INITIATIVE 80 -- SAVE SEATTLE CREEKS BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS: Section One: Title and Subject. A. This measure shall be titled the "Save Seattle Creeks Initiative." B. For Constitutional purposes, the subject of this Initiative is "urban creeks." Section Two: Findings. Citizens of Seattle hereby find that: A. This Initiative will protect our urban environment and help recover threatened salmon within our City. B In every corner of Seattle, creek systems connect our neighborhoods with the natural environment. Creek systems should be a top priority for our environmental stewardship because they provide salmon and wildlife habitat and open space. C. The degradation of creeks in our City has reduced their flood-carrying capacity, resulting in severe damage to downstream properties and to critical fish and wildlife habitat, threatening the extinction of salmon within Seattle creeks. D. This flooding impact is especially severe when creek segments are directed into underground pipes rather than through natural, open channels. In most circumstances, the pipes also create fish-passage barriers, which are illegal and must be removed under State law. E. Removing a creek from an underground pipe and redirecting it into a natural, open channel abates the ongoing harm by restoring the creek's flood-carrying capacity, water quality benefits, and fish and wildlife habitat. A creek's historic channel contains soils uniquely suited for flood-control, and a creek should be redirected into its historic channel if available. F. This Initiative requires private property owners to restore creeks only when carrying out major creekside development. This is required to abate ongoing impacts and to mitigate the direct, indirect, and cumulative impacts of major creekside development, which include increased impervious surfaces, pollution, lighting, noise, trampling, pollution and shading. G. This Initiative will reduce ongoing flooding and property damage caused by creek degradation. It will also restore fish and wildlife habitat and remove fish-passage barriers. Thus, this Initiative is necessary to protect the public health, safety and welfare and is authorized under Article 11, Section 11 of the Washington Constitution, as well as through specific authority under RCW 35.21.090 and elsewhere in State Law. Section Three: The City shall adopt a Long-Term Creek Restoration Plan. A. Within six months after passage of this Initiative, the City shall prepare a draft Long-Term Creek Restoration Plan, including the contents set forth in Section 8(I) of this Initiative. The City shall involve the public and interested organizations in creating the draft plan and shall consider public comments and any existing watershed plans. The City shall hold public meetings and solicit comments from the public and interested organizations on the draft plan and shall adopt a final plan within twelve months after passage of this Initiative. B. The goal of the Long-Term Creek Restoration Plan shall be to adopt objectives and timelines for restoring Seattle creeks and carrying out the policies and directives of this Initiative. C. The City shall restore Seattle's Creeks in accordance with the Long-Term Creek Restoration Plan. Section Four: Developers shall be required to assist in creek restoration when building a major creekside development. A. Applicants proposing a major creekside development shall hereafter be required to restore the creek running on or adjacent to the development site, satisfying the requirements of Section Six of this Initiative. This requirement shall be stated as a condition on any development approval issued to the project. The City shall decide whether such restoration will be carried out by the applicant under the City's supervision or through a City effort funded by the applicant, and shall support the project consistent with subsection C of this section. B. Each applicant for a major development on creekside property shall submit a creek restoration plan as part of its application for development approval. That plan must include a City approved engineering plan for conducting the restoration required by this chapter concurrent with the development, and the bases for any exemptions requested under Section 6(B). Any public notice issued regarding the major development shall elicit comments on the restoration plan and its consistency with this Initiative. C. Seattle Public Utilities shall coordinate the restoration efforts required by this section and the City shall contribute to such projects to the extent necessary to avoid a constitutional taking of private property and as deemed appropriate to create incentives for restoration. At a minimum, the City shall ensure that development potential on the site is not lost due to the restoration project and shall grant open space credit. The City may also purchase the creek corridor and/or provide loan financing, grants, or other valuable benefit such as density bonuses to support the restoration project to the extent deemed appropriate and allowed by law. The City and the developer should agree upon ownership and maintenance