Chapter 18.70
FISH AND WILDLIFE HABITAT CONSERVATION AREAS

Sections:

Article I. Designation and Mapping

18.70.010    Designation of fish and wildlife habitat conservation areas.

18.70.020    Mapping of fish and wildlife habitat conservation areas.

Article II. Additional Report Requirements – Habitat Conservation Areas

18.70.030    Critical area report – Additional requirements for habitat conservation areas.

Article III. Performance Standards

18.70.040    Performance standards – General requirements.

18.70.050    Performance standards – Specific habitats.

18.70.060    Designation of habitats and species of local importance.

Article I. Designation and Mapping

18.70.010 Designation of fish and wildlife habitat conservation areas.

Fish and wildlife habitat conservation areas include:

A. The documented presence of species proposed or listed by the federal government or state of Washington as endangered, threatened, or sensitive.

B. State priority habitats and areas associated with state priority species.

C. Naturally occurring ponds under twenty acres in size. Naturally occurring ponds include those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation.

D. Heron rookeries or raptor nesting trees.

E. Category I and II wetlands as defined in this title.

F. Waters of the state as classified in WAC 222-16-031.

G. Areas of native vegetation and/or stands of significant trees as designated by a qualified professional that provide a corridor between any of the critical fish and wildlife habitat areas listed in this section.

H. Land essential for preserving connections between habitat blocks and open spaces. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.70.020 Mapping of fish and wildlife habitat conservation areas.

The following maps, which may be continuously updated, may be used as a guide for locating habitat conservation areas:

A. Washington Department of Fish and Wildlife Priority Habitat and Species maps;

B. Washington State Department of Natural Resources Official Water Type Reference maps;

C. Washington State Department of Natural Resources Natural Heritage Program mapping data;

D. Anadromous and resident salmonid distribution maps;

E. Habitat limiting factors reports published by the Washington Conservation Commission; and

F. Washington State Department of Natural Resources State Natural Area Preserves and Natural Resource Conservation Area maps. (Ord. 389 § 1 (Exh. A) (part), 2011)

Article II. Additional Report Requirements – Habitat Conservation Areas

18.70.030 Critical area report – Additional requirements for habitat conservation areas.

In addition to the general critical area report requirements of BMC 18.10.160, critical area reports for habitat conservation areas must meet the requirements of this section.

A. Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the potential presence or absence of a critical fish or wildlife species or habitat. A critical area report for a habitat conservation area shall be prepared by a qualified professional and shall contain an assessment of habitats including the following site- and proposal-related information at a minimum:

1. Detailed description of vegetation on and adjacent to the project area.

2. Identification of any species of local importance, priority species, or endangered, threatened, sensitive or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species.

3. A discussion of any federal, state, or local special management recommendations, including Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area.

4. A detailed discussion of the potential impacts on habitat by the project, including potential impacts to water quality.

5. A discussion of measures, including avoidance, minimization and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with BMC 18.10.190, Mitigation sequencing.

6. A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.

B. Additional Information May Be Required. When appropriate due to the type of habitat or species present or the project area conditions, the director may also require the habitat management plan to include:

1. An evaluation by an independent qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate.

2. A request for consultation with the Department of Fish and Wildlife or the affected Indian tribe.

3. Detailed surface and subsurface hydrologic features both on and adjacent to the site. (Ord. 389 § 1 (Exh. A) (part), 2011)

Article III. Performance Standards

18.70.040 Performance standards – General requirements.

A. Regulations Are in Addition to Other Regulations in This Title. All regulations for fish and wildlife habitat conservation areas are in addition to regulations that govern these sensitive areas in other portions of this title. Whenever a conflict occurs between these regulations, the one that provides the most protection for the sensitive area shall govern.

B. Alterations Shall Not Degrade the Functions and Values of Habitat. All new structures and land alterations shall be prohibited from habitat conservation areas, except in accordance with this title. A habitat conservation area may be altered only if the proposed alteration of the habitat or the mitigation proposed does not degrade the quantitative and qualitative functions and values of the habitat. All unavoidable impacts shall be fully mitigated.

C. Non-Indigenous Species Shall Not Be Introduced. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.

D. Mitigation Shall Result in Contiguous Corridors. Mitigation sites shall be located to achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical area report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

E. Approvals of Activities May Be Conditioned. The director shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary to minimize or mitigate any potential adverse impacts. Conditions may include, but are not limited to, the following:

1. Establishment of buffer zones.

2. Preservation of critically important vegetation.

3. Limitation of access to the habitat area, including fencing to deter unauthorized access.

4. Seasonal restriction of construction activities.

5. Establishment of a duration and timetable for periodic review of mitigation activities.

6. Requirement of a performance bond or other security in accordance with BMC 18.10.280, when necessary, to ensure completion and success of proposed mitigation.

F. Buffers.

1. Establishment of Buffers. The director shall require the establishment of buffer areas for activities in, or adjacent to, habitat conservation areas when needed to protect habitat conservation areas. Buffers shall consist of an undisturbed area of native vegetation, or areas identified for restoration, established to protect the integrity, functions and values of the affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby, and shall be consistent with the management recommendations issued by the State Department of Fish and Wildlife. Habitat conservation areas and their buffers shall be preserved in perpetuity through the use of critical area tracts in accordance with BMC 18.10.260.

2. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply. Larger buffers may be required and activities may be further restricted during the specified season.

G. Fencing.

1. The director shall condition any permit or authorization issued pursuant to this title to require the applicant to install a permanent fence at the edge of the habitat conservation area or buffer, when fencing will prevent future impacts to the habitat conservation area.

