MHA EIS Hearing Examiner Appeal Testimony June 28, 2018
Question – Who are you?
My name is Steve Zemke. I am a member of the Seattle Urban Forestry Commission serving in the wildlife biologist position. I am not speaking representing them today but as the chair of TreePAC, an urban forest conservation advocacy organization. I am the Chair of other organizations including the Coalition for a Stronger Tree Ordinance and Friends of the Seattle Urban Forest.
Question – What are your qualifications?
I have a BA in Biology from Case Western Reserve University and a MA in Biology from Wesleyan University in Connecticut. I spend an additional several years at the University of Washington’s College of Fisheries doing graduate work.
I have been involved in efforts over the last 10 years in Seattle pushing for updating Seattle’s Tree Protection Ordinance. I put forward the original idea of Seattle having an Urban Forestry Commission that Councilmember Nick Licata introduced, and the Seattle City Council passed in 2009. [SMC Chapter 7.32, Ordinance 123052]
I have attended almost all of the bimonthly Urban Forestry Commission meetings since it was formed in 2009 and am currently serving a second 3-year term as a commissioner. I have also attended the yearly Urban Forestry Symposiums held at the University of Washington since they started.
Question – What is your experience dealing with impacts on Seattle’s urban forest?
I have been involved in or aware of numerous examples where development proposals, including by public agencies, have resulted in significant loss of trees, including groves. Some examples include:
Question – Are you familiar with the MHA EIS?
Yes I responded to the draft EIS with comments regarding the adequacy of the EIS in addressing it’s impact on Seattle’s urban forest as discussed in Section 3.6 Biological Resources.
Question – Do you have some exhibits that will help inform your testimony today?
Yes, here is the list of exhibits I rely on and will refer to:
__ Chapter 25.11– City Exhibit 098
__ Tree Protection Regulations – Tip 242 – City Exhibit 060
__ Director’s Rule 16-2008 – Designation of Exceptional Trees – City Exhibit 061
__ 2016 Seattle Tree Canopy Assessment – City Exhibit 053
__ Mayor Burgess Executive Order 2017-11 – Scale Exhibit 048
__ Tree Regulations UFC Presentation Nov 1, 2017– SCALE Exhibit 054
__ Tree Regulations Research Project Final Report March 31, 2017 – Exhibit 57
__ Draft Updates to Seattle’s Tree Regulations – City 064
__ Urban Forestry Commission on MHA draft EIS 08 2017 pdf – SCALE exhibit 50
__ Tree Canopy Assessment Sustainability & Environment Subcabinet April 9 2009– FNC Exhibit 32, COS0032951
__ Clarification of Canopy Cover Assessment Statistics March 23, 2011 – FNC Exhibit 25, COS0032199
__ MHA EIS conclusions about impacts of the four alternatives on Seattle Tree Canopy, summary of sections from FEIS Section 3.6
Question – Is Seattle proposing adequate mitigation in the EIS for trees removed?
In the MHA EIS, statements such as in 3.6.3 Mitigation Measures do not match what is really happening to trees in Seattle during development:
“This section has identified comparative differences in the potential for adverse impacts related to disturbances of ECA’s [environmentally critical areas] and canopy by potential future development. However, none of these identified impacts are considered to be significant adverse impacts.”
I do not agree.
At the same time the city states in the EIS that “The city does not have a threshold for determining significance of tree loss.” p 3.338. That is a major problem.
The following sentence in the MHA EIS says —
“Assuming that all tree protection regulations are implemented with future development under the new zoning, the change in tree canopy cover under the preferred alternative is not considered a significant impact.”
This statement is highly speculative and does not match what is happening on the ground in our city. There is no guarantee that major changes will actually be passed by the Seattle City Council.
Nine years ago, the City Council in Resolution 31138 urged the Department of Planning and Development to submit legislation to increase protection for trees and tree canopy. Nine years later there is still no update enacted to do such.
