Chapter 16.12
SHORELINE MASTER PROGRAM

Sections:

16.12.010    Introduction.

16.12.020    Shoreline designation regulations.

16.12.030    General (island-wide) regulations.

16.12.040    Specific shoreline use and development regulations.

16.12.050    Shoreline modification regulations.

16.12.060    Critical areas.

16.12.070    Violations, enforcement, and penalties.

16.12.080    Definitions.

16.12.010 Introduction.

A. Purpose and Intent. The shoreline master program is intended to implement the Shoreline Management Act of 1971 (Chapter 90.58 RCW) by:

1. Planning for and guiding the orderly development of the shoreline in a positive, effective, and equitable manner, protecting and restoring shoreline resources, and helping to assure public access to the shoreline;

2. Promoting the health, safety, and general welfare of the community by providing long-range, comprehensive policies and effective, reasonable regulations for use and development of Bainbridge Island’s shorelines;

3. Ensuring, at minimum, no net loss of shoreline ecological functions and ecosystem-wide processes;

4. Planning for the restoration of shorelines that have been impaired or degraded in the past and in a manner that educates the community in the use and protection of its shorelines;

5. Adhering to and fostering the policies of the Act contained in RCW 90.58.020 for shorelines of the state; and

6. Improving the water quality of the Puget Sound.

B. Scope of Shoreline Management Act. The Act covers all shorelines of the state, including “shorelines” and “shorelines of statewide significance.” Figure 16.12.010-1 illustrates shoreline jurisdiction on coastal shorelines.

Figure 16.12.010-1 Shoreline Jurisdiction

Provisions of the Act apply to the following geographical shoreline areas:

1. All marine waters of the state, together with the lands underlying them;

2. Segments of streams and rivers where the mean annual flow is more than 20 cubic feet per second (cfs);

3. Lakes and reservoirs 20 acres and greater in area;

4. Shorelands 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; and

5. Shorelines of statewide significance as defined in RCW 90.58.030 or its successor. This includes those areas of Puget Sound lying seaward from the line of extreme low tide.

C. Relationship to Other Plans and Regulations. The shoreline master program regulations are used as an overlay to other city policies and regulations for properties within shoreline jurisdiction. The following provisions apply to this program in relationship to other plans and regulations:

1. In addition to compliance with the provisions of the Shoreline Management Act of 1971 (also called “the Act”; Chapter 90.58 RCW) and the State Master Program Approval/Amendment Procedures and Master Program Shoreline Guidelines (the “Guidelines” or “Shoreline Master Program Guidelines”; Chapter 173-26 WAC), this shoreline master program must be consistent with local plans and policy documents, specifically, the city’s comprehensive plan and the city’s critical areas regulations. This shoreline master program must be consistent with the regulations developed by the city to implement its plans, such as the zoning code and subdivision code, as well as regulations relating to building construction and safety.

2. Uses and developments regulated by this program may also be subject to other provisions of the Bainbridge Island Municipal Code, the city of Bainbridge Island comprehensive plan, the Washington State Environmental Policy Act (Chapter 43.21C RCW and Chapter 197-11 WAC), Chapter 173-27 WAC, Shoreline Management Permit and Enforcement Procedures, and other local, state and federal laws.

3. Project proponents are responsible for complying with all applicable laws prior to commencing any use, development or activity.

4. Where this program makes reference to any RCW, WAC, or other state or federal law or regulation, the most recent amendment or current edition shall apply.

5. In the event of a conflict between the provisions of this program and the laws, regulations, codes or rules of any other authority having jurisdiction within the city, the regulations that provide more protection to the shoreline area shall apply, except when constrained by federal or state law, or where specifically provided otherwise in this program.

6. Other activities that could occur along the shoreline (starting bonfires, disposing or spilling/releasing of regulated or hazardous waste products, use of pesticides, activities within wetlands) may require other permits, review, or approval not identified here.

D. Applicability of Bainbridge Island Shoreline Master Program.

1. The Bainbridge Island shoreline master program applies to 200 feet landward of ordinary high water mark and all marine waters out to the midline of Puget Sound, Port Madison, Agate Pass, Port Orchard and Rich Passage. The SMP does not apply to freshwater lakes or streams on Bainbridge Island.

2. The provisions of the program apply to new development and activities and are not retroactive. All existing legally constructed single-family residences and accessory structures, including lawns, landscaping and recreation areas, which do not meet the adopted standards of this shoreline master program are allowed to continue, and may be maintained, repaired, and remodeled if destroyed or damaged by natural causes as provided in BIMC 16.12.030.C.1, Nonconforming Uses, Nonconforming Lots, and Existing Development. Residences may be expanded, provided the expansion meets the provisions of this program, including addressing environmental impacts and meeting the standard for no net loss of ecological functions and ecosystem-wide processes as provided in BIMC 16.12.030.B.2, Environmental Impacts. All proposed uses and development occurring within shoreline jurisdiction must conform to Chapter 90.58 RCW, the Shoreline Management Act and this shoreline master program. All uses, even those not meeting the definition of development, are subject to the provisions and development regulations of this shoreline master program, even though a permit may not be required.

3. Any person wishing to undertake activities constituting “development” within shoreline jurisdiction shall apply to the administrator for a shoreline permit. Based on the provisions of this master program, the administrator shall determine if a letter of exemption, a substantial development permit, a shoreline conditional use permit, and/or a shoreline variance is required. Substantial development shall not be undertaken within the jurisdiction of the Act and this master program unless a substantial development permit has been obtained and the appeal period has been completed and any appeals have been resolved and/or the project proponent is allowed to proceed under the provisions of the Act or by court order. “Substantial development” shall be defined as it is by the Act (RCW 90.58.030) and supplementing provisions of the Washington Administrative Code (WAC 173-27-040).

4. Developments exempt from a substantial development permit, which are outlined in BIMC 2.16.165, shall require a letter of exemption. A project that qualifies as “exempt development” may also require a shoreline conditional use permit, and/or a shoreline variance.

5. This master program shall apply to every individual, firm, partnership, association, organization, corporation, local or state governmental agency, public or municipal corporation, or other entity which develops, owns, leases or administers lands, wetlands, or waters that fall under the jurisdiction of the Act.

6. Applicability of this master program to federal lands and agencies shall be consistent with WAC 173-27-060. (Ord. 2014-04 § 3 (Exh. 1 § 1), 2014)

16.12.020 Shoreline designation regulations.

A. Shoreline Designation Map.

B. Upland Designations.

1. Urban. The purpose of the urban designation is to provide for high-intensity water-oriented commercial, transportation, industrial, mixed-use, multifamily residential, public access and recreational uses while protecting existing natural resources, ecological functions and ecosystem-wide processes, and restoring ecological functions in areas that have been previously degraded.

2. Shoreline Residential. The purpose of the shoreline residential designation is to provide for residential development and appurtenant structures, appropriate public access and recreational use, which are consistent with the Shoreline Management Act, while protecting existing natural resources, ecological functions and ecosystem-wide processes, and restoring ecological functions in previously degraded areas.

3. Shoreline Residential Conservancy. The purpose of the shoreline residential conservancy designation is to accommodate compatible residential uses while protecting, conserving, and restoring shoreline ecological functions and processes of open space, floodplains or other flood prone areas, and other sensitive lands. It is the further purpose to conserve and manage valuable historic and cultural resources where they exist. Due to the more sensitive characteristics of these areas, a higher level of development standards is warranted.

4. Island Conservancy. The purpose of the island conservancy designation is to accommodate a variety of private or public recreational uses that might have a higher level of impact than would be allowed in the natural designation. Uses should incorporate elements compatible with protecting, conserving and restoring ecological functions and ecosystem-wide processes of open space, floodplains or other flood prone areas, and other sensitive lands, and manage valuable historic and cultural resources where they exist.

5. Natural. The purpose of the natural designation is to protect those shoreline areas where the majority of natural ecological functions and/or shoreline ecosystem-wide processes are retained, often evidenced by the shoreline configuration and the presence of native vegetation. Generally, but not necessarily, they include ecologically intact shorelines that are free of structural shoreline modifications, structures, and intensive human uses or have potential for restoration.

C. Aquatic Designations.

1. Aquatic. The purpose of the aquatic designation is to protect, restore and manage the sensitive and unique characteristics and resources of the waters of the Puget Sound, tidelands, and submerged intertidal areas located waterward of the ordinary high water mark. The aquatic designation may allow either multiple water-dependent uses or specific dominant water-dependent uses. It is intended to promote sustainable use of the natural features and resources of aquatic areas which are substantially different in character from those of the adjoining uplands and backshores.

2. Priority Aquatic. The purpose of the priority aquatic designation is to protect, preserve, restore and manage aquatic areas of sensitive and unique ecological value that include those portions of the marine waters of the city that exist in a relatively natural state, free of human influence, or which contain resources, biological diversity, or other features that are particularly sensitive to human activity, or which contain unique, historical, archaeological, cultural, or educational features that merit special protection. (Ord. 2014-04 § 3 (Exh. 1 § 3), 2014)

16.12.030 General (island-wide) regulations.

A. Regulations – General.

1. All new shoreline uses and shoreline modification activities, including those that do not require a shoreline substantial development permit, must conform to all applicable goals, policies, shoreline designations (including the shoreline designation map), and regulations and use tables provided in this master program.

2. Shoreline modification activities must be in support of an allowable shoreline use which conforms to the provisions of the master program. Except as otherwise noted, all shoreline modification activities not associated with a legally existing or approved shoreline use are prohibited.

3. Shoreline uses, modification activities, and conditions listed as prohibited in Table 16.12.030-1 shall not be eligible for consideration as a shoreline variance or shoreline conditional use permit.

4. Uses, modification activities, and conditions that are not prohibited and not listed in Table 16.12.030-1 shall be reviewed through the shoreline conditional use process.

5. The policies listed in the master program shall provide broad guidance and direction and shall be used by the director in interpreting the regulations.

6. BIMC Title 18, Zoning, or its successor also apply to shoreline parcels.

7. Where provisions of this master program or other provision in BIMC conflict, the more restrictive provisions shall apply unless specifically stated otherwise.

8. The use table (Table 16.12.030-1), shoreline setback table (Table 16.12.030-2), and the shoreline buffer table (Table 16.12.030-3) provide regulatory use and dimensional provisions for each shoreline designation.

9. An increase in the dimensional height standard (Table 16.12.030-2) for essential public facilities shall be reviewed through a shoreline conditional use. Submittal requirements are in the Administrative Manual.

10. Submittal requirements for all shoreline development permits or shoreline exemptions are in BIMC Title 2 and the Administrative Manual.

EXPLANATION OF TABLE ABBREVIATIONS

The abbreviations used in the Permitted Use Table have the following meanings:

ο “P” in a cell indicates that the use is permitted by right in that designation. Permitted uses are subject to all other applicable regulations of this program, including the use-specific standards.

ο “C” in a cell indicates that, in the respective designation, the use is a conditional use that is allowed only if reviewed and approved in accordance with the procedures set forth in BIMC Title 2. Unless otherwise stated in this program or in a conditional use approval, conditional uses are subject to all other applicable regulations of this code, including the use-specific standards.

ο An “A” in a cell indicates that the use is permitted as an accessory use to a permitted use or to an approved conditional use in the same designation. In the case of approved conditional uses, accessory uses listed in the table are permitted unless the terms of the conditional use permit prohibit that accessory use.

ο A “CA” in a cell indicates that the use is permitted as an accessory use to a permitted use or to an approved conditional use, but that a conditional use permit is always required.

ο An “X” indicates that the use is prohibited in the respective designation. The use may be allowed outside the shoreline jurisdiction. See BIMC Title 18, Zoning.

ο The column headed “Use Specific Standards” identifies a subsection within this chapter that imposes additional standards with which the use must comply. The use specific standard may limit the “P” or “C” designation to certain areas.

 

Table 16.12.030-1: Shoreline Use and Modification Table 

“P” = Permitted Use

“X” = Prohibited Use

“A” = Accessory Use

“C” = Conditional Use

“#” = Same as Upland Property

“CA” – Conditional Accessory Use

SHORELINE USE

UPLAND DESIGNATION

AQUATIC DESIGNATION

Use Specific Standards

Natural

Island Conservancy

Shoreline Residential Conservancy

Shoreline Residential

Urban

Aquatic

Priority Aquatic

A

B

Natural Resource Management

Agriculture

X

X

X

X

X

X

X

X

 

Aquaculture

C[1]

X

C

C

C

C

C[1]

C[1]

 

Aquaculture, Shellfish Garden

X

P

P

P

P

P

P[1]

P[1]

 

Flood Hazard Management [6]

X

C

C

C

C

#

X

X

 

Stormwater Management [6]

X

P

P

P

P

#

X

X

 

Forest Practices

X

X

C

C

C

X

X

X

 

Shoreline Restoration

P

P

P

P

P

P

P

P

 

Commercial Development

Boating Facilities

X

C[7]

X

C[8]

P

#

X

X

 

Non-Water-Oriented

X

X[7]

X[19]

X

C[15]

X

X

X

 

Water-Dependent

X

X

X[19]

C

P

#

X

X

 

Water-Related or Enjoyment

X

X

X[19]

C

P

X

X

X

 

Educational and Community Facilities

Educational Facility

X

C

C

C

P

X

X

X

 

Governmental Facility

X

X

C

C

P

X

X

X

 

Religious Facility

X

C

C

C

P

X

X

X

 

Cultural and Entertainment Facilities

Club

X

C

C

C

P

X

X

X

 

Commercial Amusement

X

X

C

C

P

X

X

X

 

Cultural Facility

X

C

C

C

P

X

X

X

 

Entertainment Facility

X

X

C

C

P

X

X

X

 

Industrial

Mining

X

X

X

X

X

X

X

X

 

Non-Water-Oriented

X

X

X

X

X

X

X

X

 

Solid Waste Disposal

X

X

X

X

X

X

X

X

 

Water-Dependent

X

X

X

X

P

#

X

X

 

Water-Related

X

X

X

X

C

#

X

X

 

Water Enjoyment

X

X

X

X

X

X

X

X

 

Overwater Structures

Boatlift

X

X

P

P

P

#

X

#

 

Marine Railway

X

X

P

P

P

#

X

X

 

Marine Railway, Retractable [12]

X

P

P

P

P

#

X

#

 

Mooring Buoys

X

P

P

P

P

#

X

X

 

Piers and Docks

X

C[14]

P

P

P

#

X

P

 

Recreational Floats

X

X

X

P

P

#

X

X

 

Recreational Development

Golf Courses

X

C

X

C

C

X

X

X

 

Non-Water-Oriented

X

X

X

C

C

X

X

X

 

Recreation, Active

X

C[14]

C[16]

C

P

#

X

X

 

Recreation, Passive

P

P

P

P

P

#

P[13]

P[13]

 

Event: Recreation, Culture, Education

Water-Oriented

X

P

P

P

P

#

X

X

 

Residential

Accessory Dwelling Unit

X

C

C[16]

C

C

X

X

X

 

Subdivision

C

P

P

P

P

#

#

#

 

Multifamily [19]

X

X

X

P

P

X

X

X

 

Single-Family

X

C

P

P

P

X

X

X

 

Shoreline/Aquatic Modification [4] [6]

Beach Nourishment (Mitigation)

C

P

P

P

P

#

#

#

 

Beach Enhancement (Nonrestoration) [5]

C[11]

C[11]

C[11]

C[11]

C[11]

#

#

#

 

Breakwaters

X

X

X

X

X

X

X

X

 

Dredging

X

X

X

X

X

C

X

C

 

Drift Sill

X

X

X

X

X

P

P

P

 

Landfill

C

C

C

C

C

#

X

X

 

Fill

X

C

X

X

C

#

X

X

 

Repair of Shoreline Stabilization

X

P

P

P

P

#

#

#

 

New or Replacement Shoreline Stabilization, Hard [3]

New Bulkheads

X

X

P[16]

P

P

#

X

X

 

Replacement Bulkheads

X

X

P[16]

P

P

#

#

#

 

Gabions

X

X

X

X

X

X

X

X

 

Weirs, Groins (Rock or Concrete)

X

X

X

X

X

X

X

X

 

Jetties

X

X

X

X

X

X

X

X

 

Levees/Dikes

X

X

X

X

X

X

X

X

 

Retaining Walls and Bluff Walls

X

C

C

C

C

X

X

X

 

Revetments

X

X

X[2]

X[2]

X[2]

#

X

X

 

Seawalls

X

X

X

X

X

X

X

X

 

Hybrid

X

P

P

P

P

#

#

#

 

New or Replacement Shoreline Stabilization Non-Structural and Soft

Nonstructural Stabilization, Soft-Treatment

X

P

P

P

P

#

#

#

 

Transportation

Existing Road Repair

X

P

P

P

P

X

X

X

 

New Arterials

X

X

X

X

X

X

X

X

 

New Highways

X

X

X

X

X

X

X

X

 

New Secondary Arterials

X

X

X

X

X

X

X

X

 

Float Plane Facilities and Services

X

X

X

X

C

#

X

X

 

Heliports

X

X

X

X

X

X

X

X

 

Additional Bridge to Bainbridge Island

X

X

X

X

X

X

X

X

 

Parking (Primary)

X

X

X

X

X

X

X

X

 

Public Access Facilities

Public Ferry Terminal Facilities and Services

X

X

X

X

P

#

X

X

 

Overwater Public Ferry Terminal Facilities and Services

X

X

X

X

C[9]

#

X

X

 

Railroads

X

X

X

X

X

X

X

X

 

Trails

P

P

P

P

P

#

#

#

 

Utilities & Telecommunication

Utilities (Primary)

X

X

C[10]

C[10]

C[10]

#

X

X

 

Signs

Primary

X

X

X

X

X

P

X

X

 

Accessory Structures

All Uses

Potable Water Wells

X

A

A

A

A

X

X

X

 

Signs

X[17]

X[17]

P

P

P

P

X[17]

X[17]

 

Tram

X

A

A

A

A

#

X

X

 

Underground Utilities

X

A[18]

A[18]

A[18]

A[18]

#

X

X

 

Residential

Upland Appurtenant Structures

X

CA

A

A

A

#

X

X

 

Commercial

Upland Appurtenant Structures That Support a Water-Dependent Use [12]

X

X

X

CA

A

#

X

X

 

Upland Appurtenant Structures That Support a Water-Related or Water Enjoyment Use [12]

X

X

X

CA

A

X

X

X

 

Upland Appurtenant Structures That Support a Non-Water-Oriented Use [12]

X

X[7]

X

X

C[15]

X

X

X

 

Industrial

Upland Appurtenant Structures That Support a Water-Dependent Use [12]

X

X

X

X

A

#

X

X

 

Upland Appurtenant Structures That Support a Water-Related Use [12]

X

X

X

X

CA

#

X

X

 

Upland Appurtenant Structures That Support a Water Enjoyment Use [12]

X

X

X

X

X

X

X

X

 

Upland Appurtenant Structures That Support a Non-Water-Oriented Use [12]

X

X

X

X

X

X

X

X

 

Public Park/Recreational Development

Public Pathways to the Shoreline

A

A

A

A

A

#

#

#

 

Public Stairway

A

A

A

A

A

#

#

#

 

Access Roads

X

A

A

A

A

X

X

X

 

Upland Appurtenant Structures That Support a Water-Oriented Active Recreational Use

X

A

CA

CA

A

#

X

X

 

Upland Appurtenant Structures That Support a Water-Oriented Passive Recreational Use

A

A

A

A

A

#

A[13]

A[13]

 

Upland Appurtenant Structures That Support a Non-Water-Oriented Use

X

X

X

X

X

X

X

X

 

[1] Allowed if using native species and part of an approved shoreline restoration project.

[2] Revetments are prohibited unless they are constructed as part of a public facilities project.

[3] Stabilization that would cause significant impacts to adjacent or down current properties is prohibited.

[4] Shoreline modification should not be located on feeder bluffs, except when the area is already developed with a single-family primary structure, in which case stabilization may be allowed pursuant to the provisions in BIMC 16.12.050.B, Shoreline Stabilization.

[5] Beach enhancement is prohibited if it interferes with the normal public use of the navigable waters of the state.

[6] Shoreline stabilization and flood protection works are prohibited in wetlands (located in both the upland and the shoreline jurisdiction). They are also prohibited in salmon and trout spawning areas, except for fish or wildlife habitat enhancement.

[7] Public parks only. Non-water-oriented commercial development only for concessions as accessory use allowed as an SSDP.

[8] Community and joint-use docks providing moorage for six or more vessels are permitted with an SSDP but must comply with the provisions in BIMC 16.12.040.C, Boating Facilities, as well as the provisions in BIMC 16.12.050.C, Overwater Structures.

[9] New overwater facilities are permitted as a conditional use only in the ferry terminal district. Normal repair and maintenance of existing overwater facilities do not require a shoreline conditional use permit, but may require an SSDP.

[10] Permitted as a conditional use if no feasible alternative exists.

[11] If upland of priority aquatic designation, then the use is prohibited.

[12] All structures are prohibited in Zone 1 upland of a priority aquatic Category A designation.

[13] Passive recreational uses and activities are allowed. Development and associated structures is allowed through a shoreline conditional use permit.

[14] Except in Waterfront Park, a dock is permitted with a SSDP.

[15] Mixed-use commercial/industrial only.

[16] Prohibited or restricted in the Point Monroe District.

[17] Allowed for public park, interpretive, information, direction or dedication. Temporary signs are allowed in accordance with subsection C.5 of this section, Signs.

[18] Conditional use when primary use is a conditional use.

[19] Mixed-use development is allowed in areas within the Mixed Use Town Center zones, when physically separated from the shoreline by another parcel in accordance with BIMC 12.16.040.D, Commercial Development.

 

Table 16.12.030-2: Dimensional Standards Table 

Greyed out setback boxes or letter X indicate prohibited uses

SHORELINE USE

UPLAND DESIGNATION

AQUATIC DESIGNATION

Use Specific Standards

Natural

Island Conservancy

Shoreline Residential Conservancy

Shoreline Residential

Urban

Aquatic

Priority Aquatic

A

B

Natural Resource Management

Aquaculture

Setbacks

Water-Dependent

X

0'

0'

0'

0'

DOES NOT APPLY TO DEVELOPMENT BELOW OHWM

 

Water-Related

X

25'

25'

25'

25'

 

Non-Water-Oriented

X

150'

115'

100'

100'

 

Height Limit

Overwater Structures

DOES NOT APPLY TO DEVELOPMENT ABOVE THE OHWM

3'

X

3'

 

Accessory Use on Overwater Structures

3'

X

3'

 

Overwater Structure Predator Control

6'

X

6'

 

Upland

X

30'

30'

30'

30'

DOES NOT APPLY TO DEVELOPMENT BELOW OHWM

 

Aquaculture, Noncommercial for Recovery of Native Population

Setbacks

Water-Dependent

X

0'

0'

0'

0'

DOES NOT APPLY TO DEVELOPMENT BELOW OHWM

 

Water-Related

X

25'

25'

25'

25'

 

Non-Water-Oriented

X

150'

115'

100'

100'

 

Height Limit

Overwater

DOES NOT APPLY TO DEVELOPMENT ABOVE THE OHWM

3'

X

3'

 

Upland

X

30'

30'

30'

30'

DOES NOT APPLY TO DEVELOPMENT BELOW OHWM

 

Commercial Development

Boating Facilities

Setbacks

Accessory Structures

X

X

X

50'

30'

 

 

 

 

Water-Dependent

X

X

X

0'

0'

 

 

 

 

Dry Moorage

X

X

100'

100'

100'

 

 

 

 

Height Limit

Dry Moorage

X

X

20'

20'

30'

 

 

 

 

Buildings

X

X

20'

20'

30'

 

 

 

 

Non-Water-Oriented

Setbacks

 

X

X

X

200'[2]

200'[2]

 

 

 

 

Height Limit

 

X

X

X

30'

30'

 

 

 

 

Water-Dependent

Setback

 

X

X

X

0'

0'

 

 

 

 

Height Limit

 

X

X

X

30'

30'

 

 

 

 

Water-Related and Enjoyment

Setback

 

X

X

X

50'[1]

30'

 

 

 

 

Height Limit

 

X

50'[1]

X

30'

30'

 

 

 

 

Educational and Community Facilities

Educational Facility

Setbacks

Water-Dependent

X

X

0'

0'

0'

 

 

 

 

Water-Related

X

X

50'[1]

30'[1]

30'[1]

 

 

 

 

Non-Water-Oriented

X

X

115'[1]

30'[1]

30'[1]

 

 

 

 

Height Limit

Upland

X

X

30'

30'

30'

 

 

 

 

Governmental Facility

Setbacks

Water-Dependent

X

X

0'

0'

0'

 

 

 

 

Water-Related

X

X

50'[1]

30'[1]

30'[1]

 

 

 

 

Non-Water-Oriented

X

X

115'

75'

30'

 

 

 

 

Height Limit

Upland

30'

30'

30'

30'

30'

 

 

 

 

Religious Facility

OHWM Setback

Water-Dependent

X

0'

0'

0'

0'

 

 

 

 

Water-Related

X

50'[1]

50'[1]

30'[1]

30'

 

 

 

 

Non-Water-Oriented

X

150'

115'

75'

30'

 

 

 

 

Height Limit

Upland

X

30'

30'

30'

30'

 

 

 

 

Cultural and Entertainment Facilities

Club

Setbacks

Water-Dependent

0'

0'

0'

0'

0'

 

 

 

 

Water-Related

100'

50'[1]

50'[1]

30'[1]

30'

 

 

 

 

Non-Water-Oriented

100'

150'

115'

75'

30'

 

 

 

 

Height Limit

Upland

30'

30'

30'

30'

30'

 

 

 

 

Commercial Amusement

Setbacks

Water-Dependent

X

X

0'

0'

0'

 

 

 

 

Water-Related

X

X

50'[1]

30'[1]

30'

 

 

 

 

Non-Water-Oriented

X

X

150'

75'

30'

 

 

 

 

Height Limit

Upland

X

X

30'

30'

30'

 

 

 

 

Cultural Facility

Setbacks

Water-Dependent

0'

0'

0'

0'

0'

 

 

 

 

Water-Related

100'

50'[1]

50'[1]

30'[1]

20'

 

 

 

 

Non-Water-Oriented

100'

150'

115'

75'

20'

 

 

 

 

Height Limit

Upland

30'

30'

30'

30'

30'

 

 

 

 

Entertainment Facility

Setbacks

Water-Dependent

X

0'

0'

0'

0'

 

 

 

 

Water-Related

X

100'[1]

100'[1]

50'[1]

30'

 

 

 

 

Non-Water-Oriented

X

150'

115'

75'

30'

 

 

 

 

Height Limit

Upland

X

30'

30'

30'

30'

 

 

 

 

Industrial

Water-Dependent

Setbacks

 

X

X

X

X

0''

 

 

 

 

Height Limit

Upland

X

X

X

X

30'

 

 

 

 

Water-Related

Setbacks

 

X

X

X

X

100'

 

 

 

 

Height Limit

Upland

X

X

X

X

30'

 

 

 

 

Overwater Structures

Marine Railway

Setbacks

 

X

X

10'

Height Limit

Upland

X

X

10'

Marine Railway, Retractable

Setbacks

 

X

10'

Height Limit

Upland

X

10'

Mooring Buoys

Setbacks

From Overwater Structures

100'

 

 

 

Piers and Docks

Setbacks from Property Lines

 

10'

X

10'

 

Recreational Floats

Setbacks

From Overwater Structures

100'

X

X

 

Recreational Development

Height Limit

Upland

X

20'

20'

20'

30'

 

 

 

 

Non-Water-Oriented

Setbacks

 

200'

200'

200'

200'

100'

 

 

 

 

Park, Active Recreation

Setbacks

Water-Dependent Primary Structure

X

[2]

[2]

[2]

[2]

[2]

[2]

[2]

 

Car/RV Camp Site

X

100'

100'

100'

50'

 

 

 

 

Golf Course

X

100'

100'

100'

100'

 

 

 

 

Play Structure

X

100'

100'

100'

50'

 

 

 

 

Playfields or Other Intensive Use Areas

X

150'

150'

100'

100'

 

 

 

 

Height

Upland

X

20'

20'

20'

20'

 

 

 

 

Park, Passive Recreation

Setbacks

Water-Dependent Primary Structure

X

[2]

[2]

[2]

[2]

[2]

[2]

 

Picnic Area and Related

X

75'[1]

75'[1]

75'[1]

30'[1]

 

 

 

 

Kayak/Hiking and Related Camp Site

X

50'[1]

50'[1]

50'[1]

30'[1]

 

 

 

 

Accessory Use

Setbacks

Access Roads

X

75'[1][3]

75'[1][3]

75'[1]

50'[1][3]

 

 

 

 

Parking

X

100'[1]

100'[1]

100'

50'

 

 

 

 

Events, Recreation; Education; Culture

Setbacks

Water-Dependent

X

0'

0'

0'

0'

 

 

 

 

Water-Related/Enjoyment

X

50'[1]

50'[1]

50'[1]

30'

 

 

 

 

Residential

Flex Lot Subdivision

Setbacks

 

SUBJECT TO 30% SIDE YARD SETBACK, SHORELINE SETBACK AND ZONING AND SUBDIVISION REQUIREMENTS

 

Height Limit

Upland

X

30'

30'

30'

30'

 

 

 

 

Multifamily

Setbacks

 

SUBJECT TO 30% SIDE YARD SETBACK, SHORELINE SETBACK AND ZONING REQUIREMENTS AND BIMC Title 18

 

Height Limit

Upland

X

X

30'

30'

30'

 

 

 

 

Single-family

Setbacks

 

SUBJECT TO 30% SIDE YARD SETBACK, SHORELINE SETBACK AND ZONING REQUIREMENTS

 

Height Limit

Upland

X

30'

30'

30'

30'

 

 

 

 

Shoreline/Aquatic Modification

Utilities & Telecommunication

Utilities (primary)

Primary Structure

X

200'

200'

200'

200'

 

 

 

 

Accessory Use

X

100'

100'

100'

100'

 

 

 

 

Telecommunication Accessory Use

X

100'

100'

100'

100'

 

 

 

 

Height

Distribution Poles

X

X

30'[1]

30'[1]

30'[1]

 

 

 

 

Buildings, Storage Tanks, Accessory Uses

X

X

30'[1]

30'[1]

30'[1]

 

 

 

 

Accessory Structures

Architectural Elements

Setback

 

SUBJECT TO SETBACK REQUIREMENTS OF PRIMARY STRUCTURE

 

Height

 

TOTAL HEIGHT OF ARCHITECTURAL ELEMENT AND PRIMARY STRUCTURE SHALL NOT TOTAL MORE THAN 35'.

 

Residential

Primary Appurtenant Structures and Non-Habitable Structures (Boat House, Deck, Patio, Stairway)

 

Setbacks

 

SUBJECT TO 30% SIDE YARD SETBACK, SHORELINE SPECIFIC USE SETBACK AND ZONING REQUIREMENTS

SAME AS SPECIFIC USE SETBACK

X

#

 

Height

Boat House, Shed, Well House, etc.

X

12'

12'

12'

12'

SHORELINE SPECIFIC USE SETBACK

X

X

 

Commercial/Industrial

Primary Appurtenant Structures That Either Support Public Access or Are Necessary to Support a Water-Dependent Use

 

Setbacks

 

SAME AS SPECIFIC USE

X

#

 

Public Park

Primary Appurtenant Structures That Either Support Public Access or Are Necessary to Support a Water-Dependent Recreational Use

 

Setbacks

 

15'

75'

75'

75'

50'

 

 

 

 

Event, Recreation; Culture; Education

Setbacks

 

N/A

75'[1]

75'[1]

 

75'[1]

 

 

 

 

Parking

N/A

100'[1][3]

100'[1][3]

 

100'[3]

 

 

 

 

[1] Must be located outside of site-specific Zone 1.

[2] Same as use-specific setback.

[3] ADA access roads may be allowed a lesser setback than BIMC 16.12.030.C.4.c.iii.

 

Table 16.12.030-3: Shoreline Buffer Standards Table

Additional use restrictions for BIMC Titles 17 and 18 may apply.

SHORELINE USE

UPLAND DESIGNATION

Natural

Island Conservancy

Shoreline Residential Conservancy

Shoreline Residential

Urban

The shoreline buffer consists of two management areas, Zone 1 and Zone 2. Zone 1 is located closest to the water; it is a minimum of 30 feet in all designations, except in natural and island conservancy the minimum is 50' and expands to include existing native vegetation. Zone 2 is the remaining area of the shoreline buffer.
See Figure 16.12.030-1.

Category A: Low bank lots with 65% Canopy Area in Zone 1, or spit/barrier/backshore, marsh lagoon, or rocky shores.

Category B: Low bank with less than 65% Canopy Area in Zone 1, or lots with a depth < 200' or high bluff.

Geomorphic Class (i.e., low bank, high bluff) shall be determined by Battelle 2004 Nearshore Characterization and Inventory.

Developed lots

Category A

200'

150'

115'

75'

30'

Category B

200'

100'[1]

75'[1]

50'[1]

30 [1]

Undeveloped lots

 

200'

150'

150'

75/150'[2]

30'

1. For high bluff properties the greater distance of 50' from the top of the bluff or the standard shoreline buffer.

2. If adjacent to the priority aquatic designation then 150' is required.

B. Environmental Quality and Conservation.

1. Shorelines of Statewide Significance.

a. Purpose. The Shoreline Management Act of 1971 designated certain shoreline areas as shorelines of statewide significance (SSWS). Because these shorelines are resources from which all people in the state derive benefit, preference is given to uses which favor public and long-range goals.

b. Applicability. Within the city’s jurisdiction all those areas lying waterward from the line of extreme low tide are shorelines of statewide significance (RCW 90.58.030(2)(f)(iii) or its successor). Development, use, or activities located within shorelines of statewide significance shall follow all the provisions of this program. Proposed development, use, and activity within shorelines of statewide significance shall be reviewed in accordance with the policies of the shoreline master program. The administrator may reduce, alter, or deny proposed development, use, or activity to satisfy the preferred policy.

2. Environmental Impacts.

a. Applicability. All shoreline development and activity shall be located, designed, constructed, and managed in a manner that avoids, minimizes and/or mitigates adverse impacts to the shoreline environment. The preferred mitigation sequence (avoid, minimize, rectify, reduce, or compensate for the environmental impact) shall follow that listed in WAC 173-26-201(2)(e). See definition of “mitigation” listed in BIMC 16.12.080, Definitions.

In approving shoreline development, the city shall ensure that shoreline development, use, and/or activities will result in no net loss of ecological functions and ecosystem-wide processes necessary to sustain shoreline resources, including loss that may result from the cumulative impacts of similar developments over time consistent with constitutional and statutory limitations on the regulation of private property. To this end, the city may require modifications to the site plan and/or adjustments to proposed project dimensions, intensity of use, and screening, as deemed appropriate. If impacts cannot be avoided through design modifications, the city shall require compensatory mitigation commensurate with the project’s adverse impacts.

b. Regulations – Impact Analysis and No Net Loss Standard.

i. All shoreline development, use and activities, including preferred uses, and uses that are exempt from a shoreline substantial permit, shall be located, designed, constructed, and maintained in a manner that protects ecological functions and ecosystem-wide processes. All proposed shoreline development, uses and activities shall:

(A) Utilize the required mitigation sequence of subsection B.2.d of this section, Regulations – Mitigation; and

(B) Utilize effective erosion and scour control methods during project construction and operation; and

(C) Minimize adverse impacts to critical salt water habitat, fish and wildlife conservation areas, and/or other ecological functions and ecosystem-wide processes, such as those provided by shoreline vegetation; and

(D) Minimize interference with beneficial natural shoreline processes, such as water circulation, sand and gravel transport movement, erosion, and accretion; and

(E) Avoid hazards to public health and safety; and

(F) Minimize the need for shoreline stabilization measures and flood protection in the future; and may require a geotechnical analysis to ensure that the proposed activity meets this regulation (see BIMC 16.12.050.B, Shoreline Stabilization); and

(G) Result in no net loss of ecological functions and processes necessary to sustain shoreline resources, including loss that may result from the cumulative impacts of similar developments over time.

ii. In reviewing and approving shoreline development, use or activity, regardless of whether a permit is required the following shall apply:

(A) The administrator shall condition the shoreline development, use, and/or activities such that it will:

(1) Meet provisions in subsection B.2.b.i of this section; and

(2) Employ measures to mitigate adverse impacts on shoreline functions and, processes, if necessary; and

(3) Modify the site plan and/or adjust the project dimensions, intensity of use, or screening as deemed appropriate to address impacts. If impacts cannot be avoided through design modification, the administrator shall require compensatory mitigation, pursuant to regulations in subsections B.2.c, Regulations – Revegetation Standards, and B.2.d, Regulations – Mitigation, of this section; and

(B) If a proposed shoreline development, use or activity is determined by the administrator to result in significant short-term, long-term, or cumulative adverse environmental impacts lacking appropriate compensatory mitigation, it shall be sufficient reason for the administrator to deny a permit.

iii. To assure that development activities contribute to meeting the no net loss provisions pursuant to subsections B.2.b.i and ii of this section, an applicant is required to submit a site-specific analysis of potential impacts and a mitigation plan that includes compensatory mitigation measures when determined necessary as a result of the analysis. The site-specific analysis shall be prepared in accordance with the submittal requirements in the Administrative Manual.

iv. To mitigate anticipated impacts and meet the no net loss standards in subsections B.2.b.i and ii of this section, an applicant for a single-family residential development or accessory structures may choose to use the Single-Family Residential Mitigation Manual in the Administrative Manual in lieu of a site-specific impact analysis and mitigation plan. If an applicant uses the Single-Family Residential Mitigation Manual, compensatory mitigation requirements provided in the manual shall be included in the project submittal.

c. Regulations – Revegetation Standards.

i. Vegetation replanting is required for all development, uses or activities within the 200-foot shoreline jurisdiction that either alters existing native vegetation or any vegetation in the required shoreline buffer or vegetation management areas, whether a permit is required or not. This includes invasive species removal. Minimum requirements for planting plans can be found in the city’s Administrative Vegetation Management Manual. The following information shall be submitted for approval prior to vegetation disturbance as part of a project proposal or clearing permit pursuant to Chapter 15.18 BIMC, Land Clearing:

(A) Residential, Industrial and Commercial Development.

(1) Vegetation disturbance of 200 square feet or less requires submittal of an annotated list of proposed plants and their spacing specifications and location.

(2) Vegetation disturbance greater than 200 square feet requires that the planting plan shall be completed by a qualified professional or the applicant may use the Single-Family Residential Mitigation Manual.

(B) Public Park and City Maintained Areas.

(1) Vegetation disturbance of 2,500 square feet or less requires submittal of an annotated list of proposed plants and their spacing specifications and location.

(2) Vegetation disturbance greater than 2,500 square feet requires that the planting plan shall be completed by a qualified professional.

ii. For vegetation mitigation in the shoreline buffer or site-specific vegetation management areas, all new plantings shall meet the provisions in subsection B.3.c.v of this section, except for the Point Monroe District, which shall meet special provisions in subsection B.2.c.vi of this section.

iii. If the shoreline buffer is altered or reduced pursuant to provisions of subsection B.3 of this section, Vegetation Management, or subsection C.1 of this section, Nonconforming Uses, Nonconforming Lots, and Existing Development, the following shall occur in Zone 1:

(A) Retain existing native vegetation; and

(B) Plant the entire area of Zone 1. Obtain 65 percent vegetation canopy coverage within 10 years.

iv. When vegetation mitigation is required for new upland development, uses, or activities the mitigation plan shall include new plantings that are protective of views from the primary structure of the subject property and in proportion to the identified impact. Mitigation shall be located in the following sequence, except for the Point Monroe District, which shall meet special provisions in subsection B.2.c.vi of this section:

(A) Within Zone 1, plant vegetation to obtain a minimum of 65 percent native vegetation canopy coverage;

(B) In Zone 2, plant to increase canopy coverage, in a manner that promotes contiguous native vegetation or in areas nearest the shoreline;

(C) In the shoreline buffer, plant in a manner that promotes a contiguous native vegetated corridor that connects to the shoreline;

(D) Outside of the shoreline buffer, plant in a manner that promotes a contiguous native vegetated corridor to the shoreline;

(E) Outside of the shoreline buffer; or

(F) At an off-site location approved by the administrator, within Zone 1, plant to meet the standard of subsection B.2.c.iv.A of this section.

v. When mitigation is required for shoreline stabilization projects due to site disturbance, the required planting plan shall also include the following, unless an alternative planting plan is approved by the administrator:

(A) Replant 75 percent of the shoreline area located along the upland edge of the shoreline stabilization structure to a minimum depth of 10 feet, unless demonstrated to be infeasible to the administrator;

(1) The depth may be reduced to five feet to allow for landscape design variation; provided, that the total square footage of the area planted equals the required 75 percent of the shoreline;

(B) Planting plans shall meet provisions in subsection B.3.c.v of this section, and shade bearing plants shall be provided at suitable fish spawning sites; and

(C) Include plantings equivalent to one tree per ever 20 linear feet of shoreline and one shrub per ever five linear feet, which may be planted with due consideration of views from the primary structure of the subject property.

vi. Special Mitigation Provisions for Point Monroe District. When vegetation mitigation is required for new development, uses, or activities in the Point Monroe District, the mitigation plan shall include new vegetation communities appropriate for dune, sand spit, barrier beach, barrier estuary, or barrier lagoon, including salt marsh that shall be installed within the site-specific vegetation management area (SVMA) as defined in subsection B.3.c.ix of this section, 30-foot setback between the OHWM and the primary structure, or where area is available on the site.

d. Regulations – Mitigation.

i. Mitigation Sequence. Mitigation shall include the following actions in order of priority (A) through (E), and (F) is required for all mitigation activities:

(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 to avoid or reduce impacts;

(C) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(D) Reducing or eliminating the impact over time by preservation and maintenance operations;

(E) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and

(F) Monitoring the impact and the compensation projects and taking appropriate corrective measures.

ii. When compensatory mitigation is necessary to offset impacts, mitigation measures in the immediate vicinity of the impact shall be the preferred mitigation option. Property owners may be required to perform the balance of compensatory mitigation off site if the property cannot support required mitigation or when off-site mitigation can be demonstrated to the satisfaction of the administrator to be more beneficial to shoreline ecological functions and processes. For example, off-site mitigation may be the better choice if large, cohesive areas are available off-site while only small fragmented areas are available on site for mitigation.

iii. Mitigation actions shall not have a significant adverse impact on other preferred shoreline uses promoted by the policies of the Shoreline Management Act.

iv. When compensatory mitigation measures are required, all of the following shall apply:

(A) The quality and quantity of the replaced, enhanced, or substituted resources shall be the same or better than the affected resources; and

(B) The mitigation site and associated vegetative planting shall be nurtured and maintained such that healthy native plant communities can grow and mature over time; and

(C) Unless the Single-Family Residential Mitigation Manual is being used for single-family residential development and accessory structures pursuant to subsection B.2.b.iv of this section, the mitigation shall be informed by pertinent scientific and technical studies, including but not limited to the Shoreline Inventory and Characterization Report, the Shoreline Restoration Plan and other background studies prepared in support of this program; and

(D) The mitigation activity shall be monitored and maintained to ensure that it achieves its intended functions and values, pursuant to subsection B.2.e of this section, Regulations – Surety.

v. To encourage shoreline property owners to remove bulkheads and perform other beneficial shoreline restoration actions in advance of shoreline development or redevelopment, the city may give mitigation credit to any beneficial restoration action that occurred within 10 years of the proposed development/redevelopment activity; provided, that:

(A) The applicant/property owner declares the intent of the restoration or enhancement project as mitigation credit at the time of the restoration permit application; and

(B) The city can confirm via site inspection, photographs, or other evidence that the restoration actions have improved shoreline conditions.

vi. Where feasible, replacement compensatory mitigation should be required prior to impact and, if applicable, prior to final inspection and approval of building occupancy; and to ensure no net loss, the mitigation shall replace the functions as quickly as possible following the impact.

e. Regulations – Surety.

i. The applicant/property owner shall provide assurance to the satisfaction of the administrator that the restoration area (including off-site mitigation) will be maintained in perpetuity. The assurance can be in the form of notice on title, conservation easement, or similar mechanism as approved by the city attorney.

ii. Except for projects undertaken by public entities, performance and/or maintenance bonds or other security shall be required by the city to assure that work is completed, monitored, and maintained. The bond/surety shall be refunded to the depositor upon completion of the mitigation activity and any required monitoring.

f. Regulations – Monitoring and Maintenance.

i. When mitigation is required, a periodic monitoring program shall be included as a component of the required mitigation plan. To ensure the success of the required mitigation, monitoring shall occur for a minimum duration of five years from the date of the completed development. The monitoring plan may also require that periodic maintenance measures be included as recommended by a qualified professional. The duration of monitoring may be extended if the project performance standards set forth in the approved mitigation plan fail to be accomplished, or, due to project complexity, the approved mitigation plan requires a longer period of monitoring.

ii. Monitoring programs may be forwarded for review and comment to state and/or federal resource agencies and affected tribes with jurisdiction.

iii. Monitoring programs shall meet the requirements established in BIMC 16.12.060.G.3.b.v, Monitoring Program.

iv. All new and replacement shoreline stabilization projects shall complete and submit a minimum five-year monitoring and maintenance program that addresses the shoreline stabilization mitigation measures, and shall at a minimum include:

(A) An annual site visit by a qualified professional for each of the five years to assess the effectiveness of the mitigation; and

(B) A progress report submitted to the administrator annually, which includes any monitoring or maintenance recommendations of the qualified professional.

