Chapter 18.18 CRITICAL AREAS

A. The purpose of this chapter is to designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

B. This chapter is to implement the goals, policies, guidelines, and requirements of the city comprehensive plan and Chapter 36.70A RCW.

C. The regulations of this chapter are intended to protect critical areas in accordance with Chapter 36.70A RCW and through the application of the best available science, as determined according to Chapter 365-195 WAC, and in consultation with state and federal agencies and other qualified professionals.

D. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provisions of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards.

E. The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. (Ord. 21-859 § 1, 2021)

18.18.020 Authority.

A. As provided herein, the mayor or mayor’s designee is given the authority to interpret and apply, and the responsibility to enforce, this chapter to accomplish the stated purpose.

B. The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. (Ord. 21-859 § 1, 2021)

18.18.030 Relationship to other regulations.

A. These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.

B. Any individual critical area adjoined by another type of critical area shall meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

C. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.

D. Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Shoreline Substantial Development Permits, Hydraulic Permit Act (HPA) Permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 Permits, National Pollution Discharge Elimination System Permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. (Ord. 21-859 § 1, 2021)

18.18.040 Administrative procedures.

The administrative procedures followed during the critical area review process shall conform to the standards and requirements of the city development regulations. This shall include, but not be limited to, timing, appeals, and fees associated with applications covered by this chapter. (Ord. 21-859 § 1, 2021)

18.18.050 Fees.

A. The city by resolution shall establish fees for filing of a critical area identification form, critical area review processing, and other services provided by the city as required by this chapter. These fees shall be based on the anticipated sum of direct costs incurred by the city for any individual development or action and may be established as a sliding scale that will recover all of the city costs including the enforcement of these code provisions. Basis for these fees shall include, but not be limited to, the cost of engineering and planning review time, cost of inspection time, costs for administration, and any other special costs attributable to the critical area review process.

B. Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the applicable. (Ord. 21-859 § 1, 2021)

18.18.060 Severability.

If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. (Ord. 21-859 § 1, 2021)

18.18.070 Interpretation.

In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under state statute. (Ord. 21-859 § 1, 2021)

18.18.080 Jurisdiction – Critical areas.

A. The city shall regulate all uses, activities, and developments within one or more critical areas, consistent with the best available science and the provisions herein.

B. Critical areas regulated by this chapter include:

1. Wetlands as designated in “Wetlands” (Article XI of this chapter);

2. Critical aquifer recharge areas as designated in “Critical Aquifer Recharge Areas” (Article XII of this chapter);

3. Frequently flooded areas as designated in “Frequently Flooded Areas” (Article XIII of this chapter); and

4. Geologically hazardous areas as designated in “Geologically Hazardous Areas” (Article XIV of this chapter); and

5. Fish and wildlife habitat conservation areas as designated in “Fish and Wildlife Habitat Conservation Areas” (Article XV of this chapter). (Ord. 21-859 § 1, 2021)

18.18.090 Protection of critical areas.

Any action taken pursuant to this chapter shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. The compensatory mitigation provisions of WAC 365-196-830 are carried through to only two specific critical area types – geohazard (WAC 365-190-120) and wetlands (WAC 365-190-090), but do not extend to critical aquifer recharge areas (CARAs) or other critical area classes. Geohazard and wetlands developments shall be designed and constructed in accordance with “Mitigation sequencing” (AMC 18.18.240) to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas. (Ord. 21-859 § 1, 2021)

18.18.100 Mapping of critical areas.

Asotin is located entirely within the Lewiston Basin Aquifer SSA. As such the entire city of Asotin shall be designated as a critical aquifer recharge area (CARA). The approximate location and extent of critical areas are shown on the critical area maps adopted by the city, as most recently updated. The following critical area maps are hereby adopted:

A. Wetland areas;

B. Frequently flooded areas; and

C. Fish and wildlife areas.

These maps are to be used as a guide for the city, project applicants, and/or property owners and should be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical area designation. (Ord. 21-859 § 1, 2021)

Article II. Best Available Science

18.18.110 Best available science.

A. Protect Functions and Values of Critical Areas with Special Consideration to Anadromous Fish. Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bill trout, and their habitat.

B. Best Available Science to Be Consistent with Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925, as the same exists now or may hereafter be amended. Such best available science includes those publications listed in the Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas, as the same exists now or may hereafter be amended.

C. Characteristics of a Valid Scientific Process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government’s regulatory decisions, and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the mayor or mayor’s designee shall determine whether the source of the information displays the characteristics of a valid scientific process. “Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat.

D. Nonscientific Information. Nonscientific information may supplement scientific information, but it is not an adequate substitute for valid and available scientific information.

E. Absence of Valid Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the mayor or mayor’s designee shall:

1. Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:

a. Address funding for the research component of the adaptive management program;

b. Change course based on the results and interpretation of new information that resolves uncertainties; and

c. Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. (Ord. 21-859 § 1, 2021)

Article III. Applicability, Exemptions, and Exceptions

18.18.120 Applicability.

A. The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area except as consistent with the purposes and requirements of this chapter.

B. The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area, without first ensuring compliance with the requirements of this chapter, including, but not limited to, the following:

1. Building permit;

2. Clearing and grading permit;

3. Conditional use permit;

4. Subdivision;

5. Planned unit development;

6. Binding site plan;

7. Zoning variance; or

8. Any other adopted permit or required approval not expressly exempted by this chapter.

C. Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter. (Ord. 21-859 § 1, 2021)

18.18.130 Exemptions.

A. Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the mayor or mayor’s designee that describes the activity and states the exemption listed in this section that applies.

The mayor or mayor’s designee shall review the exemption request to verify that it complies with this chapter and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.

B. Exempt Activities and Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

1. Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter.

Emergency actions that create an impact to a critical area shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within 30 days, the mayor or mayor’s designee shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the mayor or mayor’s designee determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of “Unauthorized critical area alterations and enforcement” (AMC 18.18.350) shall apply.

After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area resulting from the emergency action in accordance with an approved critical area report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical area report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner.

2. Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species.

3. Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking and bird watching. Trails must be constructed pursuant to “Public and Private Pedestrian Trails” (AMC 18.18.160(C)(4)(c)). (Ord. 21-859 § 1, 2021)

18.18.140 Exception – Public agency and utility.

A. If the application of this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a public agency and utility exception shall be made to the city and shall include a critical area identification form; critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The mayor or his designee shall prepare a recommendation to the city council based on review of the submitted information, a site inspection, and the proposal’s ability to comply with public agency and utility exception review criteria in subsection (D) of this section.

C. City Council Review. The city council shall review the application and mayor or mayor’s designee’s recommendation, and conduct a public hearing pursuant to the provisions of the applicable city code chapter. The city council shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the public agency and utility exception criteria in subsection (D) of this section.

D. Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions follow:

1. There is no other practical alternative to the proposed development with less impact on the critical areas;

2. The application of this chapter would unreasonably restrict the ability to provide utility services to the public;

3. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

4. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

5. The proposal is consistent with other applicable regulations and standards.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 21-859 § 1, 2021)

18.18.150 Exception – Reasonable use.

A. If the application of this chapter would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include a critical area identification form; critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW) (SEPA documents). The mayor or mayor’s designee shall prepare a recommendation to the city council based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection (D) of this section.

C. City Council Review. The city council shall review the application and conduct a public hearing pursuant to the provisions of the applicable city chapter. The city council shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the reasonable use exception review criteria in subsection (D) of this section.

D. Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions follow; one or more may apply:

1. The application of this chapter would deny all reasonable economic use of the property;

2. No other reasonable economic use of the property has less impact on the critical area;

3. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;

4. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of this chapter, or its predecessor;

5. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

6. The proposal will result in no net loss of critical area functions and values consistent with the best available science; or

7. The proposal is consistent with other applicable regulations and standards.

Article IV. Allowed Activities

18.18.160 Allowed activities.

A. Critical Area Report. Activities allowed under this chapter shall have been reviewed and permitted or approved by the city or other agency with jurisdiction, but do not require submittal of a separate critical area identification form or critical area report, unless such submittal was required previously for the underlying permit. The mayor or designee may apply conditions to the underlying permit or approval to ensure that the allowed activity is consistent with the provisions of this chapter to protect critical areas.

B. Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices, adopted pursuant to locally adopted best management practices, such as the storm water management regulations, that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Allowed Activities. The following activities are allowed:

1. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure that does not further alter or increase the impact to the critical area and there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of structures substantially damaged by fire, flood, or act of nature must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit, and diligently pursued to completion;

2. Activities Within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a city-authorized private roadway except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased storm water; subject to the following:

a. Critical area widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

b. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance;

3. Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the mayor or mayor’s designee in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water. Such allowed minor utility projects shall meet the following criteria:

a. There is no practical alternative to the proposed activity with less impact on critical areas;

b. The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and

c. The activity involves disturbance of an area less than 75 square feet;

4. Public and Private Pedestrian Trails. Public and private pedestrian trails, except in wetlands, fish and wildlife habitat conservation areas, subject to the following:

a. The trail surface shall meet all other requirements including water quality standards set forth in the locally adopted storm water management regulations;

b. Critical area widths shall be increased, where possible, equal to the width of the trail corridor, including disturbed areas; and

c. Trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report;

5. Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area without approval from the mayor or mayor’s designee:

a. The removal of the following vegetation with hand labor and light equipment:

i. Invasive and noxious weeds;

ii. English ivy (Hedera helix);

iii. Himalayan blackberry (Tubus discolor, R. procerus); and

iv. Evergreen blackberry (Rubus laciniatus).

b. The removal of trees from critical areas that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

i. The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;

ii. Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

iii. The landowner shall replace any trees that are removed with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year in accordance with an approved restoration plan. Replacement trees may be planted at a different, nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum of one inch in diameter-at-breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball;

iv. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods or removal that will minimize impacts; and

v. Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this chapter.

c. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW, and local forest practices regulations if adopted; provided, that the removed vegetation shall be replaced in-kind or with similar native species within one year in accordance with an approved restoration plan; and

d. Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;

6. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the city; provided, that their use shall be restricted in accordance with State Department of Fish and Wildlife Management Recommendations and the regulations of the State Department of Agriculture and the U.S. Environmental Protection Agency;

7. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored; and

8. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. (Ord. 21-859 § 1, 2021)

Article V. Critical Area Review Process

18.18.170 General requirements.

A. As part of this review, the city shall:

1. Verify the information submitted by the applicant;

2. Evaluate the project area and vicinity for critical areas;

3. Determine whether the proposed project is likely to impact the functions or values of critical areas; and

4. Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.

B. If the proposed project is within a critical area, and a critical area report is required as defined within this chapter, the city shall:

1. Require a critical area report from the applicant that has been prepared by a qualified professional;

2. Review and evaluate the critical area report;

3. Determine whether the development proposal conforms to the purposes and performance standards of this chapter, including the criteria in “Review criteria” (AMC 18.18.280);

4. Assess the potential impacts to the critical area and determine if they can be avoided or minimized; and

5. Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter. (Ord. 21-859 § 1, 2021)

18.18.180 Critical area preapplication consultation.

Any person preparing to submit an application for development or use of land that may be regulated by the provisions of this chapter may conduct a consultation meeting with the mayor or designee prior to submitting an application for development or other approval. At this meeting, the mayor or mayor’s designee shall discuss the requirements of this chapter; provide critical area maps, scientific information, and other source materials; outline the review process; and work with the activity proponent to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements. (Ord. 21-859 § 1, 2021)

18.18.190 Critical area identification form.

A. Submittal. Prior to the city’s consideration of any proposed activity not found to be exempt under “Exemptions” (AMC 18.18.130) or allowed pursuant to “Allowed activities” (AMC 18.18.160), the applicant shall submit to the department a complete critical area identification form on forms provided by the city.

B. Site Inspection. Upon receipt of a project application and a critical area identification form, the mayor or mayor’s designee shall conduct a site inspection to review critical area conditions on site. The mayor or mayor’s designee shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

C. Critical Area Identification Form Review Process. The mayor or his designee shall review the critical area identification form, conduct a site inspection, and review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal and if a more detailed critical area report shall be submitted.

1. Decision Indicators. The mayor or mayor’s designee may use the following indicators to assist in determining the need for a critical area report:

a. Indication of a critical area on the city critical areas maps that may be impacted by the proposed activity;

b. Information and scientific opinions from appropriate agencies, including but not limited to the Departments of Fish and Wildlife, Natural Resources, and Ecology;

c. Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

d. A finding by a qualified professional or a reasonable belief by the mayor or mayor’s designee that a critical area may exist on or adjacent to the site of the proposed activity.

D. Decision on Identification Form.

1. No Critical Areas Present. If after a site visit the mayor’s or mayor’s designee’s analysis indicates that the project area is not within or adjacent to a critical area and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the mayor or mayor’s designee shall rule that the critical area review is complete and note on the identification form the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

2. Critical Areas Present, but No Impact – Waiver. If the mayor or mayor’s designee determines that there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the mayor or mayor’s designee may waive the requirement for a critical area report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

a. There will be no alteration of the critical area;

b. The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter; and

c. The proposal is consistent with other applicable regulations and standards.

A summary of this analysis and the findings shall be included in any staff report or decision on the underlying permit.

3. Critical Areas May Be Affected by Proposal. If the mayor or mayor’s designee determines that a critical area or areas may be affected by the proposal, then the mayor or mayor’s designee shall notify the applicant that a critical area report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report.

E. Mayor or Mayor’s Designee’s Determination Subject to Reconsideration. A determination regarding the apparent absence of one or more critical areas by the mayor or mayor’s designee is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received.

If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances. (Ord. 21-859 § 1, 2021)

18.18.200 Public notice of initial determination.

The city shall notify the public of proposals in accordance with the notice of application section of the local land use code.

A. If the mayor or mayor’s designee determines that no critical area report is necessary, the city shall state the reasons for this determination in the notice of application issued by the city for the proposal.

B. If the mayor or mayor’s designee determines that there are critical areas on the site that the proposed project is unlikely to impact and the project meets the requirements for and has been granted a waiver from the requirement to complete a critical area report, a summary of the analysis and findings for this decision shall be stated in the notice of application for the proposal.

C. If the mayor or mayor’s designee determines that critical areas may be affected by the proposal and a critical area report is required, public notice of the application shall include a description of the critical area that might be affected and state that a critical area report(s) is required. (Ord. 21-859 § 1, 2021)

Article VI. Critical Area Report

18.18.210 Critical area report – Requirements.

A. Preparation by Qualified Professional. If required by the mayor or mayor’s designee in accordance with AMC 18.18.190(D)(3), the applicant shall submit a critical area report prepared by a qualified professional as defined herein.

