Section 40.450.040

40.450.040 Wetland Permits

A. General.

1. A wetland permit is required for any development activity that is not exempt pursuant to Section 40.450.010(C) within wetlands and wetland buffers.

2. Shoreline Master Program. Within shoreline jurisdiction, development may be allowed for those uses in the Shoreline Master Program either through a statement of exemption pursuant to Section 40.460.230(C) or through an application for a shoreline permit (substantial development, conditional use, or variance) to include a wetlands review pursuant to Section 40.460.530(G) and Sections 40.450.020, 40.450.030, and 40.450.040.

3. Standards for wetland permits are provided in Sections 40.450.040(B), (C) and (D).

4. All wetland permits require approval of a preliminary and final enhancement/mitigation plan in accordance with the provisions of Section 40.450.040(E) unless the preliminary enhancement/mitigation plan requirement is waived under the provisions of Section 40.450.040(E)(2).

5. Wetland permit application, processing, preliminary approval, and final approval procedures are set out in Sections 40.450.040(F) through (I).

6. Provisions for programmatic permits are provided by Section 40.450.040(K).

7. Provisions for emergency wetland permits are provided by Section 40.450.040(L).

(Amended: Ord. 2012-07-16; Ord. 2019-03-05; Ord. 2020-12-01)

B. Standards – General. Wetland permit applications shall be based upon a mitigation plan and shall satisfy the following general requirements:

1. The proposed activity shall not cause significant degradation of wetland functions;

2. The proposed activity shall comply with all state, local and federal laws, including those related to sediment control, pollution control, floodplain restrictions, Chapter 40.386, Stormwater and Erosion Control, and on-site wastewater disposal.

(Amended: Ord. 2015-11-24; Ord. 2019-03-05; Ord. 2020-12-01)

C. Buffer Standards and Authorized Activities. The following additional standards apply for regulated activities in a wetland buffer:

1. Reduced Width Based on Modification of Land Use Intensity. The required buffer width shall be decreased if design techniques are used that reduce the land use intensity category delineated in Table 40.450.030-4. Eligible design measures include the following:

a. General Site Design Measures. High intensity buffers may be reduced to moderate intensity buffers if all of the following mitigation measures are applied to the greatest extent practicable:

(1) Buffer Enhancement. Improve the function of the buffer such that buffer areas with reduced function can function properly. This could include the removal and management of noxious weeds and/or invasive vegetation or specific measures to improve hydrologic or habitat function.

(2) Shielding of High Intensity Uses.

(a) Lights. Direct all lights away from wetlands;

(b) Noise. Locate activity that generates noise away from wetlands;

(c) Pets and Human Disturbance. Use privacy fencing; plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the eco-region; place wetland and its buffer in a separate tract.

(3) Surface Water Management.

(a) Existing Runoff. Retrofit stormwater detention and treatment for roads and existing development to the extent determined proportional by the responsible official, and disperse direct discharge of channelized flows from lawns and landscaping;

(b) Change in Water Regime. Infiltrate and/or disperse stormwater runoff from impervious surfaces and drainage from lawns and landscaping treated in accordance with Chapter 40.386 into the buffer at multiple locations.

b. Low Impact Development Design. High intensity buffers may be reduced to moderate or low intensity buffers under the following circumstances:

(1) Limiting stormwater runoff volumes to avoid impacts to receiving waters and wetlands adjacent to the site.

(a) Reduction to moderate intensity buffers, by:

(i) Meeting the standards for full dispersion in Chapter 40.386 over seventy-five percent (75%) of the site; or

(ii) Infiltration of fifty percent (50%) of the stormwater runoff from the site; or

(iii) Using low impact development BMPs pursuant to Chapter 40.386 to reduce stormwater runoff volume generated from the site to no more than fifty percent (50%) of the runoff volume generated by using standard collection and treatment BMPs.

(b) Reduction to low intensity buffers, by:

(i) Meeting the standards for full dispersion in Chapter 40.386 for the entire site; or

(ii) Infiltration of all stormwater runoff from the site; or

(iii) Using low impact development BMPs pursuant to Chapter 40.386 to match the predevelopment stormwater runoff volume from the site.

(2) Enhanced Stormwater Management. Reduction of high land use intensity buffer to moderate land use intensity buffer for implementation of stormwater treatment measures that exceed the standards of Chapter 40.386. This could include measures such as pretreatment or tertiary treatment of runoff and limiting discharge from the site to predevelopment runoff flow and volume.

c. Habitat Corridors. Establishment of a minimum one hundred (100) foot wide functioning or enhanced vegetated corridor between the wetland and any other priority habitat areas as defined by the Washington State Department of Fish and Wildlife reduces a high land use intensity buffer to a moderate land use intensity buffer provided both of the following conditions are met:

(1) Applies only to wetlands with habitat function scores higher than five (5) on the rating system form;

(2) The habitat corridor must be protected for the entire distance between the wetland and the priority habitat area by some type of permanent legal protection such as a covenant or easement.

d. The responsible official may determine that proposed measures, other than those specifically listed in Section 40.450.040(C)(1)(a) through (c), will effectively reduce land use intensity and protect or enhance and values of wetlands and, therefore, allow buffer modifications where appropriate.