3. Vegetation Management.

a. Applicability. Vegetation management is required for protection and conservation within the shoreline jurisdiction. Dimensional and other development standards, including buffers, are established based on site-specific development and conditions or as specified for that particular shoreline designation. The purpose of vegetation management is to protect and enhance the island’s natural character, water quality, native plant communities, and wildlife habitat within the shoreline jurisdiction. Vegetation management activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.4 of this section, Land Modification; subsection B.5 of this section, Water Quality and Stormwater Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

Vegetation management includes conservation activities to protect and restore vegetation along or near marine and freshwater shorelines that contribute to the ecological functions and processes of shoreline areas. Vegetation management provisions include vegetation restoration, the prevention or restriction of plant clearing and earth grading, and the control of invasive weeds and nonnative vegetation species.

The vegetation management provisions apply to all shoreline development, and regulated uses and activities, including those that do not require a shoreline permit. Similar to other master program provisions, vegetation standards do not apply retroactively to existing uses and structures unless changes or alterations are proposed. Standards for vegetation management are established using current scientific and technical information pursuant to WAC 173-26-221(5)(b) and 173-26-201(2)(a), and are based on the use category, shoreline characterization and the designation. Standards are provided in subsection A of this section and Tables 16.12.030-2 and 16.12.030-3.

b. Regulations – Exceptions.

i. Vegetation management standards shall not apply retroactively to existing lawfully established conforming and nonconforming uses and developments, including maintenance of existing residential landscaping, such as lawns and gardens. Property owners are strongly encouraged to voluntarily improve shoreline vegetation conditions over the long term.

ii. Existing buffers and setbacks that have been established through previously approved subdivisions and indicated on the face of an approved plat shall be recognized and adhered to.

iii. The following shall be exempt from the provisions of subsection B.3 of this section:

(A) Maintenance trimming of vegetation that has a main stem or supporting structure which is less than three inches in diameter; except that tree topping or other vegetation removal is not exempt.

(B) Buffer enhancement through the removal of noxious or invasive weeds, provided the following are met:

(1) The vegetation removal is based on consultation with the Kitsap County Noxious Weed Board or the species being removed are on the Washington State Noxious Weed List (Chapter 16-750 WAC, or its successor); and

(2) The vegetation removal is conducted in a manner consistent with best management practices (BMP); and

(3) Replanting occurs in the disturbed area in accordance with subsection B.2.c of this section, Regulations – Revegetation Standards.

(C) Removal of hazard trees, as defined in BIMC 16.12.060, where a report by an arborist or other qualified professional demonstrates to the satisfaction of the administrator that trimming is not sufficient to address the hazard, provided:

(1) Mitigation is provided in accordance with subsection B.2 of this section, Environmental Impacts, including:

(a) Requiring that the downed tree be retained on the site to provide or enhance wildlife or marine habitat; and/or

(b) When possible, require that the hazard tree be topped for safety and remain as a wildlife snag; or

(2) When a hazard tree is located in a geologically hazardous area, the applicant shall submit a bluff management plan pursuant to BIMC 16.12.060.K, Geologically Hazardous Areas. The hazard tree may be removed prior to the approval of the plan if it is necessary to protect life and property.

(D) Commercial forest practices and the removal of trees pursuant to a forest practices permit (Class II, III and IV-S only) issued by the Washington State Department of Natural Resources under the Washington State Forest Practices Act (Chapter 76.09 RCW), except where such activities are associated with a conversion to other uses or other forest practice activities over which local governments have authority. For the purposes of this program, preparatory work associated with the conversion of land to nonforestry uses and/or developments shall not be considered a forest practice and shall be reviewed in accordance with the provisions for the proposed nonforestry use, the general provisions of this program, including BIMC 16.12.060, and shall be limited to the minimum necessary to accommodate an approved use.

c. Regulations – General.

i. Development within the shoreline jurisdiction shall be located and designed to protect existing native vegetation from disturbance to the fullest extent possible, to mitigate impacts to existing vegetation, and to meet the standard of no net loss of ecological functions and processes, subsection B.2 of this section, Environmental Impacts.

ii. Vegetation clearing, or grading, may not be undertaken within the shoreline jurisdiction without prior review and approval by the administrator, unless otherwise exempt under subsection B.3.b of this section, Regulations – Exceptions, or as provided in subsection B.3.c.vii of this section, with an approved standard operation procedure (SOP) manual. Clearing and grading may be subject to subsection B.4 of this section, Land Modification.

iii. Two alternative methods may be used to meet the goals and policies of the vegetation management section, as provided below, except the Point Monroe District shall meet the special provisions provided in subsection B.3.c.ix of this section:

(A) Site-Specific Vegetation Management Areas.

(1) As an alternative to the shoreline buffer dimensions provided in subsection B.3.c.iii.A.1.b of this section, an applicant may propose specific dimensional standards that meet the vegetation management goals and policies as determined through a habitat management plan prescribed in BIMC 16.12.060.E; provided, that the plan demonstrates the following:

(a) The proposed development is for a residential use.

(b) The site-specific proposal assures there is no net loss of the property’s specific shoreline ecological functions and associated ecosystem-wide processes pursuant to subsection B.2.b of this section, Regulations – Impact Analysis and No Net Loss Standard; and

(c) The site-specific proposal uses the scientific and technical information1 compiled to support the shoreline buffer standards of subsection B.3.c.iii.B of this section, and/or other appropriate technical information which, as determined by a qualified professional, demonstrates how the proposal protects ecological functions and processes and how it meets the goals and policies of this section.

(2) The habitat management plan shall be reviewed by the administrator in accordance with provisions in BIMC 16.12.060. The administrator may approve, approve with conditions, or deny the request. The administrator shall have the habitat management plan reviewed by an independent third party, the cost of which will be borne by the applicant.

(3) If the site-specific vegetation management area is approved, prior to permit issuance, the applicant shall record with the county auditor a notice on title, or other similar document subject to the approval of the administrator.

(B) As an alternative to a site-specific vegetation management area, a shoreline buffer shall be maintained immediately landward of the OHWM and managed according to provisions of this section. The shoreline buffer shall meet the location and design standards of subsection B.3.d of this section, Regulations – Shoreline Buffer – Location and Design Standard. The shoreline buffer shall be composed of two zones:

(1) Zone 1, an inner protective buffer area located immediately abutting the OHWM; and

(2) Zone 2, the remaining portion of the shoreline buffer located immediately abutting Zone 1.

iv. The shoreline buffer or site-specific vegetation management area shall be maintained in a predominantly natural, undisturbed and vegetated condition. Unless specifically allowed by this program, the following standards shall apply:

(A) All existing native groundcover, shrubs and significant trees located within the shoreline buffer or site-specific vegetation management area shall be retained.

(B) All activities shall be performed in compliance with the applicable standards contained in the vegetation management section, unless the applicant demonstrates that alternate measures or procedures are equal or superior in accomplishing the purpose and intent of the vegetation management section, including no net loss of ecological functions and ecosystem-wide processes.

(C) The use of pesticides is prohibited unless specifically allowed in subsection B.5 of this section, Water Quality and Stormwater Management.

v. New vegetation planted in the shoreline buffer or site-specific vegetation management area, unless otherwise provided for in the zone-specific requirements of subsection B.3.d.iv of this section, shall be:

(A) Native species using a native plant-community approach of multi-storied, diverse plant species that are native to the Central Puget Lowland marine riparian zone.

(B) Other plant species may be approved that are similar to the associated native species in diversity, type, density, wildlife habitat value, water quality characteristics, and slope stabilizing qualities, excluding noxious/invasive species; provided, that, as submitted by a qualified professional, it is demonstrated to the satisfaction of the administrator that the selected ornamental plants can serve the same ecological function as native plant species.

vi. Significant trees located outside the shoreline buffer or site-specific vegetation management area but within the shoreline jurisdiction shall be retained unless allowed to be removed under the exceptions or other provisions of this program, provided:

(A) The administrator may require alterations of a site plan in order to retain significant trees outside the shoreline buffer or vegetation management area. This may include minor adjustments to the location of building footprints, the location of driveways and access ways, or the location of walkways, easements or utilities.

vii. Vegetation clearing and maintenance activities, except those which are part of new construction, are allowed consistent with an approved SOP manual for vegetation maintenance and management of public parks, public trails, public rights-of-way or easements, publicly owned property, and/or other areas normally maintained by the city. A shoreline substantial development permit may be required for the SOP manual. The SOP manual shall include the following prescriptive elements:

(A) Procedures for maintaining vegetation on shoreline properties, shoreline trails or shoreline rights-of-way and easements, including procedures for noxious weed removal;

(B) Procedures for maintaining vegetation in critical areas, shoreline buffers, or site-specific vegetation management areas, or other sensitive land areas, including areas with cultural resources;

(C) Procedures for mitigation and vegetation replanting including appropriate species list; and

(D) Procedures for review and approval of allowed activities occurring under the scope of the SOP, including procedures for documenting activities.

viii. Minor vegetation removal outside the shoreline buffer or site-specific vegetation management area on a developed property not associated with new construction may be allowed, as provided in this program with an approved clearing permit, provided:

(A) The administrator may grant approval of minor vegetation clearing if it meets the provisions of this program and the following:

(1) The minor vegetation clearing allowed within a three-year period will include an area no greater than 200 square feet in area and/or no more than three nonsignificant trees per 20,000 square feet up to a maximum of six trees; and

(2) Native vegetation will not be removed from the shoreline buffer or vegetation management area; and

(3) All applicable standards of an approved vegetation management plan are met; and

(4) The replanting is performed pursuant to subsection B.2.c of this section, Regulations – Revegetation Standards; and

(5) A bluff management plan is provided pursuant to BIMC 16.12.060.K, Geologically Hazardous Areas, for any vegetation alteration in a geologically hazardous area.

(B) Proposed clearing must meet the provisions of subsection B.2 of this section, Environmental Impacts, and subsection B.4 of this section, Land Modification.

ix. Special Provisions for Point Monroe District. Shoreline buffers or site-specific vegetation management areas are not required for properties located in the Point Monroe District; the following specific vegetation provisions shall apply:

(A) All properties in the Point Monroe District shall retain existing native vegetation and shall be subject to a Point Monroe vegetation management area (PVMA).

(B) The PVMA shall include areas that are:

(1) Within 30 feet of the OHWM and within the required side yard and the salt marsh fringe; and

(2) Outside any designated development area as approved pursuant to BIMC 16.12.040.I.4.b.

(C) The PVMA shall be managed and maintained in vegetation communities appropriate to dune, sand spit, barrier beach, barrier estuary, or barrier lagoon, including salt marsh.

(D) Developed properties shall retain existing native vegetation (including dune grass and salt marsh plant communities) in those areas that are not developed with legally established impervious surfaces.

(E) Any new development or alterations and expansion of existing development shall assess impacts to existing vegetation and meet the no net loss standard pursuant to subsection B.2 of this section, Environmental Impacts.

d. Regulations – Shoreline Buffer – Location and Design Standard.

i. The total depth of the shoreline buffer is based on the shoreline designation and the physical and most predominant geomorphic characteristics of the property. The depth of the shoreline buffer will be determined by the administrator according to criteria below.

(A) Property-specific physical and geomorphic characteristics of the particular lot will determine the maximum width (Category A) or minimum width (Category B) of the shoreline buffer, as follows:

(1) Shoreline Buffer Category A.

(a) The property contains or abuts a spit/barrier/backshore, or marsh, or lagoon; or

(b) The property contains or abuts a low bank and the existing native tree and shrub vegetation cover is at least 65 percent of the area of shoreline buffer Zone 1.

(2) Shoreline Buffer Category B. The property is shallow (200 feet in depth or less, as measured landward), or located on a high bluff, or does not meet any of the characteristics of Category A.

(B) Shoreline buffer standard depth in Table 16.12.030-3.

(C) As determined by the administrator, buffers do not extend beyond an existing public paved street or an area which is determined by the administrator to be functionally isolated from the shoreline or critical area. In these limited instances the no net loss of shoreline ecological function and processes still apply to properties within the shoreline jurisdiction.

ii. The total area of the shoreline buffer shall be the equivalent of the length of the property along the shoreline, multiplied by the required buffer depth as prescribed for the specific shoreline designation in which the property is located. See Figure 16.12.030-1.

iii. The shoreline buffer consists of two zones. The depth of each of the two zones within the shoreline buffer is determined as follows:

(A) Zone 1 shall extend from the ordinary high water mark (OHWM) a minimum of 30 feet, or to the limit of existing native vegetation whichever is greater. The native vegetation limit is determined through a site-specific analysis of existing conditions, and in no case shall Zone 1 be greater than the depth of the shoreline buffer.

(B) Zone 2 shall be established immediately landward of Zone 1 and extend no further than the depth of the shoreline buffer.

iv. The following zone-specific planting regulations apply to the shoreline buffer:

(A) New lawns are not permitted in Zone 1.

(B) In Zone 2, one-third of the area may be planted in a combination of grass lawns and approved structures, provided:

(1) Significant native trees are not removed to establish such use; or

(2) The buffer has been reduced through view provisions of subsection B.3.i of this section.

(C) The remaining two-thirds of Zone 2 shall be maintained in a native vegetative state.

(D) Planted areas in which fertilizers might be applied shall be located as far landward of Zone 1 as feasible.

Figure 16.12.030-1 Dual Shoreline Buffer

e. Regulations – General Vegetation Alterations in Shoreline Buffers or Site-Specific Vegetation Management Areas.

i. The following activities are allowed within the shoreline buffer and site-specific vegetation management area with an approved clearing permit. Such activities shall meet the standards of subsection B.4 of this section, Land Modification.

(A) Existing landscape areas may be retained within the shoreline buffer or site-specific vegetation management area. However, any changes from the existing landscape to a different landscaping use or activity will require that the modified area comply with the provisions of subsection B.3 of this section, Vegetation Management, and the intent of providing native vegetation to maintain ecological functions and processes.

(B) Minor Pruning. Tree pruning, including thinning of lateral branches to enhance views, or trimming, shaping, thinning or pruning necessary for plant health and growth and which does not harm the plant, is allowed consistent with the following standards:

(1) All pruning shall meet the American National Standard Institute (ANSI) tree pruning standards;

(2) In no circumstance shall removal of more than one-fourth of the original crown be permitted within a three-year period;

(3) Pruning shall not include topping, stripping of branches or creation of an imbalanced canopy; and

(4) Pruning shall retain branches that overhang the water.

(C) Vegetation Removal Related to Construction. Tree or vegetation removal within the shoreline buffer or site-specific vegetation management area that is associated with new construction may be allowed, but must retain significant trees and shall meet the requirements of subsection B.2 of this section, Environmental Impacts, including replanting provisions.

(D) Vegetation Removal Related to Public Facility Maintenance. Tree or vegetation removal within the shoreline buffer or site-specific vegetation management area that is associated with maintenance of existing public facilities (including: roads, paths, bicycle ways, trails, bridges, sewer infrastructure facilities, storm drainage facilities, fire hydrants, water meters, pumping stations, street furniture, potable water facilities, and other similar public infrastructure), may be approved by the administrator if no significant trees are removed, the requirements of subsection B.2 of this section, Environmental Impacts, are met, and the maintenance measures meet the goals and policies of subsection B.3 of this section, Vegetation Management, or as approved in a SOP manual as provided in subsection B.3.c.vii of this section. The following activities are exempt from this requirement:

(1) Removal of vegetative obstructions required for sight distance and visual clearance at street intersections provided in the Public Works Design and Construction Standards and Specifications.

(E) Underground Utilities. Utilities that run approximately perpendicular to the buffer (for example, a stormwater tightline to the water to protect a slope or a sewer line to a marina) may be allowed within the shoreline buffer or site-specific vegetation management area; provided, that disturbance is minimized and the disturbed area is revegetated after construction; and

(F) Other Approved Development in the Shoreline Buffer or Site-Specific Vegetation Management Area.

(1) Potable water wells; and

(2) Approved shoreline stabilization.

ii. Shoreline Buffer Reductions.

(A) When the prescriptive buffer depth is reduced or dimensions altered through provisions of this program, the applicant shall record a notice on title, or other similar document, with the county auditor prior to permit issuance, subject to the approval of the administrator.

(B) If the required depth of a shoreline buffer for a single-family residential property is reduced in accordance with the shoreline structure setback provisions of subsection B.3.i of this section or other reductions allowed through this program, Zone 1 must be restored in accordance with provisions of subsection B.2.c of this section.

iii. Stairways to the shoreline shall not exceed 300 square feet for private use, the minimum necessary for public use and are not included in the total square footage allocations prescribed in subsection B.3.f.iii of this section.

(A) Larger stairways serving a single-family residence may only be allowed through approval of a shoreline variance.

(1) As an alternative to a stairway larger than 300 square feet and to reduce environmental impacts, a tram may be allowed without a variance.

(B) Stairway design shall meet the following minimum criteria:

(1) International Codes for:

(a) Hand railings;

(b) Stairway width; and

(c) Tread depth.

(2) Landings are required, unless demonstrated not to be necessary, and shall be determined by:

(a) Existing site topography;

(b) Personal safety; and

(c) Slope stability.

f. Vegetation Alterations Standards – Residential Development. Minor clearing, grading or construction may be allowed within the shoreline buffer or site-specific vegetation management plan for a residential development with approval of the administrator pursuant to subsection B.3.e.i.A of this section, and only for the following activities as prescribed below and pursuant to subsection B.4 of this section, Land Modification:

i. Maintenance of existing residential landscaping is allowed subject to subsections B.3.c.viii and e.ii of this section. One hand installed pervious trail to the shoreline not more than four feet in width, which may include hand installed steps, and shall be designed to minimize environmental impacts. No significant trees shall be removed. The trail may be wider when required for handicapped or public access. For single-family residential development vegetation trimming is limited to two feet on either side of the trail.

ii. Nonhabitable structures appurtenant to a single-family use, such as a boat house, deck/patio and/or stairway, may be allowed consistent with the following standards, except that all structures are prohibited in Zone 1 when upland of a priority aquatic – Category A designation.

(A) For site-specific vegetation management areas, the total square footage of all buildings or structures must not exceed 300 square feet in area.

(B) For shoreline buffer areas, the total square footage of all buildings or structures must not exceed 400 square feet or 10 percent of the shoreline buffer area, whichever is less.

(C) For shoreline buffer areas, only 10 percent of the total allowed square footage or 300 square feet, whichever is less, can be located in Zone 1, except when upland of priority aquatic B, the total allowable square footage is five percent of Zone 1 or 150 square feet, whichever is less.

(D) All structures must be designed to not significantly impact views from adjoining property primary buildings.

(E) All structures must meet the following standards:

(1) Only water-related structures are allowed within 30 feet of the OHWM or in Zone 1, including a boathouse, permeable deck, boat storage, or staircase.

(2) Shall not exceed 12 feet in height above existing grade.

(3) Decks and/or patios shall be permeable and shall not exceed 30 inches in height above existing grade.

iii. View Maintenance – Single-Family Residential Only. Shoreline residential use and development shall use all feasible techniques to maximize retention of existing native shoreline vegetation within the shoreline buffer and the site-specific vegetation management area.

(A) Limited removal of existing trees or vegetation located on the same property as a single-family residence may be allowed for maintenance of a pre-existing view from the primary structure, or to establish a view for a new primary structure, provided the following are met:

(1) The applicant demonstrates to the satisfaction of the administrator that the vegetation removal is the minimum necessary to re-establish or establish a view of the water similar to that enjoyed by other residences in the area and that pruning methods are not sufficient to provide an adequate view of the water similar to that enjoyed by other residences in the area; and

(2) Existing significant native trees are not removed within the shoreline jurisdiction, unless exempt; and

(3) In no instance, including accounting for other approved alterations as provided in subsection B.3 of this section, shall vegetation removal exceed 20 percent of the required shoreline buffer area or site-specific vegetation management area or reduce the vegetation canopy coverage to less than 65 percent in the shoreline buffer or vegetation management area.

(a) Vegetation removal occurring adjacent to the shoreline shall also be limited to 15 linear feet of the water frontage; and

(4) The applicant shall obtain an approved bluff management plan pursuant to BIMC 16.12.060.K, Geologically Hazardous Areas, for any vegetation alteration in a geologically hazardous area. The cost and preparation of the plan is the responsibility of the applicant; and

(5) All vegetation removal complies with other applicable requirements of this program (such as clearing and grading, forest practices, and protection standards for fish and wildlife habitat), including the no net loss and/or revegetation standards in subsection B.2 of this section.

(B) The administrator may deny a request or condition approval for vegetation alteration proposals for view maintenance if it is determined that the action will result in an adverse effect to any of the following:

(1) Slope stability;

(2) Habitat value;

(3) Health of surrounding vegetation;

(4) Risk of wind damage to surrounding vegetation;

(5) Nearby surface or groundwater; or

(6) Water quality of a nearby water body.

g. Vegetation Alteration Standards – Commercial and Industrial Development in Shoreline Buffers. Minor clearing, grading, or construction may be approved within the shoreline buffer for a commercial or industrial development with approval of the administrator pursuant to subsection B.3.e.i.A of this section and only for the following activities as prescribed below and pursuant to subsection B.4 of this section, Land Modification:

i. Primary appurtenant structures to a commercial use that either support public access or are necessary to support a water-dependent use shall be allowed within the buffer when the applicant has demonstrated a need for the shoreline location, except that all structures are prohibited in Zone 1 when upland of a priority aquatic designation.

ii. When appurtenant structures are allowed they must be the minimum necessary to meet the needs of the water-dependent use or public access requirements of subsection C.4 of this section, Public Access – Visual and Physical.

h. Vegetation Alteration Standards – Public Park Development in Shoreline Buffers. Minor clearing, grading, or construction may be allowed within the shoreline buffer for a public park development with approval of the administrator consistent with the following or pursuant to subsection B.3.e of this section:

i. Vegetation clearing and maintenance is allowed in accordance with an approved SOP manual that meets subsection B.3.c.vii of this section and the standards of this program.

ii. Maintenance of existing public trails, provided the vegetation trimming is limited to two feet on either side of the trail and no significant trees are removed.

iii. Alterations that are included in a park development or concept plan. Minor clearing, grading, or construction for which the size and extent of proposed disturbed areas located within the shoreline buffer have been determined as part of a park development plan or concept park plan, with due consideration of the intended park use; and provided all proposed disturbance areas meet the no net loss standards pursuant to in accordance with subsection B.2 of this section, Environmental Impacts; and provided appropriate permits are obtained, including those pursuant to subsection B.4 of this section, Land Modification.

iv. Alterations that are not part of a park development or concept plan. The following minor clearing, grading, or construction activities may be allowed without an approved park development plan or conceptual park plan:

(A) Maintenance of existing public trails is allowed, provided maintenance is limited to the existing size of the trail, any vegetation trimming is limited to four feet on either side of the trail, and no significant trees are removed.

(B) New public pathways or trails to the shoreline, provided it is demonstrated that the size and extent of the public pathways has been determined with due consideration of the intended park use.

(C) Structures.

(1) Primary appurtenant structures to a public park and recreational use that either support public access or are necessary to support a water-dependent recreation use shall be allowed within the shoreline buffer when a need for the shoreline location is demonstrated, except that all structures are prohibited in Zone 1 when upland of a priority aquatic designation. When appurtenant structures are allowed, they must be the minimum necessary to meet the needs of the water-dependent use or public access requirements of subsection C.4 of this section, Public Access – Visual and Physical.

(2) The total square footage of all buildings or structures must not exceed 6,000 square feet or 10 percent of the shoreline buffer area, whichever is less.

(a) Only 10 percent of the total allowed square footage or 1,000 square feet, whichever is less, can be located in Zone 1.

(3) All structures must be designated to not significantly impact views from adjoining property primary buildings.

(4) All structures must meet the following standards:

(a) Only water-related recreational furniture, amenities and structures are allowed in Zone 1, including but not limited to picnic tables, benches, interpretive kiosks, viewing platforms, boardwalks, pervious trails or staircases, recreational furniture, signs, pervious trails, and staircases are not included in the maximum square footage allocations prescribed in subsection B.3.h.iv.C.2 of this section;

(b) Accessory recreation buildings, including restrooms, picnic pavilions and service roads that serve such structures may be allowed in Zone 2 and buildings shall not exceed 12 feet in height above existing grade;

(c) Stairways may exceed 300 square feet; provided, that it is demonstrated that a greater area is necessary to meet public access and public use demands stairways shall conform to the standards of the building code as adopted in Chapter 15.04 BIMC; and

(d) Boat ramps and other boating facilities may be allowed pursuant to BIMC 16.12.040.C, Boating Facilities.

i. Regulations – Shoreline Structure Setback View Requirement.

i. To protect existing predominate shoreline views and accommodate shoreline views for a new single-family primary residential structure or addition to a primary residential structure, the administrator may allow Zone 2 of the shoreline buffer to be altered when there is an existing primary residential structure located within 100 feet of the property line of the subject property and topographical or other relevant information indicates that the view of the shoreline from the subject property or the adjacent residence would be impacted by existing or proposed development. The shoreline structure setback line may also require that new structures be set farther away from the shoreline to preserve existing views enjoyed by an adjoining single-family primary structure that was established earlier. These provisions apply to single-family residences only, except in the Point Monroe District.

(A) Setbacks for the purpose of this subsection are based on the location of primary residential structure(s) existing at the time a new primary residential building permit is submitted. A primary residential structure constructed in compliance with the required shoreline setback is not made nonconforming by the later construction of a primary residential structure in a different location on an adjoining lot.

(B) The shoreline structure setback provisions apply only to primary single-family residential structures located within the 200-foot shoreline jurisdiction, where an existing primary single-family residential structure is located within 100 feet of the subject property line. All measurements are to the closest primary residential structure on either side of the subject property as measured parallel to the shoreline.

(C) In determining the shoreline structure setback line, the administrator may also consider topography or other physical property constraints in addition to the provisions of subsections B.3.i.D and E of this section. Applicants may submit detailed information regarding how property constraints impact the predominant shoreline views from either the subject property’s proposed primary residential structure or adjoining properties’ primary residential structure(s).

ii. The shoreline buffer on the subject property may be reduced below the depth requirements identified in Table 16.12.030-3 to allow a new primary residential structure to be located within Zone 2, provided the conditions in subsection B.3.e.ii of this section are met. Mitigation of proposed residential development shall be required pursuant to subsection B.2 of this section, Environmental Impacts.

iii. In no case shall the subject property be permitted to locate a new primary residential structure within the site’s specified Zone 1 of the shoreline buffer, unless a shoreline variance is granted.

iv. Adjoining Development Located Within Shoreline Buffer. The setback requirement for the subject property shall be based on the location of the adjoining properties’ primary residential structure(s) as described in subsections B.3.i.D.1 though 4 of this section:

(A) Primary Residential Structure Located on One Side. When an existing primary residential structure is located on one side of the subject property, the shoreline structure setback line shall be determined as follows:

(1) If the adjoining primary residence is partially or wholly located within Zone 2, the shoreline setback line is determined by drawing a line from the most waterward point of the adjoining primary residential structure to the point at which the subject property’s shoreline buffer boundary intersects the subject property’s opposite property line. (See Figure 16.12.030-6 below.)

(2) If the adjoining primary residence is located partially or wholly in Zone 1, the shoreline structure setback line shall be determined by drawing a line from the point of intersection of the subject property and the adjoining property’s Zone 1 boundary, to the point at which the subject property’s shoreline buffer boundary intersects the subject property’s opposite property line. (See Figure 16.12.030-2 below.)

(B) Primary Residential Structure Located on Both Sides. When existing primary residential structures are located on both sides of the subject property, the shoreline structure setback line shall be determined as follows:

(1) If both the adjoining primary residential structures are located partially or wholly in Zone 2, then the shoreline structure setback line shall be determined by drawing a line between the most waterward points of each of the adjoining primary residential structures. (See Figure 16.12.030-3 below.)

(2) If one of the adjoining primary residences is partially or wholly in Zone 1, and the other adjoining primary residence is partially or wholly in Zone 2, the shoreline structure setback line shall be determined by drawing a line from the point of intersection of the subject property and the adjoining property’s Zone 1 boundary (for that adjoining residence located in Zone 1), to the most waterward point of the other adjoining primary residential structure located in Zone 2. (See Figure 16.12.030-4 below.)

(3) If both of the adjoining primary residences are located partially or wholly within Zone 1, the shoreline structure setback line shall be determined by drawing a line from the point of intersection of the subject property’s Zone 1 boundary and the adjoining property’s Zone 1 boundary to the same intersection point on the subject property’s opposite property line. (See Figure 16.12.030-5 below.)

(C) Primary Residential Structure Located on a Shoreline Forming a Cove or Headland. The administrator shall make the determination whether a shoreline forms a cove or headland. When existing primary residential structures are located on a cove or headland, the shoreline structure setback line shall be determined as follows:

(1) If there is a primary residential structure on only one side of the subject property, then the shoreline structure setback line for the subject property shall be either the distance from the OHWM to the most waterward portion of the primary residence structure of the adjoining property, or the subject property’s Zone 1, whichever is greater.

(2) If there are adjoining primary residential structures located on both sides of the subject property, the shoreline structure setback line shall be determined by averaging the distance from the OHWM to the most waterward portion of the two adjoining property’s primary residential structures. (See Figure 16.12.030-7 below.)

v. Adjoining Development Located Outside the Shoreline Buffer. The setback requirement for the subject property shall be based on the location of the adjoining properties’ primary residential structure(s) as described in subsections B.3.i.v.A and B of this section:

(A) Primary Structure Located on One Adjoining Property, Outside Shoreline Buffer. When an existing primary residential structure is located on one side of the subject property, the shoreline structure setback line shall be determined by drawing a line from the most waterward point of the primary residential structure of the adjoining property to a point at which the subject property’s shoreline buffer boundary intersects the subject property’s opposite property line. (See Figure 16.12.030-8 below.)

(B) Primary Structures Located on Both Adjoining Properties, Outside the Shoreline Buffer. When existing primary residential structures are located on both sides of the subject property, the shoreline structure setback line shall be determined by drawing a line between the most waterward points of each of the adjoining primary residential structures. (See Figure 16.12.030-9 below.)

(C) Primary Structures Located on Both Adjoining Properties, Outside the Shoreline on a Cove or Headland. When existing primary residential structures are located on both sides of the subject property, the shoreline structure setback line shall be determined by averaging the distance from the OHWM to the most waterward portion of the two adjoining property’s primary residential structures. (See Figure 16.12.030-10 below.)

Figure 16.12.030-2

Figure 16.12.030-3

Figure 16.12.030-4

Figure 16.12.030-5

Figure 16.12.030-6

Figure 16.12.030-7

Figure 16.12.030-8

Figure 16.12.030-9

Figure 16.12.030-10

4. Land Modification.

a. Applicability. All shoreline uses and activities must conform to the clearing and grading provisions herein, including development which does not require a shoreline permit. Shoreline development and land modification activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and BIMC Chapter 15.18, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – Prohibited.

i. All clearing and/or grading not associated with an approved development, use or activity, unless specifically provided for in this program.

c. Regulations – General.

i. Clearing and/or grading within shoreline jurisdiction shall require an approved clearing or grading permit in association with an existing legal use or a new permitted or allowed shoreline use or development. Such activities shall meet the mitigation and revegetation provisions in subsection B.2 of this section, Environmental Impacts, and subsection B.3 of this section, Vegetation Management.

ii. Upon completion of development, use or activity, the remaining cleared areas shall be replanted within the first applicable planting season.

iii. All vegetation that is intended to be retained but may likely be disturbed by the clearing and grading activity shall be protected in accordance with the standards of BIMC 18.15.010, Landscaping, screening, and tree retention, protection and replacement.

iv. Land alteration (clearing, grading, and filling) shall be limited to the minimum extent necessary for the proposed development, use or activity. All land alteration must meet the standards of Chapter 15.20 BIMC, Surface and Storm Water Management.

5. Water Quality and Stormwater Management.

a. Applicability. These provisions apply to all shoreline development, including that which does not require a shoreline substantial development permit. The use of pesticides, herbicides or fertilizers within the shorelines jurisdiction, including applications of herbicides to control noxious aquatic vegetation, shall comply with regulations of BIMC 16.12.060, Critical areas, and responsible federal and state agencies. Shoreline development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Prohibited.

i. Wood that is treated with creosote, copper chromium arsenic (CCA) or pentachlorophenol (PCP) in or above shoreline water bodies, unless otherwise approved in BIMC 16.12.050.C, Overwater Structures.

ii. Use of pesticides within a shoreline buffer and site-specific vegetation management areas, except as follows:

(A) All shoreline developments and activities shall comply with the following standards in the application of pesticides or herbicides:

(1) As part of an integrated pest management plan which is administered by a qualified professional to control rodents.

(2) When it is the accepted practice to successfully eradicate aquatic or upland invasive/noxious vegetation species and Department of Ecology has approved a method of application.

c. Regulations – General.

i. All shoreline development shall minimize any increase in surface runoff through control, treatment, and release of surface water runoff so that the receiving water quality, shore properties, and features are not adversely affected, and through compliance with the standards established in the city’s adopted Stormwater Management Manual in Chapter 15.20 BIMC.

ii. Shoreline use and development shall incorporate measures to protect and maintain surface and groundwater quantity and quality in accordance with all applicable laws.

iii. Low impact development techniques shall be considered and implemented consistent with the city’s adopted Low Impact Development Manual cited in BIMC 15.20.050.C unless the site is demonstrated to the satisfaction of the administrator to be unsuitable for low impact development techniques.

(A) When a direct discharge pipe is demonstrated to be necessary, the conveyance shall consist of the following:

(1) A continuous heat welded high density polyethylene (HDPE) pipe; and

(2) Devices to keep the pipe stationary and set off bank; and

(3) An energy dissipation pad or water dissipater installed at the end of the pipe. The dissipation pad shall extend the minimum distance necessary to protect the beach substrate.

iv. All proposals for bulk storage of oil, fuel, chemicals, or hazardous materials, on either a temporary or a permanent basis, shall require adequate secondary containment and an emergency spill response plan in place when appropriate. It shall be the responsibility of property owners to fund and implement the approved spill containment and cleanup plans and to complete the work by the deadline established in the plans according to Chapter 15.22 BIMC.

v. Allowances to alter stormwater management standards of Chapter 15.20 BIMC may be approved by the city, provided it can be demonstrated that off-site facilities would provide better treatment, or where common retention, detention and/or water quality facilities meeting such standards have been approved as part of a comprehensive regional stormwater management plan.

vi. Best management practices (BMPs) for control of erosion and sedimentation shall be implemented for all development in shorelines through an approved stormwater pollution prevention plan (SWPPP), as required by Chapter 15.20 BIMC, Surface and Storm Water Management, or administrative conditions.

vii. To avoid water quality degradation by malfunctioning or failing septic systems located within shoreline jurisdiction, on-site sewage systems shall be located landward of any new residence or business or if determined to be infeasible, in a location approved by the administrator and designed to meet all applicable water quality, utility, and health standards. The owner must be in compliance with the Kitsap Health District, and any state and federal laws.

viii. New residences or businesses on the shoreline located within 200 feet of an existing sewer line and/or within an established sewer service area shall be connected to the sewer system.

ix. All materials that may come in contact with surface water or stormwater shall be constructed of materials, such as untreated wood, concrete, approved plastic composites or steel, that will not adversely affect water quality or aquatic plants or animals. To avoid discharge of pollution, decking material or other structural components shall be approved by applicable state agencies for contact with water.

x. As a condition of permit approval, the administrator may apply the following conditions to protect water quality:

(A) Shoreline uses and activities shall apply best management practices (BMPs) to minimize any increase in surface runoff and to control, treat and release surface water runoff so that receiving properties, receiving waters, wetlands or streams are not adversely affected, consistent with the city’s adopted Stormwater Management Manual.

(B) All types of BMPs shall be regularly maintained to continue to function as intended, according to Chapter 15.21 BIMC, Storm Water Facilities Maintenance Program. Such measures may include, but are not limited to:

(1) Vegetated shoreline buffers and setbacks.

(2) Low impact development techniques for infiltration (rain gardens, pervious surfaces).

(3) Methods described in the city’s adopted Stormwater Manual (catch basins or settling ponds, oil interceptor drains, grassy swales).

(4) The release of oil, chemicals (including pesticides and herbicides), fertilizer or hazardous materials, and others listed in Chapter 15.22 BIMC onto land or into the water is prohibited within the shoreline jurisdiction.

(5) Equipment for the transportation, storage, handling, or application of such materials shall be maintained in a safe and leak-proof condition. If there is evidence of leakage, the further use of such equipment shall be suspended until the deficiency has been satisfactorily corrected.

xi. The use of fertilizer is allowed within the shoreline buffer and site-specific vegetation management area when measures are taken to protect the waters of the state.

(A) Minimize or prevent the runoff of chemical laden into adjacent water bodies.

(B) The direct runoff of fertilizer chemicals into adjacent water bodies is prohibited.

(C) Application of fertilizer shall utilize BMPs outlined in the city’s adopted Stormwater Management Manual.

6. Flood Hazard Management.

a. Applicability. These provisions apply to primary flood hazard projects or programs. They also apply to construction, maintenance, repair, modification and/or expansion of flood hazard management systems. Provisions applicable to individual properties are in BIMC 16.12.050, Shoreline modification regulations. Shoreline development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Prohibited.

i. Flood control works are prohibited on estuary or embayment shores, on point and channel bars, and in salmon spawning areas, except for the purpose of fish or wildlife habitat enhancement or restoration or as approved for a foundation for redevelopment of a legally established primary residential structure in the Point Monroe District.

ii. Flood control structures and stream channelization projects that damage fish and wildlife resources, recreation or aesthetic resources, or create high flood stages and velocities shall be prohibited.

c. Regulations – General.

i. Flood hazard management shall be a conditional use in the shoreline residential conservancy, island conservancy, shoreline residential, urban and aquatic designations and prohibited in the natural and priority aquatic designations, except in the Point Monroe District.

ii. The city shall require the applicant to provide the following information during its review of shoreline flood management projects and programs:

(A) Channel hydraulics and floodway characteristics up and downstream from the project area;

(B) Existing shoreline stabilization and flood protection works within the area;

(C) Physical, geological and soil characteristics of the area;

(D) A biological resource inventory and analysis prepared by a qualified professional biologist that describes the anticipated effects of the project on fish and wildlife resources; and

(E) A hydraulic analysis prepared by a licensed professional engineer that describes anticipated effects of the project on hydraulics including:

(1) Potential increases in base flood elevation; and

(2) Geo-hydraulic processes leading to erosion or adverse effects to shoreline resources and uses; and

(3) Potential for redirection of the normal flow of the affected stream; and

(4) Predicted impact upon adjacent properties and shoreline and water uses; and

(5) Analysis of alternative flood protection measures, both structural and nonstructural; and

(6) An analysis of the flood frequency, duration and severity and expected health and safety risks as a rationale and justification for the proposed structure; and

(7) Proposed provisions for accommodating public access to and along the affected shoreline, as well as any proposed on-site recreational features; and

(8) A description of any proposed plans to remove vegetation and revegetate the site following construction.

iii. The city shall require flood control structures to be professionally engineered and designed prior to final approval. The design shall be consistent with the Department of Fish and Wildlife Aquatic Habitat Guidelines and other applicable guidance and regulatory requirements.

iv. Flood control structures shall be permitted only when there is credible engineering and scientific evidence that:

(A) They are necessary to protect existing, lawfully established development; and

(B) They are consistent with Chapter 15.16 BIMC, Flood Damage Prevention, and the city comprehensive plan; and

(C) Nonstructural flood hazard reduction measures are infeasible; and

(D) Proposed measures are consistent with an adopted comprehensive flood hazard management plan, if available.

v. When permitted, flood control structures shall be:

(A) Constructed and maintained in a manner that does not degrade the quality of affected waters or the habitat value associated with the in-stream and riparian area; and

(B) Placed landward of the OHWM except for weirs, current deflectors and similar structures to protect public bridges and roads; and

(C) Placed landward of associated wetlands and designated habitat conservation areas, except for structures with a primary purpose of improving ecological functions and processes; and

(D) Designed based on engineering and scientific analyses that provide the highest degree of protection to shoreline ecological functions or processes; and

(E) Designed to allow for normal groundwater movement and surface runoff. Natural in-stream features such as snags, uprooted trees, or stumps should be left in place unless they are actually causing bank erosion or higher flood stages; and

(F) Designed to allow streams to maintain point bars and associated aquatic habitat through normal accretion so that the stream can maintain normal meander progression and maintain most of its natural storage capacity.

vi. No flood control structure shall be installed or constructed without first having obtained all applicable federal, state, and local permits and approvals, including but not limited to a hydraulic project approval (HPA) from the Department of Fish and Wildlife and Federal Emergency Management Agency (FEMA) requirements for National Flood Insurance Program (NFIP) communities pertaining to flood prone areas. Conditions of the hydraulic project approval permit (HPA) issued by Washington State Department of Fish and Wildlife shall be incorporated into permits issued for flood protection.

vii. Removal of beaver dams to control or limit flooding shall be allowed; provided, that the project proponent coordinates with the Department of Fish and Wildlife and obtains all necessary permits and approvals from the state.

viii. Flood protection measures that alter, reroute, or change the shoreline may be approved as a conditional use only if it is demonstrated that other flood protection and planning measures would be insufficient. Alternative measures shall be considered in the following sequence:

(A) No action.