B. Incorporating of Best Available Science. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical area report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

C. Minimum Report Contents. At a minimum, the report shall contain the following:

1. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

2. A copy of the site plan for the development proposal including:

a. A map to scale depicting critical areas, the development proposal, and any areas to be cleared; and

b. A description of the proposed storm water management plan for the development and consideration of impacts to drainage alterations;

3. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

4. Identification and characterization of all critical areas, wetlands, and water bodies adjacent to the proposed project area;

5. A statement specifying the accuracy of the report, and all assumptions made and relied upon;

6. An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

7. An analysis of site development alternatives including a no development alternative;

8. A description of reasonable efforts made to apply mitigation sequencing pursuant to “Mitigation sequencing” (AMC 18.18.240) to avoid, minimize, and mitigate impacts to geologically hazardous and wetland critical areas;

9. Plans for adequate mitigation, as needed, to offset any impacts, in accordance with “Mitigation plan requirements” (AMC 18.18.250), including, but not limited to:

a. The impacts of any proposed development within or adjacent to a geologically hazardous or wetland critical area; and

b. The impacts of any proposed alteration of a geologically hazardous or wetland critical area on the development proposal, other properties and the environment;

10. A discussion of the performance standards applicable to the critical area and proposed activity;

11. Financial guarantees to ensure compliance; and

12. Any additional information required for the critical area as specified in the corresponding chapter.

D. Unless otherwise provided, a critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the mayor or mayor’s designee. (Ord. 21-859 § 1, 2021)

18.18.220 Critical area report – Modifications to requirements.

A. Limitations to Study Area. The mayor or mayor’s designee may limit the required geographic area of the critical area report as appropriate if:

1. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

2. The proposed activity will affect only a limited part of the subject site.

B. Modifications to Required Contents. The applicant may consult with the mayor or mayor’s designee prior to or during preparation of the critical area report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

C. Additional Information Requirements. The mayor or mayor’s designee may require additional information to be included in the critical area report when determined to be necessary to the review of the proposed activity in accordance with this chapter. Additional information that may be required includes, but is not limited to:

1. Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

2. Grading and drainage plans; and

3. Information specific to the type, location, and nature of the critical area. (Ord. 21-859 § 1, 2021)

18.18.230 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of a geologically hazardous or wetland critical area or areas. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas resulting from a development proposal or alteration shall be mitigated using the best available science in accordance with an approved critical area report and SEPA documents, so as to result in no net loss of critical area functions and values.

B. Mitigation shall be in-kind and on site, when possible, and sufficient to maintain the functions and values of the geologically hazardous or wetland critical area, and to prevent risk from a hazard posed by these areas.

C. Mitigation shall not be implemented until after city approval of a critical area report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical area report. (Ord. 21-859 § 1, 2021)

18.18.240 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to geologically hazardous or wetland critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential order of preference:

A. Avoiding the impact altogether by not taking a certain action or parts of an action;

B. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

C. Rectifying the impact to wetlands, geologically hazardous areas, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

D. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

E. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

F. Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, geologically hazardous areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

G. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures. (Ord. 21-859 § 1, 2021)

18.18.250 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by city a mitigation plan as part of the critical area report. The mitigation plan shall include:

A. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

1. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation goals; identification of resource functions; and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

2. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

3. An analysis of the likelihood of success of the compensation project.

B. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this chapter have been met.

C. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

1. The proposed construction sequence, timing, and duration;

2. Grading and excavation details;

3. Erosion and sediment control features;

4. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

5. Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

D. Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, and seven after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.

E. Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

F. Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with “Bonds to ensure mitigation, maintenance, and monitoring” (AMC 18.18.380). (Ord. 21-859 § 1, 2021)

18.18.260 Innovative mitigation.

A. The city may encourage, facilitate, and approve innovative mitigation projects that are based on the best available science. Advance mitigation or mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

1. Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

2. The group demonstrates the organizational and fiscal capability to act cooperatively;

3. The group demonstrates that long-term management of the habitat area will be provided; and

4. There is a clear potential for success of the proposed mitigation at the identified mitigation site.

B. Conducting mitigation as part of a cooperative process does not reduce or eliminate the required replacement ratios. (Ord. 21-859 § 1, 2021)

Article VII. Determination Process

18.18.270 Determination.

The planning commission shall make a determination as to whether the proposed activity and mitigation, if any, is consistent with the provisions of this chapter. The planning commission’s determination shall be based on the criteria of “Review criteria” (AMC 18.18.280). (Ord. 21-859 § 1, 2021)

18.18.280 Review criteria.

A. Any alteration to a critical area, unless otherwise provided for in this chapter, shall be reviewed and approved, approved with conditions, or denied based on the proposal’s ability to comply with all of the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with “Mitigation sequencing” (AMC 18.18.240);

2. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

3. The proposal is consistent with the general purposes of this chapter and the public interest;

4. Any alterations permitted to the critical area are mitigated in accordance with “Mitigation requirements” (AMC 18.18.230);

5. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and

6. The proposal is consistent with other applicable regulations and standards.

B. The city may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter.

C. Except as provided for by this chapter, any project that cannot adequately mitigate its impacts to critical areas in the sequencing order of preferences in AMC 18.18.240 shall be denied. (Ord. 21-859 § 1, 2021)

18.18.290 Favorable determination.

If the planning commission determines that the proposed activity meets the criteria in “Review criteria” (AMC 18.18.280) and complies with the applicable provisions of this chapter, the mayor or mayor’s designee shall prepare a written notice of determination and identify any required conditions of approval. The notice of determination and conditions of approval shall be included in the project file and be considered in the next phase of the city’s review of the proposed activity in accordance with any other applicable codes or regulations.

Any conditions of approval included in a notice of determination shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous determination pending re-review of the proposal and conditions of approval by the mayor or mayor’s designee.

A favorable determination should not be construed as endorsement or approval of any underlying permit or approval. (Ord. 21-859 § 1, 2021)

18.18.300 Unfavorable determination.

If the planning commission determines that a proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the criteria in “Review criteria” (AMC 18.18.280) and the provisions of this chapter, the mayor or mayor’s designee shall prepare written notice of the determination that includes findings of noncompliance.

No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the provisions of this chapter.

Following notice of determination that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this chapter, the applicant may request consideration of a revised critical area report. If the revision is found to be substantial and relevant to the critical area review, the mayor or mayor’s designee may reopen the critical area review and make a new determination based on the revised report. (Ord. 21-859 § 1, 2021)

18.18.310 Completion of the critical area review.

The city’s determination regarding critical areas pursuant to this chapter shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved. (Ord. 21-859 § 1, 2021)

18.18.320 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 21-859 § 1, 2021)

Article VIII. Variances

18.18.330 Variances.

A. Variances from the standards of this chapter may be authorized by the city in accordance with the procedures set forth in this title. The city council shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

B. Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

1. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;

2. The special conditions and circumstances do not result from the actions of the applicant;

3. A literal interpretation of the provisions of this chapter would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;

4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;

5. The granting of the variance is consistent with the general purpose and intent of this chapter, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

6. The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

7. The granting of the variance is consistent with the general purpose and intent of the locally adopted city comprehensive plan and adopted development regulations.

C. Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

D. Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both.

Failure to begin or complete such action within the established time limit shall void the variance.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 21-859 § 1, 2021)

18.18.340 Variances – Additional considerations for frequently flooded areas.

A. Additional Variance Considerations. In review of variance requests for activities within frequently flooded areas, the city council shall consider all technical evaluations, relevant factors, standards specified in this chapter, and:

1. The danger to life and property due to flooding, erosion damage, or materials swept onto other lands during flood events;

2. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the proposed use;

3. The importance of the services provided by the proposed use to the community;

4. The necessity to the proposed use of a waterfront location, where applicable, and the availability of alternative locations for the proposed use that are not subject to flooding or erosion damage;

5. The safety of access to the property in times of flood for ordinary and emergency vehicles;

6. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and

7. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems and streets and bridges.

B. Variances shall only be issued upon a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, nuisances, fraud on or victimization of the public, or conflict with existing laws or ordinances. Unavoidable impacts to floodplain functions and values shall be mitigated in accordance with “Mitigation sequencing” (AMC 18.18.240).

C. Variances shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result. (Ord. 21-859 § 1, 2021)

Article IX. Unauthorized Alterations and Enforcement

18.18.350 Unauthorized critical area alterations and enforcement.

A. When a critical area has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

B. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by city. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection (C) of this section. The mayor or mayor’s designee shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum Performance Standards for Restoration.

1. For alterations to critical aquifer recharge areas, frequently flooded areas, geologically hazardous areas, wetlands, and fish and wildlife areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The historic structural and functional values shall be restored, including water quality and habitat functions to the greatest extent possible;

b. The historic soil types and configuration shall be replicated;

c. The critical area shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

d. Information demonstrating compliance with the requirements in AMC 18.18.250 (Mitigation plan requirements) shall be submitted to the mayor or mayor’s designee.

2. For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area shall be replanted with native vegetation sufficient to minimize the hazard.

