Salmon listing means big changes in development

By ED VAN DER BOGERT
Edmonds Community College

The listing of Puget Sound Chinook as threatened under the Endangered Species Act has area developers, constructors, and municipalities wondering how we will continue to meet the community's need for affordable housing and vital infrastructure. Concerns about the quantity and quality of construction site run-off are an issue in negotiations with the National Marine Fisheries Service this summer.

The outcome of the negotiations will almost certainly change how we approach development and construction activities for the foreseeable future.

ESA prohibits the "taking" of a threatened species. It also prohibits modification or destruction of habitat. Virtually all of Western Washington contains essential salmon habitat. The vast majority of regional construction projects have the potential of discharging storm water into that habitat. Unless measures are taken to control the quality and quantity of the discharge, the probability of habitat destruction is so high that permitting agencies must assume it will occur. Unfortunately, in many cases, the assumption is valid.

Erosion and poor water quality are a given on Pacific Northwest construction sites during the rainy season. Research has shown that construction water discharge carries levels of particulates up to 60 times that of industrial/commercial land uses. Unless contained and treated, turbid (muddy) water will, in most cases, find its way into a local stream.

In many cases this happens indirectly through a storm system that eventually dumps into a stream or river. There, construction water combines with water already turbid from erosion within the stream channel. The result is levels of turbidity that can climb well beyond the ability of fish to see feed. During periods of continual rain, young sight feeders may not survive. In addition, high levels of turbidity have been shown to interfere with gill function, killing more young fish.

Run-off rates increase tremendously when land is cleared for construction. The increased velocity and quantity of water entering streams promotes erosion of the stream bank and down-cutting of the channel. As the channel cuts deeper, floodplain is lost. When storm flows are confined to the channel, the energy of the confined water can actually move the stream bed, washing out some egg nests while leaving others high and dry. Gravel, sand and silts are transported and deposited in downstream areas, covering more nests and plugging the channel. Dredging to control downstream flooding destroys more habitat. Once the cycle of destruction is started, it's very difficult to correct. A stream that looks harmless during dry periods has the potential of wiping out thousands of eggs when the next onslaught of storm water surges between its banks.

We contractors are an independent and somewhat isolated breed. For the most part, we tend to stay to ourselves, immersed in the day to day challenges of our own projects. If a project dumps turbid, high velocity water into a stream now and then, we rationalize that it won't be for long. Its not that much stuff. We really don't have an interest in looking at our competitors projects and evaluating how our little problem fits into a bigger picture. Even if a job site is small and quantities seem minimal, it's likely that there are scores of other sites contributing to increased flows and turbidity in the same watershed.

Construction, when viewed as a regional activity, never stops. Thousands of job sites are in continual operation year round.

The challenge to our industry is: Can we develop and utilize techniques that significantly reduce or eliminate our contribution to habitat modification? If we can't respond to the challenge, we can expect to face increased exposure to job shut downs, civil penalties, and potential litigation. Knowing violations of the take prohibitions of ESA may result in a $25,000 fine for each violation. Certain knowing violations may result in criminal fines of up to $50,000 and up to one year in prison. Our municipal and jurisdictional partners have no choice but to vigorously enforce water quality standards. If they don't, they too may be found to be in violation of the Act.

Permit reviews will include a fish screen'

ESA listings will impact owners and builders in at least two major areas: Increased review time prior to permitting and additional safeguards required at the job site both during and after construction.

Most jurisdictions are saying that all projects, large and small, will have to go through a "fish screen" to assess the potential for habitat modification and to evaluate proposed methods for complying with storm water discharge standards. Even remodels aren't likely to escape scrutiny.

It is early in the process and we just don't know how each jurisdiction's "fish screen" will work. In general, we expect that permit applications will include a plan for controlling the quality and quantity of water leaving the site. The pre-construction conference with a clear-and-grade inspector will be followed by regular compliance inspections. No matter how good the plan, it will have to be effective in practice.

We expect that enforcement will swing away from accepting implementation of Best Management Practices as a measurement of compliance and towards performance-based specifications. The quantity and quality of water leaving the site will be measured. If it exceeds jurisdictional standards some form of disciplinary action will ensue.

Bellevue planning 'three strikes'

In most cases, disciplinary action will be a progressive schedule starting with a warning and ending with a total shut down if corrective action fails to control the problem. The city of Bellevue's "three strikes" program may be a model that other jurisdictions will follow. In Bellevue, the third warning results in a red tag shutting the job down until discharge complies with standards. If compliance can't be achieved, the job may be shut down until the end of April when dry weather allows it to proceed.

City officials say they may go to a "one strike" program rather than risk ESA violations of their own. Many jurisdictions will probably include bonding and monetary penalties as a part of the enforcement effort.

The best way to avoid trouble is to plan carefully and implement vigorously. Depending on the location and scope of the job, storm water control may be a significant line item in the construction cost sheet. The cost of bonding, increased carry cost associated with delays in permitting and the direct cost of control measures should be factored into the bottom line even on small jobs.

Property values themselves will be affected by the relative difficulty of compliance. Estimators and project planners are advised to consult with jurisdictions and engineers to assess what materials and methods will be acceptable.

Currently, our biggest problem is that there is a tremendous amount of confusion within the regulatory process itself. This creates confusion about what technologies will be used to meet regulatory demands.

Will the subcontractor community step up and offer storm water treatment services? Until regulatory bodies manage to come up with clear standards and guidelines, contractors will be reluctant to invest in the expensive equipment needed to handle treatment of large quantities of construction discharge.

Once the rules of the road are clearly defined we expect the industry will, once again, overcome tremendous regulatory obstacles, develop new technologies, make necessary capital investments and continue to meet the region's construction needs.

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