(B) Nonstructural measures such as vegetation enhancement or comprehensive planning.

(C) Increase building setbacks and/or relocate structures to a feasible location and/or elevate the structures.

(D) Implement flexible/natural materials and methods, beach nourishment, protective berms, bioengineered solutions or other soft-treatment measures.

(E) Apply development restrictions.

7. Shoreline Restoration and Enhancement.

a. Applicability. This section provides for restoration and enhancement of ecologically impaired areas or areas with the goal of achieving a net gain in shoreline ecological functions and ecosystem-wide processes above the baseline conditions as of the adoption of this shoreline master program. Restoration and enhancement provisions apply to activities and projects proposed and conducted specifically for the purpose of establishing, restoring, or enhancing ecological functions and ecosystem-wide processes within shoreline upland, beach and/or aquatic areas measured below the ordinary high water mark (OHWM). Shoreline restoration activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – Restoration. Restoration activities are permitted in all designations, and shall be carried out in accordance with the objectives of an approved shoreline restoration plan and in accordance with the policies and regulations of this program.

c. Beach Nourishment and Enhancement.

i. Regulations – Prohibited.

(A) Dikes, levees, jetties, groins, gabions and breakwaters are prohibited. Drift sills for enhancement or restoration projects may be allowed.

(B) Beach nourishment is prohibited unless part of an approved mitigation plan or restoration project within spawning, nesting, or breeding habitat and/or where littoral drift of the enhancement materials enhances shoreline and does not adversely affect shoreline ecological functions and shoreline ecosystem-wide processes or adjacent properties.

ii. Regulations – General.

(A) Mitigation/enhancement/restoration proposal design alternatives shall include the best available technology.

(B) Mitigation/enhancement/restoration proposals shall not:

(1) Detrimentally interrupt littoral drift, or redirect waves, current or sediments to other shorelines;

(2) Result in any exposed groin-like structures; provided, that small “drift sill” groins may be used as a means of stabilizing restored sediment as part of a permitted beach restoration program;

(3) Extend waterward more than the minimum amount necessary to achieve the desired stabilization;

(4) Result in contours sufficiently steep to impede easy pedestrian passage, or to trap drifting sediments;

(5) Create additional dry land mass; or

(6) Disturb valuable shallow-water fish/wildlife habitat as determined by the Department of Fish and Wildlife, unless such habitat is immediately replaced by new habitat that is comparable or better.

(C) Beach Restoration Construction Standards.

(1) The size and/or mix of new material to be added to a beach shall be as similar as possible to the undisturbed bluff sediment and Washington Department of Fish and Wildlife approved material (i.e., “fish mix,” or smaller grain size). The material shall not predominantly consist of grain size similar to clay or silt.

(2) The restored beach shall approximate, and may slightly exceed, the natural beach width, height, bulk, or profile (but not so as to obviously create additional dry land mass).

iii. Specific Regulations – Beach Enhancement. Beach enhancement shall be a conditional use in all environments and shall be undertaken only for restoration, enhancement and maintenance of natural resources, or to enhance public access to the shoreline. Beach enhancement is prohibited if undertaken upland of priority aquatic designation.

C. General Use.

1. Nonconforming Uses, Nonconforming Lots, and Existing Development.

a. Applicability. This section applies to shoreline uses and/or structures that were lawfully established or constructed prior to the effective date of the initial adoption of the master program (November 26, 1996) or its amendments, but which do not conform to present regulations or standards of the master program.

b. Regulations – General.

i. Nonconforming uses and developments and/or existing buildings and structures that were lawfully constructed or existed prior to the effective date of initial adoption of this program (November 26, 1996), or its amendments, but which do not meet the specific standards of this program, may be continued subject to the provisions of this section; provided, that shoreline modifications shall conform to BIMC 16.12.050.A, General Shoreline Modification Provisions, and BIMC 16.12.050.B, Shoreline Stabilization.

ii. A complete application for any reconstruction under this section must be submitted within two years of the date of damage or removal, and upon approval of the application, redevelopment must be completed within one year of the commencement of reconstruction. A one-year extension may be granted; provided, that a written request is submitted no later than 21 days prior to either deadline; and provided, that the owner is not responsible for the delay.

iii. An existing use designated by the adoption of an applicable amendment hereto as a conditional use that lawfully existed prior to the adoption of the program or the adoption of an applicable amendment hereto and which has not obtained a conditional use permit shall be considered a legal nonconforming use and may be continued subject to the provisions of this section without obtaining a conditional use permit.

iv. A structure for which a variance has been issued but which does not comply with applicable requirements of this program as amended shall be considered a legal existing structure and the requirements of this section shall apply.

v. Any permitted remodel or expansion shall not cause adverse impacts to shoreline ecological functions and/or processes.

c. Regulations – Nonconforming Uses.

i. Nonconforming uses shall not be altered or expanded in any way that increases the nonconformity.

ii. If a nonconforming use is discontinued for 12 consecutive months, any subsequent use shall be conforming; except that if a nonconforming use is operated within a nonconforming structure that is accidentally damaged or destroyed and reconstruction is proposed under subsection C.1.d.i.B of this section, then the use may be reestablished within the same time period as the reconstruction for the nonconforming structure pursuant to subsection C.1.b.ii of this section.

iii. A nonconforming use cannot be changed to another nonconforming use.

iv. Change of ownership, tenancy, or management of a nonconforming use shall not affect its nonconforming status; provided, that all provisions are met.

d. Regulations – Existing Development.

i. General Provisions – Nonconforming Structures.

(A) Existing structures may be maintained, repaired, renovated, or remodeled provided all the following is met:

(1) Changes to the structure that would alter or increase the nonconformity are not permitted;

(a) Any vertical or horizontal extension of a wall must meet the provisions of this program;

(b) Adding to the footprint of an existing structure is permitted as long as the addition meets the requirements of this program;

(2) There is no further encroachment into the buffers unless allowed by this program or through an approved variance;

(3) Renovations or remodels are entirely contained within the building;

(4) If moved, the structure shall be made to conform to regulations of this program.

(B) If an existing primary structure is damaged or destroyed by fire, explosion, earthquake, flooding or other casualty, it may be reconstructed to the bulk dimension existing immediately prior to the catastrophic event, provided the use is conforming or meets the provisions of subsection C.1.b of this section, Regulations – General, and subsection C.1.c of this section, Regulations – Nonconforming Uses.

(1) This provision shall not apply to structures that are destroyed due to a criminal act initiated by the property owner; and

(2) The replacement structure shall not warrant new shoreline stabilization for the life of the new structure; and

(3) The replacement structure meets the geological hazard provision for existing development in subsection C.1.c of this section, Regulations – Nonconforming Uses, and BIMC 16.12.060.

ii. Existing Structures – Commercial and Industrial (Primary and Accessory).

(A) Existing commercial structures shall not be altered or expanded in any way that increases the nonconformity without first obtaining a variance.

(B) Reconstruction of existing commercial structures and buildings intentionally demolished or destroyed in any other manner than described in subsection C.1.d.i.B of this section shall be in conformance with all standards of the program.

iii. Existing Structures – Residential Single-Family: Primary Structures.

(A) If an existing primary residential structure is damaged or destroyed as described in subsection C.1.d.i.B of this section, the existing primary residential structure configuration may be altered or expanded pursuant to subsections C.1.d.iii.B through D of this section.

(B) An existing primary residential structure may be altered or expanded to the extent allowed by this program, provided:

(1) Enlargement or expansion of the building configuration, including any new impervious surfaces located within the shoreline buffer shall be located landward of the existing or original building footprint, only one such expansion may occur within the lifetime of the development, and the expansion shall not exceed:

(a) The allowed building area for Point Monroe District, BIMC 16.12.040.I.4.b;

(b) The allowed building area for encumbered lots, subsection C.1.e of this section;

(c) For structures not meeting subsection C.1.d.iii.B.1.a or b of this section, 25 percent of the existing building footprint;

(2) Any vertical expansion must meet height requirements of this program;

(3) Remnant foundation and/or impervious surfaces located within the shoreline buffer shall be removed;

(4) Mitigation of the shoreline buffer is provided in accordance with subsection B.2 of this section, Environmental Impacts;

(5) The remodel or expansion shall not cause adverse impacts to shoreline ecological functions and/or processes; and

(6) All other applicable standards and provisions are met, including regulations of this program, the Bainbridge Island Municipal Code, the septic system requirements of the Kitsap Health District, and any state and federal laws.

(C) Permitted expansion of an existing structure shall not substantially impact the existing views of the water from primary waterfront residences or public rights-of-way to any greater degree than a fully conforming structure.

(D) Increases in structure footprint outside of the shoreline buffer shall be allowed, even if all or a portion of the existing footprint is within the shoreline buffer. In such case, the addition or enlargement shall be treated as a separate building or structure in determining conformity to all of the requirements of this program.

iv. Existing Structures – Multifamily Residential: Primary Structures.

(A) If an existing primary multifamily residential structure is damaged or destroyed by fire, explosion, earthquake, flooding or other casualty, it may be reconstructed to the bulk dimension existing immediately prior to the catastrophic event, including building height and footprint of the structure.

(1) This provision shall not apply to structures that are destroyed due to a criminal act involving the property owner; and

(2) The replacement structure shall not warrant new shoreline armoring for the life of the new structure; and

(3) The reconstruction shall not cause adverse impacts to shoreline ecological functions and processes; and

(4) The replacement structure meets the geological hazard provision for existing development in BIMC 16.12.060, Critical areas.

(B) An existing primary multifamily residential structure or portion thereof may be reconstructed, altered, or expanded, including the footprint and/or the height increased, to the extent allowed by this program, if the following are met:

(1) Public access is provided pursuant to subsection C.4.c of this section, Regulations – Public Access Design and Location Standards; and

(2) Mitigation of the shoreline buffer is provided to meet no net loss, as detailed in subsection B.2 of this section, Environmental Impacts, including revegetation standards in subsection B.2.c.iii of this section.

v. Existing Structures – Residential: Accessory Structures. If an existing residential accessory structure is damaged, destroyed or intentionally demolished, the reconstruction shall be in conformance with all standards of the program, except:

(A) An existing essential single-family residential accessory structure may be reconstructed as follows:

(1) Replacement structure is the same bulk dimension as the existing structure.

(2) Replacement structure may be located within Zone 2 provided mitigation occurs in accordance with subsection B.2.c of this section, Regulations – Revegetation Standards.

(B) Attached decks essential to a single-family residence may be replaced in the same location.

(C) All other applicable standards and provisions are met, including regulations of this program, the Bainbridge Island Municipal Code, the septic system requirements of the Kitsap Health District, and any state and federal laws.

e. Regulations – Encumbered and Nonconforming Lots. Single-family development and redevelopment, except in the Point Monroe District, that is proposed on a legal nonconforming lot located in the shoreline jurisdiction or proposed for a shoreline property that is significantly encumbered by shoreline or critical area buffers may be allowed without a shoreline variance when the following criteria are met:

i. A lot contains a building area of 2,500 square feet or more available for a single-family residence and normal appurtenances and unrestricted by buffers from shorelines or critical areas shall comply with the provisions of this program. The building area means the entire area that will be disturbed to construct the home, normal appurtenances (except drainfields), and landscaping; or

ii. A lot that does not meet the requirement of subsection C.1.e.i of this section shall meet the following:

(A) Landslide hazard provisions of BIMC 16.12.060, Critical areas, and provide the maximum buffer dimension feasible for critical areas; and

(B) Provide a building area not to exceed 2,500 square feet with maximum lot coverage of 1,200 square feet. The building area shall be located on the portion of the lot providing the maximum shoreline buffer dimension with consideration given to view; and

(C) All single-family residential development approved under this section shall meet the shoreline structure view setback provisions in subsection B.3.i of this section, Regulations – Shoreline Structure Setback View Requirement; and

iii. The area between the structure and the shoreline and/or critical area shall comply with revegetation standards in subsection B.2.c.iii of this section, the vegetation conservation standards of subsection B.3 of this section, Vegetation Management, and provisions of BIMC 16.12.060, Critical areas; and

iv. Development may not take place waterward of the ordinary high water mark; and

v. Facilities such as a conventional drainfield system may be allowed outside of the building area specified above, and allowed within buffer areas, except wetlands buffers. Such facilities shall not be located closer than 75 feet to OHWM, and shall be subject to regulations of BIMC 16.12.060, Critical areas.

f. Regulations – Nonconforming Public Facilities and Transportation.

i. Nonconforming public facilities shall be allowed to continue and to be repaired, maintained, or remodeled.

ii. Redevelopment of nonconforming public rights-of-way and associated transportation structures are allowed for purposes of facilitating essential public access, development of public trails, and/or public shoreline access; provided, that no other alternative is feasible and redevelopment shall be otherwise consistent with the provisions of this program, including but not limited to the provisions for public access and no net loss of shoreline ecological functions and processes.

g. Regulations – Existing Residential and Commercial: Aquatic Structures and Accessory Aquatic Structures.

i. Existing docks, floats, and buoys may be repaired and replaced in the same foot print and shall comply with this program’s requirements for materials and standards, to the extent practicable.

(A) Except that as a conditional use, an existing dock may be modified, reoriented or altered within the same general location to be more consistent with the provisions of this program.

ii. Except for docks and floats, repair and replacement up to 50 percent of the footprint of any existing aquatic structures, including shoreline modifications, or buildings or portions thereof within the aquatic or priority aquatic designations, shall only be done once within any five-year period. Such replacements shall comply with this program’s requirements for materials and standards to the extent practicable. If the structure is composed of several components, then the 50 percent shall be calculated independently for each component.

iii. The replacement shall meet subsection B.2 of this section, Environmental Impacts, including the mitigation sequencing standards of subsection B.2.d, Regulations – Mitigation, to meet the standard of no net loss of shoreline ecological functions and/or processes. Shoreline stabilization shall also meet the alternative analysis provision of BIMC 16.12.050.B.8.a.

2. Cultural Resources.

a. Applicability. The following provisions apply to cultural, archaeological and historic resources that are either recorded by the State Historic Preservation Office, affected Indian tribes and/or by local jurisdictions, or have been inadvertently uncovered. Archaeological sites located both in and outside shoreline jurisdiction are subject to Chapter 27.44 RCW (Indian graves and records) and Chapter 27.53 RCW (Archaeological sites and records) and development or uses that may impact such sites shall comply with Chapter 25-48 WAC (archaeological excavation and removal permit) as well as the provisions of this master program. Shoreline development and activities associated with cultural resources will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – General.

i. New or expanded shoreline use and development, including preferred uses, restoration projects and uses exempt from permit requirements shall:

(A) Preserve and protect cultural resources that are recorded by the Washington State Department of Archaeology and Historic Preservation or local registry and resources that are inadvertently discovered during use or development activities; and

(B) Consult the city, the Washington State Department of Archaeology and Historic Preservation and affected tribes prior to beginning development so there is ample time to assess the site and make arrangements to preserve cultural resources; and

(C) Comply with all state and federal regulations pertaining to archaeological sites.

ii. Significant cultural resources shall be permanently preserved for scientific study, education, and public observation. Employ all feasible means to ensure that data, structures, and sites having historical, archaeological, cultural, scientific, or educational significance are preserved, extracted, or used in a manner commensurate with importance. Unless an alternate period is agreed to by the applicant, or if a different federal or state law supersedes this SMP, the city may postpone development activities a maximum of 90 days to allow for the:

(A) Development of a cultural resource management plan and/or retrieval and preservation of significant artifacts.

(B) Investigation of public acquisition potential, including:

(1) Consulting with the historic preservation commission on grant opportunities; and

(2) Informing city council of opportunity.

iii. When determining potential impacts to cultural resources, the project area shall be limited to proposed development use pattern, including associated areas, such as paths, equipment storage and appurtenances.

iv. Archaeological excavations may be permitted subject to the provisions of this program.

c. Regulations – Procedure.

i. When reviewing a permit, the city will use the following methods to determine probability of cultural resources occurrence:

(A) Predictive models;

(B) Local and state inventory; and

(C) Registries:

(1) National Register of Historic Places;

(2) Washington Heritage Register;

(3) Heritage Barn Register.

ii. The following shall be required of the city when permits or statements of exemptions are issued in areas known to contain, or to have a significant probability of containing cultural resources:

(A) The Washington State Department of Archaeology and Historic Preservation and affected tribes shall be notified of the proposed activity, including timing, location, scope, and resources affected; and

(B) The applicant shall provide a cultural resource site assessment and a cultural resource management plan for review and approval pursuant to subsection C.2.c.iii of this section; and

(C) Costs for the cultural resource site assessment and cultural resource management plan are the responsibility of the applicant; and

(D) The applicant shall identify areas and fence off known or suspected archaeological middens and areas of cultural significance according to the cultural resource management plan, prior to site development or proposed activities.

iii. If a cultural resource assessment identifies significant cultural resources, the applicant shall be required to submit a cultural resource management plan (CRMP) which shall include:

(A) An analysis of actions to be taken by the property owner, applicant, archaeologist, or historic preservation professional in the event that an inadvertent discovery of historic, archaeological, or cultural sites or artifacts occurs during site development; and

(B) An explanation of why the proposed activity requires a location on, or access across and/or through, a significant cultural resource; and

(C) A description of the cultural resources affected by the proposal; and

(D) An assessment of the cultural resource and an analysis of the potential adverse impacts as a result of the activity; and

(E) Measures recommended to prevent adverse impacts or to address review comments from the city, Washington State Department of Archaeology and Historic Preservation, and affected tribes; and

(F) Measures recommended for mitigation; and

(G) Measures for identification and education. Interpretive signs, plaques, or other interpretive and educational measures of historical and archaeological features shall be provided, unless the identification of the location of the cultural resource is protected by state or federal laws. (See subsection C.2.a of this section, Applicability, for laws governing archaeological sites.)

iv. If archaeological resources are inadvertently uncovered during construction or other activities, the property owner(s) shall immediately stop work and comply with the provisions of subsection C.2.c.ii of this section, and the following:

(A) The applicant(s) must first receive permission from the State Office of Archaeology and Historic Preservation and the city, prior to further site disturbance (RCW 27.53.060 or its successor).

v. Identified historical or archaeological resources shall be considered during project planning for all park, open space, public access and projects with access to such areas. Projects shall be designed and managed to give maximum protection to retain cultural resources and surrounding environment.

vi. The project may be exempt from shoreline permit requirements in the event that unforeseen factors constituting an emergency (as defined in RCW 90.58.030 or its successor) necessitate rapid action to retrieve or preserve artifacts or data. When such a waiver is provided, the city shall notify the Washington State Department of Ecology, the State Attorney General’s Office, and the Washington State Department of Archaeology and Historic Preservation.

3. Parking.

a. Applicability. The following should apply only to parking that is accessory to a permitted shoreline use. Additional parking regulations in BIMC Title 18, Zoning, may also apply. Shoreline development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – Prohibited Uses.

i. Parking as a principal use (i.e., not accessory to an authorized use) except when provided as part of a public road end or scenic vista.

ii. Parking shall be prohibited over water except at the publicly owned ferry terminal in the urban designation.

c. Regulations – General.

i. Parking in the shoreline jurisdiction shall directly serve a shoreline use and shall require a conditional use permit in the natural designation.

ii. Parking supporting specific land use activities within the shoreline jurisdiction is subject to the requirements and standards set forth in BIMC 18.15.020, in addition to the specific use regulations of this section.

iii. Parking shall be prohibited over water except at the publicly owned ferry terminal in the urban designation.

iv. Parking areas shall serve multiple facilities unless shown to the satisfaction of the administrator not to be feasible.

d. Regulations – Location and Design. Parking shall comply with the following design standards as applicable (e.g., subsection C.3.d.i of this section would not apply to overwater ferry terminal parking):

i. Parking facilities shall be located upland of the water-oriented portions of the development and, where feasible, landward of the principal buildings unless contained within a permitted structure, and set back from the OHWM as established in subsection A of this section, Table 16.12.030-2, Shoreline Setback.

ii. The design and construction for single-family residential parking and parking facilities shall assure that surface water runoff will not pollute adjacent waters or cause soil or beach erosion, and shall meet the standards of subsection B.5 of this section, Water Quality and Stormwater Management. Oil separators and detention facilities shall be required for new parking facilities. Alternatives to conventional stormwater treatment, such as use of pervious materials, shall be considered where appropriate in order to minimize impacts of runoff and/or the need for stormwater treatment.

iii. Security lighting associated with parking facilities shall be beamed, hooded, or directed so as to not cause a nuisance glare.

iv. Parking facilities shall be separated from residential, recreation, and natural areas (e.g., the shoreline) by landscaping and/or screening in accordance with the landscaping requirements of BIMC Title 18, Zoning.

v. Parking facilities shall be designed and landscaped to minimize adverse impacts to adjacent shorelines and properties. Landscaping shall be designed and installed pursuant to BIMC 18.15.010.F, Parking Lot Landscaping, and shall provide screening within three years of planting. Plantings shall be maintained for the life of the parking facility. The requirement for screening may be waived or modified by the administrator, where screening would impact shoreline views from public property or public roadway or to address public safety concerns. Landscape areas shall not be used for the storage of materials or parking of automobiles or other vehicles.

vi. Parking facilities shall provide safe and convenient pedestrian circulation within the parking area, and to the shoreline and building entrances. Pedestrian connections must be at least five feet wide and shall either be a raised sidewalk or composed of a different material than the parking lot material. Parking facilities shall meet ADA standards.

vii. Surface parking areas shall be developed using low impact development techniques whenever possible, including but not limited to the use of permeable surfacing materials.

viii. Parking facilities contained in buildings that face a public pedestrian walkway, public use area, or public park must incorporate vegetation and/or building surface treatment to mitigate the visual impacts of the structured parking.

e. Regulations – Use Specific Parking and Circulation. See Table 16.12.030-1, Shoreline Use, and Table 16.12.030-2, Shoreline Setback, for restrictions related to specific uses and the following regulations.

f. Specific Regulations – Boating Facilities Parking.

i. Short-term loading areas may be located at ramps or near berthing areas. Long-term parking that is greater than 24 hours and long-term paved storage areas shall be separated from the OHWM by a native vegetation buffer and set back at least 100 feet, unless demonstrated to the satisfaction of the administrator not to be feasible.

ii. To the maximum extent possible, marinas and accessory uses shall share parking facilities, giving preference to marina use.

iii. Parking facilities shall be provided according to the following schedule:

First 50 moorage slips:

1 vehicle space per 2 slips

Slips 51 to 100:

1 vehicle space per 3 slips

Slips over 100:

1 vehicle space per 4 slips

iv. Additional parking space shall be provided as follows:

(A) An additional space for every 400 square feet of interior floor space devoted to accessory retail sales or services.

(B) Where live-aboards are permitted, additional parking shall be provided at a rate of one vehicle per live-aboard vessel or houseboat allowed, except open water moorage and anchorage areas shall follow subsections C.3.f.iv.C and D of this section.

(C) Live-aboard tenants of open water moorage and anchorage areas shall provide either:

(1) Evidence of access to one legal vehicle parking space per anchorage/moorage space for the duration of the anchorage/moorage period; or

(2) An affidavit stating that no vehicle is owned or used by the tenant.

(D) Two load/unload parking spaces shall be provided for transient users of open water moorage and anchorage areas.

v. Marinas and launch ramps shall be located where access streets are adequate to handle the traffic load generated by the facility and shall be designed to minimize other circulation and access conflicts. Backing of trailers on public roads shall be discouraged and appropriate signage shall be provided.

vi. Roads between marinas and arterial routes shall be satisfactory to the city for marina access including:

(A) All-weather surfacing;

(B) Width;

(C) Safety;

(D) Alignment;

(E) Distance;

(F) Grade; and

(G) Intersection controls.

vii. Marinas and boat launches shall be designed so that existing or potential public access along beaches is not unnecessarily blocked nor made dangerous, and so that public use of the surface waters below the OHWM is not unduly impaired.

viii. At each public or quasi-public launch ramp, at least 10 car and trailer spaces measuring at least 10 feet by 40 feet shall be provided for each ramp lane.

g. Specific Regulations – Road Ends and Scenic Viewpoints Parking Facilities.

i. Road ends shall contain a minimum number of two parking stalls, if feasible, which shall be designed pursuant to BIMC 18.15.020.

ii. Trailheads shall contain a minimum number of two parking stalls, if feasible, which shall be designed pursuant to BIMC 18.15.020.

4. Public Access – Visual and Physical.

a. Applicability. Public access includes the ability of the general public to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to view the water and shoreline from adjacent locations. Public access provisions apply to all shoreline as prescribed by this program. Development, uses, and activities shall be consistent with subsection B.3 of this section, Vegetation Management. Public access provisions must be consistent with the nonmotorized transportation plan, a component of the transportation element of the comprehensive plan. Shoreline development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – General.

i. New development increasing demand for public access and/or reducing existing access by blocking or discouraging its use shall incorporate provisions for visual and/or physical public access into any shoreline development that meets one or more of the following tests:

(A) Any uses, except for single-family residential development with four or fewer dwelling units or building lots located in the urban designation;

(B) Includes commercial, industrial or any nonresidential uses located in any shoreline designations;

(C) Includes residential development and/or residential land division that provides five or more dwelling units or building lots located in any shoreline environments.

ii. When public access provisions are required for development, the administrator shall prepare written findings demonstrating consistency with the principles of nexus and proportionality and the test stated in subsection C.4.b.i of this section. The determination shall include:

(A) Project-specific expected impacts;

(B) Specific reasoning for determination of need for public access requirements;

(C) How the suitable public access options are related to the specific project.

iii. Public access will not apply as prescribed in subsection C.4.b.i of this section, if the determination does not demonstrate the need or the applicant demonstrates to the satisfaction of the city one or more of the following:

(A) Unavoidable health or safety hazards to the public exist which cannot be prevented by any practical means.

(B) Inherent security requirements of the use cannot be satisfied through the application of alternative design features or other solutions.

(C) The cost of providing the access, easement, or an alternative public access amenity on or off the development site is unreasonably disproportionate to the total long-term cost of the proposed development.

(D) Environmental impacts which cannot be adequately mitigated will result from the public access.

(E) Significant undue and unavoidable conflict between any access provisions and the proposed use and/or adjacent uses would occur and cannot be mitigated.

iv. Prior to deciding public access is not required pursuant to subsection C.4.b.ii or iii of this section, the applicant must first demonstrate, and the city determine in its findings, that all reasonable alternatives have been exhausted, including, but not limited to:

(A) Regulating access by such means as maintaining a gate and/or limiting hours of use.

(B) Designing separation of uses and activities (e.g., fences, terracing, use of one-way glazing, hedges, other landscaping).

(C) Provision(s) for access on a site geographically separate from the proposal such as a road end, vista, tideland or trail system.

v. Development, uses, and activities shall be designed and operated to avoid blocking, reducing, or adversely interfering with the public’s existing physical and visual access to the water and shorelines; and shall balance the public’s visual access to the shoreline with the retention of existing shoreline vegetation so as not to adversely impact the ecological functions and processes of existing shoreline vegetation.

(A) The public’s physical shoreline access is a priority over maintenance of adjacent shoreline properties shoreline views.

(B) Where a development or use will interfere with an existing public access, the development or use shall apply mitigation sequencing principles and provide public access in proportion to the impact.

(C) Public upland properties may preserve and enhance public shoreline views through limited vegetation pruning and/or vegetation removal to achieve a filtered view as described in the filtered screen landscaping provisions of BIMC 18.15.010; provided, that it is demonstrated to the satisfaction of the administrator that such visual enhancement measures:

(1) Do not adversely impact the environment, including the ecological functions of shoreline vegetation; and

(2) Meet the standards of subsection B.3 of this section, Vegetation Management.

vi. The public’s visual and physical access provided by shoreline road ends, public utilities, and rights-of-way shall not be diminished (RCW 35.79.035 or its successor and RCW 36.87.130 or its successor). Submerged public rights-of-way shall be preserved for public access.

vii. Publicly owned shoreline properties shall be reserved for public water-dependent uses, public recreational uses, or public open space.

viii. Development by public entities shall include public access to the shoreline, unless such access is shown to be incompatible due to reasons of safety, security, or impact to the shoreline environment.

c. Regulations – Public Access Design and Location Standards.

i. Public access shall consist of a dedication of land, easement, and/or a physical improvement such as a walkway, trail, bikeway, corridor, viewpoint, park, deck, observation tower, pier, boat launching ramp, dock or pier area, or other area serving as a means of view and/or physical approach to public waters and may include interpretive centers and displays.

ii. The minimum width of public access easements shall be 10 feet, unless the administrator determines that undue hardship would result. In such cases, easement widths may be reduced only to the extent necessary to relieve hardship.

iii. Public access shall incorporate the following location and design standards:

(A) A public pedestrian access walkway located generally parallel to the ordinary high water mark of the property and waterward of buildings shall be required in the urban designation, or for new commercial developments or where open space is provided along the shoreline; provided, that the public access can be designed in a manner that will not adversely impact shoreline ecological functions and/or processes.

(1) The walkway shall be buffered from sensitive ecological features and provide limited and controlled access to sensitive features and the water’s edge where appropriate.

(2) Fencing may be provided temporarily to control damage to plants and other sensitive ecological features and permanently where appropriate.

(3) Trails should be constructed of materials, such as permeable material or elevated structures appropriate for conditions to limit impacts to ecologically sensitive areas and should be limited to four feet in width to reduce impacts to ecologically sensitive resources.

(B) Public access where applicable should be designed to:

(1) Be located adjacent to other public areas, accesses or connecting trails;

(2) Connect to the nearest public street and include connections to the Winslow Waterfront Trail and other planned trails as required and specified in the city’s nonmotorized transportation plan or metropolitan park district comprehensive plan; and

(3) Include provisions for handicapped and physically impaired persons where feasible and consistent with applicable state and federal law.

(C) Where views of the water or shoreline are available and physical access to the water’s edge is not present or appropriate, a public viewing area shall be provided.

(D) Design shall minimize intrusions on privacy by avoiding locations adjacent to windows and/or private open spaces or by screening or other separation techniques.

(E) Public amenities that are appropriate to the level of expected use shall be provided to serve the users of a public access area, such as benches, picnic tables and sufficient public parking. Vista parking facilities shall include a significant public view and provide recreational opportunities such as picnic tables or viewing benches.

(F) Public facilities, public uses and commercial developments that attract a substantial number of people, and developments by government/public entities may be required to provide public restrooms, facilities for disposal of animal waste, and other appropriate public facilities.

d. Regulations – Public Access Permit Requirements.

i. Development with public access requirements shall meet the following:

(A) The required public access shall be fully developed and available for public use at the time of occupancy of the use or activity in accordance with conditions of approval, or in accordance with other provisions for guaranteeing installation within a five-year period through a monetary performance assurance as approved by the city attorney.

(B) Public access easements and conditions of approval shall be recorded on the deed of title and/or on the face of the plat or short plat as a condition running with the authorized land use. Recording with the county auditor’s office shall occur at the time of permit approval (RCW 58.17.110 or its successor).

(C) The standard state-approved logo or other approved sign(s) that indicate the public’s rights of access and hours of access shall be constructed, installed, and maintained in conspicuous locations at public access sites. In accordance with subsection C.4.c.iii.A of this section, the city may control or restrict public access as a condition of permit approval.

(D) Public access facilities shall be maintained over the life of the use or development unless the city approves amending access to provide equal or greater public access than currently provided. Future actions by the applicant, successors in interest, or other parties shall not diminish the usefulness or value of the public access provided.

ii. When properties are subdivided, owners of newly created lots which do not have frontage on the water shall be provided common access to the water, to the extent feasible; and provided, that it will not cause unacceptable environmental harm which cannot be adequately mitigated.

5. Signs.

a. Applicability. Signs are regulated primarily through Chapter 15.08 BIMC, Sign Code. The following provisions apply to all signs within the jurisdiction of the shoreline master program, including signs used for the purpose of providing information related specifically to enhancing the public enjoyment of the shorelines through education and/or noting areas of special cultural or historical significance. These provisions do not apply to publicly owned signs where the purpose is to provide information regarding safety, direction, directions, and the like. Shoreline development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – General.

i. Signs for specific land use activities within the shoreline jurisdiction are subject to the requirements and standards set forth in Chapter 15.08 BIMC, Sign Code, in addition to the regulations of this section.

ii. Overwater signs or signs on floats or pilings shall be prohibited, except when related to navigation or as approved as part of a water-dependent use.

iii. The following types of signs may be permitted, subject to the provisions contained within this section:

(A) Water navigational signs and highway and road signs necessary for operation, safety and direction;

(B) Public information/interpretive signs directly relating to a shoreline resource, use or activity;

(C) Off-premises, free-standing signs for community identification, information, or directional purposes;

(D) Signs with changing messages; provided, that the information displayed on a nonlighted sign is limited to displaying time, temperature or date or public noncommercial messages. Commercial electric signs with changing messages are prohibited;

(E) National, state or institutional flags or temporary decorations customary for special holidays and similar events of a public nature; and

(F) Temporary directional signs to public or quasi-public events if removed within 10 days following the event and permitted in accordance with Chapter 15.08 BIMC.

c. Regulation – Public Access Signs.

i. Signs indicating the public’s right to access shoreline areas shall be installed and maintained in conspicuous locations at recreational facility points of access and entrances.

ii. The location of new public access sites shall be clearly identified. Signs with the appropriate agency’s logo shall be constructed, installed and maintained by the project proponent in conspicuous locations at the public access sites and/or along common routes to public access sites. The signs shall indicate the public’s right of access, the hours of access, and other information.

6. Transportation Facilities.

a. Applicability. Transportation facilities are also subject to subsection A of this section, Regulations – General, including Tables 16.12.030-1 through 16.12.030-3; BIMC 16.12.020, Shoreline Designation Regulations; BIMC 16.12.060, Critical areas; subsection B.5 of this section, Water Quality and Stormwater Management; BIMC 16.12.050, Shoreline modification regulations; BIMC 16.12.050.D, Dredging and Dredge Material Disposal; and BIMC 16.12.050.E, Fill. Construction and maintenance activities related to transportation facilities may require a vegetation management plan and/or a stormwater pollution prevention plan (SWPP) pursuant to Chapter 15.20 BIMC, Surface and Storm Water Management; subsection B.3 of this section, Vegetation Management; and subsection B.5 of this section, Water Quality and Stormwater Management. Transportation facility development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – Prohibited.

i. The following transportation facilities are prohibited:

(A) New highways, arterials, secondary arterials, railroad facilities, and heliports;

(B) Additional bridges over Puget Sound waters to and from Bainbridge Island;

(C) In the priority aquatic designation all transportation facilities, except trails; and

(D) New transportation facilities in front of feeder bluffs, over driftways or on accretion shoreforms.

ii. Fills for transportation facility development are prohibited in water bodies, wetlands, marshes, bogs, swamps and on accretion beaches except when there is a demonstrated purpose and public need that supports the uses consistent with this program, and alternatives to accomplish the same purpose have been shown to be infeasible. Such fill may be permitted by a conditional use permit and must comply with the provisions of BIMC 16.12.050.E, Fill.

iii. Herbicides for roadside brush control on city roads in the shoreline jurisdiction, except when a city-approved integrated pest management plan is implemented. See subsection B.5 of this section, Water Quality and Stormwater Management.

c. Regulations – General.

i. Pervious trails shall be permitted in upland shoreline designations.

ii. Publicly owned ferry terminals and services, except overwater facilities, are allowed as a permitted use in the urban designation and in the adjacent aquatic environment. New overwater facilities in conjunction with a permitted ferry terminal are a conditional use in the urban designation and in the adjacent aquatic environment and are prohibited in all other environments.

iii. Float plane facilities and services are a conditional use in the urban designation.

iv. New access roads shall be allowed only where required because of one of the following:

(A) Other means of access are demonstrated to the satisfaction of the administrator to be infeasible or environmentally unacceptable; or

(B) The road is needed for ferry service.

v. Transportation facilities and services shall utilize existing transportation corridors whenever possible; provided, that facility additions and modifications will not adversely impact shoreline resources and are otherwise consistent with this program. Expansion of the existing corridor shall meet the provisions of subsection B.2 of this section, Environmental Impacts.

vi. Shoreline road ends may not be vacated except in compliance with RCW 35.79.035 or its successor and RCW 36.87.130 or its successor.

vii. Transportation facilities including, but not limited to, ferry terminals, and/or float plane terminals shall meet the height and setback standards in Table 16.12.030-2.

d. Regulation – Design, Construction and Maintenance.

i. Construction and Maintenance.

(A) Waste material from both construction and maintenance activities, including drainage ditch clearing, shall not be deposited into or cast on the side of roads within a shoreline, water body, wetland, estuary, tideland, accretion beach, and other unique natural area. Such materials shall be deposited in stable locations where reentry and erosion into such areas is prevented.

(B) No machinery shall be operated within or along a stream bed, marine shoreline, lake, wetland or pond except in compliance with a hydraulics permit approval (HPA) issued by the Washington State Department of Fish and Wildlife. If an HPA is not required, operation of machinery may be approved by the administrator.

(C) Existing roads corridors shall be adequately maintained with site-appropriate native vegetation where feasible to provide slope stability and to enhance shoreline function. Shoreline scenic drives and viewpoints may provide breaks periodically in the vegetative buffer to allow open views of the water.

ii. Road Design.

(A) Transportation facilities shall employ low impact development techniques according to the provisions of subsection B.5 of this section, Water Quality and Stormwater Management.

(B) Transportation and primary utility facilities shall be required to make joint use of rights-of-way and to consolidate crossings of water bodies; where doing so minimizes adverse impacts to the shoreline.

(C) Roadway design shall include facilities for bicycle and pedestrian routes as prioritized in the nonmotorized transportation plan.

(D) Culverts, bridges and similar devices shall be designed to pass water, sediment, and debris loads anticipated under appropriate hydraulic analysis in compliance with the stormwater regulations of Chapter 15.20 BIMC, Surface and Storm Water Management, and shall not impede the migration of anadromous fish.

(E) The use of hard shoreline stabilization in transportation facility design shall be employed only when it is demonstrated to the administrator that alternatives are impracticable or infeasible.

7. Utilities (Primary and Accessory).

a. Applicability. These provisions apply to services and facilities that produce, convey, store, or process power, gas, sewage, communications, oil, waste, and the like. On-site utility features serving a principal use, such as water, sewer or gas line to a residence, are “accessory utilities” and shall be considered a part of the principal use. Shoreline development and activities will be reviewed under the no net loss provisions of subsection B.2 of this section, Environmental Impacts, and may also be reviewed under subsection A of this section, Regulations – General; subsection B.5 of this section, Water Quality and Stormwater Management; subsection B.3 of this section, Vegetation Management; BIMC 16.12.050, Shoreline modification regulations; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

b. Regulations – Prohibited. The following uses associated with utilities shall be prohibited within shoreline jurisdiction:

i. New solid waste disposal sites and facilities;

ii. Primary radio, cellular phone and microwave towers;

iii. Utilities requiring withdrawal of water from streams; and

iv. Primary power-generating facilities including solar power and wind generation that are not considered accessory structures in Chapter 18.09 BIMC, except public facilities necessary to serve a public system, such as sewer lift stations or similar facilities which must be located within the shoreline area due to the system design of the existing public facility;

v. Land filling in shoreline jurisdiction for utility or utility line development purposes is prohibited.

c. Regulations – General.

i. Primary utilities may be allowed as a conditional use in the shoreline residential conservancy, shoreline residential, urban, and aquatic designations. They are prohibited in natural, island conservancy and priority aquatic designations.

ii. Utility development shall comply with required setbacks. (See BIMC 16.12.020, Shoreline designation regulations, and Table 16.12.030-2.) Primary utilities shall provide screening of facilities from water bodies and adjacent properties. Type of screening required shall be determined by the city on a case-by-case basis.

iii. All utilities shall meet the height and setback standards in Table 16.12.030-2.

iv. Utilities shall be located and designed so as to avoid the use of any shoreline stabilization or flood protection works.

v. Where utilities own rights-of-way in fee title, utility development shall, through coordination with local government agencies, provide for compatible, multiple use of sites and rights-of-way, provided such uses will not unduly interfere with utility operations, endanger public health and safety, or create a significant and disproportionate liability for the owner. Such uses include shoreline access points, trail systems, and other forms of recreation and transportation.

vi. Utility lines, such as transmission and distribution, shall:

(A) Utilize existing rights-of-way, corridor and/or bridge crossings whenever possible and shall avoid duplication and construction of new parallel corridors in all shoreline areas. Proposals for new corridors or water crossings must fully substantiate the infeasibility of existing routes.

(B) Be completely buried under the stream bed in all in-stream crossings except for appropriate water or sewage treatment plant intake pipes or outfalls.

(C) Cross areas of shoreline jurisdiction by the shortest, most direct route feasible, unless such route would cause significant environmental damage.