D. Site Investigations. The mayor or mayor’s designee is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The mayor or mayor’s designee shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty shall be assessed at a maximum rate of $1,000 per day per violation. (Ord. 21-859 § 1, 2021)

Article X. General Critical Area Protective Measures

18.18.360 Critical area markers and signs.

A. Signs and Fencing of Wetlands and Buffers.

1. Temporary Markers. The outer perimeter of the wetland buffer and the clearing limits identified in an approved permit or land use approval shall be marked in the field with temporary “clearing limits” fencing in such a way as to ensure that no unauthorized intrusion will occur. The marking is subject to inspection by the administrator prior to the commencement of permitted activities. Temporary marking shall be maintained throughout completion of all construction activities.

2. Permanent Signs. As a condition of any permit or land use approval, the administrator may require the applicant to install permanent signs along the boundary of a wetland or its buffer. Permanent signs shall be made of an enamel-coated metal face and attached to a metal post. Signs, when required, shall be posted at an interval of one every 50 feet or one per lot if a lot is less than 50 feet wide and must be maintained by the property owner in perpetuity. Wording of the sign shall note the presence of a protected wetland area and/or wildlife habitat. Specific wording of the sign shall be approved by the administrator.

3. Fencing.

a. The applicant shall be required to install a permanent fence around the wetland or its buffer when domestic grazing animals are present or may be introduced on site.

b. Fencing installed as part of a proposed activity or as required by the administrator shall be designed so as not to interfere with species migration and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat. (Ord. 21-859 § 1, 2021)

18.18.370 Building setbacks.

Reserved. (Ord. 21-859 § 1, 2021)

18.18.380 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to the city’s final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

B. The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C. The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

D. Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or require other action authorized by the city code or any other law.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 21-859 § 1, 2021)

Article XI. Wetlands

18.18.390 Designation, rating, and mapping wetlands.

A. Designating Wetlands. Wetlands are those areas, designated in accordance with the Corps of Engineers Wetland Delineation Manual (January 1987) and the Arid West Region Regional Supplement (Version 2.0, September 2008), that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. All areas within the city meeting the wetland designation criteria in the Delineation Manual, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

B. Mapping. The approximate location and extent of wetlands are shown on the adopted critical area maps. The following critical area maps, included in the ordinance codified in this chapter as Appendices A, B, C and D, are hereby adopted. Additionally, soil maps produced by U.S. Department of Agriculture National Resources Conservation Service may be useful in helping to identify potential wetland areas.

These maps are to be used as a guide for the city, project applicants, and/or property owners, and may be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical area designation.

C. Rating. Wetlands shall be rated using a rating system to evaluate the existing wetland functions and values to determine what functions must be protected. Ratings shall be performed using the Washington State Wetland Rating System for Eastern Washington 2014 Update (January 2015). (Ord. 21-859 § 1, 2021)

18.18.400 Activities allowed in wetlands.

The activities listed below are allowed in wetlands in addition to those activities listed in, and consistent with, the provisions established in “Allowed activities” (AMC 18.18.160), and do not require submission of a critical area report, except where such activities result in a loss to the functions and values of a wetland. These activities include:

A. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife that does not entail changing the structure or functions of the existing wetland.

B. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.

C. Drilling for utilities under a wetland; provided, that the drilling does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column is disturbed.

D. Enhancement of a wetland through the removal of nonnative invasive species. Bare areas that remain after weed removal shall be revegetated with native shrubs and trees at natural densities. Some hand seeding may also be done over the bare areas with native herbs. (Ord. 21-859 § 1, 2021)

18.18.410 Performance standards – General requirements.

Activities may only be permitted in a wetland if the applicant can show that the proposed activity will not degrade the functions and functional performance of the wetland and other critical areas. (Ord. 21-859 § 1, 2021)

Article XII. Critical Aquifer Recharge Areas

18.18.420 Critical aquifer recharge areas designation.

CARAs are those areas with a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2). CARAs have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water. Asotin is located entirely within the Lewiston Basin Aquifer SSA. As such the entire city of Asotin shall be designated as a CARA. (Ord. 21-859 § 1, 2021)

18.18.430 Exemptions from critical aquifer recharge area regulations.

A. The following activities shall be exempt from the CARA provisions of this section, provided they are conducted using best management practices for protecting surface and ground water quality:

1. Single-family residential development.

2. Development and improvement of parks, recreation facilities, open space, or conservation areas resulting in less than five percent total site impervious surface area that do not increase the use of a hazardous substance.

3. Group A public water system source development and associated infrastructure.

4. Public water supply aquifer storage and recovery (ASR) facilities.

5. Public water pipelines and supply storage structures.

6. The following underground storage tank (UST) systems, including any piping connected thereto:

a. Any UST system holding hazardous wastes subject to Subtitle C of the Federal Solid Waste Disposal Act, or a mixture of such hazardous waste and other regulated substances;

b. Any wastewater treatment tank system that is part of a wastewater treatment facility regulated under Section 402 or 307(b) of the Clean Water Act;

c. Equipment or machinery that contains regulated substances for operational purposes such as hydraulic lift tanks and electrical equipment tanks;

d. Any UST system whose capacity is 110 gallons or less;

e. Any UST system that contains a de minimis concentration of regulated substances;

f. Any emergency spill or overflow containment UST system that is expeditiously emptied after use;

g. UST systems used for storing heating oil for consumptive use on the premises where stored; except that such systems which store in excess of 1,100 gallons are subject to the release reporting requirements of WAC 173-360-372;

h. Any pipeline facility (including gathering lines) regulated under:

i. The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. App. 1671, et seq.), or

ii. The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. 2001, et seq.), or

iii. Which is an intrastate pipeline facility regulated under state laws comparable to the provisions of the law referred to in subsection (A)(6)(h)(i) or (ii) of this section;

i. Surface impoundments, pits, ponds, or lagoons;

j. Storm water or wastewater collection systems;

k. Flow-through process tanks;

l. Storage tanks situated in an underground area (such as a basement, cellar, vault, mineworking drift, shaft, or tunnel), if the storage tank is situated upon or above the surface of the floor. (Ord. 21-859 § 1, 2021)

18.18.440 Reports and studies.

Reports for CARAs shall be submitted to the planning commission by the applicant when a development proposal activity not otherwise exempted within this chapter is proposed on a parcel within an aquifer recharge area. (Ord. 21-859 § 1, 2021)

18.18.450 Performance standards.

A. Activities may only be permitted in a critical aquifer recharge area if the applicant can show that the proposed activity will not cause contaminants to enter the aquifer and that the proposed activity will not adversely affect the recharging of the aquifer.

B. The proposed activity must comply with the water source protection requirements and recommendations of the U.S. Environmental Protection Agency, Washington State Department of Health, Washington State Department of Ecology, and Asotin County Public Health.

C. The proposed activity must be designed and constructed in accordance with existing local, state and federal laws and regulations, and the Stormwater Management Manual for Eastern Washington (Ecology, current edition), and/or the locally adopted program, as applicable. (Ord. 21-859 § 1, 2021)

18.18.460 Uses prohibited in critical aquifer recharge areas.

The following activities and uses are prohibited in CARAs:

A. Landfills. Landfills, including hazardous or dangerous waste, municipal solid waste, special waste, wood waste, and inert and demolition waste landfills;

B. Underground Injection Wells. Class I, III, and IV wells and subclasses 5F01, 5D03, 5F04, 5W09, 5W10, 5W11, 5W31, 5X13, 5X14, 5X15, 5W20, 5X28, and 5N24 of Class V wells;

C. Mining in critical aquifer recharge areas determined to be highly susceptible in the city’s wellhead protection plan:

1. Metals and hard rock mining;

2. Sand and gravel mining;

D. Wood Treatment Facilities. Wood treatment facilities that allow any portion of the treatment process to occur over permeable surfaces (both natural and manmade);

E. Storage, Processing, or Disposal of Radioactive Substances. Facilities that store, process, or dispose of radioactive substances. (Ord. 21-859 § 1, 2021)

Article XIII. Frequently Flooded Areas

18.18.470 Designation of frequently flooded areas.

A. Frequently Flooded Areas. Frequently flooded areas shall include:

1. Areas Identified on the Flood Insurance Rate Map(s). Those areas of special flood hazard identified by the Federal Insurance Administration. The flood insurance study and accompanying map(s) are hereby adopted by reference, declared part of this chapter, and are available for public review at the city.

