Tri-County Proposal in response to the 4(d) Rule

The Tri-County Proposal is a joint effort between King, Pierce, and Snohomish counties to address how counties and local jurisdictions will comply with the recently effective Endangered Species Act (January 8, 2001) 4(d) rules enacted by the National Marine Fisheries Service (NMFS) as part of compliance with the recovery of threatened chinook salmon in the Pacific Northwest.

Specifically in regards to development activities adjacent to water bodies that support or drain to salmon bearing waters, entitled the Management Zone, the Tri-County proposal has set forth specific zoning widths to be used until local jurisdictions have developed scientifically, watershed based management zones accepted by the reviewing agencies (National Marine Fisheries Service and US Fish and Wildlife Service).  This program relies on current Washington Department of Natural Resources (DNR) water types, combining DNR Types 1, 2, and 3 into a single Type F.  Essentially, two options exist which local jurisdictions may adopt, Management Zone or Fixed Development Regulations.  A summary of the Management Zone widths for both urban and rural areas can be found in Table 1 below.  Additionally, in reference to stormwater treatment the Tri-County proposal plans to adopt the most current Department of Ecology (DOE 2000) Stormwater Management Manual with additional requirements.

TABLE 1.  Summary of Management Zone Widths

Additionally, another management zone, the channel migration zone (CMZ), if present,  will be included.  The CMZ is the lateral extent of stream movement influenced by such factors as stream bank stability, erosion, and gradient.  Studies are proposed to identify CMZ for all stream reaches where stream power, soil conditions, and valley floor widths which support significant stream channel migration.  CMZ will not include those areas behind lawfully established flood control facilities that are designed to withstand erosional forces of the 100-year flood event without significant damage or that protect arterial roads, sole access routes, or transportation corridors.  Once determined, the CMZ shall be the greater of the 100-year floodplain, or the area determined by the greatest points of amplitude measured from the top of bank.  Deviation from these established buffers may occur through mitigation and is required for project caused loss of salmonid habitat, habitat values and functions.  Mitigation shall equally replace lost habitat, functions, and values;  preferably occur on-site; and occur at the same time as the loss.

Fixed Development Regulations

Local governments may chose Fixed Development Regulations which incorporate mitigation into the specific requirements.  Activities not permitted through these established regulations may be permitted through site specific habitat evaluation, an applicable programmatic habitat evaluation, or through section 7, 10 of ESA provisions.  Table 2 summarizes inner (IMZ) and outer management zone (OMZ) widths:

Table 2:  Inner and Outer Management Zone Widths

* There shall be a 15-foot building setback from the IMZ.

Jurisdictions which adopt the Fixed Regulations option may vary the width of the IMZ with buffer averaging.  Some activities also will be exempt from the buffer requirements with specific conditions.  Exempt activities may include:  maintaining flood protection facilities, bank stabilization, instream structures, maintenance of existing docks/piers, installation/repair of utility crossings, road maintenance, stormwater facilities in the OMZ, septic systems in the OMZ, impervious surfaces, clearing and grading in the MZ, application of pesticides, herbicides, and fertilizers.  Additionally, for areas deemed as a CMZ development activities may occur if there is no effect to the CMZ.  With no other options, new development in the CMZ must occur as far as possible from the OHWM, no streambank stabilization may occur except for vegetation planting, no more than 35% of the site area within the CMZ may be cleared. 

Local governments providing the fixed-regulations option may allow an applicant to address impacts through a site-specific habitat evaluation.  This habitat evaluation analyzes development impacts to the site such as long- and short-term potential direct and indirect, and cumulative impacts on salmonid habitat and present conservation and/or mitigation measures to reduce those impacts.  In some cases, a programmatic habitat evaluation overseen and approved by NMFS and the USFWS may be utilized.  Monitoring programs may be set up to ensure proper implementation, compliance, and effectiveness of mitigation.

If you have questions regarding the ESA 4(d) Rule and your project please call or email Chris Wright at Raedeke Associates, Inc. (206) 525-8122.