(D) Be designed to minimize impacts to scenic shoreline views and located where major facilities must be placed in a shoreline area.

vii. Permitted crossings shall utilize pier or open pile techniques.

viii. Clearing of native vegetation for the installation or maintenance of utilities shall be kept to a minimum. Upon project completion, disturbed vegetation areas shall be replanted according to the provisions of subsection B.3 of this section, Vegetation Management. Other disturbed areas shall be replanted with native or other approved species. Replanted areas shall be regularly maintained until established.

d. Regulations – Primary Utility Location and Design.

i. Water Systems.

(A) Components of water systems which are not water-dependent shall be located outside shoreline jurisdiction, except waterlines serving shoreline uses or unless alternative locations, including alternative technology, are demonstrated to be infeasible to the administrator and the facilities do not result in a net loss of shoreline ecological functions and processes or significant adverse impacts to other shoreline resources and values such as parks and recreation facilities, public access or archaeological, historic and cultural resources, or aesthetic resources.

(B) Private and public intake facilities, and wells in the shoreline jurisdiction should be located where there will be no net loss in ecological functions and processes or adverse impacts upon shoreline resources, values, natural features, or other uses. Construction and maintenance activities shall follow best management practices and meet provisions of subsection B.5 of this section, Water Quality and Stormwater Management.

(C) Desalinization facilities shall be located consistent with critical area regulations and buffers in BIMC 16.12.060, except for water-dependent components such as water intakes.

ii. Sewage Systems.

(A) Sewage trunk lines, interceptors, pump stations, treatment plants and other components that are not water-dependent shall be located outside shoreline jurisdiction unless alternative locations, including alternative technology, are demonstrated to be infeasible to the administrator and the facilities do not result in a net loss of shoreline ecological functions and processes or significant impacts to other shoreline resources and values such as parks and recreation facilities, public access or archaeological, historic and cultural resources, or aesthetic resources.

(B) Outfall pipelines and diffusers are water-dependent, but should be located only where there will be no net loss in shoreline ecological functions and processes or adverse impacts upon shoreline resources and values.

iii. Natural Gas Transmission.

(A) Natural gas pipelines, except local service lines, shall not be located in shoreline jurisdiction unless alternatives are demonstrated to be infeasible to the administrator. Application materials shall include analysis of alternative routes avoiding aquatic lands and including alternative technology.

(B) Natural gas local service lines shall not be located in shoreline areas unless serving approved shoreline uses. Crossings of water bodies shall not be approved unless alternatives are demonstrated to be infeasible to the administrator. Application materials shall include an analysis of alternative routes avoiding aquatic lands, including an analysis of alternative technology.

(C) Application for natural gas pipelines shall demonstrate that the facilities do not result in a net loss of shoreline ecological functions and processes or significant impacts to other shoreline resources and values.

(D) Developers and operators of pipelines and related appurtenances for natural gas are to be required to demonstrate adequate provisions for preventing spills or leaks, as well as established procedures for mitigating damages from spills or other malfunctions and shall demonstrate that periodic maintenance will not disrupt shoreline ecological functions and processes.

(E) Utilities for new development within the shoreline shall be installed underground.

iv. Electrical Energy and Communication Systems.

(A) Energy and communication systems including substations, towers, transmission and distribution lines have critical location requirements, but are not normally water-dependent. System components that are not water-dependent shall not be located in shoreline jurisdiction, except lines serving shoreline uses or unless alternatives are demonstrated to be infeasible to the administrator. Application materials for such facilities shall include an analysis of alternative routes avoiding aquatic lands, including an analysis of alternative technology.

(B) Underground placement of lines shall be required for new or replacement lines that are parallel to the shoreline, and do not cross water or other critical areas regulated and defined in BIMC 16.12.060, Critical areas; provided, that maintenance of existing aerial lines may be permitted above ground where alternatives are demonstrated to be impractical and/or infeasible to the administrator.

(C) New or replacement lines that cross water bodies or other critical areas regulated and defined in BIMC 16.12.060, Critical areas, may be required to be placed underground depending on impacts on ecological functions and processes and visual impacts; provided, that maintenance of existing aerial lines may be permitted above ground where alternatives are demonstrated to be impractical and/or infeasible to the administrator.

(D) Poles or other supports treated with creosote or other wood preservatives that may leach contamination in water shall not be used along shorelines or associated wetlands. No new overhead wiring shall be installed between the road and OHWM, where road rights-of-way or easements are within 150 feet and also are parallel to shoreline for more than 500 feet.

(E) Utilities for new development within the shoreline shall be installed underground.

v. Tidal Energy. System components of tidal energy or tidal power-generating facilities which are non-water-dependent shall be located outside shoreline jurisdiction unless alternative locations, including alternative technology, are demonstrated to the administrator to be infeasible, and that the facilities do not result in a net loss of shoreline ecological functions and processes or significant adverse impacts to other shoreline resources and values such as parks and recreation facilities, public access or archaeological, historic and cultural resources, or aesthetic resource.

vi. Fire Protection Facilities. Storage and handling facilities for water borne fire fighting or rescue equipment may be permitted on shoreline jurisdiction at locations which are demonstrated to the administrator to be suitable considering the purpose of the proposal and the policies of this program.

vii. Other Essential Public Utility Facilities. Other utility processing facilities, such as power plants, that are non-water-oriented shall not be allowed in shoreline jurisdiction unless no other feasible alternative is available.

viii. Site Coverage. Maximum site coverage for utility development including parking and storage areas shall not exceed standards in the underlying zoning in BIMC Title 18, and shall not exceed 50 percent in urban and 35 percent in shoreline residential and shoreline residential conservancy.

ix. Regulations – Accessory Utility Location and Design. Accessory utility must be subordinate to principal use, such as utilities serving a residential use, and shall meet Chapter 18.09 BIMC, Use Regulations, in addition to the provisions below.

(A) Temporary storage of solid waste in suitable receptacles is permitted as an accessory use to a primary permitted use, or for litter control.

(B) New residences or businesses on the shoreline within 200 feet of an existing sewer line and/or within an established sewer service area shall be connected to the sewer system. Existing residences shall be connected when the on-site sewage system has reached the end of its useful life.

(C) On-site sewage systems shall be located on the landward side of any new residence or business or in a location approved by the administrator and designed to meet all applicable water quality, utility, and health standards.

(D) Accessory utilities shall be located outside of the shoreline area unless no suitable location is feasible. When utility lines require a shoreline location, they shall be placed underground. (Ord. 2014-04 § 3 (Exh. 1 § 4), 2014)

16.12.040 Specific shoreline use and development regulations.

A. Agriculture.

1. Applicability. These provisions apply to activities which are primarily commercial, including cultivation of soil, production of crops, or the raising of livestock. Gardening activities primarily for on-site consumption and maintenance of household pets shall be considered accessory to residential uses.

2. Regulation – General. Agriculture is prohibited in the shoreline jurisdiction.

B. Aquaculture.

1. Applicability. These provisions apply to the commercial cultivation and harvesting of fish, shellfish or other aquatic animals or plants, and also to non-commercial harvesting, and to the incidental preparation of fish and shellfish for human consumption, or cultivation for restoration purposes. Aquaculture is dependent on the use of the water and, when consistent with control of pollution and prevention of damage to the environment, is a preferred use of the water area. When properly managed, aquaculture can result in long-term over short-term benefit and can protect the resources and ecology of the shoreline. Aquaculture activities may be subject to the regulations found in BIMC 16.12.050.D, Dredging and Dredge Material Disposal, depending on site-specific circumstances. Aquaculture activities will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; and BIMC 16.12.060, Critical areas, when applicable. Other portions of this program may also apply.

2. Regulations – Prohibited.

a. Aquaculture is prohibited in the natural and priority aquatic designations, except as provided in subsection B.3.a of this section.

b. Aquaculture that uses or releases herbicides, pesticides, antibiotics, fertilizers, parasites, pharmaceuticals, genetically modified organisms, feed or other materials known to be potentially harmful into surrounding waters is prohibited, unless:

i. When conducted for native population recovery in accordance with government/tribal approved plan and all state and federal regulations; or

ii. If approved by all appropriate state and federal agencies and proof thereof is submitted to the city.

c. Mechanical and/or hydraulic harvesting or other activities that involve substantial substrate modification shall be prohibited in existing kelp beds or in beds of native eel grass (Zostera marina).

3. Regulations – General.

a. Aquaculture may be allowed as follows:

i. Aquaculture as a conditional use in shoreline residential, urban, and adjacent aquatic designations.

ii. Community shellfish gardens are allowed as a conditional use in the island conservancy, shoreline residential conservancy, shoreline residential, and urban designations, and in adjacent aquatic designations.

iii. Individual shellfish gardens are allowed in the island conservancy, shoreline residential conservancy, shoreline residential and urban shoreline designations and in adjacent aquatic designation Priority B. They also are allowed in aquatic Priority A when for the recovery of native populations, restoration, or personal use.

b. When a shoreline conditional use permit is issued for a new aquaculture use or development, that permit shall apply to the initial siting, construction, and/or planting or stocking of the facility or farm, and shall be valid for the period specified in the permit.

c. Aquaculture shall avoid:

i. A net loss of ecological functions or processes;

ii. Adverse impacts to eelgrass and macro algae;

iii. Significant conflicts with navigation and water-dependent uses;

iv. The spread of disease to native aquatic life;

v. Establishing new non-native species that cause significant ecological impacts;

vi. Significant impacts to shoreline aesthetic qualities; and/or

vii. Significant modifications of the substrate.

4. Regulations – Design Standards.

a. Floating and submerged aquaculture structures shall be located to avoid or minimize interference with navigation and the normal public use of the surface waters. Floating structures shall remain shoreward of principal navigation channels. Other restrictions on the scale of aquaculture activities to protect navigational access may be necessary based on the size and shape of the affected water body. Netting and fencing shall be the minimum necessary to deter targeted predators and shall not exceed six feet in height, as measured from water surface.

b. Aquacultural structures and activities that are not water-dependent (e.g., warehouses for storage of products, parking lots) shall be located landward of the OHWM, upland of water-dependent portions of the project, and shall avoid or minimize detrimental impacts to the shoreline.

c. Hatchery and other aquaculture operations shall be required to maintain a vegetated buffer zone along the affected stream as prescribed in BIMC 16.12.060; provided, that clearing of vegetation shall be permitted for essential water access points.

d. Onshore support structures shall meet the height and setback standards established in Table 16.12.030-2, Site Development Dimensional Standards Table, except that reduced setbacks may be permitted through a shoreline variance where necessary for the operation of hatcheries and rearing ponds.

e. The following shall be limited to the minimum size or number necessary for approved aquaculture development, uses, and activities:

i. Submerged or intertidal structures.

ii. Land-based facilities.

iii. Structures which modify substrate.

f. Floating/hanging aquaculture facilities and associated equipment, except navigation aids, shall use colors and materials that blend into the surrounding environment in order to minimize visual impacts. All materials, including those used for incidental aquaculture for personal consumption, shall be marked with owners’ contact information to provide identification after storm disturbance. All floating and submerged aquaculture facilities in navigable waters shall comply with all applicable state and federal requirements.

g. Floating aquaculture facilities may require a visual impact analysis consisting of information comparable to that found in the Department of Ecology’s Aquacultural Siting Study (1986), as updated. Such analysis may be prepared by the applicant without professional assistance; provided, that it includes an adequate assessment of impacts, as determined by the administrator.

h. For aquacultural projects using overwater structures, storage of necessary tools and apparatus waterward of the OHWM shall be limited to containers of not more than three feet in height, as measured from the surface of the raft or dock; provided, that, in locations where the visual impact of the proposed aquaculture structures will be minimal, the city, based upon written findings and without requiring a variance, may authorize storage containers of greater height. In such cases, the burden of proof shall be on the applicant. Materials which are not necessary for the immediate and regular operation of the facility shall not be stored waterward of the ordinary high water mark. A temporary sanitation station may be allowed on fixed overwater pier structures when utilities are not available within a reasonable distance.

i. Shellfish gardens for personal consumption are allowed on private lands provided the following can be met:

i. They comply with all state and federal regulations, including transfer and harvest permits required by WDFW;

ii. The cultivation and harvesting is limited to native species of shellfish acquired from a licensed source consistent with state law; and

iii. The operation may utilize bottom culture or off-bottom culture bags if in accordance with best management practices and it does not significantly alter the tidal bed.

5. Regulations – Operational Standards.

a. Aquaculture structures and equipment shall be of sound construction and shall be so maintained. Abandoned or unsafe structures and equipment shall be removed or repaired promptly by the owner. Aquaculture operations that do not conform with this master program are considered discontinued if the use has ceased for a period of more than five years.

b. Operational monitoring may be required if and to the extent that is necessary to determine, ensure, or confirm compliance with predicted or required performance, including periodic benthic analysis or noise pollution monitoring in accordance with Chapter 16.16 BIMC. Such monitoring requirements shall be established as a condition of the permit and shall be conducted at the applicant’s (operator’s) expense.

c. No processing of any aquacultural product, except for the sorting or culling of the cultured organisms and the washing or removal of surface materials or organisms, shall occur in or over the water after harvest, unless specifically approved by permit. All other processing and processing facilities shall be located on land and shall be governed by these provisions and the policies and regulations of other applicable sections of the master program, in particular, provisions addressing commercial and industrial uses.

d. Aquaculture wastes shall be disposed of in a manner that will ensure compliance with all applicable governmental waste disposal standards. No garbage, wastes, or debris shall be allowed to accumulate at the site of any aquaculture operation (Chapter 8.16 BIMC).

e. Predator control shall not involve the killing or abusive harassment of birds or mammals. Approved controls include, but are not limited to, double netting for seals, overhead netting for birds, fencing or netting for otters. The use of other nonlethal, non-abusive predator control measures shall be contingent upon receipt of written approval from the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service, as required.

f. All nets shall be maintained in accordance with all applicable state and federal requirements. If a state or federal permit is not required, cleaning of nets and other apparatus shall be accomplished by air drying, spray washing or hand washing, rather than chemical treatment and applications.

6. Commercial Geoduck Requirements.

a. In addition to other provisions in this subsection B, commercial geoduck aquaculture will be administered consistent with WAC 173-26-241(3)(b)(ii), (iii), and (iv). Where there is inconsistency between the provisions in subsections B.1 through B.6 of this section and the geoduck provisions, the specific commercial geoduck provisions apply.

b. A conditional use permit is required for all new commercial geoduck aquaculture and conversions from existing nongeoduck aquaculture to geoduck aquaculture. CUPs for new commercial geoduck and conversions will be administered consistent with WAC 173-26-241(3)(b)(ii), (iii), and (iv).

C. Boating Facilities.

1. Applicability. Boating facilities include marinas (both backshore and foreshore, dry storage, and wet moorage and open water types), boat launch ramps, covered moorage, marine railways, and marine travel lifts (refer to BIMC 16.12.080, Definitions). Community, yacht club, camp, and resort moorage facilities must comply with boating facility requirements if they provide moorage for six or more vessels. Both marina and nonmarina boating facilities, including single-family, must comply with BIMC 16.12.030, General (island-wide) regulations, including the standards in Tables 16.12.030-1 through 16.12.030-3; BIMC 16.12.020, Shoreline designation regulations; and BIMC 16.12.050.C, Overwater Structures. Boating facilities development will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

Accessory uses found in marinas may include fuel docks and storage, boating equipment sales and rental, repair services, boat launches, bait and tackle shops, potable water, waste disposal, administration, parking, and grocery and dry good shops. Uses which are not clearly accessory are also subject to the respective provisions in this section. (Examples might include commercial, industrial, or transportation facilities.)

Regulations governing boating activities in the bays and harbors of Bainbridge Island are contained in Chapter 12.24 BIMC, Waterfront Park and Other City Harbors, and Chapter 12.40 BIMC, Watercraft and Floating Homes, may also apply. See BIMC 16.12.050.C.5.h and i for regulations governing mooring buoys. Boating facility development and/or renovation shall comply with all other applicable state and federal agency policies and regulations including, but not limited to, the Department of Fish and Wildlife, Washington Department of Natural Resources, federal marine sanitation standards (Environmental Protection Agency 1972) requiring water quality certification from the U.S. Army Corps of Engineers (33 USC 403), U.S. Army Corps of Engineers dredging standards (33 USC 404), and state and federal standards for the storage of fuels and toxic materials.

2. Regulations – Prohibited.

a. Boating facilities in the shoreline residential conservancy, island conservancy, natural, and priority aquatic designations, except that boating facilities may be permitted as a conditional use in public parks designated island conservancy.

b. Backshore marinas involving the creation of a basin for wet moorage.

c. Covered moorage.

d. Floating homes.

3. Regulations – General.

a. Boating facilities, including marinas, shall be allowed as follows:

i. Boating facilities shall be permitted in the urban designation and allowed as a conditional use in the shoreline residential designation.

ii. Boating facilities in the aquatic designation are allowed as permitted in the adjacent upland designation pursuant to Table 16.12.030-2.

iii. One public open water moorage and anchorage area shall be a permitted in the aquatic designation located in Eagle Harbor.

b. Accessory uses at a marina or public launch ramp shall be limited to those which are water-dependent, related to boating, necessary for marina operation, or which provide physical or visual shoreline access to a substantial number of the general public. Accessory uses shall be consistent in scale and intensity with the marina and/or launch ramp and surrounding uses.

c. All marina developments shall provide boater education addressing boater impacts on water quality and other shoreline resources, and boater safety and requirements for boater use of sewage pump-outs to their marina users.

d. Live-aboard vessels, including houseboats, shall be permitted only in marinas. No more than 10 percent of the surface area of a marina or 10 percent of its slips, whichever is less, shall be devoted to live-aboard vessels, including houseboats, except that the percentage of live-aboard vessels in marinas may be increased through an approved conditional use permit (WAC 332-30-171 or its successor).

4. Regulations – Location.

a. When new marina sites are considered, sufficient evidence must be presented to show there is a regional demand and existing marinas are inadequate and cannot be expanded to meet regional demand.

b. Marinas shall be sited to prevent any restrictions in the use of commercial and recreational shellfish beds or commercial aquaculture operations. The specific distance shall be determined in conjunction with the Washington State Department of Health Services, the Washington State Department of Ecology, and other agencies with expertise. Criteria for determining the specific distance may include:

i. The size and depth of the water body;

ii. Tidal flushing action in the project area;

iii. Size of the marina and projected intensity of use;

iv. Whether fuel will be handled or stored;

v. Location of a sewer hook-up; and

vi. Expected or planned changes in adjacent land uses that could result in additional water quality impacts or sanitary treatment requirements.

c. Marinas shall be allowed only on stable shoreline areas where water depth is adequate to eliminate or minimize the need for channel dredging (for construction or maintenance), soil disposal, filling, beach enhancement, and other harbor and channel maintenance activities.

d. Marinas shall be located only in areas where there is adequate water mixing and flushing and shall be designed so as not to reduce or negatively influence flushing characteristics.

e. Boating facilities shall not require fixed breakwaters.

f. Marinas shall be clearly separated from beaches commonly used for swimming and shall provided signage and provide protection measures to ensure the safety of swimmers.

g. Marinas shall not be located at or along:

i. Significant littoral drift cells, including resource material areas, such as feeder bluffs and accretion beaches, barrier beaches, points, sand spits and hooks; or

ii. Wetlands, marshes, bogs, swamps and lagoons; or

iii. Mud flats and salt marshes; or

iv. Fish and shellfish spawning and rearing areas.

h. Marinas shall not extend waterward farther than the following limits:

i. The construction limit line or the harbor structure limit line as depicted in Figures 16.12.050-2 and 16.12.050-3; except the public open water moorage and anchorage areas shall be allowed waterward of the construction limit line.

ii. Where no limit line is depicted, not more than 200 feet beyond extreme low tide, the 18 MLLW depth contour, or the line of navigation, whichever is closer to the shore. However, the distance from shore may be less in locations where it is necessary to protect the navigational rights of the public (WAC 332-30-122(1)(ii) or its successor).

5. Regulations – Design/Renovation/Expansion.

a. Proposals for marinas shall include public launch facilities unless the applicant can demonstrate that providing such facilities is not feasible.

b. Boating facilities shall be designed, constructed and maintained to:

i. Provide thorough flushing of all enclosed water areas and shall not restrict the movement of aquatic life requiring shallow water;

ii. Minimize interference with geo-hydraulic processes and disruption of existing shore forms;

iii. Be aesthetically compatible with existing shoreline features and uses;

iv. Avoid adverse proximity impacts such as noise, light and glare;

v. Include vegetative screening for parking, and upland storage areas and facilities consistent with landscaping standards for parking lots as prescribed in BIMC 18.15.010, Development standards and guidelines; landscaping, screening, and tree retention, protection, and replacement; and

vi. Include public restrooms, accessory parking or other recreational uses according to the scale of the facility.

c. Short-term loading/unloading areas and hand-launch storage areas may be located at ramps or near berthing areas and should be constructed of pervious material. Long-term parking and dry moorage and all other storage areas shall be set back at a distance of 100 feet from the OHWM.

d. Public access, both visual and physical, such as viewpoints or walkways, shall be an integral part of all marina design and development commensurate with the particular proposal and must meet the standards of BIMC 16.12.030.C.4, Public Access – Visual and Physical.

e. Innovative construction techniques and construction methods of foreshore marinas may be allowed when demonstrated to the satisfaction of the administrator that the design will prevent degradation of fish migration, critical saltwater habitat and/or shellfish resources.

6. Regulations – Utilities.

a. All marinas shall have accessible boat sewage disposal systems or other pump-out services available on site. Existing marinas shall comply within one year of the effective date of this regulation.

b. The marina shall provide facilities for the adequate collection and dumping of marina originated materials, including but not limited to, sewage, solid waste, and petroleum waste.

c. All marinas shall provide restrooms for boaters’ use, including upland or floating facilities supporting open water moorage and anchorage areas. Upland restrooms shall be located within 75 feet of the landward end of the dock or pier and floating restroom facilities shall be located to conveniently serve the tenants. Restrooms shall be identified by signs and be accessible to tenants 24 hours a day.

i. Marinas with fewer than 10 slips shall provide one toilet and hand washing facility.

ii. Marinas with 10 to 100 slips shall provide one toilet and hand washing facility for each gender.

iii. Marinas exceeding 100 slips shall provide an additional toilet and lavatory for each gender.

iv. Existing marinas shall comply within one year of the effective date of this regulation.

d. Distribution systems for plumbing and wiring at a marina site shall be placed at or below ground and dock levels, in accordance with national marine standards.

e. Public boat launch facilities shall provide and maintain at least one restroom or portable toilet; required number may increase based on projected level of service.

f. Public boat launch facilities that also include a public dock shall provide and maintain a dump station.

7. Regulations – Management and Operations.

a. The discharge of sewage and/or toxic material from boats and/or shore installations is prohibited. The responsibility for the adequate and approved collection and disposal of marina originated sewage, solid waste, and petroleum waste is that of the marina operator. An emergency spill kit and use instructions shall be provided for tenants in an easy to access area and be accessible 24 hours a day.

b. Commercial fish or shellfish processing discharge or discarding of unused bait, scrapfish, or viscera shall be prohibited.

c. Swimming shall be prohibited within marina facilities unless the swimming area is adequately separated, protected, and posted.

d. If dredging at marina entrances changes the littoral drift processes and adversely affects adjacent shores, the marina operator shall be required to periodically replenish these shores with the appropriate quantity and quality of aggregate as determined by a geo-hydraulic study, paid for by the operator or owner and completed to the satisfaction of the administrator.

e. Temporary vacant moorage spaces shall be made available for “transient moorage” (less than two-week stay) when at least one of the following applies:

i. The marina is owned, operated, or franchised by a governmental agency for use by the public;

ii. The marina provides more than 3,000 lineal feet of moorage; or

iii. The marina is part of a mixed-use development which includes restaurants or other water-enjoyment uses.

f. Additional transient moorage requirements may be established for Eagle Harbor in the Winslow master plan.

g. Marina operators shall execute a lease, contract, or deed which establishes permission to use a slip for a stated period of time and which establishes conditions for use of the slip, including the requirement that all boats meet applicable sanitation regulations.

h. Live-aboard vessels must comply with all marine regulations, policies and procedures of the Coast Guard, federal and state governments which pertain to health, safety and/or environmental protection. Proof of seaworthiness of the vessel and the adequacy of the mooring arrangement must be provided and laws governing all the citizens of Bainbridge Island must be obeyed.

i. New marinas shall meet the following before occupancy, and existing marinas shall comply with the following within one year from adoption of this program:

i. Marinas which dispense fuel shall have adequate facilities and establish posted operational procedures for fuel handling and storage to prevent/minimize accidental spillage.

ii. Marinas shall have facilities, equipment, such as emergency spill kits, and established posted procedures for containment, recovery, and mitigation of spilled petroleum, sewage, and toxic products.

iii. Marina operators shall post signs where they are readily visible to all marina users describing regulations:

(A) Pertaining to handling and disposal of waste, wastewater, toxic materials, and recycling;

(B) Prohibiting the use of marine toilets (i.e., no untreated sewage discharge);

(C) The disposal of fish and shellfish cleaning wastes; and

(D) Describing best management practices (BMPs) for boat maintenance and repairs on site.

iv. Garbage or litter receptacles shall be provided and maintained by the marina operator at several locations convenient to users in sufficient numbers to properly store all solid waste generated on site.

v. Marina docks shall be equipped with adequate lifesaving equipment such as:

(A) Life rings, hooks, ropes and ladders, or equivalent, on the end of fingers; and/or

(B) One ladder (per side) either every 100 linear feet of the dock, or every six slips whichever is greater. This regulation does not apply to a float which is less than 100 feet from a shoreline; or

(C) At least one ladder to serve a float with six or more slips and is 100 linear feet in length or less.

8. Regulations – Boat Launches (Includes Marine Railways).

a. Regulations – Prohibited. Boat launches are prohibited in:

i. Significant littoral drift cells, including resource material areas such as feeder bluffs and accretion beaches, points, spits and hooks; except for a public launch as provided for in subsection C.8.b.ii of this section;

ii. Wetlands, marshes, bogs, swamps, and lagoons;

iii. Mud flats and salt marshes; and

iv. Fish spawning and rearing areas and commercial or recreational shellfish areas.

b. Regulations – Design and Location.

i. Launch ramps shall be:

(A) Located on stable shorelines where water depths are adequate to eliminate or minimize the need for:

(1) Offshore or foreshore channel construction dredging; or

(2) Maintenance dredging; or

(3) Spoil disposal; or

(4) Filling; or

(5) Beach enhancement; or

(6) Other harbor and channel maintenance activities;

(B) Located in areas where there is adequate water mixing and flushing; and

(C) Designed so as not to retard or negatively influence flushing characteristics.

ii. For public launch ramps, innovative or hinged boat launches may be permitted on marine accretion shoreforms; provided, that continual grading is not required. When grading is permitted it must not adversely affect ecological functions and ecosystem-wide processes. Accessory facilities shall be located out of critical areas.

iii. Public boat launches may be allowed on stable banks where current deflectors or other stabilization structures will not be necessary.

iv. Boat launches shall not be permitted where the upland within 25 feet of the OHWM has a slope that exceeds 25 percent grade and/or where substantial cutting, grading, filing, or defense work is necessary.

v. Boat launches, minor accessory buildings, and haul-out facilities shall be designed to be in character and scale with the surrounding shoreline.

vi. Boat launches shall be built from flexible, hinge-segmented pads which can adapt to changes in beach profiles, unless a solid structure is demonstrated to be more appropriate for the intended level of use.

vii. Boat launches shall be placed and kept near flush with the foreshore slope to minimize the interruption of geo-hydraulic processes and critical saltwater habitat.

viii. Marine railways for boat launching shall be located the minimum distance necessary above existing grade to minimize impact on littoral drift and navigation along the shoreline.

ix. Boat launch facilities shall be clearly separated from beaches commonly used for swimming and shall provide signage and provide protection measures to insure the safety of swimmers.

D. Commercial Development.

1. Applicability. Uses associated with commercial development which are identified as separate uses in the master program are also subject to those regulations. Examples are industry, boating facilities, transportation facilities, and utilities. Commercial development and related shoreline modification activities, such as piers, docks, and bulkheads, will be reviewed under the no net loss provision of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.020, Shoreline designation regulations; BIMC 16.12.030, General (island-wide) regulations, including the standards in Tables 16.12.030-1 through 16.12.030-3; BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.4, Land Modification; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.050, Shoreline modification regulations; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

2. Prohibited. Non-water-oriented commercial uses, except as provided in subsection D.3 of this section.

3. Regulations – General.

a. Commercial uses should be located on shorelines with existing compatible commercial uses and regulated in the shoreline designations as follows:

i. Water-oriented commercial use and development shall be permitted in the urban designation and may be allowed under a conditional use permit in the shoreline residential designation.

ii. Water-dependent commercial development that requires an overwater location may be permitted in the aquatic designation when permitted in the upland environment.

iii. Non-water-oriented commercial uses are prohibited in the shoreline except as provided in subsection D.3.a.iv of this section or as follows:

(A) As a conditional use in the urban designation when located on a site physically separated from the shoreline by another property in separate ownership or by a public-right-of-way such that water access is precluded; provided, that the property conditions were lawfully established prior to the effective date of this program; and

(B) As a permitted use if located in a mixed-use development in the urban designation as subordinate to a more dominant water-oriented commercial, residential or recreational use contained in the same development, and which also provides significant public benefit amenities such as public open space or recreation, public access, or shoreline restoration.

(C) The requirements of this section shall not apply to those non-water-oriented commercial uses located on a site physically separated from the shoreline where access to the land/water interface is precluded.

iv. Water-oriented and non-water-oriented commercial uses may be permitted in a mixed-use development within the Mixed Use Town Center districts, provided:

(A) The site is physically separated from the shoreline by another property in separate ownership or by a public right-of-way such that water access is precluded; provided, that the property conditions were lawfully established prior to the effective date of this program; and

(B) Water-oriented commercial or non-water-oriented commercial development is subordinate to the residential use.

b. A use or development shall not be considered water-dependent, water-related or water-enjoyment until the administrator makes the determination that the proposed design, layout and operation of the use or development meets the definition and intent of the water-dependent, water-related or water-enjoyment designation.

c. Where commercial development is allowed, it shall be located, designed and constructed in a manner that minimizes adverse impacts to shoreline resources and shall include mitigation to ensure no net loss of shoreline ecological functions and processes pursuant to BIMC 16.12.030.B.2, Environmental Impacts.

d. New commercial development and redevelopment shall provide public access in conformance with the public access requirements of BIMC 16.12.030.C.4.

e. When permitted, proposals that include non-water-oriented commercial uses shall provide a significant public benefit in addition to any required public access, as follows:

i. Additional public access in the form of unrestricted open space. The administrator shall determine the amount of access on a case-by-case basis in accordance with the provisions of BIMC 16.12.030.C.4, Public Access – Visual and Physical.

ii. If no water-oriented commercial uses are located on or adjacent to the water as part of a mixed use development, 80 percent of the shoreline and associated buffers shall be preserved or restored to provide shoreline ecological functions and processes that approximate the functions provided by the site in natural conditions.

iii. The requirements in subsections D.3.e.i and ii of this section may be modified when:

(A) The site is designated as a public access area by a shoreline public access plan, in which case public access consistent with that plan element shall be provided; or

(B) Specific findings are made demonstrating that the size of the parcel and the presence of adjacent uses preclude restoration of shoreline ecological functions and processes. Where on-site restoration is infeasible, equivalent off-site restoration shall be provided consistent with the policies and regulations of this program.

iv. Where restoration is proposed, buffers shall be designed as appropriate to protect shoreline resources based on a specific restoration plan and may differ from the standard buffer dimensions provided in Table 16.12.030-3; provided, that the building envelope for the proposed non-water-oriented use shall be based on current site conditions.

4. Regulations – Design and Location.

a. The design and location of commercial facilities shall meet the following:

i. Those portions of the commercial development which are accessory to and not considered water-dependent and/or do not require direct contact with the water shall be set back from the shoreline at a sufficient distance to minimize impacts to water quality, to other shoreline uses and to the shoreline as a scenic view. (See BIMC 16.12.020, Shoreline designation regulations; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; and Dimensional Standards Table 16.12.030-2.)

ii. Water-dependent commercial development shall be designated and operated to promote joint use of overwater and accessory facilities such as:

(A) Piers;

(B) Docks;

(C) Storage;

(D) Restrooms; and

(E) Parking.

iii. When demonstrated, to the satisfaction of the administrator, not to be feasible, the requirements of subsections D.4.a.i and ii of this section may be reduced in scope or waived.

E. Forest Practices.

1. Applicability. Forest Practices are primarily regulated by the Washington Department of Natural Resources under WAC Title 222 or its successor pursuant to the Forest Practices Act (Chapter 76.09 RCW or its successor). This section supplements those regulations. Activities which are not regulated under the Forest Practices Act are subject to clearing and grading provisions in BIMC 16.12.030.B.4, Land Modification. Forest practices are subject to BIMC 16.12.020, Shoreline designation regulations; BIMC 16.12.030, General (island-wide) regulations; and BIMC 16.12.050, Shoreline modification regulations. Forest practices and related activities will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.060, Critical areas; Chapter 15.18 BIMC, Land Clearing; and Chapter 16.22 BIMC, Vegetation Management, when applicable. Other portions of this program may also apply.

2. Regulations – General.

a. Under the authority of planning and zoning granted to the city under RCW 76.09.240, the city of Bainbridge Island considers all forested areas within its jurisdiction as “lands with a likelihood of future conversion” from forest use as defined under WAC 222-16-060.

b. Conversion of forest land to nonforestry uses (Class IV general forest practice permit) shall be reviewed in accordance with the provisions for the proposed nonforestry use and the provisions in the shoreline master program and shall be subject to any permit requirements associated with the nonforestry use.

i. Timber harvesting shall not be permitted until local plat approval or other applicable land use authorization has been given, and any required shoreline permits have been issued for the land division(s) or intended use(s).

c. All timber harvesting and forest practices except conversions conducted with a Class IV general permit shall comply with the current rules and regulations adopted under the Forest Practices Act and the timber, fish, and wildlife agreement or their successors.

d. Timber harvesting and forest practices conducted under a Class II, III, or IV special permit from the Department of Natural Resources shall not be regulated by this program and shall not require a shoreline permit. These permit categories shall only be authorized for lands that meet the definition of DNR forestland, including any policies of DNR relating to proximity of structures to hazard trees.

e. Site preparation by burning and scarification piles shall be prohibited within shoreline jurisdiction.

f. When timberland is to be converted to another use, such conversion shall be clearly indicated on the forest practices application. Failure to indicate the intent to convert the timberland to another use on the application will result in subsequent conversion proposals being reviewed as conditional use applications. Such failure to declare intent to convert on the application may provide adequate grounds for denial of subsequent conversion proposals for a period of six years from the date of the forest practices application approval (RCW 76.09.060(3)(b)(i) or its successor).

g. Commercial timber cutting within the shoreline jurisdiction shall be by selective harvest and shall not exceed 30 percent of the merchantable trees in any 10-year period as required by WAC 222-30-110.

F. Industrial Development.

1. Applicability. Industrial development, uses and activities that are identified as separate uses but associated with industrial development or use are subject to the following provisions. Examples include transportation facilities, utilities, dredging, landfill, piers and docks, and bulkheads. Industrial development will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and BIMC 16.12.020, Shoreline Designation Regulations, and may also be reviewed under BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.050, Shoreline modification regulations; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

2. Regulations – Prohibited.

a. Storage and/or disposal of industrial wastes within shoreline jurisdiction.

b. Log storage in water.

c. Non-water-oriented industrial development.

3. Regulations – General.

a. Water-dependent industry shall be permitted in the urban designation, and those portions of the aquatic designation which are waterward of the urban designation, and shall be prohibited in all other designations. Water-related industry shall be a conditional use in the urban designation and prohibited in all other designations. Non-water-oriented industry shall be prohibited in all designations.

b. Where industrial development is allowed, it shall be located, designed and constructed in a manner that minimizes adverse impacts to shoreline resources and shall include mitigation to ensure no net loss of shoreline ecological functions and ecosystem-wide processes.

i. Water-dependent industrial uses, such as small boat haul-out and repair facilities, or vessel fueling facilities, shall be given preference over water-related and water-enjoyment industrial and port uses.

ii. A use or development shall not be considered water-dependent, water-related or water-enjoyment until the administrator makes the determination that the proposed design, layout and operation of the use or development meets the definition and intent of the water-dependent, water-related or water-enjoyment designation.

c. Proposed industrial development shall be consistent with any applicable comprehensive waterfront and/or long-range harbor development plans, and should be coordinated with applicable adopted regional and state plans.

d. New industrial development shall be compatible with existing adjacent uses of the shoreline designation in which it is located.

e. Proposed industrial development shall:

i. Be located to maximize the use of legally established, existing industrial facilities; and

ii. Be located in areas where environmental cleanup and restoration can be accomplished; and

iii. Avoid duplication of pier and dock facilities before expanding into undeveloped areas or building new facilities.

f. Water-related industrial development shall be set back from the OHWM a sufficient distance to avoid disturbance of the shoreline buffer or shoreline vegetation management area. (See BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.B.3, Vegetation Management; and Tables 16.12.030-1 through 16.12.030-3 for dimensions.)

g. Accessory industrial development which does not require a location at or near the water’s edge shall be located upland of the water-dependent portions of the development, and outside of the shoreline buffer or vegetation management area as established in BIMC 16.12.030, General (island-wide) regulations, and Table 16.12.030-3.

h. New industrial development that includes offshore facilities, floating docks and deep-water port expansion shall be permitted by conditional use permit, and only when it can be demonstrated that:

i. Such development is fundamental for the allowed industrial operation; and

ii. Such development results in no net loss of shoreline ecological functions or ecosystem-wide processes.

i. At new or expanded port and/or industrial developments the best available facilities practices and procedures, as specified by state and local agencies, shall be employed for the safe handling of fuels and toxic or hazardous materials to prevent them from entering the water, and optimum means shall be employed for prompt and effective clean-up of those spills that do occur.

4. Regulations – Design and Location.

a. The design and location of industrial facilities shall meet the following:

i. Those portions of the industrial development that are accessory to and not considered water-dependent and/or do not require direct contact with the water shall be set back from the shoreline at a sufficient distance to minimize impacts to water quality, to other shoreline uses and to the shoreline as a scenic view. (See BIMC 16.12.020, Shoreline designation regulations; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; and Tables 16.12.030-1 through 16.12.030-3.)

ii. Industrial facilities shall be designed and operated to promote joint use of overwater and accessory facilities, whenever practicable, such as:

(A) Piers;

(B) Docks;

(C) Storage;

(D) Restrooms; and

(E) Parking.

iii. Consistent with provisions in BIMC 16.12.030.C.4, Public Access – Visual and Physical, ports and/or water-dependent industry shall provide public access to the shoreline.

iv. Documentation of compliance with noise standards of Chapter 16.16 BIMC.

b. Display and other exterior lighting shall be designed and operated to minimize glare impacts to nearby properties and local traffic, and shall meet the lighting standards of BIMC 18.15.040.

5. Regulations – Ship and Boat Building and Repair Yards. Boatyards and mobile services shall employ best management practices (BMPs) concerning the various services and activities performed and to address potential impacts on the surrounding water quality. Standards for BMPs shall be found in the Washington State Department of Ecology’s most recent editions of the “Boatyard General Permit, National Pollution Discharge Elimination System (NPDES)” and the “Storm Water Pollution Prevention Plan for Facilities Covered Under the Boatyard General Permit.”

G. Mining.

1. Applicability. Mining is the removal and primary processing of naturally occurring materials from the earth for economic use. For purposes of this definition, “processing” includes screening, crushing, stockpiling, all of which utilize materials removed from the site where the processing activity is located. Mining activities also include in-water dredging activities related to mineral extraction. Processing does not include general manufacturing, such as the manufacture of molded or cast concrete or asphalt products, asphalt mixing operations, or concrete batching operations.

2. Regulations – General.

a. Mining, including the excavation of sand, gravel, and other minerals, shall be prohibited within the shoreline jurisdiction.

b. Impacts to shorelands and water bodies due to mining operations upland of the shoreline jurisdiction shall be minimized and meet no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts.

H. Recreational Development.

1. Applicability. These provisions apply to recreational development, not to casual use of undeveloped open space. They also apply to both publicly and privately owned facilities intended for use by the general public, private clubs, groups, associations, or individuals. Recreational development will be reviewed under the no net loss provisions of BIMC 16.12.020, Shoreline designation regulations; BIMC 16.12.030, General (island-wide) regulations; Tables 16.12.030-1 through 16.12.030-3; BIMC 16.12.030.B.2, Environmental Impacts; and may also be reviewed under BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.050, Shoreline modification regulations; BIMC 16.12.060, Critical areas; Chapter 15.18 BIMC, Land Clearing; Chapter 16.16 BIMC, Noise Regulation; and BIMC 18.15.040, Outdoor lighting, when applicable. Other portions of this program may also apply.

2. Regulations – Prohibited.

a. Motorized vehicular access on all beaches and spits, except at approved boat launching facilities (subsection C of this section, Boating Facilities).

b. Golf courses in the natural designations.

c. Golf course fairways which cross streams.

d. Use of fertilizers, pesticides, or other toxic chemicals is prohibited unless an exception is provided pursuant to BIMC 16.12.030.B.5, Water Quality and Stormwater Management.

e. The use of jet skis and similar recreational equipment shall be prohibited in the priority aquatic Categories A and B designations.