2. Areas Identified by the Mayor or Mayor’s Designee. Those areas of special flood hazard identified by the mayor or mayor’s designee based on review of base flood elevation and floodway data available from federal, state, county, or other valid sources when base flood elevation data has not been provided from the Federal Insurance Administrator.

B. Use of Additional Information. The mayor or mayor’s designee may use additional flood information that is more restrictive or detailed than that provided in the flood insurance study conducted by the Federal Emergency Management Agency (FEMA) to designate frequently flooded areas, including data on channel migration, historical data, high water marks, photographs of past flooding, location of restrictive floodways, maps showing future build-out conditions, maps that show riparian habitat areas, or similar information.

C. Flood Elevation Data. When base flood elevation data is not available (A and V zones), the mayor or mayor’s designee shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other source, in order to administer this chapter.

D. Designation Made by Mayor or Mayor’s Designee. The flood insurance maps are to be used as a guide for the city, project applicants and/or property owners, and the public and should be considered a minimum designation of frequently flooded areas. As flood insurance maps may be continuously updated as areas are reexamined or new areas are identified, newer and more restrictive information for flood hazard area identification shall be the basis for regulation.

E. Maintenance of Records. Where base flood elevation data is provided through the flood insurance study or required through subsection (C) of this section, the mayor or mayor’s designee shall obtain and record the as-built elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement. The mayor or mayor’s designee shall also maintain for public inspection all records of floodplain hazards, certificates of floodproofing, and flood elevation data. (Ord. 21-859 § 1, 2021)

18.18.480 Existing regulations.

Chapter 15.28 AMC (Flood Damage Prevention) regulates proposed activities adjacent to or within frequently flooded areas. If allowed, any development permitted in the designated frequently flooded areas are subject to the regulations in Chapter 15.28 AMC. (Ord. 21-859 § 1, 2021)

Article XIV. Geologically Hazardous Areas

18.18.490 Designation of geologically hazardous areas.

Geological hazards pose a threat to the health and safety of citizens when commercial, residential or industrial development is sited in areas of significant hazard. In areas in which these measures are not sufficient to reduce the risk from geological hazards, building is best avoided. Areas that are susceptible to one or more of the following types of hazards are defined as a geologically hazardous area: (1) landslide hazard area; (2) erosion hazard area; (3) seismic hazard area; (4) volcanic hazard area; (5) mine hazard area.

A. Classification. Classification and rating of these areas will be based upon the risk to development in geologically hazardous areas. The following categories shall be used:

1. Known or suspected risk;

2. No risk;

3. Risk unknown.

B. Landslide Hazard Areas. The purpose of this section is to protect the public from damage due to development on, or adjacent to, landslides, to preserve the scenic quality and natural character of the city of Asotin’s hillsides and to protect water quality.

1. Land to Which This Subsection Applies. This subsection shall apply to all landslide hazard areas in the city with the exception of public trails. Public trails may be allowed on landslide hazard areas provided they adhere to the construction and maintenance standards in the U.S. Forest Service “Trails Management Handbook” (FSH 2309.18), as the same exists now or may hereafter be amended. Public trails do not include routes constructed for motorized vehicle travel.

2. Procedure for Development Approval.

a. Prior to preparation of a proposal involving alteration of a landslide hazard area, the applicant shall contact the city to discuss the overall feasibility, scope of studies and regulatory restrictions relevant to site preparation.

b. All applications for development within a landslide hazard area or its buffer shall include preliminary information to assist the city in determining the need for a geological or geotechnical report performed by a qualified geologist or geotechnical engineer. Preliminary information and reports will be used to determine conditions for project approval. Preliminary information submitted to the city shall include the following, together with any additional information and reports requested by the city for the specific development proposal:

i. Applicant’s and consultant’s (or agent’s) names, addresses and phone numbers;

ii. Project name and the nature and type of project;

iii. Location and size of area, and the general setting with respect to major or regional geographic and geologic features;

iv. Expected project cost;

v. Purpose and scope of the report and geological investigation, including the proposed use of the site, level of study, i.e., feasibility, preliminary, final;

vi. Brief description of proposed site development, grading, structures and utilities;

vii. Finished floor grades and excavation levels;

viii. Known soils in and around project area and soil thicknesses;

ix. Maximum and minimum slopes in percent, average slope gradient;

x. Water courses and drainages;

xi. Topography and drainage within or affecting the area;

xii. General nature and distribution of exposures of earth materials within the area. Regional and local geology;

xiii. Disclosure of known or suspected geological hazards affecting the area, including a statement regarding past performance of existing facilities (such as buildings or utilities) in the immediate vicinity. This shall include a history of slope failures, rockslides, debris torrents, and seismic activity;

xiv. Locations of test holes and excavations (drill holes, water wells, test pits and trenches) shown on maps and sections and described in the text of the report. The actual bore logs, data or processed data upon which interpretations are based shall be included in the report to permit technical reviewers to make their own assessments regarding reliability and interpretation.

3. Standards.

a. Buffers. To maintain the natural integrity of landslide hazard areas and to protect the environment, and the public health and safety, the following provisions shall be maintained:

i. A 50-foot buffer of existing vegetation shall be established from the top, toe and along all sides of the landslide hazard area.

ii. The city code compliance officer may increase the buffer up to 100 percent for all or part of the buffer area based on the following factors: (A) analysis of the required special reports; (B) as necessary to protect the public health and safety.

iii. The city code compliance officer may reduce the buffer by up to 50 percent for all or part of the buffer area based on an analysis of the required special reports.

b. Development proposals that involve altering land upon areas identified as landslide hazard areas or their buffers must demonstrate the following for approval:

i. There is no evidence of past landslides in the vicinity of the proposed development and quantitative analysis of slope stability indicates no significant risk to the proposed development or other properties.

ii. The landslide hazard area can be modified or the project can be designed so that the landslide hazard to the project is eliminated.

iii. The development proposal would cause no increase in surface water discharge or sedimentation to other properties, and would not decrease slope stability on other properties.

iv. Disturbance of trees and vegetation would be minimal in order to prevent erosion, stabilize slopes, and preserve the natural character of the area.

v. Structures and improvements would be located to preserve the most sensitive portion of the site and its natural landforms and vegetation.

C. Erosion Hazard Areas.

1. Purpose. Erosion in the city is a common occurrence due to hydrologic and geologic characteristics, vegetative conditions and human land use. The purpose of this section is to minimize the negative impacts of human land use on erosion hazard areas and thereby reduce the damage to the natural environment as well as human-built systems.

2. Land to Which This Subsection Applies. This subsection pertains to soils in the city that demonstrate erosion hazard potential under development conditions, and/or are identified as such by the U.S. Department of Agriculture National Resource Conservation Service, as the same exists now or may be hereafter amended.

3. Procedure for Development Approval.

a. Any applications for development that may be located in such area must include preliminary information to assist the city in determining the need for a geological and geotechnical report. Preliminary information and reports will be used to determine conditions for project approval. Preliminary information shall include that information required in subsection (B)(2) of this section.

b. On lands being used for agricultural purposes, conservation techniques must be used to reduce the amount of erosion caused by water. Said techniques may include early fall seeding, stubble mulch tillage, grassed waterways, terraces, diversions or strip cropping. Conservation techniques must also be used to reduce the amount of wind erosion.

c. All authorized clearing for roads and utilities shall be limited to the minimum necessary to accomplish engineering design. Alterations must meet the following requirements:

i. Clearing, grading or filling of sloped sites containing erosion hazard areas shall be limited by weather conditions and an approved erosion control plan.

ii. All clearing shall be marked in the field for inspection and approval prior to alteration of the site.

iii. The face of cut and fill on slopes shall be prepared and maintained to control against erosion.

d. An erosion control plan must be submitted by the applicant for a development, prior to approval of the proposal. To minimize blowing soil during development, appropriate water and/or mulch material must be applied to any areas without a vegetative cover.