Question – What is the City doing to update the Tree Protection Ordinance and regulations suggested in the MHA EIS?
While the City Council is proposing an update now, there is no draft available for the public to review or for this Hearing Examiner process concerning the adequacy of the MHA EIS to see. There is only a Council memorandum with generalities—no specific ordinance. It is just an outline of concepts. Furthermore, the content that is in the outline does not propose changes that would result in significant improvement to the existing ordinance’s impacts. And it does not reference SMC 29.11.090.
For Single Family and Residential Small lots during development it proposes increasing a tree point system of 1 for 1000 square feet to 750 square feet and having an in lieu fee. For LR, MR, C and industrial it says, “no changes proposed” and some tweaking of green factor. Green factor is about maintaining or replacing some minimal green on a lot after trees has been removed during development but does not at all account for replacement of trees removed in any equivalence during development as required by the current ordinance in SMC 29.11.090.
The problem is that DCI and all its former named incarnations of City permitting agencies since 2001 when the original Tree Protection Ordinance SMC 25.11 was passed, have not been complying with all of the mandated directives of that ordinance. The ongoing lack of compliance and ordinance enforcement is not acknowledged in the MHA EIS.
In addition, I can find nothing in the FEIS that addresses how well or poorly other City programs have impacted or would impact the City’s tree protection and tree canopy goals. The two most important of these City actions are the Design Review program and the proposed ADU (accessory dwelling unit) ordinance with a DEIS comment period that ended Monday of this week.
The current draft updates proposed as outlined in the Council memo continue this subterfuge of disregarding the language in SMC 25.11.090 and saying the city will soon have an ordinance that works to mitigate for any adverse impacts of land use decisions on trees or tree canopy.
Question – Are there places that the provisions of 25.11.090 are mentioned?
It is mentioned in The Tree Regulations Research Project final report (Exhibit 57 – on page 3), “Exceptional Trees and those larger than 24 inches need to be replaced unless they are hazardous” It is also in the Tree Regulations Research Project March 27, 2017 slide presentation – (Scale Exhibit 58 – slide 4). And its in Tree Regulations UFC Presentation Nov 1, 2017 – (SCALE Exhibit 054 p 3) )
The Tree Regulations Research Report was not available to the public even though it was included in the draft EIS MHA references. There was no link to the document in the references in the draft EIS nor was it available in a Google search. It took a public records request to make this document available to read. Even the Seattle Urban Forestry Commission could not get it and was first briefed on it in Nov. 2017, long after the comment period for the draft EIS ended.
I requested in my letter on the draft EIS that a link be added to the reference but that was never done. My comments were never considered until after the final EIS was published. They were not included, and it turned out they had “lost” them. They found my e-mail after I asked why it was not in the final EIS. They then added it to the online version after the final EIS was published but never provided the link as asked.
The findings of the Tree Regulations Research Project were not discussed in the draft EIS and contradicted their statements that the current tree ordinance and regulations are working. Among the findings were these conclusions:
“Current code is not supporting tree protection.”
“We are losing exceptional trees (and groves) in general.”
Under land use and construction permits they noted:
“Development and hardscape increase result in tree loss. Conifers and large tree species are coming out with deciduous and dwarf species coming in.”
There are many options proposed for increased protections for trees in the Tree Regulations Research Project.
Question – What do SMC 25.11.090 and 25.11.100 direct DCI to do? (City Exhibit 098)
“25.11.090 – Tree replacement and site restoration.
A. Each exceptional tree and tree over two (2) feet in diameter that is removed in association with development in all zones shall be replaced by one or more new trees, the size and species of which shall be determined by the Director; the tree replacement required shall be designed to result, upon maturity, in a canopy cover that is at least equal to the canopy cover prior to tree removal. Preference shall be given to on-site replacement. When on-site replacement cannot be achieved, or is not appropriate as determined by the Director, preference for off-site replacement shall be on public property.