3. Regulations – General.

a. Water-oriented recreational development is a priority use of the shoreline, and the primary focus shall be to provide access to and enjoyment of the water and shorelines of the state and shall be consistent with the development regulations for the shoreline designation in which it occurs. Valuable shoreline resources and fragile or unique areas such as marshes, bogs, swamps, estuaries, wetlands, and accretion shoreforms (such as sand spits or accretion beaches) shall be used only for passive and nondestructive recreational activities.

i. Active water-oriented recreational uses shall be consistent with the shoreline designation in which it is being proposed and shall be permitted in the island conservancy, shoreline residential conservancy, shoreline residential, urban, and aquatic designations. Active recreational development is prohibited in the priority aquatic designation; however, vessels shall be allowed:

(A) As provided in BIMC 12.40.060; or

(B) In priority aquatic Category B when:

(1) Operated at five knots or less or such that a wake is not created; and

(2) Operated at a noise decibel that does not cause adverse impact to wildlife.

ii. Recreational development to accommodate passive (non-intensive) water-dependent and/or water-oriented recreational or educational uses shall be allowed as a conditional use in the natural designation, except public trails and public stairways are permitted as a shoreline substantial development or shoreline exemption, when designed to minimize adverse environmental impacts in accordance with BIMC 16.12.030.B.2, Environmental Impacts.

iii. Passive recreational development shall be allowed in the priority aquatic designation.

b. Water-oriented recreational use and/or development shall be allowed when the proponent demonstrates that it will not result in a net loss of shoreline ecological functions or processes or have adverse impacts on other shoreline uses, resources and/or values such as navigation and public access, and will provide mitigation in accordance with BIMC 16.12.030.B.2, Environmental Impacts.

c. Activities provided by recreational facilities must have a substantial relationship to the shoreline, or provide physical or visual access to the shoreline. Facilities for water-dependent recreation such as fishing, clamming, swimming, boating, and wading, and water-related recreation such as picnicking, hiking, and walking should be located near the shoreline, while non-water-related recreation facilities shall be located upland.

i. Within the natural designation a single active use area shall be allowed with appropriate compensatory mitigation to accommodate water-oriented and non-water-oriented cultural events and water-related passive recreational uses near the log pond at Blakely Harbor Park, as shown on the shoreline designation map.

d. Recreational development on the shoreline shall provide physical or visual public access consistent with this program and BIMC 16.12.030.C.4, Public Access – Visual and Physical.

e. Recreational development on the shoreline shall protect existing shoreline vegetation consistent with this program and BIMC 16.12.030.B.3, Vegetation Management.

f. The city shall consult applicable state and local health regulations when issuing shoreline permits for recreational facilities (WAC Title 248 or its successor).

g. Recreational development is required to comply with local and regional recreation plans and link to linear open space, recreational, or scenic systems as provided in the State Comprehensive Outdoor Recreation Planning (SCORP) document, Bainbridge Island metropolitan park and recreation district comprehensive park, recreation, and open space plan, the city of Bainbridge Island’s Winslow master plan, and the city of Bainbridge Island’s nonmotorized transportation plan.

h. The use of motor vehicles including unlicensed off-road vehicles is permitted only on roads and trails specifically designated for such use. Such use is prohibited on tidelands, backshore beaches, streams, or wetlands, except as necessary for public health and safety or maintenance or as provided in subsection H.5.a of this section, Regulations – Operations.

4. Regulations – Design and Location.

a. Recreational development shall be located, designed and constructed to maintain, enhance, or restore scenic views, aesthetic values, and public access, as appropriate. Through the site planning and permit review process, the city may adjust and/or prescribe project dimensions or location of on-site project components, intensity of use, screening, parking requirements, and setbacks as deemed appropriate to meet the recreational needs of the project and the standards of this program.

b. Recreational developments shall provide vehicular access and parking in accordance with BIMC 16.12.030.C.3, Parking, and shall provide facilities for nonmotorized access to the shoreline, such as bicycle and/or pedestrian paths, as prescribed in the city’s nonmotorized transportation plan.

c. Shoreline trails and pathways shall be located, designed, constructed and maintained to protect bank stability.

d. All permanent active recreational structures and facilities shall be located outside officially mapped floodplains and floodways. Passive recreation structures, such as picnic tables, benches, viewing platforms may be allowed provided mitigation is provided.

e. Substantial accessory use facilities, such as restrooms, recreation halls and gymnasiums, commercial services, across roads and parking areas, shall be set back from the OHWM according to Table 16.12.030-2. These areas may be linked to the shoreline by walkways.

f. Trails utilized for motorized vehicles, including golf carts, shall be set back 200 feet from the OHWM, unless these are combined with a public access trail system. If combined with a public access trail, trails shall be located at least 100 feet from the OHWM.

g. The removal of on-site vegetation shall be limited to the minimum necessary for recreational development areas and pursuant to BIMC 16.12.030.B.3, Vegetation Management.

h. Recreational buildings or structures shall not be built over water, except as provided in subsection C of this section, Boating Facilities, and BIMC 16.12.050, Shoreline modification regulations.

i. Proposals for recreational development shall include adequate facilities for water supply and sewage and garbage disposal and recycling commensurate with the intensity of the proposed use. Where sewage treatment facilities are not available, the appropriate reviewing authority shall limit the intensity of development to meet local and state on-site sewage disposal requirements. On-site sewage disposal systems shall be located landward of the development, unless not feasible due to site or development constraints; and provided, that the location of the on-site disposal system is consistent with requirements of the reviewing and permitting authority.

j. Recreational facilities shall incorporate appropriate mitigation to minimize light and noise impacts on adjacent and nearby public and private property through the use of screening, native vegetation, fences, signs and related measures.

k. Recreational proposals for publicly owned shoreline parks shall provide the following:

i. Recreational development and activities shall provide appropriate public recreational opportunities and promote the ecological restoration of the shoreline environment. Public shoreline areas are intended to provide access to, and enjoyment and use of, the water and shorelines while conserving ecological functions and processes, and protecting shoreline resources and fragile areas.

ii. Best management practices (BMPs) and low impact development (LID) techniques shall be incorporated into the design, construction, and operation of public recreation proposals in order to reduce erosion impacts and prevent harmful concentrations of chemicals and sediments from entering water bodies and meet the standards of BIMC 16.12.030.B.5, Water Quality and Stormwater Management.

iii. Educational and historical interpretation specific to the site’s shoreline ecology and local history shall be incorporated into the design and operation of a public shoreline recreational development through site amenities such as interpretive signs or other amenities.

5. Regulations – Operations.

a. Operation of motorized vehicles, including utility and maintenance vehicles, shall only be allowed in designated areas specifically designed for vehicular use.

b. The use of jet skis and similar recreational equipment shall be restricted in critical saltwater habitat areas.

c. A chemical management plan designed to eliminate the possibility of damage to riparian vegetation, wildlife, and surface and groundwater quality shall be prepared and implemented for golf courses located in shoreline jurisdiction.

d. Recreational fires in commercial uses, public parks and common areas shall only be allowed in accordance with fire code regulations in Chapter 20.12 BIMC, Burning Restrictions, and within designated barbeque fire pits, which shall be designed and spaced to facilitate the control of fires both within recreational facilities, between adjacent properties, and on public lands.

6. Regulations – Golf Courses – Design and Location. Golf courses shall be a conditional use requiring both a conditional use permit and a substantial development permit in the upland shoreline designations of island conservancy, residential conservancy, residential, and urban designations.

I. Residential Development.

1. Applicability. All development in the shoreline jurisdiction must comply with the Shoreline Management Act (Chapter 90.58 RCW or its successor) and the master program. While an individual owner-occupied, single-family residence and its “normal appurtenances” are exempt from the requirement that a shoreline substantial development permit (SSDP) be obtained from the local government (WAC 173-27-040 or its successor), it must comply with this section and other provisions of the master program. Subdivisions and short plats must also comply with all applicable provisions.

Residential development, when permitted by BIMC Title 18, Zoning, and this master program, will be reviewed under the no net loss provisions of BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.B.2, Environmental Impacts; and may also be reviewed under BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.4, Land Modification; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.030.C.4, Public Access – Visual and Physical; BIMC 16.12.030.C.7, Utilities (Primary and Accessory); and BIMC 16.12.060, Critical areas. Other portions of this program may also apply.

2. Regulations – Prohibited.

a. New overwater residential development, including floating homes.

b. New land subdivision that would require shoreline stabilization (WAC 173-26-231(3)(a)(iii)(A)).

c. Increase in intensity, including height or bulk, for any existing legally established overwater residence, or for those portions of a residence that are located over the water.

d. New accessory dwelling units in the Point Monroe District.

3. Regulations – General.

a. Residential development shall be permitted in the shoreline residential, shoreline residential conservancy, and urban designations; shall be conditional uses in the island conservancy designation; and shall be prohibited in the natural, aquatic, and priority aquatic designations.

b. Multifamily development shall be permitted in the shoreline residential and urban designations, and prohibited in the shoreline residential conservancy, island conservancy and natural designations.

c. Accessory dwelling units shall be allowed as a conditional use in the shoreline residential conservancy, shoreline residential and urban designations and prohibited in the Point Monroe District, natural designation, and island conservancy designation.

d. Land subdivision, consistent with BIMC Title 17, is permitted in the shoreline residential, shoreline residential conservancy, and urban designations, and shall be allowed as a conditional use in the natural and island conservancy designations.

e. Residential development shall meet setback and height standards in Table 16.12.030-2 and dimensional provisions of BIMC Title 18, Zoning.

f. Residential development shall meet all provisions of BIMC 16.12.030.B.2, Environmental Impacts, such that the development results in no net loss to shoreline environmental functions and processes.

g. The buffer dimensional requirements in Table 16.12.030-3 shall apply to residences and appurtenances, except when a site-specific analysis is provided in accordance with BIMC 16.12.030.B.3, Vegetation Management, or for new development proposed for the Point Monroe District, which shall meet vegetation requirements of BIMC 16.12.030.B.3.c.ix, Special Provisions for Point Monroe District. Residential development shall retain and protect existing native vegetation, or restore and enhance native vegetation according to the vegetation management and land modification provisions of BIMC 16.12.030.B.3 and 4.

h. Side setbacks, except in the urban designation and the Point Monroe District, shall total at least 30 percent of the lot width. Side setback requirement for the Point Monroe District shall total at least 15 percent of the lot width. These yards shall remain free of buildings and impervious surfaces as described below.

i. Building. The minimum side setback shall be established by BIMC Title 18, Zoning. Setbacks for each accessory building shall conform to the side setbacks required of, or established by, the primary residential building. Structures in the side setbacks may not exceed four feet in height from existing grade, except that fences on the side property line may have an additional two feet of nonscreening material for a total of six feet. Approved shoreline stabilization measures may be installed within the side setbacks.

ii. Impervious Surfaces. No more than a total of 200 square feet of impervious surface is allowed in the side yard setback outside of the shoreline standard buffer, site-specific vegetation management area or Point Monroe vegetation management area.

iii. Average Lot Width Measurement. In determining allowed setback for this subsection, lot width shall be measured as depicted in Chapter 18.12 BIMC, Dimensional Standards.

i. All residential development shall meet the requirements of Chapter 15.20 BIMC, Surface and Storm Water Management, and BIMC 16.12.030.B.5, Water Quality and Stormwater Management.

j. Home occupations meeting the criteria of BIMC Title 18 shall be considered a residential use.

4. Regulations – Primary Residential Design and Location.

a. Residential development, except in the Point Monroe District (subsection I.4.b of this section), shall follow the provision for shoreline exemptions pursuant to the shoreline master program administrative section, BIMC 2.16.165, and shall:

i. Be located and designed to avoid the need for shoreline stabilization and flood protection works for the life of the structure, as provided for in BIMC 16.12.050.B.12, Regulations – Subdivisions, and BIMC 16.12.030.B.6, Flood Hazard Management.

ii. Be located and designed to protect existing ecological function in accordance with BIMC 16.12.030.B.2, Environmental Impacts, and BIMC 16.12.030.B.3, Vegetation Management, and use low impact development techniques of BIMC 16.12.030.B.5.c.iii to:

(A) Minimize area of disturbance as provided in BIMC 16.12.030.B.4, Land Modification; and

(B) Minimize soil compaction; and

(C) Infiltrate stormwater runoff when the site is suitable for infiltration.

iii. Provide a stormwater conveyance that is designed according to the provisions of BIMC 16.12.030.B.5, Water Quality and Stormwater Management.

iv. Be located to protect existing views from primary structures on adjacent properties.

(A) Primary structures shall meet the provisions for structure setback line as provided in BIMC 16.12.030.B.3, Vegetation Management, and shall follow the provisions for shoreline exemption permit in the shoreline master program administration section of BIMC 2.16.165.

v. Designed to provide a physical separation to reinforce the distinction between public and private space. Including but not limited to:

(A) Providing vegetation screening in a landscape plan approved by the administrator and developed in accordance with requirements in BIMC 16.12.030.B.3, Vegetation Management, and BIMC 18.15.010, Development standards and guidelines; landscaping, screening and tree retention, protection, and replacement;

(B) Providing an open space setback recorded on plat or title; or

(C) Fencing or other means.

b. Special Provisions for Point Monroe District – Primary and Accessory Structures. Residential development within the Point Monroe District shall follow the provisions for shoreline exemption permits in BIMC 2.16.165, Shoreline master program administration, and shall meet provisions of subsections I.4.a.i through iii and v of this section and the following:

i. Each lot is permitted a development area that is intended to accommodate the primary residence, garage, accessory structure, parking and driveway that does not exceed 50 percent of the upland lot area, up to a maximum development area of 1,400 feet. On-site septic systems may be located outside of this development area.

ii. All new primary structures shall be located a minimum of 30 feet from the OHWM.

iii. Stabilization and flood protection works may be allowed provided the need is demonstrated as specified in BIMC 16.12.050.B.9 or 10, Shoreline Stabilization, and BIMC 16.12.B.7, Flood Hazard Management.

iv. Overwater structures may be allowed pursuant to BIMC 16.12.030.B.2, Environmental Impacts, and BIMC 16.12.050.C.2, Overwater Structures.

5. Regulations – Accessory Design and Location.

a. Except in the Point Monroe District, accessory uses and structures proposed within the shoreline buffer or site-specific vegetation management areas shall meet the standards of BIMC 16.12.030.B.3, Vegetation Management.

i. Accessory structures allowed in the shoreline buffer in Table 16.12.030-1 shall follow the provision for a shoreline exemption in the shoreline master program administration section, BIMC 2.16.165.

b. In the Point Monroe District, accessory structures, except approved docks or shoreline stabilization, shall be located a minimum of 15 feet from the OHWM.

6. Regulations – Residential Subdivisions (Single-Family and Multifamily, Including ADU).

a. Subdivision of properties in water designations, aquatic and priority aquatic, shall be regulated the same as the adjacent upland.

b. Land subdivision shall be designed to assure future development will not require shoreline stabilization for 100 years from date of submittal as demonstrated by a geotechnical report.

c. All new subdivisions shall provide for vegetation management to mitigate cumulative impacts of intensification of use and open space to assure establishment and continuation of a vegetation community pursuant to BIMC 16.12.030.B.3, Vegetation Management.

d. Accessory dwelling units are conditional uses for all lots wholly or partially within the shoreline jurisdiction.

e. New subdivisions or all multifamily residential developments shall provide a community recreation and/or open space area for the benefit of all residents or property owners in the development; provided, that such provisions shall not apply to lot line adjustment, lot consolidation, and subdivision of land into four or fewer lots.

f. New subdivisions or all multifamily residential development of four or fewer lots shall provide a common physical or visual access for the benefit of all residents or property owners in the development, which also meets the provisions of no net loss in BIMC 16.12.030.B.2, Environmental Impacts. An access easement shall be recorded on the face of the plat or title report.

i. If one or more dwelling unit exists prior to the division of land or further residential development, the feasibility of providing a common access shall be determined by the administrator.

g. New or altered residential developments of more than four dwelling units adjacent to the waterfront shall dedicate, improve, and maintain public access area sufficient to ensure usable access to the shoreline for all residents of the development and the general public. The amount and configuration of public access shall depend on the proposed use(s), provisions in BIMC 16.12.030.C.4, Public Access – Visual and Physical, and the following criteria:

i. Subdivisions within the shoreline jurisdiction that have views of water areas shall provide a public pedestrian viewing area.

ii. Subdivisions adjacent to public waterways and marine waters shall provide visual and physical access to public waterways, public marine waters, and public tidelands that are physically accessible at low tide or low water.

iii. Subdivisions subject to requirements for dedication of land to provide open space or mitigate recreation demands of the development shall dedicate such land on or adjacent to public waterways or marine shorelines, as applicable, unless the ecological sensitivity of such land precludes public access. Portions of the dedicated area may be fenced or otherwise restricted to limit public access to ecologically sensitive areas.

7. Regulations – Residential Development Overwater.

a. Live-aboard vessels shall be allowed only at marinas or in the public open water marina in Eagle Harbor in accordance with subsection C of this section, Boating Facilities.

b. All subdivisions shall record a prohibition on new single-use private docks on the face of the plat. Shared moorage with less than six slips shall meet provisions for community docks in subsection C of this section, Boating Facilities. Shared moorage with six or more slips shall meet provisions in subsection C of this section.

c. An existing overwater primary residential use may continue, and the structure may be repaired, maintained, increased in height and remodeled in accordance with BIMC 16.12.030.C.1, Nonconforming Uses, Nonconforming Lots, and Existing Development, but the use may not be intensified and the overwater structure may not be enlarged or expanded over water.

d. The upland portion of an existing primary residential structure that is partially located over water may be repaired, maintained, remodeled or expanded to the extent allowed by this program and in accordance with BIMC 16.12.030.C.1.d.iii, Existing Structures – Residential Single-Family: Primary Structures. (Ord. 2014-04 § 3 (Exh. 1 § 5), 2014)

16.12.050 Shoreline modification regulations.

A. General Shoreline Modification Provisions.

1. Applicability. Shoreline modifications are generally related to construction of a physical element such as residential development, a dike, bulkhead, dredged basin, pier or fill, but they can include other actions such as clearing, grading, application of chemicals, or vegetation removal. Shoreline modifications usually are undertaken in support of or in preparation for a shoreline use; for example, fill (shoreline modification) required for a ferry terminal (industrial use) or dredging (shoreline modification) to allow for a marina (boating facility use).

The provisions in this section apply to all shoreline modifications within the shoreline jurisdiction. They also apply to projects in which the chief intent is to protect the shoreline of a particular property for which the permit applies such as shoreline stabilization, flood control projects, and flood control programs. Shoreline modification proposals will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts; BIMC 16.12.030, General (island-wide) regulations; and may also be reviewed under BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.030.B.6, Flood Hazard Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

2. Regulations – Prohibited Uses.

a. Shoreline modifications in or adjacent to wetlands (located in both the upland and the shoreline jurisdiction) and in salmon and trout spawning areas, except for fish or wildlife habitat enhancement.

b. Beach enhancement when it interferes with the normal public use of the navigable waters of the state.

c. Shoreline modification located on feeder bluffs, except when the area is already developed with a primary residential structure, an essential public facility or transportation facility, in which case stabilization may be allowed pursuant to the provisions in subsection B of this section, Shoreline Stabilization.

3. Regulations – General.

a. A pre-application meeting shall be required prior to submitting an application for a replacement, repair or new shoreline modification project.

b. All shoreline modification activities must be necessary to support or protect an allowed primary structure or a legally existing shoreline use that is in danger of loss or substantial damage, except shoreline stabilization may be allowed as a shoreline use provided it can be demonstrated that it is necessary for reconfiguration of the shoreline for mitigation or enhancement purposes.

c. All applicable federal and state permits, including the Army Corps of Engineers, Washington Department of Fish and Wildlife, and Washington Department of Natural Resources, shall be obtained and complied with in the construction and operation of shoreline stabilization and flood protection works.

d. All new development activities, including additions to existing structures, shall be located as allowed in BIMC 16.12.060, Critical areas, and located or designed to prevent the need for shoreline stabilization for the life of the development or 100 years, whichever is greater.

e. All new, replacement, and repair modification activities shall be limited to the minimum footprint necessary to protect an allowed primary structure or legally existing shoreline use.

f. All applications for new, replacement and repair modification activities shall examine and implement alternatives as specified in their specific use sections.

g. All applications for new, replacement and repair modification activities shall be designed, located, sized, and constructed to assure no net loss of ecological functions and processes pursuant to BIMC 16.12.030.B.2, Environmental Impacts.

h. Shoreline stabilization shall be designed in a manner that minimizes:

i. Scouring of the beach at the toe of the structure; and

ii. Erosion of the waterward beach; and

iii. Impact to adjacent properties; and

iv. The need for mitigation measures.

i. Upon project completion, all disturbed shoreline areas shall be restored and replanted pursuant to BIMC 16.12.030.B.2.c, Regulations – Revegetation Standards.

j. Publicly financed or subsidized works should provide for long-term multiple use and public pedestrian shoreline access.

B. Shoreline Stabilization.

1. Principles. Shorelines are by nature unstable, although in varying degrees. Erosion and accretion are natural processes that provide ecological functions and thereby contribute to sustaining the ecology of the shoreline. Human use of the shoreline has typically led to hardening of the shoreline for various reasons including, reducing erosion, providing useful space at the shore, or for access to docks and piers. The impacts of hardening on any one property may be minimal, but cumulatively the impact of this type of shoreline modification is significant.

Shoreline hardening typically results in adverse impacts to shoreline ecological functions and habitat degradation, such as:

•    

Starvation and/or impoundment of beach sediment which diminishes longshore sediment transport;

•    

Loss of shoreline vegetation and large woody debris;

•    

Groundwater and hydraulic impacts; and

•    

Exacerbation of erosion.

There are nonstructural and structural methods of shoreline stabilization. Nonstructural methods include building setbacks, relocation of the structure to be protected, groundwater management, and planning and regulatory measures to avoid the need for structural stabilization. Structural stabilization methods can be “hard” or “soft.” Hard structural stabilization measures refer to those with solid, hard surfaces, such as concrete bulkheads, while soft structural measures rely on less rigid materials, such as bioengineering vegetation or beach enhancement. Generally, the harder the construction measure the greater the impact on shoreline processes, such as sediment transport, geomorphology, and biological functions.

The range of nonstructural and structural measures varying from soft to hard:

Soft:

•    

Upland drainage control;

•    

Vegetation enhancement;

•    

Beach enhancement;

•    

Bioengineering measures;

•    

Anchor trees; and

•    

Gravel placement.

Hard:

•    

Rock revetments;

•    

Gabions;

•    

Groins (rock or concrete);

•    

Retaining walls and bluff walls;

•    

Bulkheads; and

•    

Seawalls.

2. Applicability. Shoreline stabilization includes actions taken to address erosion impacts to property and dwellings, businesses, or structures resulting from natural processes, such as currents, flood tides, wind, or wave action. These actions include structural and nonstructural methods. Nonstructural methods include building setbacks, relocation of the structure to be protected, groundwater management, and planning and regulatory measures to avoid the need for structural stabilization. The provisions of this section apply to the construction, replacement and repair of structures intended to stabilize shorelines for protection of primary structures and primary appurtenances from shoreline erosion caused by wind, waves, and currents. For this section, repair, replacement and new stabilization are defined in BIMC 16.12.080, Definitions. Even when exempt from the shoreline substantial development process, however, these structures must comply with all applicable master program regulations. A statement of exemption, shoreline conditional use, or shoreline substantial development permit must be obtained from the city before commencing construction of any shoreline stabilization. All proposed shoreline stabilization will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts; BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.C.1, Nonconforming Uses, Nonconforming Lots, and Existing Development; and subsection A of this section, General Shoreline Modification Provisions, and may also be reviewed under BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.060, Critical areas; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

3. Regulations – Prohibited.

a. Gabions, groins, vertical, concave, and flat (hard) faced structures not including near-vertical rock riprap bulkheads in shoreline stabilization construction. Sheet pile style hard stabilization may be allowed for remediation and hybrid shoreline stabilization projects in accordance with subsection B.4 of this section.

b. Revetments for any purpose unless part of a public facilities project.

c. Construction of a bulkhead, revetment, or other structure for the purpose of retaining a landfill or creating dry land; unless it is proposed in conjunction with an approved commercial or industrial water-dependent use or public use.

d. Shoreline stabilization proposed on shores where valuable geo-hydraulic or biological processes are sensitive to interference or critical to shoreline conservation, such as: feeder bluffs; barrier estuaries, barrier lagoons, wetlands; or accretion shore forms such as sand spits, hooks, bars, or barrier beaches. Except that stabilization proposals to protect a primary single-family residence, primary appurtenance or primary public or transportation facilities may be allowed on feeder bluffs and spits provided provisions of this program are met.

e. The use of hard structural stabilization or the hard portions of hybrid stabilization intended to protect a vacant platted lot or to protect a developed lot where a primary structure or primary appurtenance is not in danger from erosion as demonstrated through a geotechnical report.

f. Stabilization that would cause significant impacts to adjacent or down current properties.

4. Regulations – General.

a. All shoreline stabilization proposals shall meet applicable provision of subsection A of this section, General Shoreline Modification Provisions, and assurance of no net loss of ecological functions and processes, BIMC 16.12.030.B.2, Environmental Impacts.

b. Soft-treatment stabilization shall be used to the maximum extent feasible.

c. New or replacement shoreline stabilization measures are a conditional use for the following:

i. Proposed shoreline stabilization is adjacent to a feeder bluff.

ii. The nearest adjacent existing shoreline stabilization is greater than 100 feet of the subject property.

iii. Sheet pile style hard stabilization may be used in:

(A) Remediation projects to contain contaminated soils or sediments when demonstrated to the satisfaction of the administrator to be the most appropriate solution; or

(B) Hybrid stabilization when used as a stop-gap measure at or near extreme high water.

5. Regulations – Location and Design of Shoreline Stabilization.

a. Shoreline stabilization shall not be approved in any known or probable midden site without the written permission of the Director of the State Office of Archaeology and Historic Preservation (the State Historic Preservation Officer) (RCW 27.53.060 or its successor).

b. On all shorelines, hard structural stabilization or hard portions of hybrid stabilization shall be located landward of the OHWM. Other structural stabilization shall be located landward of protective berms (artificial or natural), and generally parallel to the natural shoreline except as allowed below:

i. On high bluffs where no other shoreline stabilization structures are adjoining, hard structural stabilization or hard portions of hybrid stabilization shall be as close to the OHWM as feasible to accommodate the design of the shoreline stabilization. However, a revetment footing may extend waterward only the minimum extent necessary to dissipate wave energy.

ii. Shoreline stabilization shall connect flush with existing stabilization on adjoining properties, except when the action will create dry land, in which case the location requirements of the above shall apply.

iii. Soft-treatment stabilization may be permitted waterward of the OHWM if the stabilization measures provide restoration of shoreline ecological functions and processes.

c. Hard structural stabilization, including hard portions of hybrid stabilization, shall be limited to the areas of the site where the stabilization is demonstrated to be necessary, according to this subsection B, Shoreline Stabilization.

i. When allowed on feeder bluffs, hard structural stabilization, including hard portions of hybrid stabilization shall be located landward of the OHWM.

ii. Hard structural stabilization, including hard portions of hybrid stabilization located in a shoreline area that does not include a feeder bluff, shall be constructed landward of the ordinary high water mark and shall follow the natural contours of the shoreline; unless it is demonstrated to the satisfaction of the administrator to be infeasible to locate the entire hard structural stabilization landward.

d. Replacement stabilization structures may be constructed in the same location if placement landward of the OWHM is infeasible as demonstrated to the satisfaction of the administrator.

e. Shoreline stabilization shall be designed to allow the passage of surface or groundwater without causing ponding or saturation of retained soil materials and meet the following design criteria:

i. The size and quantity of the material shall be limited to only that necessary to withstand the estimated energy intensity of the hydraulic system;

ii. Filter cloth or adequate smaller filter rock shall be used to aid drainage and help prevent settling; and

iii. Provide adequate toe protection to ensure future mitigation or hard structural stabilization measures are not required.

f. Revetments shall be sited and designed consistent with appropriate engineering principles. Professional, geologic, site studies or design shall be required.

g. When a hard structure is required at a public access site, provision for safe access to the water shall be incorporated into the design for stabilization.

h. Stairs or other permitted upland structures may attach to existing hard structural stabilization, but shall not extend waterward, unless it is demonstrated to the satisfaction of the administrator to be infeasible to locate the entire stairway landward.

i. Overwater structures may attach to existing hard structural stabilization.

j. Hard shoreline stabilization construction shall utilize stable, non-erosion-prone, homogeneous materials such as concrete, wood, rock riprap, or other suitable materials which will accomplish the stabilization needs with the maximum preservation of natural shoreline characteristics. See BIMC 16.12.030.B.5, Water Quality and Stormwater Management, for additional provisions related to material.

6. Regulations – Location Specific for Replacement of Hard Structural Stabilization. Replacement of hard structural stabilization shall not encroach waterward of the OHWM or waterward of the existing shoreline stabilization measure unless the primary structure requiring protection was constructed prior to January 1, 1992, and there is overriding safety or environmental concerns if the stabilization measure is moved landward of the OHWM. In such cases, the replacement structure shall be constructed to abut the existing shoreline stabilization structure. All other replacement structures shall be located landward of the existing shoreline stabilization structure.

7. Regulations – Repair of Existing Shoreline Stabilization.

a. The administrator shall allow repair or maintenance of soft-treatment stabilization.

b. Repair of existing structural stabilization shall be allowed as follows:

i. Existing shoreline stabilization which no longer adequately serves its intended purpose shall be considered a replacement.

ii. Damaged structural stabilization may be repaired up to 50 percent of the linear length within a five-year period. Repair area that exceeds 50 percent shall be considered a replacement. Stabilization repair applications shall consider cumulative approvals of each successive application within a five-year period.

iii. Stabilization repairs may require mitigation pursuant to BIMC 16.12.030.B.2, Environmental Impacts.

8. Regulations – New or Replacement Shoreline Stabilization.

a. When evaluating the need for new, expanded or replacement stabilization measures, the applicant shall provide an analysis from a qualified professional that examines and implements preferred alternatives in the following sequence:

i. No action (allow the shoreline to retreat without intervention).

ii. Nonstructural measures such as vegetation enhancement or addressing upland drainage concerns.

iii. Increase building setbacks and/or relocate structures to a feasible location and/or elevate the structures.

iv. Implement flexible/natural materials and methods, beach nourishment, protective berms, bioengineered stabilization or other soft-treatment measures.

v. Hybrid structure.

vi. Exclusively hard stabilization materials.

b. An analysis for these alternatives shall be submitted with each replacement or new stabilization application.

c. Point Monroe District properties shall also meet provisions in subsection B.11 of this section, Specific Regulations for Point Monroe District.

9. Specific Regulations – Replacement of Existing Structural Stabilization.

a. Replacement of existing structural stabilization is allowed to protect public transportation infrastructure, essential public facilities, and primary structures when all the following apply:

i. The replacement is located landward of the OHWM, unless demonstrated to the satisfaction of the administrator to be infeasible, then it may be located in the same location, except as provided in subsection B.6 of this section; and

ii. The danger of loss or substantial damage from shoreline erosion is caused by tidal action, current, and waves rather than landslides, sloughing or other forms of shoreline erosion unrelated to water action at the toe of the slope and such has been identified through a geotechnical report except as provided in subsection B.9.a.iii of this section; and

iii. A geotechnical report demonstrates a need to protect the primary structure and primary appurtenance from danger of loss or substantial damage within five years due to shoreline erosion (subsection B.9.a.ii of this section) in the absence of hard structural stabilization; except the following is not required to identify danger of loss or substantial damage through a geotechnical report:

(A) An existing primary single-family residence located within 10 feet or less from the OHWM; or

(B) An existing primary single-family residence located within 10 feet or less from the top of a high bluff (greater than 15 feet, as “high bluff” is defined in BIMC 16.12.060); or

(C) An existing primary single-family residence located within the Point Monroe District may use the Spit Science Summary – Point Monroe, Herrera Environmental, 2012, to substitute for a site-specific geotechnical report; and

iv. The replacement structure is designed, located, sized and constructed to assure no net loss of ecological functions and processes; and

v. Hard structural shoreline stabilization, including hard partitions of hybrid stabilization, is limited to the zone of impact for protecting a primary structure and its primary appurtenances. See BIMC 16.12.080 for “zone of impact” definition.

b. When a geotechnical report confirms a need to prevent potential loss of or damage to a primary structure, but the need is not as immediate as five years, the report may be used to justify more immediate authorization to protect against erosion using soft-treatment stabilization or hybrid structural measures.

10. Specific Regulations – New Shoreline Stabilization.

a. The city may approve new or enlarged structural stabilization measures to protect non-water-dependent public transportation infrastructure, essential public facilities, and primary structures when all the following apply:

i. The danger of loss or substantial damage from shoreline erosion is caused by tidal action, current, and waves rather than landslides, sloughing or other forms of shoreline erosion unrelated to water action at the toe of the slope and such has been identified through a geotechnical report except as provided in subsection B.10.a.ii of this section; and

ii. A geotechnical report demonstrates there is significant possibility that the primary structure or primary appurtenance structures will be damaged within three years as a result of shoreline erosion (subsection B.10.a.i of this section) in the absence of hard structural stabilization measures; except the following is not required to identify danger of loss or substantial damage through a geotechnical report:

(A) An existing primary single-family residential structure located within 10 feet or less from the OHWM; or

(B) An existing primary single-family residential structure located within 10 feet or less from the top of a high bluff (greater than 15 feet, as “high bluff” is defined in BIMC 16.12.060); and

iii. The new or expanded structure is designed, located, sized and constructed to assure no net loss of ecological functions and/or processes; and

iv. Hard structural shoreline stabilization, including hard portions of hybrid stabilization, is limited to the zone of impact for protecting a primary structure and/or its primary appurtenances.

b. Where a geotechnical report confirms a need to prevent potential loss of or damage to a residential primary structure, but the need is not as immediate as three years, the report may be used to justify more immediate authorization to protect against erosion using soft-treatment structural measures.

11. Specific Regulations for the Point Monroe District.

a. New foundations and redevelopment of existing foundations that impede the natural over-wash process with the Federal Emergency Management Administration (FEMA) flood zone are considered flood protection works and shall meet provisions in BIMC 16.12.040.I, Residential Development.

b. New hard shoreline stabilization measures are prohibited in Areas I, II, and IV of the Point Monroe District, as depicted in the Point Monroe District Map in Figure 16.12.050-1.

c. A conditional use permit shall be required for hybrid structural stabilization within Area III of the Point Monroe District, as depicted in the Point Monroe District Map, 16.12.050-1.

Figure 16.12.050-1

12. Regulations – Subdivisions. Land subdivision shall be designed to assure future development will not require shoreline stabilization for the next 100 years from date of building permit approval as demonstrated by a geotechnical report.

13. Submittal Requirements for Shoreline Stabilization Project Applications.

a. In addition to the general submittal requirements for all applications specified in BIMC 2.16.020.H, the following shall be submitted to the city. Applications for repair of existing stabilization will be required to submit only the first six items. The administrator may waive some or all of the following based on specific project requirements:

i. Purpose of the project including a calculation that demonstrates the amount proposed to be repaired and past amounts repaired and a summary of replacement and/or repair materials proposed; and

ii. Plan and cross section views of the existing and proposed shoreline configuration, showing accurate existing and proposed topography and the OHWM, including an indication of the amount of area proposed to be repaired; and

iii. Documentation of pre-construction shoreline characteristics; and

iv. Description of physical, geological and/or soil characteristics of the site including existing and proposed slope profiles; and

v. A description of any waste and debris disposal sites for materials generated during construction; and

vi. For repair of shoreline stabilization, the design recommendations for minimizing impacts and ensuring the new construction, replaced or repaired stabilization measure is designed, located, sized and constructed to assure no net loss of ecological functions and processes; and

vii. Examination and implementation of alternatives in the order of preference as described in subsection B.8 of this section, Regulations – New or Replacement Shoreline Stabilization, including a description of cost, mitigation cost, maintenance needs and success in protecting the primary structure; and

viii. Existing shoreline stabilization within the reach of the proposed project; and

ix. Any outreach efforts to coordinate with property owners within the shoreline reach to address an ecosystem-wide restoration plan; and

x. A description of any waste and debris disposal sites for materials generated during construction; and

xi. A discussion of the cause of shoreline erosion including assessment of ecosystem-wide processes occurring both waterward and landward of the OHWM and an analysis of on-site and/or adjacent upland drainage; and

xii. Impact analysis and mitigation report as specified by BIMC 16.12.030.B.2, Environmental Impacts; and

xiii. Geotechnical report including the estimated rate of erosion and eminent danger within the time threshold as provided in this subsection B and the following:

(A) Proof of a geotechnical design of the structural stabilization; and

(B) Washington State licensed civil engineer with a specialty in coastal engineering or a qualified Washington State licensed geologist with a specialty in coastal geology and a qualified marine habitat biologist shall evaluate the cumulative effects of stabilization methods within a drift cell; and

(C) Maintenance, monitoring and planting plan as required by BIMC 16.12.030.B.2, Environmental Impacts.

C. Overwater Structures.

1. Applicability. Uses which may employ a pier or dock are subject to the provisions herein as well as to the provisions contained in BIMC 16.12.050, Specific shoreline use and development regulations. Single-use, community, or joint-use docks which provide moorage for six or more vessels also must comply with the provisions of BIMC 16.12.040.C, Boating Facilities.

Pursuant to RCW 90.58.030(3)(e)(vii) or its successor and WAC 173-27-040(2)(h) or its successor, certain activities are exempt from obtaining a shoreline substantial development permit (SSDP). For the benefit of the lot owner, surrounding properties, and water body users, the city will review all proposals for piers and docks to determine whether:

a. The proposal is or is not exempt from the requirements for a shoreline permit;

b. The proposal is suitably located and designed and that all potential impacts have been recognized and mitigated; and

c. The proposal is consistent with the intent, policies, and regulations of the Act (RCW 90.58.140(1) or its successor) and this program.

Activities that are exempt from a shoreline substantial development permit must still meet the provisions of the master program. A pier, dock or float associated with a single-family residence is considered a water-dependent use; provided, that it is designed and intended as a facility to tie up watercraft. Overwater structure activities will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.B.1, Shorelines of Statewide Significance; and may also be reviewed under BIMC 16.12.030.B.5, Water Quality and Stormwater Management; and BIMC 16.12.060, Critical areas, when applicable. Other portions of this program may also apply.

2. Regulations – Prohibited.

a. Overwater structures in the priority aquatic designations and adjacent to the natural designation except:

i. New individual, community or joint-use residential docks or piers are permitted in the priority aquatic B designation, only in areas where salt marsh vegetation, such as pickleweed (Salicornia sp.), does not exist.

ii. Two mooring buoys per parcel are allowed for public access when upland property is owned by a public entity.

b. Overwater structures at locations where critical physical limitations exist, such as shallow sloping tidelands with gradients of three percent or less; or areas mapped for high levels of accretion; or geological hazardous areas located outside of harbors and/or feeder bluffs, except when specifically allowed in BIMC 16.12.030.C.4, Public Access – Visual and Physical, or BIMC 16.12.040.C, Boating Facilities.

c. Development of new docks and piers within all shoreline designations within Blakely Harbor between Restoration Point and the most eastern point along the north shore of Blakely Harbor (sometimes referred to as “Pigott Point” or “Jasmine Point”), except as provided in this section.

d. New docks and piers within Murden Cove as shown on the shoreline designation map.

e. New boat houses and/or new covered moorage on either existing or new piers or docks.

f. Hydraulic water jets cannot be used to remove piling.

g. Use of arsenate compounds or creosote-treated members.

h. Overwater field applications of paint, preservative treatment, or other chemical compounds, except in accordance with best management practices set forth in BIMC 16.12.040.C, Boating Facilities, or when allowed by a current national pollution discharge elimination system (NPDES) permit from the Department of Ecology.

i. Bulk storage for gasoline, oil and other petroleum products for any use or purpose on piers and docks. Bulk storage means nonportable storage in fixed tanks.

3. Regulations – General.

a. Except for the provisions contained in this chapter, new piers and docks shall be a permitted use in the urban, shoreline residential, and aquatic designations, and shall be a conditional use in the shoreline residential conservancy and island conservancy designations.

b. Mooring buoys are a preferred use, over docks, where feasible.

c. Piers and docks shall be located and designed to minimize interference with the use of navigable waters and may be limited in length or prohibited, where necessary, to protect navigation, public use, or habitat values including critical saltwater habitat.

d. If a bulkhead-like base is proposed for a fixed pier or dock the base shall be built landward of the ordinary high water mark or protective berm and is considered shoreline stabilization and must meet provisions of subsection B of this section, Shoreline Stabilization.

e. Structures on piers and docks shall be strictly limited in size to avoid impacting shoreline views.

f. Piers and docks shall require a building permit and shall meet standards set by the building official, except public ferry terminals as part of the state highway system.

g. Lighting shall:

i. Satisfy the provisions of BIMC 18.15.040;

ii. Be the minimum necessary, or as required by the Coast Guard, to locate the dock at night; and

iii. Should minimize glare.

h. Mitigation requirements of BIMC 16.12.030.B.2, Environmental Impacts, may be met through mitigation standards for the United States Army Corps of Engineers (USACE) permit process.

i. New docks and piers shall be allowed only for water-dependent uses or public access. As used here, a dock associated with a single-family residence is a water-dependent use and may be permitted; provided, that it is designed and intended as a facility for access to watercraft and otherwise complies with the provisions of the Act and this program.

j. Piers and dock construction shall adhere to fish window provisions found in Chapter 220-110 WAC by the Washington Department of Fish and Wildlife.

4. Regulations – Location, Design and Construction Standards – Pier, Dock, Float.

a. A single-use dock consists of pier, ramp, float, and one boat lift. An additional boat lift may be added per dwelling unit for joint-use docks.

b. When plastics or other nonbiodegradable materials are used in float, pier, or dock construction, precautions shall be taken to ensure their containment.

c. Overhead wiring or plumbing is not permitted on overwater structures.

5. Regulations – Specific.

a. Piling Regulations.

i. Principle: Piles are physical barriers to fish migration and have the potential to leach contaminants into aquatic and nearshore environments. Piling installed close together can cause floating debris to accumulate, which can lead to increased shading and predator protection. The fewest number of pilings necessary should be installed and spacing between piling should be maximized. Projects must be designed to minimize abrasion between the pier, ramp and float caused by tidal fluctuations because this can result in the deposition of contaminants into the water and over time will cause a loss of structural integrity requiring additional maintenance by the applicant.

(A) Replacement or new piling shall be steel, concrete, plastic or untreated or approved treated wood, if approved by USACE. Any piling subject to abrasion (and subsequent deposition of material into the water) must incorporate design features to minimize contact between all of the different components of overwater structures during all tidal elevations.

(B) New piling associated with a new pier, except large water-dependent ferry terminals, must be spaced at least 20 feet apart (lengthwise along the structure) unless the length of structure itself is less than 20 feet. If the structure itself is less than 20 feet in length, piling can only be placed at the ends of the structure. Piles in forage fish spawning areas need to be spaced at least 40 feet apart.

(C) If the project includes the replacement of existing piling, they should be either partially cut with a new piling secured directly on top, fully extracted, or cut two feet below the mudline. If treated piling are fully extracted or cut, the holes or piles must be capped with clean, appropriate material.

(D) A maximum of two moorage pilings may be installed to accommodate the moorage of boats exceeding the length of the floats.