D. Seismic Hazards – Land to Which This Subsection Applies. There have been no specifically identified areas in the city which would pose significant, predictable hazards to life and property resulting from earthquakes and the associated ground shaking, differential settlement and/or soil liquefaction.

1. Procedure for Development Approval.

a. At such time a seismic hazard area is identified in the city, any application for development that may be located in such area must include preliminary information to assist the city in determining the need for a geological and geotechnical report. Preliminary information and reports will be used to determine conditions for project approval. Preliminary information shall include that information required in subsection (B)(2) of this section.

b. Any development located in such an area must be designed so that it will be as safe from any earthquake damage as a similar development not located in a seismic hazard area.

E. Volcanic Hazard Areas – Land to Which This Section Applies. Because there is no river or valley which heads on or near a volcano that flows through the city, there would be no significant damage to people and/or property expected from debris flows, mudflows or related flooding resulting from volcanic activity.

1. Procedure for Development Approval.

a. At such time a volcanic hazard area is identified in the city, any application for development that may be located in such area must include preliminary information to assist the city in determining the need for a geological and geotechnical report. Preliminary information and reports will be used to determine conditions for project approval. Preliminary information shall include that information required in subsection (B)(2) of this section.

b. Any development located in such an area must be designed so that it will be as safe from any volcanic damage as a similar development not located in a volcanic hazard area.

F. Mine Hazard Area – Land to Which This Section Applies. Because of the geology of the city, there has been little or no historical subsurface mining that could have left areas honeycombed with abandoned mine tunnels. Any open mining is required to have both an approved erosion control plan and an approved reclamation plan that will address steep and unstable slopes.

1. Procedure for Development Approval.

a. At such time a mine hazard area is identified in the city, any application for development that may be located in such area must include preliminary information to assist the city in determining the need for a geological and geotechnical report. Preliminary information and reports will be used to determine conditions for project approval. Preliminary information shall include that information required in subsection (B)(2) of this section.

b. Any development located in such an area must be designed so that it will be as safe from any mine hazard damage as a similar development not located in a mine hazard area. (Ord. 21-859 § 1, 2021)

Article XV. Fish and Wildlife Habitat Conservation Areas

18.18.500 Designation of fish and wildlife habitat conservation areas.

A. Fish and wildlife habitat conservation areas include:

1. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association.

a. Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status.

b. State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington Department of Fish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The State Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.

A combined list of federally and state identified species is included in Appendix D of the ordinance codified in this chapter.

This subsection shall not apply to hair seals and sea lions that are threatening to damage or are damaging commercial fishing gear being utilized in a lawful manner or when said mammals are damaging or threatening to damage commercial fish being lawfully taken with commercial gear.

2. State priority habitats and areas associated with state priority species. Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by the State Department of Fish and Wildlife.

A state list of priority habitats is included in Appendix E of the ordinance codified in this chapter.

3. Habitats and species of local importance. Habitats and species of local importance are those identified by the city, including but not limited to those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection. Habitats may include a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

a. Designation Process. The city shall accept and consider nominations for habitat areas and species to be designated as locally important on an annual basis.

i. Habitats and species to be designated shall exhibit the following characteristics:

(A) Local populations of native species are in danger of extirpation based on existing trends:

(1) Local populations of native species that are likely to become endangered; or

(2) Local populations of native species that are vulnerable or declining;

(B) The species or habitat has recreation, commercial, game, tribal, or other special value;

(C) Long-term persistence of a species is dependent on the protection, maintenance, and/or restoration of the nominated habitat;

(D) Protection by other county, state, or federal policies, laws, regulations, or nonregulatory tools is not adequate to prevent degradation of the species or habitat in city; and

(E) Without protection, there is a likelihood that the species or habitat will be diminished over the long term.

ii. Areas nominated to protect a particular habitat or species must represent either high quality native habitat or habitat that has a high potential to recover to a suitable condition and which is of limited availability, highly vulnerable to alteration, or provides landscape connectivity which contributes to the integrity of the surrounding landscape.

iii. Habitats and species may be nominated for designation by any person.

iv. The nomination should indicate whether specific habitat features are to be protected (for example, nest sites, breeding areas, and nurseries), or whether the habitat or ecosystem is being nominated in its entirety.

v. The nomination may include management strategies for the species or habitats. Management strategies must be supported by the best available science, and where restoration of habitat is proposed, a specific plan for restoration must be provided prior to nomination.

vi. The mayor or mayor’s designee shall determine whether the nomination proposal is complete, and if complete, shall evaluate it according to the characteristics enumerated in subsection (A)(3)(a)(i) of this section and make a recommendation to the planning commission based on those findings.

vii. The planning commission shall hold a public hearing for proposals found to be complete in accordance with locally adopted hearing procedures and make a recommendation to the city council or county commissioners based on the characteristics enumerated in subsection (A)(3)(a)(i) of this section.

viii. Following the recommendation of the planning commission, the city council or county commissioners shall designate a habitat or species of local importance.

ix. Approved nominations will be subject to the provisions of this chapter.

4. Naturally occurring ponds under 20 acres. Naturally occurring ponds are those ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation.

5. Waters of the state. Waters of the state include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-031 (or WAC 222-16-030, depending on classification used).

6. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity.

7. State natural area preserves and natural resource conservation areas. Natural area preserves and natural resource conservation areas are defined, established, and managed by the Washington State Department of Natural Resources.

8. Areas of rare plant species and high quality ecosystems. Areas of rare plant species and high quality ecosystems are identified by the Washington State Department of Natural Resources through the Natural Heritage Program.

9. Land useful or essential for preserving connections between habitat blocks and open spaces.

B. All areas within the city meeting one or more of these criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter and shall be managed consistent with the best available science, such as the Washington Department of Fish and Wildlife’s Management Recommendations for Priority Habitat and Species.

To determine the location and extent of fish and wildlife habitat conservation areas, the city shall use best available science, including current information contained in priority habitats and species maps as maintained by the Washington State Department of Fish and Wildlife. These maps shall be used as a general guide only for the assistance of property owners and other interested parties; boundaries are generalized. The actual type, extent, and boundaries of habitat areas shall be determined by a qualified professional according to the procedures, definitions, and criteria established by this article. In the event of any conflict between the habitat location or type shown on maps and the criteria or standards of this article, the criteria and standards resulting from the field investigation shall control.

Recovery plans and management recommendations for many of these species are available from the United States Fish and Wildlife Service, the National Marine Fisheries Service and the Washington State Department of Fish and Wildlife. Additional information is also available from the Washington State Department of Natural Resources, Natural Heritage Program, and Aquatic Resources Program.

It is also possible that unmapped areas may include priority habitats or species (PHS), endangered, threatened or sensitive (ETS) species, or habitats and species of local importance (HSLI). If such a species is known to exist within an unmapped area, the type, extent and boundaries of this area shall be determined by a qualified professional. (Ord. 21-859 § 1, 2021)

Article XVI. Definitions

18.18.510 Definitions.

These definitions shall apply to this chapter. Words not defined in this chapter shall be as defined in the city code, the Washington Administrative Code, or the Revised Code of Washington. Words not found in any of these codes shall be as defined in the Webster’s Third New International Dictionary, latest edition.

Adaptive Management. Adaptive management relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty.

