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.