responsibilities for the restored creek, and wherever possible the restored creek should be transferred to public ownership. Section Five: The City shall ensure that creeks are restored concurrently with major creekside development. A. In the event that the City should fail to enforce section Four of this Initiative, for whatever reason, the City shall carry out creek restoration as defined in Section Six concurrently with any major creekside development. In accomplishing this, the City shall utilize all of its authority, including that under RCW 35.21.090 and SMC 21.16.180. The City shall in such event prepare and solicit comments on the creek restoration plan as set forth in Section 4(B). B. A creek that is directed through a pipe or that contains a fish passage barrier satisfies the definition of a natural watercourse that is "obstructed, broken, inoperative, inadequate" and "liable to cause damage to public or private property" pursuant to SMC 21.16.180. To the extent allowed by that law, the City shall require a property owner to daylight such creek and/or remove such barrier(s) during a major creekside development, or after giving required notice shall carry out the same and bill the costs to the property owner. Section Six: Restoration during major creekside development. A. For the purposes of Section Four and Five of this Initiative, restoration required during major creekside development shall include: 1. Planting native vegetation and removing invasive species; 2. Within the creek buffers, establishing wetland area, floodable wetland benches, or other means to slow the rate of water, unless topography or other existing structures make such restoration impractical. 3. Removal of fish passage barriers, if such barriers exist on or adjacent to the development site; and 4. Daylighting the creek on the development site, if the creek presently flows through a pipe or culvert section 50 feet or longer, exclusive of right-of-way crossings, that is either (a) on the development site; or (b) under a street or right of way adjacent to the site, if the creek's channel was on the development site at any time prior to being moved to its present location. The creek shall be daylighted for the entire length in which it runs on or adjacent to the development site, except that daylighting is not required where it is necessary that the creek cross a right of way or an existing structure that is to remain as part of the development. B. The City or a private party may obtain an exemption from the requirements of subsection A(3) or A(4) of this section by proving either (1) that the creek segment in question, if restored as required under this section, would have insufficient surface area and/or flow to provide rearing or refugia habitat for juvenile salmonids, assuming removal of downstream manmade fish passage barriers; or (2) that so much of the creek downstream is in pipes that the segment in question will as a practical matter never become accessible to salmonids. C. Any party wishing to apply for an exemption must submit with the creek restoration plan a written opinion from the Washington Department of Fish and Wildlife certifying that this exemption standard is met, based upon best available science, and pay the costs for such opinion. In the event such Department is unavailable to conduct such analysis, the City may designate another non-City agency with sufficient expertise. Public comment shall be solicited on the exemption request. The granting of such exemption shall be initially appealable to the City Hearing Examiner, and thereafter to Superior Court. In such appeal, the parties supporting the exemption shall bear the burden of proving that the standards for granting an exemption are met based upon clear and convincing evidence. Section Seven: Adoption of creek restoration policies. Hereafter, the following shall be policies of the City: A. Creeks and their buffers shall be restored as a means to reduce flood damage to downstream property and to fish and wildlife habitat and to promote salmon recovery. B. In the few instances where creeks are being directed through underground pipes, the creek shall be redirected into a natural, open channel, except where it crosses a public right-of-way. C. The opportunity to restore and daylight a creek on private property comes very infrequently, usually only during a major creekside development. Seattle shall hereafter take advantage of these rare opportunities by ensuring that creeks are restored and daylighted during major creekside development. D. The City shall protect the opportunity to restore Seattle creeks by prohibiting any future development over creeks or their buffers. E. Where a creek was previously removed from its historic corridor and diverted into a pipe at a location where it cannot be restored (e.g., a location now covered by a building or road) or into a stormwater or sewage system, the City shall protect the opportunity to restore the creek by prohibiting any future development over the creek's historic corridor or, if requested by the parcel owner, an alternative corridor on that same parcel. F. The City should