“Adjacent” means immediately adjoining (in contact with the boundary of the influence area) or within a distance that is less than that needed to separate activities from critical areas to ensure protection of the functions and values of the critical areas. “Adjacent” shall mean any activity or development located:

A. On a site immediately adjoining a critical area;

B. A distance equal to or less than the required critical area width and building setback;

C. A distance equal to or less than one-half mile (2,640 feet) from a bald eagle nest;

D. A distance equal to or less than 300 feet upland from a stream, wetland, or water body; or

E. Bordering or within the floodway, floodplain, or channel migration zone.

“Advance mitigation” means mitigation of an anticipated critical area impact or hazard completed according to an approved critical area report and prior to site development.

“Alteration” means any human induced change in an existing condition of a critical area. Alterations include, but are not limited to, grading, filling, channelizing, dredging, clearing (vegetation), construction, compaction, excavation, or any other activity that changes the character of the critical area.

“Anadromous fish” means fish that spawn and rear in fresh water and mature in the marine environment. While Pacific salmon die after their first spawning, adult char (bull trout) can live for many years, moving in and out of saltwater and spawning each year. The life history of Pacific salmon and char contains critical periods of time when these fish are more susceptible to environmental and physical damage than at other times. The life history of salmon, for example, contains the following stages: upstream migration of adults, spawning, inter-gravel incubation, rearing, smoltification (the time period needed for juveniles to adjust their body functions to live in the marine environment), downstream migration, and ocean rearing to adults.

“Applicant” means a person who files an application for permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a contract purchaser, or the authorized agent of such a person.

“Aquifer” means a geological formation, group of formations, or part of a formation that is capable of yielding a significant amount of water to a well or spring.

“Aquifer recharge areas” means areas that, due to the presence of certain soils, geology, and surface water, act to recharge ground water by percolation.

“Aquifer, sole source” means an area designated by the U.S. Environmental Protection Agency under the Safe Drinking Water Act of 1974, Section 1424(e). The aquifer(s) must supply 50 percent or more of the drinking water for an area without a sufficient replacement available.

“Base flood” means a flood event having a one percent chance of being equaled or exceeded in any given year, also referred to as the “100-year flood.” Designations of base flood areas on flood insurance map(s) always include the letters A or V.

“Basement” means any area of the building having its floor below ground level on all sides.

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Sources of the best available science are included in “Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas,” published by the Washington State Department of Community, Trade and Economic Development.

“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:

A. Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, and sediment;

B. Minimize adverse impacts to surface water and ground water flow and circulation patterns and to the chemical, physical, and biological characteristics of wetlands;

C. Protect trees and vegetation designated to be retained during and following site construction and use native plant species appropriate to the site for revegetation of disturbed areas; and

D. Provide standards for proper use of chemical herbicides within critical areas.

The city shall monitor the application of best management practices to ensure that the standards and policies of this chapter are adhered to.

“Biodiversity” means the variety of animal and plant life and its ecological processes and interconnections – represented by the richness of ecological systems and the life that depends on them, including human life and economies.

“Channel migration zone (CMZ)” means the lateral extent of likely movement along a stream or river during the next 100 years as determined by evidence of active stream channel movement over the past 100 years. Evidence of active movement over the 100-year time frame can be inferred from aerial photos or from specific channel and valley bottom characteristics. The time span typically represents the time it takes to grow mature trees that can provide functional large woody debris to streams. A CMZ is not typically present if the valley width is generally less than two bankfull widths, if the stream or river is confined by terraces, no current or historical aerial photographic evidence exists of significant channel movement, and there is no field evidence of secondary channels with recent scour from stream flow or progressive bank erosion at meander bends. Areas separated from the active channel by legally existing artificial channel constraints that limit bank erosion and channel avulsion without hydraulic connections shall not be considered within the CMZ.

“Compensation project” means actions necessary to replace project-induced critical area losses, including land acquisition, planning, construction plans, monitoring, and contingency actions.

“Compensatory mitigation” means replacing project-induced losses or impacts to a critical area, and includes, but is not limited to, the following:

“Creation” means actions performed to intentionally establish a wetland at a site where it did not formerly exist.

“Enhancement” means actions performed to improve the condition of existing degraded wetlands so that the functions they provide are of a higher quality.

“Preservation” means actions taken to ensure the permanent protection of existing, high-quality wetlands.

“Restoration” means actions performed to reestablish wetland functional characteristics and processes that have been lost by alterations, activities, or catastrophic events within an area that no longer meets the definition of a wetland.

“Critical aquifer recharge areas” means areas described in WAC 365-190-100(4)(b) that are determined to have a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(3).

Critical Areas. “Critical areas” include any of the following areas or ecosystems: critical aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands, as defined in Chapter 36.70A RCW and this chapter.

“Cumulative impacts or effects” means the combined, incremental effects of human activity on ecological or critical areas functions and values. Cumulative impacts result when the effects of an action are added to or interact with other effects in a particular place and within a particular time. It is the combination of these effects, and any resulting environmental degradation, that should be the focus of cumulative impact analysis and changes to policies and permitting decisions.

“Development” means any activity upon the land consisting of construction or alteration of structures, earth movement, dredging, dumping, grading, filling, mining, removal of any sand, gravel, or minerals, driving of piles, drilling operations, bulkheading, clearing of vegetation, or other land disturbance. Development includes the storage or use of equipment or materials inconsistent with the existing use. Development also includes approvals issued by the city that binds land to specific patterns of use, including, but not limited to, subdivisions, short subdivisions, zone changes, conditional use permits, and binding site plans. Development activity does not include the following activities:

A. Interior building improvements.

B. Exterior structure maintenance activities, including painting and roofing.

C. Routine landscape maintenance of established, ornamental landscaping, such as lawn mowing, pruning, and weeding.

D. Maintenance of the following existing facilities that does not expand the affected area: septic tanks (routine cleaning); wells; individual utility service connections; and individual cemetery plots in established and approved cemeteries.

“Development permit” means any permit issued by the city, or other authorized agency, for construction, land use, or the alteration of land.

“Erosion” means the process whereby wind, rain, water, and other natural agents mobilize and transport particles.

“Erosion hazard areas” means at least those areas identified by the U.S. Department of Agriculture National Resources Conservation Service as having a “severe” rill and inter-rill erosion hazard.

“Exotic” means any species of plants or animals which are foreign to the planning area.

“Fish and wildlife habitat conservation areas” are areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. It also means areas necessary for maintaining species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created as designated by WAC 365-190-080(5). These areas include:

A. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association;

B. Habitats of local importance, including but not limited to areas designated as priority habitat by the Washington Department of Fish and Wildlife;

C. Commercial and recreational shellfish areas;

D. Kelp and eelgrass beds;

E. Herring and smelt spawning areas;

F. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds;

G. Waters of the state, including lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington;

H. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;

I. State natural area preserves and natural resource conservation areas; and

J. Land essential for preserving connections between habitat blocks and open spaces.

“Fish habitat” means habitat that is used by fish at any life stage at any time of the year, including potential habitat likely to be used by fish that could be recovered by restoration or management and includes off-channel habitat.

“Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland waters and/or the unusual and rapid accumulation of runoff of surface waters from any source.

“Flood insurance map” means the official map on which the Federal Insurance Administration has delineated the areas of special flood hazards and includes the risk premium zones applicable to the community. Also known as “flood insurance rate map” or “FIRM.”

“Flood insurance study” means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood.

“Floodplain” means the total land area adjoining a river, stream, watercourse, or lake subject to inundation by the base flood.

“Floodway” means the channel of a river or other watercourse and the adjacent land area that must be reserved in order to discharge the base flood without cumulatively increasing the surface water elevation more than one foot. Also known as the “zero rise floodway.”

“Formation” means an assemblage of earth materials grouped together into a unit that is convenient for description or mapping.

“Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance, and attenuation functions, as determined by the director in accordance with WAC 365-190-080(3). Frequently flooded areas perform important hydrologic functions and may present a risk to persons and property. Classifications of frequently flooded areas include, at a minimum, the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program.

“Functions and values” means the beneficial roles served by critical areas including, but not limited to, water quality protection and enhancement; fish and wildlife habitat; food chain support; flood storage, conveyance and attenuation; ground water recharge and discharge; erosion control; wave attenuation; protection from hazards; historical, archaeological, and aesthetic value protection; educational opportunities; and recreation. These beneficial roles are not listed in order of priority. Critical area functions can be used to help set targets (species composition, structure, etc.) for managed areas, including mitigation sites.