B. No tree replacement is required if the (1) tree is hazardous, dead, diseased, injured or in a declining condition with no reasonable assurance of regaining vigor as determined by a tree care professional, or (2) the tree is proposed to be relocated to another suitable planting site as approved by the Director.
SMC 25.11.100 – Enforcement and penalties.
A. Authority. The Director shall have authority to enforce the provisions of this chapter, to issue permits, impose conditions, and establish administrative procedures and guidelines, conduct inspections, and prepare the forms necessary to carry out the purposes of this chapter.
B. It shall be a violation of this chapter for any person, firm or corporation to remove, clear or take any action detrimental to trees contrary to or in violation of any provision of this chapter. …..”
Reference to these tree ordinance requirements is absent from the City’s website in reference to developers having to comply with this provision. It is not mentioned in the Tree Protection Regulations – (Tip 242 – City Exhibit 060) or Director’s Rule 16-2008 – Designation of Exceptional Trees – (City Exhibit 061) or other public documents that I have seen.
If the Council’s outline of a new tree ordinance is adopted to replace the above provisions in SMC 25.11.090, it is likely that protection of large trees will become even weaker. These large and “exceptional” trees in the code (SMC 25.11.050), tend to be native conifers like Douglas fir and western red cedar. Their numbers have been declining and there are only a few thousand left in the entire City.
Question – Did you find an indication of City work to evaluate the effectiveness of the City’s ordinances to conserve trees and tree canopy?
Yes. When I was reading the draft EIS, I came across a citation in the references to a research project concerning the effectiveness of the City’s tree conservation ordinances in the bibliography to Section 3.6. On page 5.6 I found this reference:
City of Seattle. 2017a. Tree Regulations Research Project—Phase II Final Findings and Recommendations. March 27, 2017.
But when I looked in Section 3.6 itself, I could not find any reference to it or where it informed the analysis of impacts or need for mitigation. The Urban Forestry Commission asked for and obtained the referenced document and related presentation material.
I believe it was as a result of the Urban Forestry Commission’s action obtaining the research project documents that led to the issuance of Executive Order 2017-11 on October 13, 2017, a month before the publication of the MHA Final EIS. Two of the “Whereas” clauses in the executive order explicitly reference the MHA a reason for the obvious need to improve the City’s tree ordinances to avoide continued significant adverse impacts of development on our trees and tree canopy.
Question – Have you carefully reviewed Mayor Burgess’ Executive Order 2017-11 Tree Protection (Scale Exhibit 048)?
Section 1 B says:
“SDCI will require consistent documentation for required tree removal review on private property including mitigating canopy cover loss of trees removed, and monitoring of planted trees for survival. Informational materials and resources for developers, property owners and the public related to trees and vegetation management shall be updated to reflect this emphasis.”
This is not happening. When I checked with a land use planner last week at the SDCI intake desk for permits for projects to ask what documentation was being kept to monitor tree loss and canopy replacement she noted the only place trees are marked is on the site plans. She showed me the new Acela computer data base for several projects and looked for any data input related to trees. There was none. She even checked suggested additional fields that could be added for input and there was none relating to trees.
She said there was only one arborist responsible for reviewing trees on projects. She noted that it would be very easy to input data on tree species and DBH for trees removed and trees planted and be able to get monthly or yearly updates on what was happening but that they were not doing it.
There also appear to be no updates on printed material or the SDCI website regarding this issue.
Question – Are there other sections of Burgess’s Executive Order that don’t seem to be implemented yet?
Another section of Mayor Burgess’s Executive Order – Section 3 Expanding Compliance Options states:
“SDCI will develop a new Director’s Rule or propose legislation for required tree replacement. The in-lieu payment option may apply to cases where tree mitigation is required. Fees from any-in-lieu payment will be used for mitigating the loss of tree canopy cover through replanting and reforestation while prioritizing addressing racial and economic disparities in accessing and enjoying the benefits of urban trees.”