increase floodable wetland benches (floodways) in Seattle Creeks to reduce downstream flooding impacts and enhance habitat. G. The City shall remove fish passage barriers from Seattle Creeks. H. The City shall provide for the education of property owners on maintaining creek and riparian function. Section Eight: Development shall not be allowed to preclude future creek restoration. Under this Initiative, creek restoration is a long-term strategy, except where required to be concurrent with major development. To preserve the potential to restore all Seattle creeks in the future, the City shall grant no development approval that is inconsistent with the Policy stated in Section 7(D) or (E) of this Initiative. Section Nine: Public costs for this Initiative are capped at five dollars per household per year. A. The intent of this Initiative is to accelerate the restoration of creeks within our City. This accelerated restoration effort shall supplement existing creek restoration programs of the City, which shall be maintained at least at their current levels. B. The City shall create a Creek Restoration Account to fund the costs of this Initiative. Within six months after the effective date of this Initiative, the City shall complete a study of new revenue sources available to fund the Creek Restoration Account. Within three months after the study's completion, the City shall adopt the funding mechanisms it finds most appropriate. C. The additional cost to be incurred by the public shall not be greater than five dollars ($5.00) per household per year. Property owners, businesses and institutions shall also be required to assist in funding the Creek Restoration Account, and such contribution shall also be reasonably limited. This new revenue source and the funds in the Account may be used to finance bonds for creek restoration project to the extent deemed appropriate and allowed by law. Section Ten: Definitions. For the purpose of this chapter, the following definitions will apply: A. "Adjacent" means a creek or its buffers are beneath a right of way abutting the parcel. B. "Buffer" for a creek means the buffer required under local or state law. For a creek that is underground or being daylighted, buffers shall be a minimum of 50 feet wide on each side of the creek, except that buffer averaging is allowed. C. A "creek" for the purposes of this Initiative means any stream or watercourse that flows year-round and/or potentially supports or historically supported salmonids, including but not limited to: Longfellow, Pipers, Taylor, Ravenna, Madrona Park, Frink Park, Mt. Baker Park, Mapes, Hamm, Puget Ridge, Victory, Littles, Seola Beach, Fauntleroy, Schmitz Park, Discovery Park, Kiwanis Ravine (Wolfe), Mahteen, Washington Park, Venema, Willow, Mohlendorph, DeadHorse/Mill, Maple Leaf and Little Brook Creeks, and Thornton Creek's main stem, north branch, and south branch at least through the North Seattle Community College site, and all other tributaries of such creeks. This definition applies equally to portions of a creek that have been placed in a pipe or culvert, or that have been relocated, straightened, channelized, or otherwise altered, and applies regardless of whether the watercourse is regulated by the City's Critical Areas Ordinance or Shorelines Master Program. D. "Daylighting" refers to restoring a creek segment that was previously directed into a pipe or drainage or sewer system by redirecting it into a natural, open channel. E. "Development" means development or redevelopment. F. "Development Approval" means any permit, Master Use Permit, or other approval required as a condition of changing the use of the property or constructing any structure on the property. G. A "fish passage barrier" is (a) any culvert failing to meet the standards under WAC 220-110-070(3) or (b) any other impediment to fish passage. This determination shall assume the removal of downstream manmade fish passage barriers. H. "Floodable wetland bench" or "floodway" is a strip of wetland bordering a creek channel which is designed to inundate during high stream flows to provide shelter to fish and decrease downstream flooding. I. "Long-Term Creek Restoration Plan" means a plan that, at a minimum, has the following components: 1. The City's objectives for creek restoration, including at a minimum the policies set forth in Section Seven of this Initiative. 2. A plan, timeline, and identification of funding source for accelerating the City's creek restoration programs and implementing the policies set forth in Section Seven of this Initiative. 3. A plan and 18-month timeline during which the City shall evaluate strategies and adopt regulations to further reduce stormwater pollution and impacts to creek ecosystems. Strategies to be evaluated shall include requirements of low-impact development, pervious pavement, increased buffer widths, wetland restoration, increased use of infiltration, and restrictions on pesticide and fertilizer on parcels draining to creeks. 4. A plan and 18-month timeline during which the City shall update Seattle's existing creek protection regulations, including its critical areas regulations and shoreline master program. 