2. The applicant shall be required to install a permanent fence, as determined by the director, around the habitat conservation area or buffer when domestic grazing animals are present or may be introduced on site.

3. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.70.050 Performance standards – Specific habitats.

A. Endangered, Threatened, and Sensitive Species.

1. No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association.

2. Whenever activities are proposed adjacent to a habitat conservation area with which state or federally endangered, threatened, or sensitive species have a primary association, such area shall be protected through the application of protection measures in accordance with a critical area report prepared by a qualified professional and approved by the city. Approval for alteration of land adjacent to the habitat conservation area or its buffer shall not occur prior to consultation with the Department of Fish and Wildlife and the appropriate federal agency.

3. Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292). Whenever activities are proposed adjacent to a verified nest territory or communal roost, a habitat management plan shall be developed by a qualified professional. Activities are adjacent to bald eagle sites when they are within eight hundred feet, or within one-half mile (two thousand six hundred forty feet) and in a shoreline foraging area. The city shall verify the location of eagle management areas for each proposed activity. Approval of the activity shall not occur prior to approval of the habitat management plan by the Department of Fish and Wildlife.

B. Anadromous Fish.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a. Activities shall be timed to occur only during the allowable work window as designated by the Department of Fish and Wildlife for the applicable species;

b. An alternative alignment or location for the activity is not feasible;

c. The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas; and

d. Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report.

2. Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided that allow the upstream migration of fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed.

3. Fills, when authorized by the Brier shoreline management program, shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impacts, and shall only be allowed for a water-dependent use and when no feasible alternative exists.

C. Aquatic Habitat. The following specific activities may be permitted within a riparian habitat area, pond, lake, water of the state or associated buffer when the activity complies with the provisions set forth in the Brier Shoreline Management Program and subject to the standards of this subsection and other provisions of this title. The standards that provide the most protection to protected habitat and species shall apply.

1. Clearing and Grading. When clearing and grading is permitted as part of an authorized activity or as otherwise allowed in these standards, the following shall apply:

a. Grading is allowed only during the dry season, which is typically regarded as beginning on May 1st and ending on October 1st of each year; provided, that the city may extend or shorten the dry season on a case-by-case basis, determined on actual weather conditions.

b. Filling or modification of a wetland or wetland buffer is permitted only if it is conducted as part of an approved wetland alteration.

c. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the project area.

d. The moisture-holding capacity of the topsoil layer shall be maintained by minimizing soil compaction or reestablishing natural soil structure and infiltrative capacity on all areas of the project area not covered by impervious surfaces.

e. Erosion and sediment control that meets or exceeds the standards set forth in the latest version of the Department of Ecology Stormwater Management Manual for Western Washington shall be provided. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.70.060 Designation of habitats and species of local importance.

A. Habitats and species of local importance are those identified within the city’s “Inventory of Species and Habitats of Local Importance,” including but not limited to those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection. A habitat of local importance must be composed of habitat elements, such as vegetation, that are native to Brier. A species of local importance must be native to Brier.

B. Habitats may include a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

C. The city shall accept and consider nomination for habitat areas and species to be designated as locally important on an annual basis.

D. Habitats and species to be designated shall exhibit at least one of the criteria in subsections (D)(1) through (3) of this section and shall meet criteria in subsections (D)(4) and (5) of this section.

1. Local populations of native species are in danger of extirpation based on existing trends, including:

a. Local populations of native species that are likely to become endangered; or

b. Local populations of native species that are vulnerable or declining; or

2. The species or habitat has recreation, commercial, game, tribal, or other special value; or

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

4. 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; and

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

E. Areas nominated to protect a particular habitat or species must represent high-quality native habitat or habitat that either has a high potential to recover to a suitable condition and is of limited availability or provides landscape connectivity which contributes to the designated species or habitat’s preservation.

F. Habitats and species may be nominated for designation by any resident of Brier.

G. The petition to nominate an area or a species to this category shall contain all of the following:

1. A completed SEPA environmental checklist;

2. A written statement using best available science to show that nomination criteria are met;

3. A written proposal including specific and relevant protection regulations that meet the goals of this chapter. 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;

4. Demonstration of relevant, feasible, management strategies that are effective and within the scope of this chapter;

5. Provision of species habitat location(s) on a map that works in concert with other city maps;

6. A financial report identifying the cost of implementing a mitigation or protection plan and the financial impact of the requested designation upon affected properties;

7. Documentation of public notice methods that the petitioner(s) have used. Examples of reasonable methods are:

a. Posting the property;

b. Publishing a paid advertisement in a newspaper or newsletter of circulation in the general area of the proposal, where interested persons may review information on the proposal. Information in the notice must contain a description of the proposal, general location of the affected area and where comments on the proposal may be sent;

c. Notification to public or private groups in the affected area that may have an interest in the petition;

d. News media articles that have been published concerning the proposal;

e. Notices placed at public buildings or bulletin boards in the affected area;

f. Mailing of informational flyers to property owners within the affected area; and

8. Signatures of all petitioners.

H. The director shall determine whether the nomination proposal is complete, and if complete, shall evaluate it according to the characteristics enumerated in subsection D of this section and make a recommendation to the planning commission based on those findings.

I. The planning commission shall hold a public hearing for proposals found to be complete and make a recommendation to the city council based on the characteristics enumerated in subsection D of this section.

J. Following the recommendation of the planning commission, the city council may hold an additional public hearing and shall determine whether to designate a habitat or species of local importance.

K. Approved nominations will be subject to the provisions of this title. (Ord. 389 § 1 (Exh. A) (part), 2011)