(E) Piles, floats, or other components in direct contact with water shall not be treated or coated with biocides such as paint or pentachlorophenol. In saltwater areas characterized by shellfish populations or in shallow embayments with poor flushing characteristics, untreated wood, used pilings, precast concrete, or other nontoxic alternatives shall be used. In all cases where toxic-treated products are allowed, products, methods of treatment, and installations shall be limited to those that are demonstrated as likely to result in the least possible damage to the environment based on current information.

(F) Piling employed in piers or any other structure shall have a minimum vertical clearance of 18 inches above extreme high water.

b. Pier Regulations.

i. Principle: In the Puget Sound, the intertidal and sub-tidal substrate supports a complex web of plant and animal species. Juvenile salmon, called salmonids, young and adult bull trout, and juvenile rockfish use nearshore marine areas for feeding, rearing, and as migratory corridors. Their predators are generally located in deeper waters that young fish tend to avoid. As they mature they become less dependent on shallow areas and begin preying on forage fish, many of which spawn on the intertidal substrate around eelgrass, kelp beds and macroalgae. Piers create shadows that can impact the viability of marine vegetation that require sunlight to grow. This subsequently adversely impacts the habitat of fish that so many other species (including human beings) rely upon. In addition, large shaded areas provide cover for predators, so for these reasons the amount of shade created by piers must be minimized.

(A) The width of the modified portion of a pier or proposed new pier must not exceed four feet for single use or six feet for joint use. Pier width for marinas or public use docks may exceed these restrictions if they provide mitigation, which may include artificial lighting under the pier during daytime hours.

(B) Functional grating resulting in a total open area of a minimum of 30 percent must be installed on all new or replacement piers that are four to six feet wide. For example, this can be achieved by installing grating with 60 percent open area on at least 50 percent of the pier or by grating a larger percentage of the pier with grating with openings of less than 60 percent. Site conditions may require pier to be 100 percent or fully grated.

(C) For all sections of the pier that span upper intertidal areas with obligate vegetation, that pier section shall be fully grated with grating having 60 percent open area.

c. Float Regulations.

i. Principle: Sharp shadows cast by floats and float tubs have been shown to discourage salmonids and other young fish from passing underneath, forcing them into deeper water where their chance of being preyed upon is increased and water temperature and conditions are different. In the case of rockfish, they give birth to live larval young that spend several months being passively dispersed by tidal fluctuations, as they mature they move out to deeper water but initially are at a high risk of predation. Manmade shade creates artificial pockets of opportunity for the predators of young fish and unlike the shade from overhanging vegetation the negative impacts outweigh the benefits. Finally, to prevent damage to the substrate, benthic invertebrate communities and vegetation, floats should not rest on substrate low tide and should be fully encased to prevent the deterioration and dispersion of flotation materials.

(A) For a single-use structure, the float width must not exceed eight feet and the float length must not exceed 30 feet. Functional grating must be installed on at least 50 percent of the surface area of the float.

(B) For a joint-use structure, the float width must not exceed eight feet and the float length must not exceed 60 feet. Functional grating must be installed on at least 50 percent of the surface area of the float.

(C) To the maximum extent practicable, floats must be installed with the length in the north-south direction.

(D) If the float is removed seasonally, the applicant needs to indicate this in their application along with the proposed storage location. Floats should be stored above mean high/high water/ordinary high water line at a city approved location. City authorization may be required if the float will be stored within city jurisdiction (even within a marina).

(E) Flotation for the float shall be fully enclosed and contained in a shell (e.g., polystyrene tubs not shrink wrapped or sprayed coatings) that prevents breakup or loss of the flotation material into the water and is not readily subject to damage by ultraviolet radiation and/or abrasion caused by rubbing against piling and/or waterborne debris.

(F) Flotation components shall be installed under the solid portions of the float, not under the grating.

(G) If the float is positioned perpendicular to the ramp, a small float may be installed to accommodate the movement of the ramp due to tidal fluctuations. The dimensions of the small float cannot exceed six feet in width and 10 feet in length.

d. Float Stop Regulations.

i. Principle: Floats need to be above the substrate, the preferred and least impacting option is to suspend the float above the substrate by installing float stops on pilings designed to anchor floats, installing a few stub pilings, or in certain situations it could be appropriate to install float feet. In all cases, the stops must be able to fully support the entire float during all tidal elevations.

(A) Floats need to be suspended a minimum of one foot above the tidal substrate at all tide levels.

(B) To suspend the float above the substrate, the preferred and least impacting option is to suspend the float above the substrate by installing float stops (stoppers) on piling anchoring new floats. The stops must be able to fully support the entire float during all tidal elevations.

(C) If float stops attached to pilings are not feasible, then up to four 10-inch-diameter stub pilings can be installed instead, except an additional two may be installed for joint-use floats.

(D) Float feet attached to the float may be considered an option only under these circumstances:

(1) In coarse substrate, D252 of 25 mm or larger for a grain size sample taken from the upper one foot of substrate;

(2) For elevations of minus three MHHW and lower at D25 of four mm or larger for a grain size sample taken from the upper one foot of the substrate (intent is to exclude muck);

(3) For repair or replacement of existing float feet if the following two conditions are met: (a) substrate looks like it contains mostly gravel (no analysis needed, picture sufficient), and if (b) proposed replacement or repair includes other improvements of the environmental baseline like the removal of creosote-treated piling and increased amounts of grating.

(E) Floats can be held in place with lines anchored with a helical screw or “duckbill” anchor, piling with stoppers and/or float support/stub pilings.

(1) For a single-use float, a maximum of four pilings (not including stub piling), helical screws, or “duckbill” anchors can be installed to hold the float in place.

(2) For a joint-use float, a maximum of eight pilings, helical screws or “duckbill” anchors can be installed to hold the float in place.

(3) If anchors and anchor lines need to be utilized, the anchor lines shall not rest on the substrate at any time.

(4) In rocky substrates where a helical screw or “duckbill” anchor cannot be used, if the applicant submits a rationale why these types of anchors cannot be used and the administrator concurs with this rationale, an approved anchor of another type (i.e., concrete block) may be permitted.

e. Regulations – Residential Community and Joint-Use Piers and Docks.

i. Any hotel, motel, and/or multifamily residential development proposing to provide moorage facilities shall be required to construct a single, joint-use moorage facility. The administrator may authorize more than one joint-use moorage facility if a single facility would be inappropriate or undesirable, given the specific conditions of the site. Facilities for moorage of six or more vessels are considered a marina and must meet regulations in BIMC 16.12.040.C, Boating Facilities.

ii. Proposals for community or joint-use piers and docks shall demonstrate, by proof of recording of a covenant binding current and future parties, that adequate maintenance of the structure and the associated upland area will be provided by identified responsible parties. The proposed covenant shall be filed as part of the permit application and recorded after final approval. An access easement to joint-use docks shall be granted for all lots or dwelling units.

iii. In Blakely Harbor:

(A) A total of two community docks shall be a conditional use within the upland, and aquatic designations with no more than one along each the north and south shores, respectively; provided, that all residents along each shore shall have a nonextinguishable option to access the community dock located along their respective shore;

(B) One daytime use public dock and/or pier for the mooring of dinghies and loading or unloading of vessels shall be a conditional use within the upland and aquatic designations; and

(C) Such community and public docks shall comply with this master program and other applicable laws; shall be the minimum size necessary; and shall be sited and designed to mitigate adverse impacts to navigation, views, scenic character, and natural resources as much as possible. Such community and public docks shall also be reasonably passable to swimmers, beach walkers, and human-powered water craft.

f. Regulations – Commercial/Industrial Facilities Piers and Docks. These standards apply to piers and docks intended for any commercial or industrial use other than commercial moorage of boats in marinas. (See also BIMC 16.12.040.C, Boating Facilities; BIMC 16.12.040.D, Commercial Development; and BIMC 16.12.040.F, Industrial Development.)

i. Substantial development permits for docks or piers serving single commercial or industrial enterprises shall not be granted until the access needs of adjacent commercial and/or industrial enterprises have been determined.

ii. Commercial or industrial piers or docks shall not extend offshore farther than the most shoreward of the following:

(A) The average length of the piers on the two adjoining properties;

(B) In Eagle Harbor, the construction limit line;

(C) Elsewhere, the distance necessary to obtain a depth of four feet of water as measured at extreme low tide at the landward limit of the moorage slip; or

(D) The line of navigation; and

(E) In no case shall piers and their associated ramps and floats extend greater than 15 percent of the perpendicular shore-to-shore distance across a water body, except where a navigational study has been submitted for city review and approval.

iii. Facilities and procedures for receiving, storing, dispensing, and disposing of oil and other toxic products shall be designed to ensure that such oil and other toxic products are not introduced into the water body.

iv. Spill clean-up facilities shall be available for prompt response and application at all piers and docks involved in oil and hazardous products transfer.

g. Regulations – Residential (Joint, Community and Individual) Piers and Docks.

i. New subdivisions and short subdivisions with shoreline frontage shall be required to provide community docks rather than individual, private docks.

ii. Size.

(A) Maximum width of a pier or dock shall be the minimum necessary to accomplish moorage for the intended boating use (see subsection C.5.b of this section, Pier Regulations, for additional restrictions); and

(B) The length shall not extend beyond the average length of adjacent docks, within 500 feet of the proposed location or the distance necessary to obtain a depth of nine feet of water as measured at mean lower-low water (MLLW) at the landward limit of the moorage slip, whichever is closer to shore. A dock shall not extend beyond the adjoining property dock or the line of navigation and in no case shall piers and their associated ramps and floats extend greater than 15 percent of the perpendicular shore-to-shore distance across a water body, except where a navigational study has been submitted for city review and approval; and

(C) In Eagle Harbor, a pier or dock shall not extend beyond the construction limit line (Figure 16.12.050-2); and

(D) A pier or dock shall not extend beyond the harbor structure limit line shown in Figure 16.12.050-3.

iii. Side-Yard Setbacks. Docks, piers and floats shall be set back a minimum of 10 feet from side property lines, except that community piers, docks, and floats may be located adjacent to or upon a side property line when mutually agreed to by covenant with the owners of the adjacent property. A copy of the covenant must be recorded with the county auditor and filed with the application of the permit.

iv. Community docks and piers shall include no more than one moorage space per dwelling unit or lot.

h. Regulations – General Mooring Buoys and Recreational Floats.

i. Mooring buoys and recreational swim float use shall be permitted in the aquatic environment offshore from island conservancy, shoreline residential, shoreline residential conservancy, and urban designations.

ii. Mooring buoys for commercial use shall be permitted only as conditional uses offshore from the urban designation. Mooring buoys for public open water moorage and anchorage areas shall be permitted in the aquatic designation offshore of all upland designations.

iii. No more than one structure may be installed for each ownership. However, properties that contain at least 200 linear feet as measured along the shoreline may be permitted more installations on a case-by-case basis as determined by the city and the State Department of Natural Resources (WAC 332-30-148(3) or its successor). Properties where the waterfront lot is owned in community may be permitted additional mooring buoys with the total not more than one per 100 linear feet of shoreline ownership.

iv. Mooring buoys for commercial vessels adjacent to commercial or industrial zones are a shoreline conditional use. One buoy is allowed per ownership.

v. A contractor doing waterfront work involving floating equipment may have one temporary mooring buoy provided it is the responsibility of the contractor to ensure that all necessary permits are obtained from all agencies with jurisdiction.

i. Regulations – Location, Design and Construction Standards – Mooring Buoys and Recreational Floats.

i. In order to protect shellfish beds, new moorings buoys shall not be permitted where density will exceed one buoy per 100 linear feet.

ii. Buoys shall not interfere with navigation, shall be visible in daylight 100 yards away, and shall have reflectors for night visibility.

iii. If a buoy is located offshore of the extreme low tide line, the owner shall obtain a lease for the bed of navigable waters from the Department of Natural Resources (RCW 79.105.430 or its successor).

iv. Buoys shall lie between the waterfront property side lot lines extended beyond the shoreline, except those on state waters. Buoys shall not swing across the extended side lot lines. Where the configuration of the waterfront lot precludes these requirements, authorization from the affected adjacent waterfront property owners must be obtained. This provision shall not apply to buoys for public open water moorage and anchorage areas.

v. Mooring buoys shall be installed at least 60 feet from other permitted piers, docks, or floats.

vi. Buoys shall be located:

(A) At a minimum depth of nine feet MLLW with a standard single mid-line float; the minimum depth may be reduced with an alternate system approved by the administrator;

(B) Landward of the construction limit line in Eagle Harbor (Figure 16.12.050-2);

(C) Landward of the harbor structure limit line shown in Figure 16.12.050-3;

(D) Elsewhere not more than 200 feet beyond extreme low tide, the -18 feet MLLW depth contour, or the line of navigation, whichever is appropriate. The placement of rafts and buoys beyond the -18 feet MLLW contour or 200 feet will be evaluated on a case-by-case basis (WAC 332-30-148(2) or its successor); and

(E) Buoys for public open water moorage and anchorage areas shall be allowed waterward of the construction limit line in Eagle Harbor.

vii. Recreational floats shall be located as close to shore as possible and no farther waterward than the following limits:

(A) In Eagle Harbor, the construction limit line; or

(B) Elsewhere, the distance necessary to obtain a depth of four feet of water as measured at extreme low tide at the landward end of the float, or the line of navigation, whichever is closer to shore.

viii. Recreational floats must be built so that the deck surface is one foot above the water’s surface and shall have reflectors for night visibility.

ix. Recreational floats shall not exceed eight feet by eight feet.

x. All recreational floats shall include stops, or devices or systems approved by the administrator, which serve to keep the floats off the bottom of tidelands at low tide. See subsection C.5.d of this section, Float Stop Regulations.

Figure 16.12.050-2

Figure 16.12.050-3

D. Dredging and Dredge Material Disposal.

1. Applicability. Dredging is the removal of material from the bottom of a water body. The purposes of dredging might include: deepening a navigational channel, berth, or basin; streambed maintenance; use of dredged material for fill or habitat enhancement (effective reuse); and removal of contaminated sediments. Dredged material disposal on land is also subject to the fill policies and regulations of this program. Pursuant to WAC 173-27-040 or its successor, certain activities, such as those associated with normal maintenance and repair, are exempt from the requirements for a SSDP, but may still require a letter of exemption, shoreline conditional use permit or variance.

All actions are required to comply with the Shoreline Management Act and all provisions of the master program. Department of Ecology and U.S. Army Corps of Engineers notifications of dredging proposals will be reviewed by the city to determine whether the activity is exempt from the requirements for a substantial development permit and to ensure compliance with regulations of the Act and the master program.

Dredging activities will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.030, General (island-wide) regulations; BIMC 16.12.030.B.3, Vegetation Management; BIMC 16.12.030.B.4, Land Modification; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; subsection E of this section, Fill; and BIMC 16.12.060, Critical areas, when applicable. Other portions of this program may also apply.

2. Regulations – Prohibited.

a. New dredging activity is prohibited in the following:

i. In environmentally sensitive habitats (e.g., stream mouth estuaries, wetlands) except by shoreline conditional use permit.

ii. Along net-positive drift cells and/or where geo-hydraulic processes are active and accretion shoreforms would be damaged, altered, or irretrievably lost.

iii. In shoreline areas with bottom materials that are prone to significant sloughing and refilling due to currents or tidal activity, thus resulting in the need for continual maintenance dredging.

iv. In habitats identified as critical to the life cycle of officially designated or protected fish, shellfish, or wildlife.

v. In areas where concentrations of environmental pollutants or toxic chemicals are present in the bottom of sediments and would be released in dredging operations, except as part of a permitted environmental enhancement or remediation program.

vi. For the primary purpose of obtaining material for landfill, upland construction, or beach nourishment is prohibited.

vii. On or in archaeological sites.

b. Dredging shall be prohibited in the priority aquatic Category A designation.

3. Regulations – General.

a. Dredging is a conditional use in the aquatic designation if permitted in the upland designation and shall be for the restoration, enhancement, or maintenance of natural resources and navigational channels or for publicly owned ferry terminals. Dredging shall be permitted as a conditional use in the priority aquatic Category B designation as part of an approved restoration proposal.

b. Proposals for dredging and dredge spoil disposal, when permitted, shall:

i. Be kept to the minimum necessary to accommodate the proposed use;

ii. Comply with applicable federal, state, and other local regulations;

iii. Employ appropriate measures to protect public safety and prevent adverse impacts on other approved shoreline uses;

iv. Take appropriate measures to ensure the activity will not interfere with fishing or shellfish harvesting;

v. Employ appropriate best management practices to protect marine, estuarine, freshwater and terrestrial species and critical saltwater habitats and to minimize adverse impacts such as turbidity, release of nutrients, heavy metals, sulfides, organic materials, or toxic substances, depletion of oxygen, disruption of food chains, loss of benthic productivity, and disturbance of fish runs and important localized biological communities;

vi. Be scheduled so as to not materially interfere with the migratory movements of anadromous fish;

vii. Not adversely alter natural drainage and circulation patterns, currents, and tidal flows, or significantly reduce flood water capacities;

viii. Utilize techniques that cause minimum dispersal and broadcast of bottom material; hydraulic dredging shall be used wherever feasible in preference to agitation dredging;

ix. Not interfere with geo-hydraulic processes;

x. Be found, through analysis by a qualified professional, to be minimally or nonpolluting; and

xi. Revegetate land disposal sites with native vegetation species and other approved plants shall be required according to BIMC 16.12.030.B.2.c, Regulations – Revegetation Standards.

4. Regulations – Specific Dredging.

a. Dredging, when allowed in subsection D.3 of this section, Regulations – General, shall support the following uses and developments:

i. Approved harbors, marinas, ports, and water-dependent industries;

ii. Development or maintenance of essential public infrastructure and facilities;

iii. Environmental clean-up activities required by the Model Toxics Control Act (MTCA) or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);

iv. Underground utility installation requiring trenches when boring, directional drilling, and other installation methods are not feasible;

v. Maintenance dredging for the purpose of restoring a lawfully established industrial or commercial water-dependent development;

vi. Maintaining, establishing, expanding, relocating or reconfiguring navigation channels and basins where necessary to assure the safety and efficiency of existing navigational uses;

vii. Ecological restoration and enhancement projects benefiting water quality and/or fish and wildlife habitat; or

viii. Public access and public water-oriented recreational developments/uses, including construction of public piers and docks.

b. New development shall be sited and designed to avoid or, if that is not possible, to minimize the need for new and maintenance dredging.

c. Maintenance dredge options shall occur in the same location, depth, and width as previously permitted.

5. Regulations – Dredge Material Disposal.

a. All unconfined, open water dredge disposal activities shall comply with the Puget Sound Dredged Disposal Analysis (PSDDA) criteria and guidelines and other applicable local, state and federal regulations.

b. When consistent with this program, disposal of dredged materials in water areas other than PSDDA sites may only be allowed for the following reasons:

i. To restore or enhance habitat;

ii. To reestablish substrates for fish and shellfish resources;

iii. To nourish beaches that are starved for sediment; or

iv. To remediate contaminated sediments.

E. Fill.

1. Applicability. Fill is the placement of soil, sand, rock, gravel, existing sediment, or other material (excluding solid waste) along the shoreline below the OHWM, or on wetland or upland of the OHWM. Fill activities shall only be allowed as part of an approved shoreline use and/or development activity and shall be subject to the requirements of the principal use/development. Speculative fill activity is prohibited. Any fill activity conducted within shoreline jurisdiction must comply with the following policies and regulations. Beach nourishment as defined in the shoreline master program shall not be considered fill. Excavation waterward of the ordinary high water mark is regulated under subsection D of this section, Dredging and Dredge Material Disposal. Fill activities will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.030.B.4, Land Modification; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; and BIMC 16.12.060, Critical areas, when applicable. Other portions of this program may also apply.

2. Prohibited.

a. Speculative fill activity.

b. Fill that will result in significant adverse impacts that cannot be avoided or mitigated.

c. Fill in the priority aquatic designations.

3. Regulations – General.

a. Fill is allowed as a conditional use as follows:

i. In the urban, shoreline residential, and shoreline residential conservancy designations.

ii. In the island conservancy and natural designations only for the restoration, enhancement, or maintenance of natural resources. See BIMC 16.12.030.B.7, Shoreline Restoration and Enhancement, for additional requirements and permit requirements.

iii. In the aquatic designation, for commercial or industrial water-dependent or essential public facilities, or as part of a permitted environmental enhancement or remediation project.

b. When allowed in subsection E.3.a of this section, fill waterward of the OHWM shall be necessary for:

i. Approved marinas, ports, and other water-dependent industries where upland alternatives or structural solutions including pile or pier supports are infeasible.

ii. Development or maintenance of essential public infrastructure and facilities.

iii. Environmental clean-up activities required by MTCA and CERCLA.

iv. Maintenance of a lawfully established use or development.

v. Ecological restoration and enhancement projects benefiting water quality and/or fish and wildlife habitat.

vi. Public access and public water-oriented recreation projects benefiting substantial numbers of people.

c. Pile or pier supports shall be utilized whenever feasible in preference to fills. Fills for approved road development in floodways or wetlands shall be permitted only if the pile or pier supports are demonstrated to be infeasible.

4. Regulations – Location, Design and Construction.

a. When allowed in subsection E.3 of this section, filling and/or excavation shall be located, designed, and carried out in a manner that:

i. Minimizes adverse impacts on the shoreline environment including significant damage to water quality, critical saltwater habitat;

ii. Blends in physically and visually with natural topography, so as not to interfere with appropriate use, impede public access, or degrade the aesthetic qualities of the shoreline;

iii. Does not require shoreline stabilization to protect materials placed unless it is part of an approved shoreline restoration project and shoreline stabilization measures are needed to keep the material in place; and

iv. Does not adversely alter natural drainage and circulation patterns, currents, river and tidal flows, or significantly reduce flood water capacities.

b. Where fills are permitted, the fill shall be the minimum necessary to accommodate the proposed use. Fills shall be located, designed, and constructed to protect shoreline ecological functions and ecosystem-wide processes.

c. Where fills reduce public access, compensatory public access shall be provided as part of the development project.

d. Fill proposals shall be designed, constructed, and maintained to prevent, minimize, and control all material movement, erosion, and sedimentation from the affected area. Perimeters of permitted fill projects shall be designed and constructed with silt curtains, vegetation, retaining walls, or other mechanisms, and appropriately sloped to prevent erosion and sedimentation both during initial landfill activities and afterwards. Such containment practices shall occur during the first growing season following completion of the landfill.

e. Fill materials shall be sand, gravel, soil, rock, or similar material. Use of contaminated dredge material is prohibited. (See BIMC 16.12.040.F, Industrial Development, and subsection D of this section, Dredging and Dredge Disposal.)

f. The timing of any fill construction shall be regulated to minimize damage to water quality and aquatic life within the time restraints recommended by the Washington State Department of Fish and Wildlife. (Ord. 2014-04 § 3 (Exh. 1 § 6), 2014)

16.12.060 Critical areas.

A. Definitions. For the purposes of this section, the following definitions shall apply:

1. “Aquifer recharge area” means the surface area of any geological formation sufficiently pervious to provide fresh water to an aquifer through the process of infiltration and percolation.

2. “Base flood” means a general and temporary condition of partial or complete inundation of normally dry land areas having a one percent chance of being equaled or exceeded in any given year. Base flood elevation data is commonly displayed as an elevation line on flood insurance maps, showing the location of the expected whole-foot water-surface elevation of the base (100-year) flood.

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

a. Control soil loss and protect water quality from degradation caused by nutrients, animal waste, toxins, and sediment; and

b. Minimize adverse impacts to surface water and groundwater flow, and to the chemical, physical, and biological characteristics of critical areas.

BMPs are defined by the United States Department of Agriculture, the State of Washington Department of Agriculture, the Washington State Department of Ecology, Washington State Department of Health, Kitsap Conservation District, and other professional organizations.

4. “Buffer” means an area adjoining to and a part of a critical area that is required for the continued maintenance, functioning, and/or structural stability of that critical area, or an area adjacent to a stream or wetland that (a) surrounds and protects the functions and values of the stream or wetland from adverse impacts; (b) is an integral part of a stream or wetland ecosystem; and (c) provides shading, input of organic debris and coarse sediments, room for variation in stream or wetland edge, habitat for wildlife, and protection from harmful intrusion, to protect the public from losses suffered when the functions and values of the wetland or stream are degraded.

5. Category I, II, III, IV Wetlands. See “wetland category.”

6. “Critical areas” means aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands.

7. “Critical habitat” means a habitat identified by U.S. Fish and Wildlife Service or the National Marine Fisheries Service as habitat necessary for survival of endangered or threatened species.

8. “Educational or scientific activities” means controlled and/or supervised scientific activities or educational activities that are associated with an educational program that is approved through a conditional use permit.

9. “Engineering geologist” means a practicing engineering geologist who has at least four years of professional employment as an engineering geologist with experience in landslide evaluation, and a Washington State specialty license in engineering geology as specified in Chapter 18.220 RCW.

10. “Erosion hazard area” means a landform or soil type subject to being worn away by the action of water, wind, freeze-thaw, or ice, and which is:

a. Rated in the Soil Survey of Kitsap County Area, Washington, USDA (1980), as having severe hazard of water erosion, including:

i. Indianola-Kitsap complex, 45 to 70 percent slope;

ii. Kitsap silt loam, 15 to 30 percent slope, 30 to 45 percent slope;

iii. Ragnar fine sandy loam, 15 to 30 percent slope; and

iv. Schneider very gravelly loam, 45 to 70 percent slope;

b. Classified in the Department of Ecology Coast Zone Atlas as:

i. Class 3, class U (unstable) includes severe erosion hazards and rapid surface runoff areas;

ii. Class 4, class UOS (unstable old slides) includes areas having severe limitations due to slope; and

iii. Class 5, class URS (unstable recent slides); and

c. Identified by the USGS Surface Geology Map of Bainbridge Island (Haugerud, 2001) as rilled slopes/scarps.

11. “Existing development” means a development that was lawfully constructed, approved or established prior to the effective date of the ordinance codified in this chapter.

12. “Fish” means species of the vertebrate taxonomic groups Cephalospidomorphi and Osteichthyes.

13. “Fish and wildlife habitat” means 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 include areas of relative density or species richness, breeding habitat, winter range, and movement corridors. These also include habitats of limited availability or high vulnerability to alteration, such as cliffs, streams and wetlands.

14. “Fisheries biologist” means a person with experience and training in fisheries who is able to submit substantially correct reports on fish population surveys, stream surveys and other related data analyses of fisheries resources. “Substantially correct” means that technical or scientific errors, if any, are minor and do not delay or affect the site plan review process. Qualifications of a fisheries biologist include:

a. Either:

i. Certification by the American Fisheries Society; or

ii. Bachelor of science degree in fisheries or the biological sciences from an accredited institution and five years of professional fisheries experience; and

b. The prior successful completion of at least three habitat management plans; and

c. The biologist is listed on a roster of qualified professionals prepared by the director.

15. “Frequently flooded areas” means lands subject to a one percent or greater chance of flooding in any given year, as determined by the Federal Emergency Management Agency. These areas include, but are not limited to, floodplains adjacent to streams, lakes, coastal areas, and wetlands. (Also see Chapter 15.16 BIMC, Flood Damage Prevention.)

16. “Functions” 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, groundwater recharge and discharge, erosion control, wave attenuation, aesthetic value protection, and recreation. These roles are not listed in order of priority.

17. “Geologically hazardous areas” means areas susceptible to significant erosion, sliding, or other geological events. They pose a threat to the health and safety of citizens when used as sites for incompatible commercial, residential or industrial development. Geologically hazardous areas include erosion hazard areas, landslide hazard areas, and seismic hazard areas.

18. “Geotechnical engineer” means a practicing geotechnical/civil engineer who has a valid Washington State engineering license and a valid certificate of registration in civil engineering, at least four years of professional employment as a geotechnical engineer with experience in landslide evaluation, and appropriate training and experience as specified in Chapter 18.43 RCW.

19. “Habitat management plan” (HMP) means a report prepared by a professional wildlife biologist or fisheries biologist which discusses and evaluates critical fish and wildlife habitat functions and identifies and evaluates measures necessary to enhance and improve habitat conservation on a proposed development site.

20. “Habitat of local importance” means 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 their population 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 areas of high vulnerability to alteration, such as cliffs and wetlands.

21. “Hazard tree” means a tree with structural defects likely to cause failure of all or part of the tree, which could strike a “target.” A target can be a building or a place where people gather such as a park bench, picnic table, street, or backyard. In the case of steep slopes, a hazard tree can also be a tree that is a hazard to stability of the slope, as determined by a geotechnical engineer.

22. “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 characteristics or criteria of hazardous waste as specified in RCW 70.105.010. (Also see BIMC 18.36.030.109 through 18.36.030.115.)

23. “Hydric soil” means soil which is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part.

24. “Hydrogeologist” means a practicing hydrogeologist who has at least four years of professional employment as a hydrogeologist with experience in the specific subject area in which they are providing a report, and a Washington State specialty license in hydrogeology as specified in Chapter 18.220 RCW.

25. “Hydrophyte or hydrophytic vegetation” means plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. The presence of hydrophytic vegetation shall be determined following the methods described in the federal delineation manual and regional supplement or its successor.

26. “Impact of land use” means the relative measure of the intensity of land use used to determine the appropriate buffer widths for wetlands and streams which is categorized as follows:

a. High impact land use includes commercial development, industrial development, institutional development, residential (more than one unit per acre) development, new agriculture (high-intensity such as dairies, nurseries, greenhouses, raising and harvesting crops requiring annual tilling, raising and maintaining animals), and high-intensity recreation such as golf courses and ballfields.

b. Moderate impact land use includes residential development (one unit/acre or less), new agriculture (moderate-intensity such as orchard and hay fields), paved trails, and building of logging roads.

c. Low impact land use includes low-intensity open space such as passive recreation, natural resources preservation, and unpaved trails.

27. “Invasive/exotic species” means plants and animals that are not native to the Puget Sound lowlands and are recognized by wetland professionals or biologists to be highly competitive with native vegetation and animals. Invasive/exotic plant species include those listed on the noxious weed list developed by the Washington State Noxious Weed Board, nonnative blackberries and English ivy. Invasive/exotic animal species include any species, such as rats, bullfrogs, zebra mussels and green crabs, considered by resource professionals to be damaging to the native animal populations.

28. “Landslide hazard areas” means areas which are potentially subject to risk of mass movement due to a combination of factors, including historic failures, geologic, topographic, and hydrologic features. Some of these areas are identified in the Department of Ecology Coastal Zone Atlas and USGS Surface Geology Map of Bainbridge Island (Haugerud, 2001). The presence of these factors shall be determined through assessment, by the least intrusive means, by the city engineer or at the city engineer’s request by a third-party geoengineer or geotechnical expert, prior to issuance of any permit. Landslide hazard areas include the following:

a. Areas characterized by slopes greater than 15 percent having springs or groundwater seepage and having impermeable soils (typically silt and clay) overlain or frequently interbedded with permeable granular soils (predominantly sand and gravel);

b. Any area potentially unstable due to rapid stream incision or stream bank erosion;

c. Any area located on an alluvial fan, debris flow deposit, or in a debris flowpath, presently or potentially subject to impacts or inundation by debris flows or deposition of stream-transported sediments;

d. Any area with a slope of 40 percent or greater and with a vertical relief of 10 or more feet except areas composed of competent consolidated rock;

e. Any area designated or mapped as class U, UOS, or URS by the Department of Ecology Coastal Zone Atlas and/or mapped as a landslide or scarp on the USGS Surface Geology Map of Bainbridge Island (Haugerud, 2001).

29. “Liquefaction” means a process in which a water-saturated soil, upon shaking, suddenly loses strength and behaves as a fluid.

30. “Mitigation categories” means the following specific categories (need for mitigation ratios):

a. Mitigation, compensatory: replacing project-induced critical area losses or impacts, including, but not limited to, establishment, reestablishment, rehabilitation or enhancement.

b. Mitigation, establishment: mitigation performed to intentionally establish a critical area (e.g., wetland) at a site where it does not currently exist.

c. Mitigation, reestablishment: the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former critical area.

d. Mitigation, rehabilitation: the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions and processes to a degraded critical area.

e. Mitigation, enhancement: the manipulation of the physical, chemical, or biological characteristics of a biological wetland to heighten, intensify or improve specific function(s) or to change for specific purposes such as water quality improvement, flood water retention, or wildlife habitat.

31. “Normal maintenance” means those usual acts to prevent a decline, lapse or cessation from a lawfully established condition. Normal maintenance includes removing debris from and cutting or manual removal of vegetation in crossing and bridge areas. Normal maintenance does not include:

a. Use of fertilizer or pesticide application in wetlands, fish and wildlife habitat conservation areas, or their buffers;

b. Re-digging ditches in wetlands or their buffers to expand the depth and width beyond the original ditch dimensions;

c. Re-digging existing drainage ditches in order to drain wetlands on lands not classified as existing and ongoing agriculture under subsection B.3 of this section (Exemptions).

32. “Open space” means undeveloped areas of varied size. Open space often contains distinctive geologic, botanic, zoologic, historic, scenic or other critical area, or natural resource land features.

33. “Ravine” means a V-shaped landform generally having little to no floodplain and normally containing steep slopes, which is deeper than 10 vertical feet as measured from the centerline of the ravine to the top of the slope. Ravines are typically created by the wearing action of streams. The top of the slope is determined where there is a significant change in the slope to generally less than a 15 percent slope.

34. “Reasonable alternative” means an activity that could feasibly attain or approximate a proposal’s objectives, but at a lower environmental cost or decreased level of environmental degradation.

35. “Repair” means activities that restore the character, size, or scope of a project only to the previously authorized condition.

36. “Seismic hazard areas” means areas subject to severe risk of damage as a result of seismic induced ground shaking or surface faulting. While ground shaking is the principal risk because the entire island will shake significantly, severe damage will occur where slope failure, liquefaction, and settlement are induced by the shaking and surface rupture created by fault movement. The following areas are considered seismic hazard areas:

a. Seismic landslide hazard areas: slopes which are stable in nonearthquake periods, but fail and slide during ground shaking;

b. Liquefaction hazard areas: areas of cohesionless, loose or soft, saturated soils of low density in association with a shallow groundwater table that are subject to settlement and/or liquefaction from ground shaking; or

c. Fault hazard areas: areas of known surface rupture or significant surface deformation as a result of an active fault movement, including 50 feet on either side.

37. “Site” means the entire lot, series of lots, or parcels on which a development is located or proposed to be located, including all contiguous undeveloped lots or parcels under common ownership.

38. “Streams” means those areas in the city of Bainbridge Island where the surface water flows are sufficient to produce a defined channel or bed. A defined channel or bed is an area which demonstrates clear evidence of the passage of water and includes but is not limited to bedrock channels, gravel beds, sand and silt beds, and defined-channel swales. The channel or bed need not contain water year-round. This definition is not meant to include irrigation ditches, canals, storm or surface water runoff devices, or other artificial watercourses unless they are used by fish or used to convey streams naturally occurring prior to construction of the water course.

39. “Stream types” means a streams classification system based on fish usage and perennial or seasonal water regime as found in WAC 222-16-030 and meeting the standards listed below:

a. “Type F stream” means a stream that has suitable fish habitat. If fish usage has not been determined, water having the following characteristics are presumed to have fish use: stream segments having a defined channel of two feet or greater within the bankfull width and having a gradient of 16 percent or less. Determination of fish usage shall use the methodology found in Washington Department of Natural Resource’s Forest Practice Board Manual, Section 13.

b. “Type Np” means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are waters that do not go dry any time of a year of normal rainfall. However, for the purpose of water typing, Type Np waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow.

c. “Type Ns” means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np water. Ns waters must be physically connected by an above-ground channel system to marine waters, Type F, or Np waters.

40. “Wetland or wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, estuaries, 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. “Wetland” may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.

41. “Wetland boundary” means the boundary or edge of a wetland as delineated using the methodology found in the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0). (Per WAC 173-22-035 or its successor.)

42. “Wetland category” means category as defined in “Washington State Wetland Rating System for Western Washington, Revised,” Department of Ecology publication No. 04-06-025, or as revised and adopted by the Department.

43. “Wetland classes” means the classification system of the U.S. Fish and Wildlife Service (Cowardin, et al. 1979).

44. Wetland Mitigation.

a. In-kind: to replace wetlands with substitute wetlands whose characteristics closely approximate those destroyed or degraded by a regulated activity. It does not mean replacement “in-category.”

b. Off-site: to replace wetlands away from the site on which a wetland has been impacted by a regulated activity.

c. On-site: to replace wetlands at or adjacent to the site on which a wetland has been impacted by a regulated activity.

d. Out-of-kind: to replace wetlands with substitute wetlands whose characteristics do not closely approximate those destroyed or degraded by a regulated activity. It does not refer to replacement “out-of-category.”

45. Wetlands, Regulated.

a. “Regulated wetlands” means:

i. All Category I and II wetlands;

ii. All Category III and Category IV wetlands.

b. Category I, II, III and IV wetlands include:

i. Lands defined as wetlands shall be those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

ii. Wetlands created as mitigation and wetlands modified for approved land use activities.

c. Regulated wetlands do not include 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.

46. “Wetlands specialist” means a person with experience and training in wetland issues who is able to submit substantially correct reports on wetland delineations, classifications, functional assessments and mitigation plans. “Substantially correct” means that errors, if any, are minor and do not delay or affect the site plan review process. Qualifications of a wetlands specialist include:

a. Either:

i. Certification as a professional wetland scientist (PWS) or wetland professional in training (WPIT) through the Society of Wetland Scientists; or

ii. Bachelor of science degree in the biological sciences from an accredited institution and five years of professional field experience; and

b. The prior successful completion of at least three wetland reports; and

c. The specialist is listed on a roster of qualified professionals prepared by the director.

47. “Wildlife biologist” means a person with experience and training in the principles of wildlife management and with practical knowledge in the habits, distribution and environmental management of wildlife. Qualifications include:

a. Either:

i. Certification as a professional wildlife biologist through the Wildlife Society; or

ii. Bachelor of science or bachelor of arts degree in wildlife management, wildlife biology, ecology, zoology, or a related field, from an accredited institution and five years of professional field experience; and

b. The prior successful completion of at least three habitat managements plans; and

c. The biologist is listed on a roster of qualified professionals prepared by the director.

48. “Zone of influence” means an area, usually upslope from a geologically hazardous area, where changes in land use and hydrology can affect the stability of the geologically hazardous area. The zone of influence is defined as 300 feet upslope from slopes greater than 40 percent, and 200 feet upslope from slopes greater than 15 percent but less than 40 percent that are determined to be geologically hazardous areas.

B. Applicability, Exemptions, and Prior Development Activity.

1. Applicability. This section establishes regulations for the protection of sites which contain critical areas or are adjacent to sites which contain critical areas, including critical saltwater and freshwater habitats as defined by WAC 173-26-221(2)(c)(iii) and (iv), including those portions of streams and wetlands, and flood plains or other flood prone areas within the shoreline jurisdiction. Development and land use activities proposed on critical area sites shall comply with the provisions of this section. No action shall be taken by any person, company, agency, governmental body (including the city), or applicant which results in any alteration of a critical area except as consistent with the purposes, requirements, objectives, and goals of this section.

All shoreline uses and activities, including development which does not require a shoreline permit, must conform to these provisions. Shoreline development and activities associated with critical areas will be reviewed under the no net loss provisions of BIMC 16.12.030.B.2, Environmental Impacts, and may also be reviewed under BIMC 16.12.030.A, Regulations – General; BIMC 16.12.030.B.5, Water Quality and Stormwater Management; BIMC 16.12.030.B.3, Vegetation Management; and Chapter 15.18 BIMC, Land Clearing, when applicable. Other portions of this program may also apply.

2. Inventory of Critical Areas. This section shall apply to all critical areas located within the shoreline jurisdiction of the city. The approximate location and extent of these areas on Bainbridge Island is displayed on various inventory maps available at the city’s department of planning and community development. Maps and inventory lists are guides to the general location and extent of critical areas. Critical areas not shown are presumed to exist on Bainbridge Island and are protected under all the provisions of this section. In the event that any of the designations shown on the maps or inventory lists conflict with the site-specific conditions, site-specific conditions shall control.

3. Exemptions. The following activities are exempt from the requirements of this section:

a. Emergencies that threaten the public health, safety and welfare. An “emergency” is an unanticipated and immediate threat to public health, safety, or the environment which requires action within a time too short to allow compliance with this section; further definition of “emergency” is in BIMC 16.12.080. Restoration or mitigation of critical areas and buffers impacted by emergency action shall be required in a timely manner.

b. Normal and routine maintenance of structures, landscaping and vegetation that will not further impact or alter critical areas or buffers.

c. Normal and routine maintenance and operation of pre-existing retention/detention facilities, biofilters and other stormwater management facilities, irrigation and drainage ditches, and fish ponds; provided, that such activities shall not involve conversion of any wetland not currently being used for such activity. Any maintenance of ponds located in stream habitat areas shall require appropriate approval from the Washington Department of Fish and Wildlife.

d. Structural alterations to buildings that do not increase the structural footprint or introduce new adverse impacts to an adjacent critical area, except for structures located on geologically hazardous areas which are not exempt.

e. Normal and routine maintenance or repair of existing utility structures within a right-of-way or existing utility corridor or easements, including the cutting, removal and/or mowing of vegetation.

f. Forest practices conducted pursuant to Chapter 76.09 RCW, except Class IV (general conversions) and conversion option harvest plans (COHP).

g. Activities within a portion of a wetland buffer or fish and wildlife habitat area buffer located landward of an existing, substantially developed area, such as a paved area, or permanent structure, which eliminates or greatly reduces the impact of the proposed activities on the wetland or fish and wildlife habitat area. The director shall review the proposal to determine the likelihood of associated impacts.

h. Hazard Tree Removal. Where a threat to human life, property, or slope stability is demonstrated, the director may allow removal of danger or hazard trees subject to the following criteria:

i. Tree removal is the minimum necessary to balance protection of the critical area and its buffer with protection of life and property; and

ii. The critical area or its buffer shall be replanted as determined by the director.

The director may require the applicant to consult with a professional forester or a certified arborist prior to tree removal. Hazard tree abatement can sometimes be achieved by felling the tree or trimming the tree. Habitat needs may require leaving the fallen tree in the riparian corridor or maintaining a high stump for wildlife habitat.

i. Aquifer Recharge Areas. A person, or property, shall be exempt from the provisions of this section unless either of the following is true:

i. The property is located in a fish and wildlife habitat conservation area, frequently flooded area, geologically hazardous area, and/or wetland; or

ii. One or more of the uses identified in subsection H.5 of this section are proposed.