“Geologically hazardous areas” means areas that may not be suited to development consistent with public health, safety, or environmental standards, because of their susceptibility to erosion, sliding, earthquake, or other geological events as designated by WAC 365-190-080(4). Types of geologically hazardous areas include: erosion, landslide, seismic, mine, and volcanic hazards.

“Ground water” means water in a saturated zone or stratum beneath the surface of land or a surface water body.

“Habitat conservation areas” means areas designated as fish and wildlife habitat conservation areas.

Habitats of Local Importance. These areas include a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alterations such as cliffs, talus, and wetlands (WAC 365-190-030).

“Hazard areas” means areas designated as frequently flooded areas or geologically hazardous areas due to potential for erosion, landslide, seismic activity, mine collapse, or other geological condition.

“Hazardous substances” means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical, or biological properties described in WAC 173-303-090 or 173-303-100.

“Infiltration” means the downward entry of water into the immediate surface of soil.

“Inter-rill” means areas subject to sheet wash.

“Lowest floor” means the lowest floor of the lowest enclosed area, including the basement. An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area, which is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable requirements of this chapter.

“Mitigation” means avoiding, minimizing, or compensating for adverse critical areas impacts. Mitigation, in the following sequential order of preference, is:

A. Avoiding the impact altogether by not taking a certain action or parts of an action;

C. Rectifying the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;

D. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

E. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

F. Compensating for the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

G. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures.

“Monitoring” means evaluating the impacts of development proposals on the biological, hydrological, and geological elements of such systems, and assessing the performance of required mitigation measures throughout the collection and analysis of data by various methods for the purpose of understanding and documenting changes in natural ecosystems and features, including gathering baseline data.

“Native vegetation” means plant species that are indigenous to the area in question.

“Potable water” means water that is safe and palatable for human use.

“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and has less impacts to critical areas.

“Priority habitat” means habitat type or elements with unique or significant value to one or more species as classified by the State Department of Fish and Wildlife. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element.

“Priority habitat and species map” means maps of plant cover types/communities. Considered by Washington State Department of Fish and Wildlife to contain priority habitat or wildlife species. PHS is a source of best available science that informs local planning activities and land use applications.

“Project area” means all areas within 50 feet of the area proposed to be disturbed, altered, or used by the proposed activity or the construction of any proposed structures. When the action binds the land, such as a subdivision, short subdivision, binding site plan, planned unit development, or rezone, the project area shall include the entire parcel, at a minimum.

“Qualified professional” means a person with experience and training in the pertinent scientific discipline, and who is a qualified scientific expert with expertise appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology, or related field, and two years of related work experience.

A. A qualified professional for habitats or wetlands must have a degree in biology and professional experience related to the subject species.

B. A qualified professional for a geological hazard must be a professional engineer or geologist, licensed in the state of Washington.

C. A qualified professional for critical aquifer recharge areas means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.

“Recharge” means the process involved in the absorption and addition of water to ground water.

“Repair or maintenance” means an activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.

“Restoration” means measures taken to restore an altered or damaged natural feature including:

A. Active steps taken to restore damaged wetlands, streams, or protected habitat to the functioning condition that existed prior to an unauthorized alteration; and

B. Actions performed to reestablish structural and functional characteristics of the critical area that have been lost by alteration, past management activities, or catastrophic events.

“Riparian habitat” means areas adjacent to aquatic systems with flowing water that contain elements of both aquatic and terrestrial ecosystems that mutually influence each other. The width of these areas extends to that portion of the terrestrial landscape that directly influences the aquatic ecosystem by providing shade, fine or large woody material, nutrients, organic and inorganic debris, terrestrial insects, or habitat for riparian-associated wildlife. Widths shall be measured from the ordinary high water mark or from the top of bank if the ordinary high water mark cannot be identified. It includes the entire extent of the floodplain and the extent of vegetation adapted to wet conditions as well as adjacent upland plant communities that directly influence the stream system. Riparian habitat areas include those riparian areas severely altered or damaged due to human development activities.

River. See “Watercourse.”

Scientific Process. A valid “scientific process” is one that produces reliable information useful in understanding the consequences of a decision. The characteristics of a valid scientific process are as follows:

A. Peer Review. The information has been critically reviewed by other qualified scientific experts in that scientific discipline.

B. Methods. The methods that were used are standardized in the pertinent scientific discipline or the methods have been appropriately peer-reviewed to ensure their reliability and validity.

C. Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and are logically and reasonably derived from the assumptions and supported by the data presented.

D. Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods.

E. Context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge.

F. References. The assumptions, techniques, and conclusions are well referenced with citations to pertinent existing information.

“Section 404 Permit” means a permit issued by the U.S. Army Corps of Engineers for the placement of dredge or fill material or clearing in waters of the United States, including wetlands, in accordance with 33 USC Section 1344. Section 404 Permits may also be for endangered species consultation. They require a consultation under Section 7 of the Federal Endangered Species Act.

“SEPA” means Washington State Environmental Policy Act, Chapter 43.21C RCW.

“Serviceable” means presently usable.

“Shorelands” or “shoreland areas” means those lands extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward 200 feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of Chapter 90.58 RCW.

“Shorelines” means all of the water areas of the state as defined in RCW 90.58.030, including reservoirs and their associated shorelands, together with the lands underlying them, except:

A. Shorelines of statewide significance;

B. Shorelines on segments of streams upstream of a point where the mean annual flow is 20 cubic feet per second (20 cfps) or less and the wetlands associated with such upstream segments; and

C. Shorelines on lakes less than 20 acres in size and wetlands associated with such small lakes.

“Shorelines of statewide significance” means those areas defined in RCW 90.58.030(2)(e).

Sole Source Aquifer. See “Aquifer, sole source.”

“Species” means any group of animals classified as a species or subspecies as commonly accepted by the scientific community.

“Species, endangered” means any fish or wildlife species that is threatened with extinction throughout all or a significant portion of its range and is listed by the state or federal government as an endangered species.

“Species of local importance” means those species of local concern due to their population status or their sensitivity to habitat manipulation, or that are game species.

“Species, priority” means any fish or wildlife species requiring protective measures and/or management guidelines to ensure their persistence as genetically viable population levels as classified by the Washington Department of Fish and Wildlife, including endangered, threatened, sensitive, candidate and monitor species, and those of recreational, commercial, or tribal importance.

“Species, threatened” means any fish or wildlife species that is likely to become an endangered species within the foreseeable future throughout a significant portion of its range without cooperative management or removal of threats, and is listed by the state or federal government as a threatened species.

Stream. See “Watercourse.”

“Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.

“Vulnerability” means the combined effect of susceptibility to contamination and the presence of potential contaminants.

“Watercourse” means any portion of a channel, bed, bank, or bottom waterward of the ordinary high water line of waters of the state including areas in which fish may spawn, reside, or through which they may pass, and tributary waters with defined beds or banks, which influence the quality of fish habitat downstream. This definition includes watercourses that flow on an intermittent basis or which fluctuate in level during the year and applies to the entire bed of such watercourse whether or not the water is at peak level. This definition does not include irrigation ditches, canals, storm water run-off devices, or other entirely artificial watercourses, except where they exist in a natural watercourse that has been altered by humans.

“Wellhead protection area (WHPA)” means the portion of a well’s, wellfield’s, or spring’s zone of contribution within the 10-year time of travel boundary, or boundaries established using alternate criteria approved by the state Department of Health in those settings where groundwater time of travel is not a reasonable delineation criteria.

“Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. For identifying and delineating a wetland, local government shall use the Washington State Wetland Identification and Delineation Manual.

“Zone of contribution” means the area surrounding a well or spring that encompasses all areas or features that supply ground water recharge to the well or spring. (Ord. 21-859 § 1, 2021)