This only seems to be maybe partly complied with during development when one looks at the Draft Updates to Seattle’s Tree Regulations memo – (City Exhibit 064). It proposes tree permits and replacement of all trees removed over 12 inches either on site or mitigation in the form of a fee in lieu for the city planting them elsewhere. But this would apply to private property already developed. It is only suggested as an option for single family zone during development as a complement to a point system.
Regardless, these improvements to the City’s tree ordinances are all speculative since the new ordinance is at the very stages of development.
Question – What about the 2016 Seattle Tree Canopy Assessment (City Exhibit 053)?
Several issues here. The LIDAR Study stated tree canopy was at 28%. What isn’t mentioned is that what is being measured is vegetative cover at 8 feet high. That includes many bushes and shrubs like the lilac in my back yard or the laurel hedge on my fence line. The Army Corp of Engineers measures trees at 20 feet high. At 20 feet, Seattle’s tree canopy is closer to 26% according to an inquiry made to the OSE.
In addition, the study notes on page 2 that a separate study done using historic data from Google Earth between 2007 and 2015 that there was approximately a 2% loss in canopy. The results between the two methods are not compatible and point out the difficulty of getting a precise measurement and what it means.
The real question is the quality and quantity of tree loss during development and how can we lessen tree loss and mitigate when it happens. The 2016 Seattle Tree Canopy assessment looked at the question of loss during development, but the results are “not statistically valid” because only 10 sample plots being developed were examined in 8 zones. That’s like asking 10 people in each zone or 80 people total who they think should be elected for Mayor or to the City Council. Even with that caveat they stated “a mini-assessment of 80 random parcels found that development led to canopy cover loss.”
Question – Did you find other data the City had regarding tree loss during development?
A more detailed assessment -Tree Canopy Assessment Sustainability & Environment Subcabinet April 9 2009 – (Fremont 32 COS0032951) done on 2,262 redeveloped parcels between 2002 and 2007 pointed to a significant loss of 29% of trees removed on these parcels. 40% of existing trees were removed on SF lots and 70% of existing trees on MF lots. Current development is much more intense across our city and more lots are being divided and less land is available on site to keep or replace trees.
The city needs to be called to task for ignoring SMC 25.11.090 and start replanting all exceptional trees and trees over 24“DBH removed during development. Other cities like Portland, Oregon and Atlanta, Georgia have set up permit and tree replacement programs for trees removed during development as well as for already developed properties.
Seattle should lower the threshold to 6 inches DBH as recommended by the Seattle Urban Forestry Commission. The current draft in Councilmember Johnson’s committee does not do this; it uses a 12 inch minimum, which will eliminate protection for a huge number of Seattle’s trees.
Changing to 6 inches would help to make up for the canopy replacement lost due to not implementing SMC 25.11.090 over the last 17 years! Here in our region Shoreline, Lake Forest Park, Redmond and Sammamish have set up tree permit and replacement systems.
Question – Have you evaluated the EIS conclusions regarding the likelihood of significant impacts?
Yes. Each of the four alternatives in the FEIS has a statement concerning the likelihood of significant impacts.
To start with, the initial statement, in the “no action” alternative, concerning the impacts of the current code and the City’s enforcement of it (or the lack of enforcement) says, “The resulting change in canopy cover is assumed to be static.” and “This study [2016 canopy study prepared for the MHA EIS] does not quantify tree loss resulting from current development patterns.”
This is a troubling statement because it implies that there are not adverse impacts on trees and tree canopy happening under current legal and on the ground conditions. This is clearly not true. (SMC 29.11.090 is clearly not being complied with).
By making this statement, the EIS is failing to establish a baseline against which to compare the three very similar action alternatives.
Each of the statements concerning the likely impacts of the actions alternatives contains the words “not considered a significant impact.” The MHA proposal is explicitly intended to increase development capacity on substantial acreage all over the City. It is absurd to say that these changes will not have a significant increased adverse impact on Seattle’s urban forest.