2. Minimum Buffer. In the case of buffer averaging and buffer reduction via Section 40.450.040(C)(1), the minimum buffer width at its narrowest point shall not be less than the low intensity land use water quality buffer widths contained in Table 40.450.030-2.

3. Buffer Averaging. The boundary of the buffer zone may be modified by averaging buffer widths. If buffer averaging is used, the following conditions must be met:

a. A maximum of twenty-five percent (25%) of the total required buffer area on the site (after all reductions are applied) may be averaged; and

b. The total area contained in the buffer, after averaging, shall be at least functionally equivalent and equal in size to the area contained within the buffer prior to averaging.

4. Stormwater Facilities.

a. Dispersion Facilities. Stormwater dispersion facilities that comply with the standards of Chapter 40.386 shall be allowed in all wetland buffers. Stormwater outfalls for dispersion facilities shall comply with the standards in subsection (C)(4)(b) of this section. Enhancement of wetland buffer vegetation to meet dispersion requirements may also be considered as buffer enhancement for the purpose of meeting the buffer averaging or buffer reduction standards in this section.

b. Other stormwater facilities are only allowed in buffers of wetlands with low habitat function (less than six (6) points on the habitat section of the rating system form); provided, the facilities shall be built on the outer edge of the buffer and not degrade the existing buffer function and are designed to blend with the natural landscape. Unless determined otherwise by the responsible official, the following activities shall be considered to degrade a wetland buffer when they are associated with the construction of a stormwater facility:

(1) Removal of trees greater than four (4) inches diameter at four and one-half (4 1/2) feet above the ground or greater than twenty (20) feet in height;

(2) Disturbance of plant species that are listed as rare, threatened or endangered by the county or any state or federal management agency;

(3) The construction of concrete structures other than manholes, inlets, and outlets that are exposed above the normal water surface elevation of the facility;

(4) The construction of maintenance and access roads;

(5) Slope grading steeper than four to one (4:1) horizontal to vertical above the normal water surface elevation of the stormwater facility;

(6) The construction of pretreatment facilities such as forebays, sediment traps, and pollution control manholes;

(7) The construction of trench drain collection and conveyance facilities;

(8) The placement of fencing; and

(9) The placement of rock and/or riprap, except for the construction of flow spreaders, or the protection of pipe outfalls and overflow spillways; provided, that buffer functions for areas covered in rock and/or riprap are replaced.

5. Road and Utility Crossings. Crossing buffers with new roads and utilities is allowed provided all the following conditions are met:

a. Buffer functions, as they pertain to protection of the adjacent wetland and its functions, are replaced; and

b. Impacts to the buffer and wetland are minimized.

6. Other Activities in a Buffer. Regulated activities not involving stormwater management, road and utility crossings, or a buffer reduction per Section 40.450.040(C)(1) are allowed in the buffer if all the following conditions are met:

a. The activity is temporary and will cease or be completed within three (3) months of the date the activity begins;

b. The activity will not result in a permanent structure in or under the buffer;

c. The activity will not result in a reduction of buffer acreage or function;

d. The activity will not result in a reduction of wetland acreage or function.

(Amended: Ord. 2009-01-01; Ord. 2014-12-05; Ord. 2015-11-24; Ord. 2019-03-05; Ord. 2020-12-01)

D. Standards – Wetland Activities. The following additional standards apply to the approval of all activities permitted within wetlands under this section:

1. Sequencing. Applicants shall demonstrate that a range of project alternatives have been given substantive consideration with the intent to avoid or minimize impacts to wetlands. Documentation must demonstrate that the following hierarchy of avoidance and minimization has been pursued:

a. Avoid impacts to wetlands unless the responsible official finds that:

(1) For Category I and II wetlands, avoiding all impact is not in the public interest or will deny all reasonable economic use of the site;

(2) For Category III and IV wetlands, avoiding all impact will result in a project that is either:

(a) Inconsistent with the Clark County Comprehensive Growth Management Plan;

(b) Inconsistent with county-wide critical area conservation goals; or

b. Minimize impacts to wetlands if complete avoidance is infeasible. The responsible official must find that the applicant has limited the degree or magnitude of impact to wetlands by using appropriate technology and by taking affirmative steps to reduce impact through efforts such as:

(1) Seeking easements or agreements with adjacent land owners or project proponents where appropriate;

(2) Seeking reasonable relief that may be provided through application of other county zoning and design standards;

(3) Site design; and

(4) Construction techniques and timing.

c. Compensate for wetland impacts that will occur, after efforts to minimize have been exhausted. The responsible official must find that:

(1) The affected wetlands are restored to the conditions existing at the time of the initiation of the project;

(2) Unavoidable impacts are mitigated in accordance with this subsection; and

(3) The required mitigation is monitored and remedial action is taken when necessary to ensure the success of mitigation activities.