4. Standards for Existing Development.

a. Existing Structures and Related Improvements. Structures and related improvements that were legally built or vested prior to the effective date of the ordinance codified in this chapter that do not meet the setback or buffer requirements of this section may continue to exist in their present form, and may be altered, including remodeled, reconstructed, or expanded, if such alteration complies with the provisions of this section and will result in no net loss of ecological function.

b. Existing structures, not located in a geologically hazardous area, that were legally built or vested prior to the effective date of the ordinance codified in this chapter may be altered if:

i. There is no change in the footprint of the building;

ii. The remodel is entirely inside the existing building;

iii. There is no further encroachment into the buffers required pursuant to this section unless a variance is first approved.

c. Existing property improvements other than structures, including driveways, parking areas, yards, play areas, storage areas, and similar improvements that were legally established or vested prior to the effective date of the ordinance codified in this chapter may be altered if:

i. There is no change in the location of the improvement;

ii. Any alteration of the improvement is entirely inside of the existing boundaries of the improvement;

iii. There is no further encroachment into the buffers unless a variance is first approved.

d. Alterations permitted by this section shall not be exempt from applicable city review or permit requirements or other applicable city codes.

C. Regulations – General.

1. Development, uses, and activities proposed within shorelines of the state shall meet the requirements of the city’s shoreline-specific critical areas regulations as contained in this section, in addition to the requirements found elsewhere in the master program.

2. Development, uses, and activities adjacent to critical areas, including critical saltwater habitats and fish and wildlife habitat conservation areas, proposed within shorelines of the state shall be monitored to assure that these areas are not being adversely impacted by approved development or restoration projects, consistent with the monitoring and mitigation requirements in BIMC 16.12.030.B.2 and this section.

3. Special Reports. For development proposed on property with marine bluffs, steep slopes, erosion hazard areas and/or landslide hazard areas, a geotechnical report shall be required to assess potential hazards and propose measures to mitigate such hazards consistent with the requirements of this master program and attached appendices.

D. Prescriptive Buffers Variations.

1. Intent. The city recognizes that in some cases it may not be possible to provide a critical area buffer that meets the dimensions prescribed by this chapter, due to land area or other constraints. The city further recognizes that in some cases the desired or better critical area protection can be achieved through alternative approaches.

This section provides alternatives that can be pursued in lieu of the prescribed buffers when warranted by site-specific conditions. In considering an application for any of these alternatives, it shall always be the primary intent of the city to protect the functions and values of the critical areas. It is further the intent of the city to ensure that the application of the provisions of this section does not deprive an owner from reasonable use of their property.

Any proposed use of the following alternatives shall be supported by analysis utilizing appropriate science, to determine and minimize the impacts of the alternative.

2. Buffer Averaging. If characteristics of the property do not allow reasonable use with prescribed buffers, the director may allow wetland and/or fish and wildlife conservation area buffer widths to be averaged. It is intended that the process for reviewing a buffer averaging proposal be as simple as possible, while ensuring that the following criteria are met:

a. The total area contained within the buffer after averaging shall be no less than that contained within the standard buffer prior to averaging;

b. The applicant demonstrates that such averaging will clearly provide greater protection of the functions and values of critical areas than would be provided by the prescribed habitat buffers;

c. The averaging will not result in reduced buffers next to highly sensitive habitat areas; and

d. The applicant demonstrates one or more of the following:

i. That the wetland contains variations in sensitivity due to existing physical characteristics;

ii. That only low intensity uses would be located within 200 feet of areas where the buffer width is reduced, and that such low intensity uses restrictions are guaranteed in perpetuity by covenant, deed restriction, easement, or other legally binding mechanism; or

iii. That buffer averaging is necessary to avoid an extraordinary hardship to the applicant caused by circumstances peculiar to the property.

3. Habitat Management Plan. A habitat management plan may be prepared pursuant to subsection E of this section when it can clearly be demonstrated that greater protection of the functions and values of critical areas can be achieved through the HMP than could be achieved through providing the prescribed habitat buffers. A habitat management plan may be used as a means to protect wetland and/or fish and wildlife habitat conservation area buffers. Habitat management plans may not be used to reduce the water quality buffers for wetlands and/or fish and wildlife habitat conservation areas.

4. Public Notice. Appropriate notice of, and opportunity to comment on, the proposed use of any of the foregoing alternatives shall be given to surrounding property owners and the general public, in a manner to be established by the director.

E. Habitat Management Plan.

1. General. A habitat management plan shall comply with the requirements of this section, and shall clearly demonstrate that greater protection of the functions and values of critical areas can be achieved through the HMP than could be achieved through providing the prescribed habitat buffers. The director shall prepare performance standards and monitoring guidelines for habitat management plans, including a program for city oversight of such plans. Once the standards and guidelines are in place, an applicant may propose to implement an HMP as a means to protect habitat buffers associated with wetlands and/or fish and wildlife conservation areas.

2. Intent. HMPs are primarily intended as a means to restore or improve buffers that have been degraded by past activity, and should preserve, and not reduce, existing high quality habitat buffers. While not primarily intended as a means to reduce buffers, the HMP may propose a reduction of the habitat buffer width where it is shown that the HMP will comply with the other requirements of this section. An HMP shall not reduce the prescribed water quality buffer width as listed in subsections I and L of this section under any circumstance.

3. Effect of Buffers. An HMP shall provide habitat functions and values that are greater than would be provided by the prescribed habitat buffers. When habitat buffers are a component of an HMP, they shall be at least the minimum size necessary to accomplish the objectives of the HMP. The HMP may propose, but the city shall not require, a habitat buffer containing a greater area than is required by the prescribed habitat buffer.

4. Impact Mitigation – General. The HMP shall encompass an area large enough to provide mitigation for buffer reduction below the standard required buffers, and shall identify how the development impacts resulting from the proposed project will be mitigated. The developer of the plan shall use the best available science in all facets of the analyses. The Washington Department of Fish and Wildlife Priority Habitat and Species Management Recommendations, dated May 1991, and/or bald eagle protection rules outlined in WAC 232-12-292, as now or hereafter amended, may serve as guidance for this report. For habitat management plans addressing wetland buffers, Method for Assessing Wetland Functions, Ecology Publication No. 99-116 shall be used for guidance in determining function equivalency. All habitat management plans shall be reviewed by a qualified third party selected by the city. The applicant will be responsible for the cost of the review.

5. Map. The habitat management plan shall contain a map prepared at an easily readable scale, showing:

a. The location of the proposed development site;

b. Property boundaries;

c. The relationship of the site to surrounding topographic, water features, and cultural features;

d. Proposed building locations and arrangements;

e. A legend which includes a complete legal description, acreage of the parcel, scale, north arrow, and date of map revision.

6. Report. The habitat management plan shall also contain a report which contains:

a. A description of the nature and intensity of the proposed development;

b. An analysis of the effect of the proposed development, activity or land use change upon the wildlife species and habitat identified for protection. If the habitat management plan is addressing wetland habitat, the analysis shall compare an assessment of wildlife habitat suitability of the wetland applying standard buffers with an assessment of habitat suitability as proposed using Method for Assessing Wetland Functions, Washington State Department of Ecology (if available for the specific hydrogeomorphic classification);

c. A plan which identifies how the applicant proposes to mitigate any adverse impacts to wildlife habitats created by the proposed development. For wetland or other habitats protected by this section, the application shall show, using the appropriate function assessment methodology, that habitat functions and values are greater after the development than would occur had the prescribed buffers been provided (see BIMC 16.20.110, Mitigation plan requirements);

d. All review comments received from outside reviewers. If the HMP recommends mitigation involving federally listed threatened or endangered species, migratory waterfowl or wetlands, the U.S. Fish and Wildlife Service shall receive a copy of the draft HMP; and

e. The HMP shall specifically address, as appropriate, the following:

i. Enhancement of existing degraded buffer area and replanting of the disturbed buffer area with native or equivalent vegetation;

ii. The use of alternative on-site wastewater systems in order to minimize site clearing;

iii. Infiltration of stormwater where soils permit;

iv. Retention of existing native or equivalent vegetation on other portions of the site in order to offset habitat loss from buffer reduction; and

v. The need for fencing and signage along the buffer edge.

7. Mitigation Measures. Possible mitigation measures to be included in the report, or required by the director, could include, but are not limited to:

a. Establishment of buffer zones;

b. Preservation of critically important plants and trees;

c. Limitation of access to habitat areas;

d. Seasonal restriction of construction activities;

e. Establishing phased development requirements; and

f. Monitoring plan for a period necessary to establish that performance standards have been met. Generally this will be for a period of seven to 10 years.

8. HMP Adequacy. The HMP shall demonstrate to the satisfaction of the director that the habitat functions and values are improved by implementation of the HMP. If there is a disagreement between the director and the applicant as to the adequacy of the HMP, the issue of plan adequacy shall be resolved by consulting with the Washington Department of Fish and Wildlife for HMPs relating to streams or the Washington Department of Ecology for HMPs relating to wetlands. If the state agencies are not available in a timely manner, the applicant may choose to have the city refer the HMPs to a third-party consultant at the expense of the applicant. After consultation with such state departments or third-party consultant, the director shall make a final decision on the adequacy of the HMP.

9. Timing. An HMP must be developed and approved either prior to preliminary plat approval or issuance of the building permit, as applicable, and must be implemented before the city grants either final plat approval or an occupancy permit, as applicable.

10. Performance Surety. The director may require that the applicant provide a performance surety to ensure conformance with mitigation requirements of the habitat management plan pursuant to this subsection E.

F. Application Requirements.

1. Submittal Requirements. In addition to the general submittal requirements for all applications in the Administration Handbook, applications for land use or development proposals within critical areas or their buffers shall be filed with the information requested on the application forms available from the department of planning and community development. The applicant shall not be granted any approval or permission to conduct development or land use in a critical area and/or its buffer prior to fulfilling the requirements of this section.

2. Support Information Requirements. When support information is required by the director it shall contain the following and be prepared by one or more of the experts listed in subsection F.2.d of this section:

a. A description of the critical areas on or adjoining the site and how the proposed development will or will not impact critical areas, their buffers, and adjoining properties, including:

i. Drainage, surface and subsurface hydrology, and water quality;

ii. Existing vegetation as it relates to wetlands, steep slopes, soil stability, and fish and wildlife habitat value; and

iii. Other critical area characteristics and functions;

b. Recommended methods for mitigating impacts and a description of how these methods may impact adjacent properties;

c. Any additional information determined as relevant by the director;

d. Such studies shall be prepared by experts in the area of concern, who shall be selected from a list of approved consultants prepared by the director, as follows:

i. Aquifer recharge study: hydrogeologist;

ii. Flood hazard area study: professional civil engineer, hydrogeologist;

iii. Geologically hazardous area study: engineering geologist, geotechnical engineer; provided, that:

(A) An engineering geologist may provide a study, including interpretation, evaluation, analysis, and application of geological information and data and may predict potential or likely changes in types and rates of surficial geologic processes due to proposed changes to a location, provided it does not contain recommended methods for mitigating identified impacts, other than avoidance, structural impacts to, or suitability of civil works; and

(B) Engineering geologists may not provide engineering recommendations or design recommendations, but may contribute to a complete geotechnical report that is co-sealed by a geotechnical engineer;

iv. Stream, riparian area, drainage corridor study: biologist with stream ecology expertise; fish or wildlife biologist; a civil engineer may provide studies for drainage, surface and subsurface hydrology, and water quality;

v. Wetland study: wetlands specialist;

vi. Habitat management plans: wildlife biologist and/or fisheries biologist;

e. The director may in some cases retain experts at the applicant’s expense to assist in the review of studies; and

f. Such studies shall be prepared in accordance with procedures established by the director or city engineer as specified.

G. Mitigation Plan Requirements.

1. All critical area restoration, creation and/or enhancement projects required pursuant to this section either as a permit condition or as a result of an enforcement action shall follow a mitigation plan prepared by an expert approved by the director. The applicant or violator shall receive written approval of the mitigation plan by the director prior to commencement. Compensatory mitigation is not required for allowed activities which utilize best management practices to protect the functions and values of regulated critical areas.

2. Purpose of Mitigation Plan. The mitigation plan shall provide information on land acquisition, construction, maintenance and monitoring of the replaced critical area. The mitigation plan shall recreate as nearly as possible the original critical area in terms of its acreage, function, geographic location and setting.

3. Mitigation Plan Submittal Requirements. A complete mitigation plan shall consist of plot plans, a written report, and performance bonds, as required below. The plot plans and written report shall be prepared by qualified professionals approved by the director.

a. Plot Plan Requirements. The following information shall be submitted on one or more plot plans (as determined by the director):

i. A legal description and a survey (boundary and topography) prepared by a licensed surveyor of the proposed development site, compensation site, and location of existing critical area(s) on each. This shall include wetland delineation and existing wetland acreage.

ii. Scaled plot plan(s) indicating:

(A) Proposed construction;

(B) Zoning setback and critical area buffer requirements;

(C) Construction phasing and sequence of construction;

(D) Site cross-sections, percent slope, existing and finished grade elevations;

(E) Soil and substrate conditions;

(F) Grading and excavation plan, including erosion and sediment control plans needed for construction and long-term survival; substrate stockpiling locations and techniques, and source controls needed for critical area construction and maintenance;

(G) Landscape plans indicating species, types, quantities, locations, size, spacing or density of planting; planting season or timing; planting instructions, watering schedule and nutrient requirements; source of plant materials or seeds; and, where appropriate, measures to protect plants from destruction or predation; and

(H) Water control structures and water-level maintenance practices needed to achieve the necessary hydrocycle/hydroperiod characteristics, etc.

b. Written Report Requirements. A written report shall accompany the plot plan(s) and shall provide the additional information required below. In addition, the report should be used as needed to clarify or explain elements of the plot plan(s).

i. Baseline Information.

(A) Wetland delineation and existing wetland acreage;

(B) Vegetative, faunal and hydrologic characteristics;

(C) Soil and substrate conditions;

(D) Relationship within watershed and to existing streams, wetlands, ponds, or saltwater;

(E) Existing and proposed adjacent site conditions; and

(F) Existing and proposed ownership.

ii. Environmental Goals and Objectives. The report shall contain a description of the environmental goals and objectives to be met by the compensation plan. The goals and objectives shall be related to the functions and values of the original critical area or, if out-of-kind wetland mitigation, the type of wetland to be emulated. This analysis shall include, but is not limited to the following:

(A) Site selection criteria;

(B) Identification of compensation goals;

(C) Identification of functions and values;

(D) Dates for beginning and completion of the project and compensation plan;

(E) A complete description of the relationship between and among structures and functions sought;

(F) Review of available literature and/or known like-projects to date in restoring or creating the type of critical area proposed;

(G) Likelihood of success of the proposed compensation project at duplicating the original critical area. This shall be based on experiences of comparable projects identified in the literature review or existing projects, if any; and

(H) Likelihood of the ability of the created or restored critical area to provide the functions and values of the original critical area. This shall be based on such factors as surface water and groundwater supply and flow patterns; dynamics of the ecosystem; sediment or pollutant influx and/or erosion, periodic flooding and drought, etc.; presence of invasive flora or fauna; potential human or animal disturbance; and previous comparable projects, if any.

iii. Performance Standards. Specific criteria shall be provided for evaluating whether or not the goals and objectives of the project are met and for beginning remedial action or contingency measures. Such criteria may include water quality standards, survival rates of planted vegetation, species abundance, and diversity targets, habitat diversity indices, or other ecological, geological or hydrological criteria.

iv. Detailed Specifications. Written specifications and descriptions of compensation techniques shall be provided. These shall include, but not be limited to, items in subsection G.3.b of this section.

v. Monitoring Program. A program outlining the approach for monitoring construction of the compensation project and for assessing a completed project shall be provided. Monitoring may include, but is not limited to:

(A) Establishing vegetation plots to track changes in plant species composition and density over time;

(B) Using photo stations to evaluate vegetation community response;

(C) Sampling surface and subsurface waters to determine pollutant loading, and changes from the natural variability of background conditions (pH, nutrients, heavy metals);

(D) Measuring base flow rates and stormwater runoff to model and evaluate water quality predictions, if appropriate;

(E) Measuring sedimentation rates, if applicable; and

(F) Sampling fish and wildlife populations to determine habitat utilization, species abundance and diversity.

vi. A protocol shall be included outlining how the monitoring data will be evaluated by agencies that are tracking the progress of the compensation project. A monitoring report shall be submitted annually, at a minimum, documenting 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 seven years.

vii. Contingency Plan. Identification of potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates project performance standards are not being met.

4. Performance and Maintenance Surety and Demonstration of Competence. A demonstration of financial resources, administrative, supervisory, and technical competence and scientific expertise to successfully execute the compensation project shall be provided. A compensation project manager shall be named and the qualifications of each team member involved in preparing the mitigation plan and implementing and supervising the project shall be provided, including educational background and areas of expertise, training and experience with comparable projects. In addition, a surety ensuring fulfillment of the compensation project, monitoring program, and any contingency measure shall be posted.

5. City Consultation. The city may consult with and solicit comments from any federal, state, regional, or local agency, including tribes, having any special expertise with respect to any environmental impact prior to approving a mitigation proposal which includes critical areas compensation. The compensation project proponents should provide sufficient information on plan design and implementation in order for such agencies to comment on the overall adequacy of the mitigation proposal.

6. Permit Conditions. Any compensation project prepared pursuant to this section and approved by the director shall become part of the application for the permit.

H. Aquifer Recharge Areas.

1. Classification. The entirety of Bainbridge Island is the recharge area for the island aquifers. Certain uses must be carefully evaluated before being approved, and others must be prohibited, in order to protect the city’s aquifers, due to the following:

a. Bainbridge Island is dependent upon its aquifers as the sole and essential source for drinking water. Critical recharge areas have the potential to affect potable water where an essential source of drinking water is vulnerable to contamination.

b. The island aquifers are vulnerable to pollution that has the potential to create a significant public health hazard. High vulnerability is indicative of land uses which produce contaminants that may degrade groundwater and low vulnerability is indicative of land uses which will not.

c. Susceptibility to pollution is a function of depth of groundwater, permeability of soils, soil types, presence of potential sources of contamination and any other relevant factors.

d. Soil types that transfer water to the aquifer are rated in terms of infiltration rate. Soil types with high infiltration rates are associated with areas of high aquifer recharge. The rates and soil types are defined by the U.S. Department of Agriculture, Soil Conservation Service, in the Soil Survey of Kitsap County.

e. The island aquifers are vulnerable to a reduction in recharge from activities that reduce the infiltration rate on a site.

2. Hydrogeologic Assessment. The following proposed activities will require the preparation of a hydrogeologic assessment:

a. The use of hazardous substances, other than household chemicals used according to the directions specified on the packaging for domestic applications;

b. The use of injection wells, including on-site septic systems, except those domestic septic systems releasing less than 14,500 gallons of effluent per day; or

c. Any other activity determined by the director likely to have an adverse impact on groundwater quality or quantity or on the recharge of the aquifer.

3. Hydrogeologic Assessment Requirements. A hydrogeologic assessment shall include, at a minimum, the following site and proposal-related information:

a. Available information regarding geologic and hydrogeologic characteristics of the site including the surface location of all critical aquifer recharge areas located on site or immediately adjacent to the site, and permeability of the unsaturated zone;

b. Groundwater depth, flow direction, and gradient based on available information;

c. Currently available data on wells and springs within 1,300 feet of the project area;

d. Location of other critical areas, including surface waters, within 1,300 feet of the project area;

e. Available historic water quality data for the area to be affected by the proposed activity;

f. Best management practices proposed to be utilized to protect groundwater quality; and

g. Low impact development practices designed to maintain infiltration rates to the underlying aquifers.

4. Performance Standards – Specific Uses.

a. Storage Tanks. All storage tanks proposed in a critical aquifer recharge area must comply with local building code requirements and must conform to the following requirements:

i. Underground Tanks. All new underground storage facilities proposed for the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

(A) Prevent releases due to corrosion or structural failure for the operational life of the tank;

(B) Be protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substances; and

(C) Use material in the construction or lining of the tank that is compatible with the substance to be stored.

ii. Above-Ground Tanks. All new above-ground storage facilities proposed for the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

(A) Not allow the release of a hazardous substance to the ground, groundwaters, or surface waters;

(B) Have a primary containment area enclosing or underlying the tank or part thereof; and

(C) A secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks.

b. Vehicle Repair and Servicing.

i. Vehicle repair and servicing must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Chemicals used in the process of vehicle repair and servicing must be stored in a manner that protects them from weather and provides containment should leaks occur.

ii. No dry wells shall be allowed on sites used for vehicle repair and servicing. Dry wells existing on the site prior to facility establishment must be abandoned using techniques approved by the State Department of Ecology prior to commencement of the proposed activity.

c. Residential Use of Pesticides and Nutrients. Application of household pesticides, herbicides, and fertilizers shall not exceed times and rates specified on the packaging.

d. Use of Reclaimed Water for Surface Percolation or Direct Recharge. Water reuse projects for reclaimed water must be in accordance with the adopted water or sewer comprehensive plans that have been approved by the State Departments of Ecology and Health.

i. Use of reclaimed water for surface percolation must meet the groundwater recharge criteria given in RCW 90.46.080(1) and 90.46.010(10). The State Department of Ecology may establish additional discharge limits in accordance with RCW 90.46.080(2).

ii. Direct injection must be in accordance with the standards developed by authority of RCW 90.46.042.

e. State and Federal Regulations. The uses listed below shall be conditioned as necessary to protect critical aquifer recharge areas in accordance with the applicable state and federal regulations.

 

Table 16.12.060-1: Statutes, Regulations, and Guidance Pertaining to Groundwater Impacting Activities 

Activity

Statute – Regulation – Guidance

Above-Ground Storage Tanks

WAC 173-303-640

Animal Feedlots

Chapters 173-216, 173-220 WAC

Automobile Washers

Chapter 173-216 WAC, Best Management Practices for Vehicle and Equipment Discharges (Washington Department of Ecology WQ-R-95-56)

Below Ground Storage Tanks

Chapter 173-360 WAC

Chemical Treatment Storage and Disposal Facilities

WAC 173-303-182

Hazardous Waste Generator (Boat Repair Shops, Biological Research Facility, Dry Cleaners, Furniture Stripping, Motor Vehicle Service Garages, Photographic Processing, Printing and Publishing Shops, etc.)

Chapter 173-303 WAC

Injection Wells

Federal 40 CFR Parts 144 and 146, Chapter 173-218 WAC

Junk Yards and Salvage Yards

Chapter 173-304 WAC, Best Management Practices to Prevent Storm Water Pollution at Vehicles Recycler Facilities (Washington State Department of Ecology No. 94-146)

Oil and Gas Drilling

WAC 332-12-450, Chapter 173-218 WAC

On-Site Sewage Systems (Large Scale)

Chapter 173-240 WAC

On-Site Sewage Systems (< 14,500 gal./day)

Chapter 246-272 WAC, Local Health Ordinances

Pesticide Storage and Use

Chapters 15.54, 17.21 RCW

Sawmills

Chapters 173-303, 173-304 WAC, Best Management Practices to Prevent Storm Water Pollution at Log Yards (Washington State Department of Ecology, No. 95-53)

Solid Waste Handling and Recycling Facilities

Chapter 173-304 WAC

Surface Mining

WAC 332-18-015

Wastewater Application to Land Surface

Chapters 173-216, 173-200 WAC, Washington State Department of Ecology Land Application Guidelines, Best Management Practices for Irrigated Agriculture

5. Prohibited Uses. Uses Prohibited In Aquifer Recharge Areas. The following activities and uses are prohibited in aquifer recharge areas:

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 of Class V wells;

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

d. Storage, Processing, or Disposal of Radioactive Substances. Facilities that store (other than minor sources such as medicinal uses or industrial testing devices), process, or dispose of radioactive substances; and

e. Other Prohibited Uses or Activities.

i. Activities that would significantly reduce the recharge to aquifers currently or potentially used as a potable water source; and

ii. Activities that would significantly reduce the recharge to aquifers that are a source of significant baseflow to a regulated stream.

I. Fish and Wildlife Habitat Conservation Areas.

1. Purpose. This section applies to all fish and wildlife habitat conservation areas, as categorized in subsection I.2 of this section. The intent of this section is to:

a. Preserve natural flood control, stormwater storage, and drainage or stream flow patterns;

b. Control siltation, protect nutrient reserves, and maintain stream flows and stream quality for fish and marine shellfish;

c. Prevent turbidity and pollution of streams and fish or shellfish bearing waters;

d. Preserve and protect habitat adequate to support viable populations of native wildlife and fish on Bainbridge Island; and

e. Encourage nonregulatory methods of habitat retention whenever practical, through education and the open space tax program.

2. Fish and Wildlife Habitat Conservation Area Categories.

a. Classification. The following categories shall be used in classifying fish and wildlife habitat conservation areas:

i. Marine Critical Areas. Commercial and recreational shellfish areas; kelp and eelgrass beds; marine and estuarine waters of the state; and herring, sand lance and smelt spawning areas.

ii. Streams. All streams which meet the criteria for Type F, Np and Ns waters as set forth in WAC 222-16-030 of the Department of Natural Resources water typing system and as further modified by the definitions in this section. Once a stream has been classified, the city must document the reasons for changes in the classification.

iii. Fish and Wildlife Conservation Areas.

(A) Class I Fish and Wildlife Conservation Areas. Habitats recognized by federal or state agencies for federal and/or state listed endangered, threatened, and sensitive species documented in maps or databases available to the city of Bainbridge Island and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

(B) Class II Fish and Wildlife Conservation Areas. Habitats for state listed candidate, monitor, or priority species documented in maps or databases available to city of Bainbridge Island and its citizens, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

iv. Habitats and Species of Local Importance. This section provides for the designation and protection of habitats and species of local importance.

(A) Designation of species of habitat of local importance can be based on any of the following circumstances:

(1) Local populations of native species are in danger of extirpation based on existing trends.

(2) Local populations of native species are likely to become threatened or endangered under state of federal law.

(3) Local populations of native species are vulnerable or declining.

(4) The species or habitat has recreation, commercial, game, tribal, or other special value.

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

(6) 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 the city.

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

(B) Nomination.

(1) Any person may nominate habitats and species for designation.

(2) 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.

(3) Where the nomination is a specific habitat site, the nomination shall include the name and address of all property owners of record of all assessor parcels within the area potentially affected by the management recommendations. The list shall at a minimum include all properties within 300 feet from the edge of all property identified for special designation.

(4) The nomination shall include recommended 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.

(C) Nomination Processing and Approval. The decision whether to designate a nominated species or habitat as one of local importance shall be made by the city council. If approved, the city council shall pass an ordinance establishing the designation.

(D) Establishment of Specific Rules for Protection. Within 120 days of the effective date of an ordinance designating a species or habitat of local importance, the director shall develop an administrative rule addressing protection in compliance with this section.

3. Development Standards. Regulated uses in designated fish and wildlife habitat conservation areas and/or buffers shall comply with the performance standards outlined in this section.

a. Development Standards – Streams.

i. Water Quality Buffers. An applicant shall provide the prescribed water quality buffers in Table 16.12.060-2 unless relief is granted through BIMC 16.12.030.C.1.e, Regulations – Encumbered and Nonconforming Lots, or through a shoreline variance.

ii. Habitat Buffers. An applicant shall provide either:

(A) The prescribed habitat buffers in Table 16.12.060-2; or

(B) An approved habitat management plan, pursuant to subsection E of this section, that clearly provides greater habitat functions and values in perpetuity than the prescribed habitat buffers in Table 16.12.060-2.

iii. Buffer distances shall be measured from the ordinary high water mark (OHWM) or from the top of the bank where the OHWM cannot be identified. Buffers shall be retained in their natural condition. It is acceptable, however, to enhance the buffer by planting native or equivalent vegetation as approved by the director.

iv. The buffer width shall be increased to include streamside wetlands which provide overflow storage for stormwater, feed water back to the stream during low flow, or provide shelter and food for fish. In braided channels, the ordinary high water mark or top of bank shall be defined so as to include the entire stream feature.

v. Refuse and landscaping debris shall not be placed in buffers.

vi. Streams in Ravines – Buffers. For streams in ravines outside the Mixed Use Town Center with ravine sides 10 feet or greater in height, the buffer width shall be the greater of:

(A) The buffer width required for the stream type; or

(B) A buffer width which extends 25 feet beyond the top of the ravine.

vii. Building Setback Line. A building surface setback line of 15 feet is required from the edge of any fish and wildlife habitat conservation area buffer except as provided for in subsection M of this section. Minor structures such as decks or impervious surfaces such as driveways may be permitted if the director determines that such intrusions will not adversely impact the fish and wildlife habitat conservation area. The setback shall be identified on the site plan and filed as an attachment to the notice on title.

Table 16.12.060-2: Stream Buffers

Stream Category

Water Quality Buffer

Habitat Buffer

Total Buffer

Fish Bearing (F)

100 ft.

50 ft.

150 ft.

Non-Fish Perennial (Np)

40 ft.

10 ft.

50 ft.

Non-Fish Seasonal (Ns)

40 ft.

10 ft.

50 ft.

b. Class I Fish and Wildlife Conservation Areas Development Standards. All development as described within this section or within 200 feet of designated Class I wildlife conservation areas shall adhere to the following standards:

i. The applicant shall submit a habitat management plan as specified in subsection E of this section for approval by the director. If a wildlife conservation area designation is based on the presence of bald eagles, a bald eagle management plan, approved by the Washington State Department of Fish and Wildlife and meeting the requirements and guidelines of the bald eagle protection rules, WAC 232-12-292 (or its successor), as now or hereafter amended, shall satisfy the requirements for a habitat management plan (HMP).

ii. All new development within ranges and habitat elements with which Class I fish and wildlife have a significant relationship may require the submittal of a habitat management plan (HMP) as specified in subsection E of this section. The requirement for an HMP shall be determined during the SEPA/critical areas review on the project.

iii. An HMP required pursuant to this section shall consider measures to retain and protect the wildlife habitat and shall consider effects of land use intensity, buffers, setbacks, impervious surfaces, erosion control and retention of native or equivalent vegetation.

iv. Increased Buffer Provisions. The director may increase buffer widths, up to 50 percent greater than the applicable buffer set in this section for critical areas with known locations of endangered, threatened, or state monitored or priority species for which a habitat management plan indicates a larger buffer is necessary to protect habitat values for such species. Such determination shall be based on site-specific and project-related conditions.

c. Class II Fish and Wildlife Conservation Area Development Standards. All development within designated Class II wildlife conservation areas shall adhere to the following standards:

i. An HMP may be required for any proposed development within designated Class II fish and wildlife conservation areas. The HMP shall consider measures to retain and protect the wildlife habitat and shall consider effects of land use intensity, buffers, setbacks, impervious surfaces, erosion control and retention of native or equivalent vegetation. The requirement for an HMP shall be determined during the SEPA/critical areas review on the project.

ii. Increased Buffer Provisions. The director may increase buffer widths, up to 50 percent greater than the applicable buffer set in this section for critical areas with known locations of endangered, threatened, or state monitored or priority species for which a habitat management plan indicates a larger buffer is necessary to protect habitat values for such species. Such determination shall be based on site-specific and project-related conditions.

d. Stream Crossings. Any private or public road expansion or construction which is allowed and must cross streams classified within this section shall comply with the following minimum development standards:

i. Bridges or bottomless culverts shall be required for all streams which have salmonid breeding habitat. Other alternatives may be allowed upon submittal of a habitat management plan which demonstrates that other alternatives would not result in significant impacts to the fish and wildlife conservation area, as determined appropriate through the Washington State Department of Fish and Wildlife hydraulics project approval process. The plan must demonstrate that salmon habitat will be replaced on a 1:1 ratio;

ii. Crossings shall not occur in salmonid spawning areas unless no other feasible crossing site exists. For new development proposals, if existing crossings are determined to adversely impact salmon spawning or passage areas, new or upgraded crossings shall be located as determined necessary through coordination with the Washington State Department of Fish and Wildlife;

iii. Bridge piers or abutments shall not be placed in either the floodway or between the ordinary high water marks unless no other feasible alternative placement exists;

iv. Crossings shall not diminish flood carrying capacity;

v. Crossings shall serve multiple properties whenever possible;

vi. Where there is no reasonable alternative to providing a conventional culvert, the culvert shall be the minimum length necessary to accommodate the permitted activity.

e. Stream Relocations. Stream relocations for the purpose of flood protection and/or fisheries restoration shall only be permitted when adhering to the following minimum performance standards and when consistent with Washington State Department of Fish and Wildlife hydraulic project approval:

i. The channel, bank, and buffer areas should be replanted with native or equivalent vegetation that replicates a natural, undisturbed riparian condition;

ii. For those shorelands and waters designated as frequently flooded areas pursuant to subsection A of this section, a professional engineer licensed in the state of Washington shall provide information demonstrating that the equivalent base flood storage volume and function will be maintained; and

iii. Relocated stream channels shall be designed to meet or exceed the functions and values of the stream to be relocated.

f. Pesticides, Fertilizers and Herbicides. Use of pesticides, fertilizers, herbicides are regulated by BIMC 16.12.030.B.6.

g. Land Divisions and Land Use Permits. All land divisions and land uses proposed on a site that includes fish and wildlife habitat conservation areas shall comply with the following procedures and development standards:

i. The open water area of lakes, streams, and tidal lands shall not be permitted for use in calculating minimum lot area.

ii. Land division approvals shall be conditioned so that all required buffers are designated as an easement or covenant encumbering the buffer. Such easement or covenant shall be recorded together with the land division and represented on the final plat, short plat or binding site plan.

iii. In order to avoid the creation of nonconforming lots, each new lot shall contain at least one building site that meets the requirements of this section, including buffer requirements for habitat conservation areas. Each lot must also have access and a sewage disposal system location that are suitable for development which do not adversely impact the fish and wildlife conservation area.

iv. After preliminary approval and prior to final land division approval, the director may require that the common boundary between a required buffer and the adjacent lands be identified using permanent signs. In lieu of signs, alternative methods of buffer identification may be approved when such methods are determined by the director to provide adequate protection to the aquatic buffer.

h. Trails and Trail-Related Facilities. Construction of public and private trails and trail-related facilities, such as benches, interpretive centers, and viewing platforms, may be allowed in fish and wildlife habitat conservation areas or their buffers pursuant to the following standards:

i. Trails and related facilities shall, to the extent feasible, be placed on existing road grades, utility corridors, or other such previously disturbed areas which do not provide ecological functions;

ii. Trails and related facilities shall be planned to minimize removal of trees, shrubs, snags and important wildlife habitat;

iii. Viewing platforms, interpretive centers, benches and access to them, shall be designed and located to minimize disturbance of wildlife habitat and/or critical characteristics of the affected conservation area;

iv. Trails, in general, shall be set back from streams so that there will be no or minimal impact to the stream from trail use or maintenance. Elevated trails which protect or enhance ecological functions shall be used to the maximum extent feasible. Trails shall be constructed with pervious surfaces when feasible.

i. Stream Bank Stabilization.

i. A stream channel and bank may be stabilized when naturally occurring earth movement threatens existing structures (defined as requiring a building permit pursuant to the applicable building code), public improvements, unique natural resources, public health, safety or welfare, or the only feasible access to property, and, in the case of streams, when such stabilization results in maintenance of fish and wildlife habitat, flood control, and improved water quality.

ii. Where bank stabilization is determined to be necessary, bioengineering or other nonstructural methods should be the first option for protection. Bulkheads and retaining walls may only be utilized as an engineering solution where it can be demonstrated that an existing residential structure cannot be safely maintained without such measures, and that the resulting retaining wall is the minimum length necessary to provide a stable building area for the structure. The director may require that bank stabilization be designed by a professional engineer licensed in the state of Washington with demonstrated expertise in hydraulic actions of shorelines. Bank stabilization projects may also require a city of Bainbridge Island clearing or grading permit and hydraulic project approval from the Washington Department of Fish and Wildlife.

iii. Nonstructural streambank protective techniques are preferred to bulkheads or other types of streambank armoring. Nonstructural techniques include but are not limited to vegetation plantings and bioengineering.

j. Fencing and Signs. Prior to approval or issuance of permits for land divisions or other new development, the director may require that the common boundary between a required buffer and the adjacent lands be identified using fencing or permanent signs. In lieu of fencing or signs, alternative methods of buffer identification may be approved when such methods are determined by the director to provide adequate protection to the buffer.

J. Critical Saltwater Habitat.

1. Water-dependent development and uses, including marinas, docks, piers, mooring areas, underwater parks, utility crossings, and shoreline modifications, shall not intrude into or be built over critical saltwater habitat unless:

a. The applicant can show that all of the following criteria can be met:

i. The use preferences of BIMC 16.12.030.B.1 shall be utilized for uses in shorelines of statewide significance; and

ii. The need for such a structure is clearly demonstrated and an alternative alignment or location on the property that would avoid impacts to critical saltwater habitats is not feasible or would result in unreasonable and disproportionate cost to accomplish the same general purpose, as demonstrated through an alternatives analysis. The analysis should include, in part, shoreline bathymetry, shoreline features at the site, and substrate composition; and

iii. It can be demonstrated that the project is consistent with the state’s interest in resource protection and species recovery; and

iv. Impacts to critical saltwater habitat functions and processes are mitigated to result in equal or better ecological function; or

b. The proposal is for private, noncommercial, residential docks for single use, community, or joint use, which may be authorized; provided, that:

i. Avoidance of impacts to critical saltwater habitats by an alternative alignment or location is not feasible; and

ii. The project, including any required mitigation, will result in no net loss of ecological functions and processes associated with critical saltwater habitat;

c. New or expanded overwater structures shall be located the greater or most protective of:

i. A horizontal distance of 25 feet from the outside edge of the structure to native aquatic vegetation attached to or rooted in substrate;

ii. A horizontal distance equal to the maximum distance shade will be cast by the structure and vessel;

iii. A four-foot vertical distance from eelgrass or relevant submerged aquatic vegetation;

iv. A distance the diameter of the turning circle, if the structure is to be utilized for motorized vessels. The turning circle is defined as three and one-half times the length of the longest vessel to use the structure;

v. Alternative measures that demonstrate no net loss of ecological functions;

d. For projects within WDFW documented Pacific herring spawning locations, in-water activities that would affect herring spawn should be restricted to WDFW’s approved work window for Bainbridge Island (May 1st through January 14th). For aquaculture projects, the city may consider alternative methods that are contained in federal and/or state aquaculture permits for reducing impacts to herring spawning habitat and other forage fish spawning habitat;

e. For projects other than commercial aquaculture within WDFW documented sand lance and surf smelt spawning locations, no activities should occur during spawning windows as identified by WDFW. For commercial aquaculture projects within WDFW documented sand lance and surf smelt spawning locations, no harvesting may occur during the surf smelt or sand lance spawning seasons until a spawning survey is conducted. If surf smelt or sand lance spawn are present in the growing area to be harvested or adjacent tidelands, then no harvest activities may occur until the eggs are hatched. Extreme caution should be taken to avoid impact and minimize disturbance of sand lance and surf smelt larvae that are present.

2. Aquatic herbicide treatments, mechanical removal of vegetation or aquatic pesticide treatments shall not be used on critical saltwater habitats, except for approved habitat restoration or enhancement measures that meet the provisions of BIMC 16.12.030.B.5, Water Quality and Stormwater Management.

3. Sand, gravel or other materials shall not be added or removed from critical saltwater habitat, unless approved as part of a restoration effort or beach nourishment program or as allowed in subsection J.1 of this section.

4. New outfalls (including stormwater and sewer outfalls) and discharge pipes shall not be located in critical saltwater habitats or areas where outfall or discharge will adversely affect critical saltwater habitat, unless the applicant can show that all of the following can be met:

a. There is no feasible alternative location for the outfall or pipe; and

b. The outfall or pipe is placed below the surface of the beach or bed of the water body; and

c. The discharge point(s) on the outfall or discharge pipe is located so the discharges, including nutrients and flow, do not adversely affect critical saltwater habitats; and

d. For public sewage outfalls:

i. The outfall discharges waterward of the intertidal zone.

ii. The disturbed area will be revegetated with native vegetation.

5. The use of existing outfalls shall be maximized to limit the need for additional outfalls, provided the existing outfall meets the standards of this section, or unless an alternatives analysis demonstrates the dispersal is less impacting to the shoreline environment.

6. For activities adjacent to fish and wildlife habitat conservation areas the maximum prescribed buffer shall apply. These buffers can be modified on a case-by-case basis through a habitat management plan, pursuant to subsection E of this section. In order to determine the need or extent of a buffer, a critical area report shall be required for all development in or adjacent to a habitat conservation area.

a. In addition to the requirements in this section, the habitat management plan shall:

i. Describe actions that will be implemented to ensure that buffer areas provide ecological functions and processes equivalent to a dense native plant community to the extent possible given the area that is feasibly available; and

ii. Demonstrate that no net loss of ecological functions and processes in critical saltwater habitat and other critical areas will occur, as specified in WAC 173-26-201(3)(d) and 173-26-221(2)(c)(iii).

7. Until an inventory of critical saltwater habitat is completed, all over water and near-shore development shall conduct an inventory of site and adjacent beach sections to assess the presence of critical saltwater habitat and/or functions and processes. The inventory shall occur prior to construction and the methods and extent of the inventory shall be consistent with accepted research methodology. New studies shall be required only when existing information is out dated or does not exist.

K. Geologically Hazardous Areas.

1. General. Geologically hazardous areas include erosion hazard areas, landslide hazard areas, and seismic hazard areas. Zone of influence areas are not considered geologically hazardous areas.

All new development and new uses within the jurisdiction of this master program shall comply with regulations for geologically hazardous areas as set forth in the shoreline-specific critical areas regulations contained in this subsection.

2. Purpose. The intent of this section is to prevent the potential for personal injury or loss of life or property due to flooding, erosion, landslides, seismic events, or soil subsidence. Development must not increase slope instability, and must avoid on-site and off-site impacts, as well as potential risk to structures. Preserving the existing vegetation may be an important part of minimizing those risks.

3. Classification. Geologically hazardous areas shall be classified based upon landslide history and the presence of unstable soils, steepness of slopes, erosion potential, and seismic hazards. Areas in this category are a potential threat to public health, safety, and welfare when construction is allowed. While some potential risk due to construction can be reduced through structural engineering design, construction in these areas should be avoided when the potential risk cannot be reduced to a level comparable to the risk if the site were initially stable prior to construction. Classification and rating shall be based upon the risk to the environment and to development in geologically hazardous areas.

4. Minimum Submittal Requirements.

a. All Geologically Hazardous Areas and Buffers.

i. Indemnification. An indemnification or hold harmless agreement shall be required for all projects in geologically hazardous areas and buffers. The form of the agreement shall be approved by the city and executed prior to the commencement of construction or site alteration.

ii. Notice. A notice of intent to construct on a landslide hazard area or reduce the minimum buffer in a landslide hazard area shall be given pursuant to BIMC 2.16.020. The notice of intent shall be issued within 14 days of a completed application pursuant to BIMC 2.16.020.K.5. The notice shall include a 21-day comment period and no permits or approval of reduced buffers shall be issued before the end of the comment period.

iii. All reports or analyses required or prepared pursuant to this section shall be prepared pursuant to subsection F of this section, this subsection K and/or any other applicable provisions of this section, and shall meet the satisfaction of, and be approved by, the city engineer prior to the commencement of any development activity.

iv. To protect public health, safety and welfare, the city engineer may call for a third-party review of any geotechnical report in cases where there may be potential for substantial damage to life, property or the environment should the proposed engineering solution fail. When a third-party review is required, costs incurred for a qualified third-party geotechnical engineer to perform the review shall be borne by the applicant.

v. Geological Hazards Assessment. A critical area report is required for all projects in geologically hazardous areas and buffers and shall contain an assessment of geological hazards including the following site- and proposal-related information at a minimum:

(A) Site and Construction Plans. The report shall include a copy of the site plans for the proposal showing:

(1) The type and extent of geologic hazard areas, any other critical areas, and buffers on, adjacent to, or within a zone or distance of potential significant influence as determined by a professional engineer/geologist;

(2) Proposed development, including the location of existing and proposed structures, fill, storage of materials, and drainage facilities, with dimensions indicating distances to the floodplain, if available;

(3) The topography, as determined by a professional engineer or geologist, of the project area and all hazard areas addressed in the report; and

(4) Clearing limits.

(B) Assessment of Geological Characteristics. The report shall include an assessment of the geologic characteristics of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties, and a review of the site history regarding landslides, erosion, and prior grading. Soils analysis shall be accomplished in accordance with accepted classification systems in use in the region. The assessment shall include, but not be limited to:

(1) A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard areas addressed in the report;

(2) A detailed overview of the field investigations, published data, and references; data and conclusions from past assessments of the site; and site-specific measurements, tests, investigations, or studies that support the identification of geologically hazardous areas; and

(3) A description of the vulnerability of the site to seismic and other geologic events.

(C) Analysis of Proposal. The report shall contain a hazards analysis including a detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property, and affected adjacent properties.

(D) Minimum Buffer and Building Setback. The report shall make a recommendation for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis. Where the recommended buffers are less than the standard buffers set forth in subsection K.5.c.i of this section, the rationale and basis for the reduced buffer shall be clearly articulated and demonstrate that the protection standard set forth in that subsection has been met.

vi. Incorporation of Previous Study. Where a valid critical areas report has been prepared for a specific site, and where the proposed land use activity and surrounding site conditions are unchanged, said report may be incorporated into the required critical area report, if deemed still valid and appropriate by a professional engineer or geologist. The applicant shall submit a hazards assessment detailing any changed environmental conditions associated with the site based on best professional judgment of the engineer/geologist.

vii. Mitigation of Long-Term Impacts. When hazard mitigation is required, the mitigation plan shall specifically address how the activity maintains or reduces the pre-existing level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected life span of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the pre-existing conditions following abandonment of the activity.

viii. In addition to the general critical area report requirements of subsection K.4 of this section, critical area reports for geologically hazardous areas must meet requirements of this section. Critical area reports for two or more types of critical areas must meet the report requirements for each relevant type of critical area.

b. Landslide Hazard and Erosion Hazard Areas. In addition to the basic critical areas report, a critical area report for an erosion hazard or landslide hazard area shall include the following information at a minimum:

i. Erosion Control. An erosion control plan prepared by a civil engineer shall be submitted to the city prior to the issuance of a clearing or grading permit, in accordance with Chapter 15.20 BIMC.

ii. The applicant shall provide a geotechnical analysis containing the following information:

(A) Site Plan. The critical area report shall include a copy of the site plan for the proposal showing:

(1) The height of slope, slope gradient, and cross-section of the project area;

(2) The location of springs, seeps, or other surface expressions of groundwater and the zone or distance of potential significant influence as determined by a professional engineer/geologist; and

(3) The location and description of surface water runoff features.

(B) Hazards Analysis. The hazards analysis component of the critical areas report shall specifically include:

(1) A description of the extent and type of vegetative cover;

(2) A description of subsurface conditions based on data from site-specific explorations;

(3) Descriptions of surface and groundwater conditions, public and private sewage disposal systems, fills and excavations, and all structural improvements;

(4) An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure;

(5) An estimate of the bluff retreat rate that recognizes and reflects potential catastrophic events such as seismic activity or a 100-year storm event;

(6) Consideration of the run-out hazard of landslide debris and/or the impacts of landslide run-out on down slope properties;

(7) A study of slope stability including an analysis of proposed cuts, fills, and other site grading;

(8) Recommendations for building siting limitations; and

(9) An analysis of proposed surface and subsurface drainage, and the vulnerability of the site to erosion.

(C) Geotechnical Engineering Report. The technical information for a project within a landslide hazard area shall include a geotechnical engineering report prepared by a licensed engineer that presents engineering recommendations for the following:

(1) Parameters for design of site improvements including appropriate foundations and retaining structures. These should include allowable load and resistance capacities for bearing and lateral loads, installation considerations, and estimates of settlement performance;

(2) Recommendations for drainage and subdrainage improvements;

(3) Earthwork recommendations including clearing and site preparation criteria, fill placement and compaction criteria, temporary and permanent slope inclinations and protection, and temporary excavation support, if necessary; and

(4) Mitigation of adverse site conditions including slope stabilization measures for seismically unstable soils, surface water management, location and methods of erosion control, a vegetation management and/or replanting plan, and/or other means for maintaining long-term soil stability if appropriate.

c. Special Reports and Determination of Buffers for Marine Bluffs.

i. Applicants proposing development adjacent to a marine bluff (i.e., slopes greater than 40 percent that exceed a vertical height of 10 feet within the marine shorelines jurisdiction) shall submit a geotechnical engineering report prepared in accordance with the requirements of this master program and the shoreline-specific critical areas regulations contained in this section. In terms of this regulation, “adjacent” means development proposed either within 50 feet from the crest of a marine bluff or within a distance equal to the height of the slope from the crest (measured from the top), whichever is greater.

ii. The geotechnical engineering report shall be prepared by a Washington State licensed professional civil engineer with a specialty in geotechnical engineering or an engineering geologist with a Washington State specialty license in engineering geology as specified in Chapter 18.220 RCW, Geologists. The report shall be based upon the most appropriate and current science, existing and proposed uses, risks of slope failure, and coastal erosion rates over at least 100 years, if applicable.

iii. All proposed development on the face of a marine bluff or in the required buffer area shall be prohibited, except:

(A) Development may be allowed as specified in subsection K.6 of this section;

(B) Minor development for public access (e.g., public trails, stairs, or view points) may be allowed; provided, that environmental impacts are mitigated and the development can meet the factor of safety in subsection K.5.a of this section; and

(C) Minor development permitted in the shoreline buffer and site-specific vegetation management area pursuant to BIMC 16.12.030.B.3.f through i such as boathouses, decks, stairs, trams, piers, and docks except at the toe of unstabilized feeder bluffs and the development can meet the factor of safety in subsection K.5.a of this section.

iv. All alterations to the vegetation within a geological hazardous area shall provide a bluff management plan developed by qualified professional(s) to address vegetation management for slope stability and ecological functions and processes for a 10-year period. The plan at a minimum shall include:

(A) A geotechnical analysis of slope stability as defined in this subsection K, Geologically Hazardous Areas.

(B) A site plan showing existing vegetation location and species.

(C) An analysis of identified vegetation appropriate for removal or alteration.

(D) An analysis of vegetation management strategies for slope stability.

(E) A mitigation plan developed according to subsection C.2 of this section, Environmental Impacts, and subsection C.3 of this section, Vegetation Management.

(F) The administrator may include additional conditions for a site-specific analysis and require a third-party review by a qualified professional at the cost of the applicant.

v. Regulations – Marine Bluff Drainage. Surface drainage shall be directed away from marine bluffs. When no other solution is feasible, surface drainage piping may be located on the face of a steep slope when contained in a tight line (closed, non-leaking pipe) and in such a way that erosion will not be increased at the base of the bluff; and provided, that physical access along the shoreline is not degraded. Furthermore, conditions may be applied to mitigate the aesthetic impacts of the proposed drainage systems as viewed from public areas.

d. Seismic Hazard Areas. In addition to the basic report requirements, a critical area report for a seismic hazard area shall also meet the following requirements:

i. Fault Hazard. The applicant shall provide a geologic/geotechnical analysis containing information specified by the city engineer that documents the presence or absence of any surface deformation on the site in areas mapped by the city. If deformation is located, the applicant shall provide a geotechnical analysis containing information specified by the city engineer, which concludes that the development proposal as mitigated meets the standards of this section.

ii. Liquefaction Hazard. The applicant shall provide a geotechnical analysis containing information specified by the city engineer that meets the standards of this section (as mitigated).

iii. Seismic Landslide Hazard. The applicant shall provide the same analysis and plan as required for landslide hazard areas, pursuant to subsection K.4 of this section.

e. Tsunami Hazards. The city shall provide applicants for development in low lying shoreline areas and other areas where flood elevation is controlled by tide level with information on tsunami hazards.

f. Zone of Influence Areas Beyond the Established Buffer. The applicant shall have the surface and stormwater management plan (See Chapter 15.20 BIMC) for the project reviewed by a geotechnical engineer to determine if there is any potentially adverse impacts to the landslide hazardous area. If the geotechnical engineer or the city engineer determines that there are potential adverse impacts, the applicant shall provide a geotechnical analysis containing information specified by the city engineer which analyzes the potential impacts to the geological hazard from the proposed development in the zone of influence and meets the standards of this section. The report shall contain recommendations to avoid adverse impacts to the geologically hazardous area. Concentrated discharge of stormwater shall only be allowed where specially recommended in the report and authorized by the city engineer.

5. Development Standards.

a. General Requirements. The city engineer shall establish administrative procedures to implement this section. The applicant shall meet the following standards for all new activities permitted in geologically hazardous areas or associated buffers:

i. The proposed activity shall not create a net increase in geological instability, either on- or off-site, which is defined as follows:

(A) The subject parcel shall not be less stable after the planned development than before; and

(B) The adjacent parcels shall not have greater risk or be less stable after the planned development than before;

ii. The proposed activity shall not increase the risk of life safety due to geological hazards above professionally acceptable levels;

iii. The proposed activity shall not increase the risk due to geological hazards above professionally acceptable levels for:

(A) Property loss of any habitable structures or their necessary supporting infrastructure on site; or

(B) Risk to any off-site structures or property of any kind; and

iv. Proposed buildings shall be constructed using appropriate engineering methods that respond to the geologic characteristics specific to the site in order to achieve the highest standard of safety feasible;

v. The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.0 for dynamic conditions. Analysis of dynamic conditions shall be based on the minimum horizontal acceleration for the probabilistic maximum considered earthquake as established by the currently adopted version of the International Building Code;

vi. The proposed activity shall not further degrade the values and functions of the associated critical areas.

b. Redevelopment of Existing Structures.

i. If an existing structure is damaged or is intentionally demolished the new structure must meet all the provisions of a new structure.

ii. Structural alteration to an existing legally constructed structure that does not increase the structural footprint and is determined by the city engineer as having a minimal potential for increasing landslide hazard and meets the minimum buffer dimensions in subsection K.5.c.i of this section.

c. Development Design and Location. The following requirements shall apply to any land or vegetation modification or construction within a landslide hazard area and/or its buffer as described herein:

i. Buffer Requirement. A buffer equal to the height of the slope or 50 feet, whichever is greater, shall be established from all edges of a landslide hazard area except where no other reasonable alternative exists. Reduction may be allowed as follows:

(A) Buffer Reduction.

(1) Buffer reductions may be allowed provided a critical areas report, pursuant to subsections K.4.a and b of this section and any other related subsection of this section, demonstrates to the director that the buffer reduction will not reduce the level of protection to the proposed development, adjacent properties, and other associated critical areas as required by subsection K.5.a of this section;

(2) For slopes 40 percent or greater, the buffer may in no case be reduced to less than 10 feet. A decision by the director to reduce the buffer shall be based on a critical areas report pursuant subsections K.4.a and b of this section that may include a third-party independent review by a qualified geotechnical engineer pursuant to subsection K.4.a.iv of this section;

(B) Increased Buffer. The buffer may be increased beyond that specified in subsection K.5.c.i of this section if the director determines a larger buffer is necessary to prevent risk of damage to proposed development, adjacent development, and uses and the associated critical areas;

(C) Building Setback. All buildings and structures shall have a minimum setback of 15 feet from the outer edge of the buffer around landslide hazard areas to allow for construction activity; and

(D) Vegetation Retention. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited;

ii. All development proposals shall be designed to avoid impacts to the geologically hazardous areas. The development shall be designed to minimize the footprint of building in other disturbed areas, minimize removal of vegetation, minimize topographic change, and retain open space to the maximum extent practicable;

iii. Development design shall utilize clustering, under-structure parking, multi-level construction, and tiered foundations to the extent feasible to minimize impervious lot coverage, slope disturbance, and changes to the natural topography;

iv. Access shall be in the least sensitive part of the site, and common access drives and utility corridors are required to the extent feasible;

v. Roads, walkways and parking areas shall be designed to parallel the natural contours to the extent feasible;

vi. All proposed clearing and tree removal shall be marked in the field for inspection and approval prior to alteration of the site;

vii. Cut and fill slopes shall be prepared and maintained to control against erosion and instability;

viii. Drainage and stormwater designs in zones of influence shall incorporate elements of low impact design, to the extent feasible, and shall be designed in such a manner that stormwater outlet discharges do not create additional impacts. The proposed activities shall not increase surface water discharge or sedimentation to adjacent properties beyond the pre-development condition.

6. Exemptions. The following activities are permitted in geologically hazardous areas or associated buffers; provided, that the applicant can demonstrate that applicable standards in subsection K.5.a of this section can be met, or where the applicant has demonstrated through a critical areas report prepared by a geotechnical engineer in accordance with the specifications of the city engineer that no adverse impact will result from the proposal and where approved surface water drainage will result in minimum slope and vegetation disturbance:

a. Surface Water Management. Slopes or buffers may be used for approved surface water conveyance if no other reasonable alternative route is available. Installation techniques shall minimize disturbance to the slope and vegetation.

b. The construction of approved public or private trails; provided, they are constructed of material, for example cable lift access, which will not contribute to surface water runoff.

c. The construction of public or private utility corridors or streets; provided, it has been demonstrated that such alterations will not increase landslide or erosion risks through required analysis pursuant to subsection K.4.a of this section and the city determines that no other feasible alternative exists.

d. Select Vegetation Removal Activities. The following vegetation removal activities are allowed; provided, that no vegetation shall be removed from a geologically hazardous area or its buffer without approval from the director:

i. Removal of noxious weeds using nonmotorized equipment or light equipment if approved by the director. Provisions for the use of herbicides are in BIMC 16.12.030.B.6. Bare areas remaining after weed removal shall be revegetated with native plant species pursuant to an enhancement plan approved by the city.

ii. Removal and pruning of hazard trees as defined by ISA (International Society of Arboriculture) standards; provided, that an ISA-certified arborist documents the hazard and provides a report to the director for review and approval. Replacement shall be based on the recommendations of the arborist and geotechnical engineer and approved by the director. The director may require a second opinion from a certified ISA arborist in cases of removal of hazard trees. Mitigation for tree removal shall follow BIMC 16.12.030.B.2 and the following:

(A) Size of trees shall be approved by the director; and

(B) The landowner shall ensure 100 percent survival of replacement trees.

e. The trimming and limbing of vegetation for the creation and maintenance of view corridors in accordance with the pruning standards of the International Society of Arboriculture; provided, that the soils are not disturbed and activity will not increase the risk of landslide or erosion. All vegetation removal must be based on a bluff management plan (subsection K.4.c of this section) developed by a certified arborist and reviewed by a geotechnical engineer to determine if it will impact slope stability. A clearing permit will be required prior to the any vegetation removal.

f. Limited Exemption. Landslide areas 40 percent or greater with a vertical elevation change of up to 20 feet may be exempted from subsection K.5.b.i of this section based on the city review and acceptance of a critical areas report from a geologist or licensed geotechnical engineer in accordance with subsection K.4 of this section when no adverse impact will result from the exemption.

L. Wetlands.

1. Purpose. This section applies to all regulated uses within or adjacent to areas designated as wetlands, as categorized in subsection L.2 of this section. All development, development proposals and alterations that are located within or adjacent to shoreline jurisdictional wetlands or their buffers or that are likely to significantly impact shoreline jurisdictional wetlands shall prepare a wetland analysis pursuant to this subsection. The wetland analysis shall include the wetland rating (using the Washington State Wetland Rating System for Western Washington (2006) or as revised by Ecology), a functional assessment of potential buffers (based on Ecology’s best available science for wetlands), and noting of any water features and other critical areas and their related buffers in the proximity of the proposed development. The intent of this section is listed in no specific priority, as follows:

a. Preserve, protect, restore, and improve wetland functions and values. Achieve no net loss and increase the quality of wetland acreage, functions, and values within the city. Mitigation measures, as conditions of permits, must have a reasonable expectation of success. Under the conditions of this section, the director may deny development proposals that would irreparably impact regulated wetlands; and

b. Protect the public’s health, safety, and welfare, while preventing public expenditures that could arise from improper wetland uses and activities; and

c. Plan wetland uses and activities in a manner that protects and enhances the natural systems and environmental quality of Bainbridge Island and allows property holders to benefit from wetland property ownership wherever allowable under the conditions of this section; and

d. Preserve ecological functions and values of wetlands which provide water quality protection, natural flood control, stormwater storage, contributes to groundwater and stream flow, shoreline stabilization, and wildlife and fish habitat; and

e. Prevent turbidity and pollution of wetlands and fish or shellfish bearing waters, and maintain healthy wildlife habitat; and

f. Encourage land use development patterns that maintain, enhance, or restore natural wetland systems and protect disturbance-sensitive and wetland-dependent wildlife, fish resources, and open space; and

g. Protect and preserve wetlands values as natural areas providing aesthetic, recreational, and educational opportunities that need to be preserved for future generations; and

h. Enhance the connectivity between wetland landscapes.

i. Alteration of wetlands and their buffers is prohibited, unless:

i. Such a prohibition is deemed a violation of constitutional or statutory limitations on regulations of private property; or

ii. The proponent can conclusively demonstrate to the satisfaction of the administrator that the impacts are unavoidable.

j. In either case of subsection L.1.i.i or ii of this section, the proponent shall provide mitigation to achieve no net loss of wetland functions and values, according to an approved mitigation plan prepared consistent with this master program, including subsections E and G of this section, shoreline-specific critical areas regulations.

2. Wetland Delineation and Categories. Identification of wetlands and delineation of their boundaries pursuant to this section shall be done in accordance with the approved federal wetland delineation manual and applicable regional supplements. All areas within the city of Bainbridge Island meeting the wetland designation criteria in that procedure are hereby designated critical areas and are subject to the provisions of this section. The wetland buffer for shoreline wetlands shall be established pursuant to the provisions of this subsection.

The city uses the Department of Ecology’s (DOE’s) Washington State Wetland Rating System for Western Washington, 2004, or as amended hereafter and adopted by the director, to categorize wetlands for the purposes of establishing wetland buffer widths, wetland uses and replacement ratios for wetlands. Once a wetland has been classified using the current DOE rating system, the city shall not reclassify the wetland without clearly documenting the reason for the change. If the wetland has a rating in the city GIS system, this rating can be used for regulatory purposes. This system consists of four wetland categories generally described as follows:

a. Category I wetlands are those that:

i. Represent unique or rare wetland type; or

ii. Are more sensitive to disturbance than most wetlands; or

iii. Are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or

iv. Provide a high level of function. Category I wetlands include estuarine wetlands larger than one acre, bogs, mature and old-growth wetlands over one acre, wetlands in coastal lagoons, and wetlands that perform many functions very well as demonstrated by a score of over 70 points using the DOE rating system.

b. Category II wetlands are difficult, though not impossible, to replace, and provide a high level of function. Category II wetlands include estuarine wetlands smaller than one acre or disturbed and larger than one acre and wetlands that perform functions well as demonstrated by a score of 51 to 69 using the DOE rating system.

c. Category III wetlands are wetlands with a moderate level of function as demonstrated by a score of 30 to 50 points using the DOE rating system.

d. Category IV wetlands have the lowest level of function as demonstrated by a score of less than 30 points using the DOE rating system and are often heavily disturbed.

3. Regulated and Nonregulated Wetlands Classification.

a. Regulated Wetlands.

i. All natural wetlands that meet the criteria in the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0).

ii. Unintentionally created wetlands that meet the criteria in the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0) except as listed in subsection L.3.b.ii of this section.

iii. Wetlands intentionally created from nonwetland areas to mitigate conversion of other wetlands.

b. Nonregulated Wetlands.

i. Created Wetlands. Wetlands created intentionally from a nonwetland site that was not required to be constructed as mitigation for adverse wetland impacts. These may include, but are not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment ponds, farm ponds not contiguous, as defined in this section, and landscape amenities. The applicant shall bear the burden of proving that the wetland was intentionally created from a nonwetland site. Where enhancements or restorations are made to wetlands for purposes other than mitigation, the original rating shall be maintained even if the changes would otherwise result in a higher classification.

ii. Recent, Road Construction Related Wetlands. Wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. The applicant shall bear the burden of proving that the wetland meets these criteria.

4. Development Standards.

a. Water Quality Buffers. An applicant shall provide the prescribed water quality buffers in this section (Tables 16.12.060-3 through 16.12.060-6) unless relief is granted through BIMC 16.12.030.C.1.e, Regulations – Encumbered and Nonconforming Lots, or through a shoreline variance.

b. Habitat Buffers. An applicant shall provide either:

i. The prescribed habitat buffers specified in this section (Tables 16.12.060-3, 16.12.060-4, 16.12.060-5, and 16.12.060-6); or

ii. An approved habitat management plan, pursuant to subsection E of this section, that clearly provides greater habitat functions and values in perpetuity than the prescribed habitat buffers in this section (Tables 16.12.060-3, 16.12.060-4, 16.12.060-5, and 16.12.060-6).

c. Buffers. Buffers shall remain undisturbed natural vegetation areas except where the buffer can be enhanced to improve its functional attributes. Any buffer enhancement and/or limited view clearing activity must be reviewed and approved by the director. No refuse shall be placed in the buffer. Alteration of habitat buffer areas may be allowed for water-dependent and water-related activities and for development authorized by subsection B.3 of this section (Exemptions), or subsection B.4 of this section (Standards for Existing Development), or subsection D.2 of this section (Buffer Averaging), or through BIMC 16.12.030.C.1.e, Regulations – Encumbered and Nonconforming Lots, or through a shoreline variance.

d. If a wetland meets more than one of the criteria listed in each table, the buffer needed to protect the wetland is the widest one.

 

Table 16.12.060-3: Category I Wetlands – Buffers 

Wetland Characteristics

Impact of Land Use (See Definitions)

Water Quality Buffer

Habitat Buffer

Total Buffer

Other Protection

Natural Heritage Wetlands

Low

Moderate

High

50 ft.

75 ft.

100 ft.

75 ft.

115 ft.

150 ft.

125 ft.

190 ft.

250 ft.

No additional discharge of surface water.

No septic systems within 300 ft.

Restore degraded parts of the buffer.

Bogs

Low

Moderate

High

50 ft.

75 ft.

100 ft.

75 ft.

115 ft.

150 ft.

125 ft.

190 ft.

250 ft.

No additional surface discharges.

Restore degraded parts of the buffer.

Forested

Low

Moderate

High

50 ft.

75 ft.

100 ft.

75 ft.

115 ft.

150 ft.

125 ft.

190 ft.

250 ft.

If forested wetland scores high for habitat, maintain connectivity to other natural areas.

Estuarine

Low

Moderate

High

50 ft.

75 ft.

100 ft.

50 ft.

75 ft.

100 ft.

100 ft.

150 ft.

200 ft.

N/A

Wetlands in Coastal Lagoon

Low

Moderate

High

50 ft.

75 ft.

100 ft.

50 ft.

75 ft.

100 ft.

100 ft.

150 ft.

200 ft.

N/A

High level of function for habitat (score for habitat is 29 – 36 pts.)

Low

Moderate

High

50 ft.

75 ft.

100 ft.

100 ft.

150 ft.

200 ft.

150 ft.

225 ft.

300 ft.

Maintain connectivity to other natural areas.

Restore degraded parts of the buffer.

Moderate level of function for habitat (score for habitat is 20 – 28 pts.)

Low

Moderate

High

50 ft.

75 ft.

100 ft.

25 ft.

35 ft.

50 ft.

75 ft.

110 ft.

150 ft.

N/A

High level of function for water quality improvement and low for habitat (score for water quality 24 – 32 pts.; habitat less than 20 pts.)

Low

Moderate

High

50 ft.

75 ft.

100 ft.

0 ft.

0 ft.

0 ft.

50 ft.

75 ft.

100 ft.

No additional discharges of untreated runoff.

Not meeting any of the above criteria.

Low

Moderate

High

50 ft.

75 ft.

100 ft.

0 ft.

0 ft.

0 ft.

50 ft.

75 ft.

100 ft.

N/A

Table 16.12.060-4: Category II Wetlands – Buffers 

Wetland Characteristics

Impact of Land Use (See Definitions)

Water Quality Buffer

Habitat Buffer

Total Buffer

Other Protection

High level of function for habitat (score for habitat is 29 – 36 pts.)

Low

Moderate

High

50 ft.

75 ft.

100 ft.

100 ft.

150 ft.

200 ft.

150 ft.

225 ft.

300 ft.

Maintain connectivity to other natural areas.

Moderate level of function for habitat (score for habitat is 20 – 28 pts.)

Low

Moderate

High

50 ft.

75 ft.

100 ft.

25 ft.

35 ft.

50 ft.

75 ft.

110 ft.

150 ft.

N/A

Estuarine

Low

Moderate

High

50 ft.

75 ft.

100 ft.

25 ft.

35 ft.

15 ft.

75 ft.

110 ft.

115 ft.

N/A

Not meeting any of the above criteria

Low

Moderate

High

50 ft.

75 ft.

100 ft.

0 ft.

0 ft.

0 ft.

50 ft.

75 ft.

100 ft.

N/A

Table 16.12.060-5: Category III Wetlands – Buffers

Wetland Characteristics

Impact of Land Use (See Definitions)

Water Quality Buffer

Habitat Buffer

Total Buffer

Other Protection

Moderate level of function for habitat (score for habitat is 20 – 28 pts.)

Low

Moderate

High

40 ft.

60 ft.

80 ft.

35 ft.

50 ft.

70 ft.

75 ft.

110 ft.

150 ft.

N/A

Not meeting above criterion

Low

Moderate

High

60 ft.

60 ft.

80 ft.

0 ft.

0 ft.

0 ft.

60 ft.

60 ft.

80 ft.

N/A

Table 16.12.060-6: Category IV Wetlands – Buffers

Wetland Characteristics

Impact of Land Use (See Definitions)

Water Quality Buffer

Habitat Buffer

Total Buffer

Other Protection

Larger than 10,000 square feet

Low

Moderate

High

40 ft.

40 ft.

50 ft.

0 ft.

0 ft.

0 ft.

40 ft.

40 ft.

50 ft.

N/A

Smaller than 10,000 square feet

Low

Moderate

High

40 ft.

40 ft.

40 ft.

0 ft.

0 ft.

0 ft.

40 ft.

40 ft.

40 ft.

N/A

i. For Category II or III wetlands smaller than 10,000 square feet with a habitat score of less than 20 points, the buffer may be reduced by 50 percent.

ii. For the purpose of determining the impact of land use, unless the director determines a lesser level of impact is appropriate based on information provided by the applicant, the intensity of impact of the adjacent land use is determined based on the “impact of land use” definition.

e. If an applicant elects to propose an HMP, and that HMP proposes habitat buffer widths less than those prescribed in Tables 16.12.060-3 through 16.12.060-6, the HMP shall be prepared pursuant to subsection E of this section and fulfill all requirements specified therein.

f. Table 16.12.060-7 provides examples of measures that might be provided in an HMP or when prescribed buffers are otherwise altered to minimize impacts of certain activities. Other measures may also be effective in minimizing impacts depending on site-specific circumstances and the nature of proposed activity.

Table 16.12.060-7: Examples of Measures to Minimize Impacts to Wetlands from Different Types of Activities 

Examples of Disturbance

Examples of Measures to Minimize Impacts

Activities that Cause the Disturbance

Lights

Direct lights away from wetland.

Parking lots, warehouses, manufacturing, residential

Noise

Locate activity that generates noise away from wetland.

Manufacturing, residential

Toxic runoff*

Route all new runoff away from wetland.

Establish covenants limiting use of pesticides within 150 ft. of wetland.

Apply integrated pest management.

Parking lots, roads, manufacturing, residential areas, application of agricultural pesticides, landscaping

Change in water regime

Infiltrate or treat, detain, and disperse new runoff into buffer.

Impermeable surfaces, lawns, tilling

Pets

Plant dense vegetation around buffer, such as rose, hawthorn, etc.

Residential areas

Human disturbance

Plant buffer with impenetrable natural vegetation appropriate for region.

Residential areas

Dust

Utilize best management practices to control dust.

Tilled fields

*These examples are not necessarily adequate to meet the rules for minimizing toxic runoff if threatened or endangered species are present at the site.

g. Buffer Measurement. All buffers shall be measured on a horizontal plane from the regulated wetland edge as marked in the field.

h. Fencing and Signs. This section applies to those wetlands and their buffers that are within 200 feet of regulated development activities.

i. Wetland buffers shall be temporarily fenced or otherwise suitably marked, as required by the director, between the area where the construction activity occurs and the buffer. Fences shall be made of a durable protective barrier and shall be highly visible. Silt fences and plastic construction fences may be used to prevent encroachment on wetlands or their buffers by construction. Temporary fencing shall be removed after the site work has been completed and the site is fully stabilized per city approval.

ii. The director may require that permanent signs and/or fencing be placed on the common boundary between a wetland buffer and the adjacent land. Such signs will identify the wetland buffer. The director may approve an alternate method of wetland and buffer identification, if it provides adequate protection to the wetland and buffer.

i. Building or Impervious Surface Setback Lines. A building or impervious surface setback line of 15 feet is required from the edge of any wetland buffer. Minor structural or impervious surface intrusions into the areas of the setback may be permitted if the director determines that such intrusions will not adversely impact the wetland. The setback shall be identified on a site plan and filed as an attachment to a notice on title.

5. Regulated Uses and Activities. New development activities on properties containing regulated wetlands and buffers are subject to the development standards in this section, as permitted in the underlying zoning designation. Requirements for additional activities are specified in Table 16.12.060-8. The city may grant exceptions to these uses and activities according to the intent and specifications of this section. All authorized uses and activities in a regulated wetland or its buffer shall be subject to conditions established by the director and may be subject to mitigation as required by this section.

Development shall be classified as “allowed,” “permitted,” “special use” or “prohibited” according to this section. Any regulated uses not specifically listed in Tables 16.12.060-8 and 16.12.030-1 shall be considered unclassified and may be allowed if granted a special use review in accordance with this section and the shoreline master program. For the purpose of Table 16.12.060-8, “W” and “B” refer to the terms “wetland” and “buffer.”

 

Table 16.12.060-8: Regulated Uses and Activities in Regulated
Wetlands and Buffers 

 

Category I

Category II

Category III

Category IV

W

B

W

B

W

B

W

B

1. Draining wetlands (associated with no other permitted use, except as allowed under BIMC 16.20.160.C.2)

X

N/A

X

N/A

X

N/A

X

N/A

2. Driving of piles

X

X

S

S

S

S

P

P

3. Educational or scientific activities

P

P

P

P

P

P

P

P

4. Enhancement

S

S

P

P

P

P

P

P

5. Excavation (not associated with enhancement)

X

X

S

S

S

S

S

S

6. Fill (associated with no other use)

X

X

X

X

X

X

X

X

7. Fish hatchery

X

X

S

S

S

S

S

S

8. Flooding (associated with no other use)

X

X

S

S

S

S

S

S

9. Forest practice – Class IV General or COHP

X

X

X

X

X

X

X

X

10. Golf course

X

X

X

X

S

S

S

S

11. Land division

P

P

P

P

P

P

P

P

12. Parks development – Public and private

S

S

S

S

S

S

P

P

13. Placing of obstruction

X

X

X

X

X

X

X

X

14. Public facility

X

X

X

S

S

S

S

S

15. Public project of significant importance

S

S

S

S

S

S

S

S

16. Radio/TV towers

X

X

S

S

S

S

S

S

17. Restoration/revegetation of site

S

S

P

P

P

P

P

P

18. Road/street – Public/private access

 

 

 

 

 

 

 

 

A) Expand within existing ROW

S

S

S

S

S

S

P

P

B) New facilities

X

X

S

S

S

S

S

S

19. Signs (interpretation, hazard, critical area boundary, survey markers)

P

P

P

P

P

P

P

P

20. Site investigation

 

 

 

 

 

 

 

 

A) Nonmechanized

A

A

A

A

A

A

A

A

B) Mechanized

P

P

P

P

P

P

P

P

21. Trails and trail related facilities

P

P

P

P

P

P

P

P

22. Utility facility

X

X

S

S

S

S

S

S

23. Utility – On-site sewage facility

X

X

X

S

X

S

X

S

24. Utility line – Overhead

S

S

S

S

S

S

P

P

25. Utility line – Underground

X

S

S

S

S

S

S

S

Key: A = Allowed Outright  P = Permitted Subject to Development Standards and Underlying Permit S = Special Use Review Required X = Prohibited

6. Additional Development Standards for Regulated Uses. In addition to meeting the development standards in subsection L.4 of this section, those regulated uses identified below shall also comply with the standards of this section and other applicable state, federal and local ordinances.

a. Forest Practice, Class IV General, and Conversion Option Harvest Plans (COHPs). All timber harvesting and associated development activity, such as construction of roads, shall comply with the provisions of this section, including the maintenance of buffers around regulated wetlands.

b. Land Divisions and Land Use Permits.

i. Density Calculation.

(A) The actual density that will be allowed to be built upon a parcel containing a wetland shall ultimately be determined during the site-specific review of the parcel’s planned development;

(B) In determining the actual density of a parcel based on a specific site plan, the site plan shall locate all buildings outside of the wetland buffers;

(C) The number of development rights allowed for any residentially zoned parcel shall be its size in square feet divided by the number of square feet per home that is required by its zoning;

(D) If the land can be subdivided such that all setbacks, buffers, and other zoning requirements can be observed, and no variances are requested, the density from the wetland can be transferred within the property;

(E) To the extent that the number of allowable development rights cannot be used on site, they may be sold, traded, or transferred by the property owner through the transfer of development rights program pursuant to Chapter 18.37 BIMC;

(F) Property owners may voluntarily extinguish development rights that are provided by the underlying zoning, but the city shall not extinguish any of these rights outside the aforementioned transactions.

ii. Land division approvals shall be conditioned to require that regulated wetlands and regulated wetland buffers be designated as an easement or covenant encumbering the wetland and wetland buffer. Such easement or covenant shall be recorded together with the land division and represented on the final plat or binding site plan, and title.

iii. In order to implement the goals and policies of this section, to accommodate innovation, creativity, and design flexibility, and to achieve a level of environmental protection that would not be possible by typical lot-by-lot development, the use of the clustered development or similar innovative site planning is strongly encouraged for projects with regulated wetlands on the site.

c. Surface Water Management. The following stormwater management activities may be allowed within wetland or buffer areas only if they meet the following requirements, in addition to the development standards in this section and in conformance with the stormwater management ordinance, Chapter 15.20 BIMC:

i. Surface water discharges from stormwater facilities or structures; provided, that the new surface water discharges to regulated wetlands from retention/detention facilities;

ii. Pre-settlement ponds or other surface water management structures; provided, that the discharge does not significantly increase or decrease the rate of flow and/or hydro-period, nor decrease the water quality of the wetland. Water quality treatment best management practices will be required prior to discharge. Pre-treatment of surface water discharge through biofiltration or other means shall be required.

d. Trails and Trail-Related Facilities. Construction of public and private trails and trail-related facilities, such as benches and viewing platforms, may be allowed in wetlands or wetland buffers pursuant to the following guidelines:

i. Trails and related facilities shall, to the extent feasible, be placed on existing road grades, utility corridors, or any other previously disturbed areas which do not provide ecological functions.

ii. Trails and related facilities shall be planned to minimize removal of trees, soil disturbance, and existing hydrological characteristics, shrubs, snags, and important wildlife habitat.

iii. Viewing platforms and benches, and access to them, shall be designed and located to minimize disturbance of wildlife habitat and/or critical characteristics of the affected wetland.

iv. Trails and related facilities shall generally be located outside required buffers. Where trails are permitted within buffers they shall be located in the outer portion of the buffer and a minimum of 25 feet from the wetland edge, except where wetland crossings or viewing areas have been approved by the director. Trail locations close to the wetland may be allowed if the primary purpose of the trail is wetland viewing or enjoyment. Elevated trails which protect or enhance ecological functions shall be used to the maximum extent feasible.

v. Trails shall generally be limited to pedestrian use unless other more intensive uses, such as bike or horse trails, have been specifically allowed and mitigation has been provided. Trail width shall not exceed five feet unless there is a demonstrated need, subject to review and approval by the director. Trails shall be constructed with pervious materials unless otherwise approved by the director.

e. Parks. Development of public park and recreation facilities may be permitted; provided, that no alteration of wetlands or wetland buffers is allowed except for uses allowed in Table 16.12.060-8. For example, enhancement of wetlands and development of trails may be allowed in wetlands and wetland buffers subject to special use requirements and approval of a wetland mitigation plan.

f. Educational or Scientific Activities. These activities shall only be permitted if they are directly related to the affected wetland and related buffers, and may include the viewing and sampling of natural systems. They may also include the installation of physical structures, including pervious trails, benches, permanent wildlife watching blinds, boardwalks, viewing platforms, or similar structures, or minor modifications to wetlands and their buffers. Any physical structures or minor modifications are subject to city approval to minimize the impacts of human intrusion on the functions and values of critical areas and their buffers according to the following criteria:

i. Minimize the footprint of structures and the number of access points to any particular critical area;

ii. Minimize the amount of clearing and grading;

iii. Elevate structures where possible;

iv. Avoid impacting the flow of water;

v. Use appropriate building materials; and

vi. Minimize the impacts of construction.

7. Special Use Review. Development identified as a special use review in Table 16.12.060-8 may be approved, with conditions, or denied according to the procedures and criteria outlined in this subsection. Special use review is an administrative process unless the underlying permit requires a public hearing.

a. The director is authorized to take action on permits as required by this section.

b. The director may approve a permit after review of the application and a wetland mitigation plan submitted in accordance with this section. The director shall determine whether the use or activity cannot be avoided because no reasonable or practicable alternative exists, the proposed use is consistent with the spirit and intent of this section and it will not cause adverse impacts to the wetland or the wetland buffer which cannot be mitigated. In taking action to approve a special use review, the director may attach reasonable conditions as necessary to minimize impacts, rectify impacts or compensate for impacts to the wetland or wetland buffer.

c. The director shall deny a special use review request if the proposed use or activity is inconsistent with this section and/or will cause adverse impacts to the wetland or wetland buffer, which cannot be adequately mitigated and/or avoided.

d. Special use review requests for agricultural conversions shall include a farm plan developed by the Kitsap Conservation District. The plan shall identify the best management practices for the proposed agricultural activity.

e. Special use review determinations are appealable to the hearings examiner pursuant to BIMC 2.16.020.P.

8. Wetlands and Streams Restoration, Creation, Mitigation, or Enhancement.

a. Any person who alters regulated wetlands or streams or their standard buffers as required by this section shall restore, create or enhance equivalent areas or greater areas than those altered in order to compensate for losses. In the alternative, conservation easements or mitigation banking may be considered as appropriate mitigation; provided, that areas equivalent to those altered are achieved.

b. Where feasible, restored or created wetlands and streams shall be a higher category than the altered wetland or stream.

c. Compensation areas shall be determined according to function, acreage, type, location, time factors, ability to be self-sustaining and projected success. Multiple compensation projects may be proposed for one project in order to best achieve the goal of no net loss.

d. Given the need for expertise and monitoring, voluntary restoration, creation or enhancement projects or compensatory projects may be permitted only when the director finds that the proposed project is associated with an activity or development otherwise permitted. Additionally, the applicant shall:

i. Demonstrate sufficient scientific expertise, supervisory capability, and financial resources to carry out the project;

ii. Demonstrate the capability for monitoring the site and to make corrections during this period if the project fails to meet projected goals and plans; and

iii. Provide for the long-term protection and management of the compensation area to avoid further development or degradation.

e. Acreage Replacement Ratio. Any applicant proposing to alter wetlands may propose to reestablish, create, rehabititate, or enhance wetlands in order to compensate for the wetland losses.

i. Replacement Ratios for Wetlands. Table 16.12.060-9 provides the required replacement ratios for the reestablishment or creation, rehabilitation, or enhancement of a wetland. The first number specifies the replacement acreage of wetlands and the second specifies the acreage of wetlands altered.

 

Table 16.12.060-9: Replacement Ratios for Wetlands

Category and Type

Reestablishment or Creation

Rehabilitation

1:1 Reestablishment or Creation (R/C) or Enhancement (E)

Enhancement Only

I – Forested

6:1

12:1

1:1 R/C 10:1 E

24:1

I – Highly functioning

4:1

8:1

1:1 R/C 6:1 E

16:1

I – Bog

Not possible

6:1 of a Bog

Case-by-Case

Case-by-Case

I – Estuarine

Case-by-Case

6:1 – Estuarine

Case-by-Case

Case-by-Case

II – Estuarine

Case-by-Case

4:1 – Estuarine

Case-by-Case

Case-by-Case

II – Others

3:1

8:1

1:1 R/C 4:1 E

12:1

III

2:1

4:1

1:1 R/C 2:1 E

8:1

IV

1.5:1

3:1

1:1 R/C 2:1 E

6:1

ii. Replacement ratios for buffers shall be 1:1.

iii. Increased Replacement Ratio. The director may increase the ratios under the following circumstances:

(A) Uncertainty as to the probable success of the proposed rehabilitation or creation;