerous relative to other highway segments. Further, replacement of the bridge as currently proposed, would allow for relocation of the levees which, in turn, would have the affect of reducing the likelihood of flooding and improving habitat for threatened species. Conclusion For the reasons listed above, the Department has concluded that the SR 24 Bridge Project meets the criteria of the Public Agency Exception. 7 CITY OF YAKIMA, WASHINGTON Information Services - GIS FILE NO: SHORELINE PERMIT #1-04 APPLICANT: WSDOT, SOUTH CENTRAL REGION REQUEST: HIGHWAY SR24 BRIDGE AT YAKIMA RIVER RECONSTRUCTION PROJECT LOCATION: SR24 AT THE YAKIMA RIVER Scale —lin = 400ft 0 200 400 NSubject Property Yakima City Limits SRLN-1-04 06/18/04 0-1 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT ITEM NO. FOR MEETING OF January 4, 2005 ITEM TITLE: Closed record public hearing to consider whether to approve by resolution a request from the Washington State Department of Transportation for a public agency and utility exception to certain setback and buffer requirements under the Yakima Critical Areas Ordinance (YMC Chapter 15.27) with regard to the SR 24 Bridge project. SUBMITTED BY '"tWilliam R. Cook, Director of Community Economic Development CONTACT PERSON / TELEPHONE: Jeff Peters, Assistant Planner, 575-6163 SUMMARY EXPLANATION: The Washington State Department of Transportation ("WSDOT") applied to the City of Yakima for a critical areas development permit under the Yakima Critical Areas Ordinance (YMC Chapter 15.27) regarding the proposed project to replace the SR 24 Bridge over the Yakima River. As part of that permit process, WSDOT requested that the City grant a public agency exception to certain critical area setback and buffer requirements. On December 22, 2004, and in accordance with YMC 5.27.540, the City hearing examiner held an open public hearing regarding this request. Subsequently, the hearing examiner issued a formal Hearing Examiner's Recommendation on December 30, 2004, in which the hearing examiner found that the criteria of YMC 15.27.540 for approving a public agency exception for the SR 24 Bridge Project were satisfied and recommended that the public agency exception request be approved by the City Council. A copy of said Hearing Examiner Recommendation and a resolution approving WSDOT's request for a public agency exception for the SR 24 Bridge Project are attached for City Council consideration. Resolution X Ordinance_ Contract _ Other (Specify) Hearing Examiner's Recommendation Funding Source N/A 417 City Maner APPROVAL FOR SUBMITTAL: STAFF RECOMMENDATION: Accept the hearing examiner's recommendation and pass the resolution approving a public agency and utility exception for the SR 24 Project. BOARD RECOMMENDATION: The City of Yakima hearing examiner's recommendation was to approve the public agency and utility exception for the SR 24 Project. COUNCIL ACTION: