Section 40.440.040

40.440.040 Specific Activities

The following specific activities are subject to special procedures and standards as set forth below.

A. Routine Utility and Public Facility Maintenance and Operations.

The responsible official may issue programmatic permits for routine maintenance and operations of utilities and public facilities. The programmatic permit process shall not deny or unreasonably restrict a utility’s or public agency’s ability to provide services to the public. Programmatic permits only authorize activities specifically identified in the permit approval.

1. Application Submittal Requirements. Unless waived by the responsible official with specific findings in the approval document, applications for programmatic habitat permits shall include a programmatic permit plan that includes the following:

a. A discussion of the purpose and need for the permit;

b. A description of the scope of activities in habitat areas;

c. Identification of the geographical area to be covered by the permit;

d. The range of functions and values within designated habitat areas covered by the permit;

e. Specific measures and performance standards to be taken to avoid, minimize and mitigate impacts on the functions and values:

(1) Procedures for identification of designated habitat areas;

(2) Maintenance practices proposed to be used;

(3) Restoration measures;

(4) Mitigation measures and assurances;

(5) Annual reporting to the responsible official that documents compliance with permit conditions and proposes any additional measures or adjustments to the approved programmatic permit plan;

(6) Reporting to the responsible official any specific habitat degradations resulting from maintenance activities when the degradation occurs or within a timely manner;

(7) Responding to any department requests for information about specific work or projects;

(8) Procedures for reporting and/or addressing activities outside the scope of the approved permit.

(9) Training all employees, contractors and individuals under the supervision of the applicant who are involved in permitted work.

2. Permit Review.

a. Programmatic permit applications that are exempt from SEPA are subject to Type I review.

b. Programmatic permit applications that are not exempt from SEPA are subject to Type II review.

c. Programmatic permit applications under Type II review shall not be subject to the distribution requirements of Section 40.510.020(E)(2)(a)(3), (Public Notice). Within fourteen (14) calendar days after the date an application is accepted as fully complete, the county shall publish in a newspaper of general circulation a summary of the notice, including the date, time and manner of making comments, the nature and location of the proposal and instructions for obtaining further information.

3. Findings and Approval.

a. A decision approving, denying or re-authorizing a programmatic permit shall be supported by findings of fact relating to the standards and requirements of this chapter.

b. An approved programmatic permit must, at a minimum, include:

(1) A programmatic permit plan; and

(2) A provision stating the duration of the permit.

4. Duration and Re-authorization.

a. The duration of a programmatic permit is for five (5) years unless:

(1) An annual performance-based re-authorization program is approved within the permit; or

(2) A shorter duration is supported by findings.

b. Requests for re-authorization of a programmatic permit must be received prior to the expiration of the original permit.

(1) Re-authorization is reviewed and approved through the process described in subsections (A)(1) through (3) of this section.

(2) Permit conditions and performance standards may be modified through the re-authorization process.

(3) The responsible official may temporarily extend the original permit if the review of the re-authorization request extends beyond the expiration date.

B. Agricultural Uses, Including Animal Husbandry.

1. Applicability.

a. Non-Riparian Habitat.

(1) Agricultural activities in existence on July 11, 2006, within designated non-riparian habitat areas are presumed not to cause substantial degradation of existing habitat functions and values and are, therefore, exempt from regulation under this chapter. Determining what agricultural activities are in existence on July 11, 2006, shall take into account agricultural cycles that involve varying intensity of agricultural use.

(2) The conversion of designated non-riparian habitat areas to agricultural use subsequent to July 11, 2006, shall be subject to the non-development clearing rules of this chapter. Conversion does not include changes from one agricultural use to another agricultural use or changes in crops.

b. Riparian Habitat.

(1) Agricultural activities in existence on July 11, 2006, within designated riparian habitat areas, and the expansion thereof onto adjacent lands not to exceed twenty-five percent (25%) of the footprint of the existing agricultural use (agricultural/habitat protection plan only), shall be subject to the agricultural module provided below. Determining what agricultural activities are in existence on July 11, 2006, shall take into account agricultural cycles that involve varying intensity of agricultural use.

(2) The conversion of designated riparian habitat areas to agricultural use, other than an expansion allowed for in subsection (B)(1)(b)(1) of this section, subsequent to July 11, 2006, shall be subject to:

(a) The agricultural/habitat protection plan option (Section 40.440.040(B)(2)(a)), if undertaken on lands zoned agriculture, forest, or ag-wildlife;

(b) The non-development clearing rules of this chapter if undertaken on lands not zoned agriculture, forest, of ag-wildlife;

2. Agricultural Module. Where applicable, the following options are available to be used for compliance with this section.

a. Agricultural/Habitat Protection Plan Option.

(1) Regulated Area. For the purposes of an agricultural/habitat protection plan, the regulated riparian area shall be one hundred (100) feet from the ordinary high water mark of Type S streams, one hundred (100) feet from the ordinary high water mark of Type F streams, seventy-five (75) feet from the ordinary high water mark of Type Np streams, and seventy-five (75) feet from the ordinary high water mark of Type Ns streams. The plan may include practices and other mitigation measures on land outside the regulated riparian area to achieve the standard set forth in subsection (B)(2)(a)(2) of this section.

(2) Standard. An agricultural/habitat protection plan shall be approved if its implementation will not substantially degrade habitat functions and values that existed within the area designated in subsection (B)(2)(a)(1) of this section on July 11, 2006, considering normal fluctuations due to the agricultural cycle. A plan may be submitted by a group of neighborhood owners whose properties are in close proximity in which case the foregoing standard shall be applied to the common plan.

(3) Plan Contents. Agricultural/habitat protection plans shall, at a minimum, include the following:

(a) An approximate mapping of existing and proposed structures, roads, driveways, utilities, property lines, and agricultural uses.