5. A plan and 18-month timeline during which the City shall phase out the use of pesticides and herbicides and fungicides on City-owned land within 200 feet of creeks. 6. A plan and 20-year timeline for daylighting Seattle creeks on parks and other public property. 7. A plan, regulatory framework and long-term timeline for daylighting Seattle creeks on private property. 8. 8. A plan and timeline for conducting education and outreach to creekside property owners concerning creek and riparian function and best management practices. 9. A plan and timeline for specific and proactive joint planning and information exchange with other political jurisdictions sharing responsibilities for creeks that flow entirely or partly within Seattle. Where an existing City Program or document satisfies one or more of these requirements, such program or document may be incorporated into the Plan by reference. J. "Major Creekside Development" means a project that satisfies each of the following criteria: A. A commercial, multi-family residential, mixed-use, or light or heavy industrial development, subdivision or short plat that exceeds the SEPA exemption thresholds set forth in SMC 25.05.800A and B (minor new construction) and 25.05.800C (repair, remodeling and maintenance); B. Proposed on parcel(s) having a combined area of over one-half acre; and C. At least one such parcel or right of way contains a creek or its buffer or is adjacent to a creek or its buffer. Section Eleven: Construction. This initiative is to be liberally construed to advance its purpose of restoring Seattle's creeks and ensuring that creeks are restored and daylighted concurrently with major creekside development and ultimately for their entire lengths. This Initiative shall be codified as a new chapter in the Seattle Municipal Code and shall not be interpreted to amend or in any way limit any existing laws protecting Seattle's environment, including but not limited to the City's Critical Areas Ordinance or Shorelines Master Program. Section Twelve: State Environmental Policies Act. Within six months after passage of this Initiative, the City shall prepare a supplemental environmental impact statement for the Seattle Comprehensive Plan which specifically addresses the impact of ongoing development and City of Seattle activities on Seattle creeks. It shall evaluate the impact of increased impervious surfaces, lighting, noise, trampling, pollutants, stormwater runoff, and shading, and shall serve as a basis for requiring mitigation of creek impacts. Section Thirteen: Declaration of emergency and vesting. A. The Citizens of Seattle declare that this Initiative responds to an emergency posed by ongoing flooding, property damage and environmental impacts of degraded and piped creeks. This emergency requires abatement of these ongoing impacts. Thus, the restoration requirements imposed by this Initiative cannot be defeated by vested rights. B. Notwithstanding any court construction of Subsection A of this section, the following vesting rule is enacted by this Initiative. Applications for a major creekside development, as defined in this Initiative, shall vest upon submission of a fully complete building application, which shall be construed strictly, and shall at a minimum satisfy the requirements of RCW 19.27.095 and Section 106 of the Seattle Building Code and shall also include a creek restoration plan as required by this Initiative, a stormwater management plan, and a plan for complying with the federal Clean Water Act, the federal Endangered Species Act, and all other applicable environmental laws. This subsection applies notwithstanding the previous issuance of a Master Use Permit, General Development Plan, or site plan approval. Any provisions of the Seattle Municipal Code that are inconsistent with this section are deemed repealed or modified so as to be in accordance with this section. Section Fourteen: Severability. The provisions of this ordinance are declared to be separate and severable. The Citizens of Seattle declare that they support each of the provisions of this Initiative independently, and their support for this Initiative would not be diminished if one or more of its provisions were to be held invalid. Thus, if any one or more of the provisions of this Initiative is declared to be contrary to law, then such provision or provisions shall be null and void and severed from the rest of this ordinance, and all other provisions of this Initiative shall remain valid and enforceable. Section Fifteen. Compliance. The mandates of this Initiative create non-discretionary duties for the City and its agencies, and any Seattle resident or organization shall have standing to seek enforcement of this Initiative by mandamus or other action. If the City of Seattle is found to be in violation of the mandates of this Initiative or to have issued any development approval or exemption that is inconsistent with the Initiative, the party bringing the action to enforce the Initiative shall be entitled to recover only the reasonable costs and attorneys' fees incurred in maintaining such action.