(b) A map of regulated riparian habitat areas.

(c) Identification of existing habitat functions and values within the regulated habitat area on July 11, 2006, taking into account agricultural cycles that involve varying intensity of agricultural use.

(d) A description of best management practices and other mitigation measures to be undertaken in order to achieve the standard in subsection (B)(2)(a)(2) of this section.

(e) The owner’s signature attesting that the information in the plan is accurate to the best of the owner’s knowledge, and the mitigation measures specified in the plan will be implemented.

(f) The signature of an ag-habitat technician certified by the county attesting that he/she has inspected the area covered by the plan and that the plan satisfies the standard in subsection (B)(2)(a)(2) of this section.

(4) Guidelines. The responsible official shall work with a committee appointed by Council to include interest group representatives (at least one of whom shall be a designee of the Clark-Cowlitz Farm Bureau, whose view(s) shall be given appropriate weight to ensure that the guidelines will be both practical and cost effective) and habitat professionals to develop for Council adoption following a duly advertised public hearing a set of guidelines which:

(a) Includes a checklist to identify riparian habitat functions and values; and

(b) Identifies potential positive and negative habitat effects of various agricultural activities; and

(c) Describes best management practices and other measures to enhance the positive effects and mitigate or minimize any potential negative effects; and

(d) Includes “off-the-shelf” agricultural/habitat protection plans which may be applied to typical agricultural properties and activities.

The guidelines shall provide that pesticide use within riparian areas must be described in the management plan and conform to label instructions.

(5) Approval. Agricultural/habitat protection plans shall be prepared or reviewed and approved by an ag-habitat technician certified by the responsible official to have completed a training program on application of the guidelines. Ag-habitat technicians shall have received training in application of this chapter, which training program shall be made available to any interested party. Training classes may be facilitated by interest groups such as the Clark-Cowlitz Farm Bureau using trainers from the Clark Conservation District, WSU Extension, Natural Resource Conservation Service, or other groups as may be certified as qualified trainers by the responsible official. An ag-habitat technician shall approve the plan as meeting the standard and content requirements of Sections 40.440.040(B)(2)(a)(2) and (3). An owner dissatisfied with the review by an ag-habitat technician may seek approval of the proposed management plan by the responsible official whose Type I decision may be appealed under the provisions of Chapter 40.510 (Type I, II, III and IV Processes).

(6) Filing. The ag-habitat technician shall notify the county responsible official of the adoption of an approved agricultural/habitat protection plan by a property owner indicating the property covered by the plan and, at the choice of the property owner, either providing a copy of the plan or summarizing the contents of the plan. Notice of such approval shall also be recorded with the Clark County Auditor and run with the land unless the plan is modified or rescinded.

(7) Modification/Rescission. Agricultural/habitat protection plans may be modified by the owner at any time utilizing the same process as applicable to initial approval. Plans may be rescinded by the owner with approval of the responsible official if the owner certifies either that future agricultural activities will be undertaken utilizing the default option or agricultural activities have ceased. Notice of modification/rescission shall be recorded with the Clark County Auditor.

b. Default Option.

(1) Regulated Area. For the purposes of the default option, the regulated riparian area is divided into two zones. Except as provided below, the inner zone, closest to the stream, extends from the ordinary high water mark outward fifty (50) feet on Types S and F streams and thirty (30) feet on Type N streams. The outer zone extends an additional fifty (50) feet on Types S and F streams and forty-five (45) feet on Type N streams. Where slopes exceed twenty-five percent (25%), the inner zone is the greater of the prescribed zone or the top of the slope break. Where wetlands are present within the inner zone, the zone is extended to the greater of the prescribed width of the inner zone or the wetland buffer as designated in Chapter 40.450 (Wetland Protection). However, in no case is the inner zone greater than the combined widths prescribed for in the inner and outer zones for that stream type. Where there is an existing road within the inner zone, the zone stops at the edge of the road improvement that is closest to the stream and the outer zone extends outward from that edge.

(2) Standard. Clearing within the inner zone is allowed only to enhance habitat functions and values. Animal husbandry within the inner zone is prohibited. Clearing and animal husbandry within the outer zone shall not substantially degrade habitat functions and values as they existed on July 11, 2006, after considering normal fluctuations due to the agricultural cycle. Although it is presumed that continuation of agricultural activities within the outer zone that existed on July 11, 2006, will not substantially degrade existing habitat functions and values, evidence of substantial degradation, such as excess sediment, nutrients or chemicals moving from the outer zone into the stream resulting from agricultural activities, constitute grounds for enforcement action which may require restoration of lost functions and values. Pesticide application within the outer zone must conform to label specifications and application within the inner zone must be by a licensed applicator.

(3) Reasonable Use. If the inner zone impacts more than fifty percent (50%) of a parcel that is ten (10) acres or less in area, or more than twenty-five percent (25%) of a parcel that is five (5) acres or less in area, the responsible official may approve a reasonable use reduction to the width of the inner zone. In such case, clearing and animal husbandry may be allowed up to ten (10) feet from the ordinary high water mark; provided, that reasonable practices and other appropriate mitigation measures are employed to limit sediment, nutrients and chemicals from entering the stream.

3. Administration.

a. No application fees apply to the approval of agriculture/habitat protection plans.

b. No county review is associated with the default option unless the owner seeks approval of a reasonable use reduction of the inner zone, which application shall be processed without application fees.

c. Evidence of violation of the standards in Section 40.440.040(B)(2)(a)(2) or (B)(2)(b)(2) shall be grounds for enforcement action under the provisions of Title 32 (Enforcement) and Section 40.440.030(F).

(Amended: Ord. 2006-06-09; Ord. 2006-07-09; Ord. 2006-08-03; Ord. 2019-05-07)