2. Location of Wetland Mitigation. Wetland mitigation for unavoidable impacts shall be located using the following prioritization:

a. On-site. Locate mitigation according to the following priority:

(1) Within or adjacent to the same wetland as the impact;

(2) Within or adjacent to a different wetland on the same site;

b Off-site. Locate mitigation within the same watershed, as shown on Figure 40.450.040-1, or use an established wetland mitigation bank; the service area determined by the mitigation bank review team and identified in the executed mitigation bank instrument;

c. In-kind. Locate or create wetlands with similar landscape position and the same hydro-geomorphic (HGM) classification based on a reference to a naturally occurring wetland system; and

d. Out-of-kind. Mitigate in a different landscape position and/or HGM classification based on a reference to a naturally occurring wetland system.

3. Types of Wetland Mitigation. The various types of wetland mitigation allowed are listed below in the general order of preference.

a. Restoration. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former or degraded wetland. For the purpose of tracking net gains in wetland acres, restoration is divided into:

(1) 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 wetland. Reestablishment results in a gain in wetland acres (and functions). Activities could include removing fill material, plugging ditches, or breaking drain tiles.

(2) Rehabilitation. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a degraded wetland. Rehabilitation results in a gain in wetland function, but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland.

b. Creation (Establishment). The manipulation of the physical, chemical, or biological characteristics of a site with the goal of developing a wetland on an upland or deepwater site where a wetland did not previously exist. Establishment results in a gain in wetland acres. Activities typically involve excavation of upland soils to elevations that will produce a wetland hydroperiod, create hydric soils, and support the growth of hydrophytic plant species.

c. Enhancement. The manipulation of the physical, chemical, or biological characteristics of a wetland site to heighten, intensify, or improve the specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, flood water retention, or wildlife habitat. Enhancement results in a change in some wetland functions and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities.

Figure 40.450.040-1

Clark County Watershed Map

(Amended: Ord. 2007-06-05; Ord. 2014-12-05; Ord. 2020-12-01)

d. Protection/Maintenance (Preservation). Removing a threat to, or preventing the decline of, wetland conditions by an action in or near a wetland. This includes the purchase of land or easements repairing water control structures or fences, or structural protection such as repairing a barrier island. This term also includes activities commonly associated with the term preservation. Preservation does not result in a gain of wetland acres, but may result in improved wetland functions.

4. Wetland Mitigation Ratios.

a. Standard Wetland Mitigation Ratios. The following mitigation ratios for each of the mitigation types described in Sections 40.450.040(D)(3)(a) through (c) apply:

Table 40.450.040-1. Standard Wetland Mitigation Ratios (In Area)
Wetland to Be Replaced	Reestablishment or Creation	Rehabilitation	Reestablishment or Creation and Rehabilitation	Reestablishment or Creation and Enhancement	Enhancement
Category IV	1.5:1	3:1	1:1 R/C and 1:1 RH	1:1 R/C and 2:1 E	6:1
Category III	2:1	4:1	1:1 R/C and 2:1 RH	1:1 R/C and 4:1 E	8:1
Category II	3:1	6:1	1:1 R/C and 4:1 RH	1:1 R/C and 8:1 E	12:1
Category I, Forested	6:1	12:1	1:1 R/C and 10:1 RH	1:1 R/C and 20:1 E	24:1
Category I, Based on Score for Functions	4:1	8:1	1:1 R/C and 6:1 RH	1:1 R/C and 12:1 E	16:1
Category I, Natural Heritage Site	Not Considered Possible	6:1 Rehabilitate a Natural Heritage Site	N/A	N/A	Case-by-Case

b. Preservation. The responsible official has the authority to approve preservation of existing wetlands as wetland mitigation under the following conditions:

(1) The wetland area being preserved is a Category I or II wetland or is within a WDFW priority habitat or species area;

(2) The preservation area is at least one (1) acre in size;

(3) The preservation area is protected in perpetuity by a covenant or easement that gives the county clear regulatory and enforcement authority to protect existing wetland and wetland buffer functions with standards that exceed the protection standards of this chapter;

(4) The preservation area is not an existing or proposed wetland mitigation site; and

(5) The following preservation/mitigation ratios apply:

Table 40.450.040-2. Ratios for Preservation of Category I and II Wetlands (In Area)
Habitat Function of Wetland to Be Replaced	In Addition to Standard Mitigation		As the Only Means of Mitigation
Habitat Function of Wetland to Be Replaced	Full and Functioning Buffer	Reduced and/or Degraded Buffer	Full and Functioning Buffer	Reduced and/or Degraded Buffer
Low (<6 points)	10:1	14:1	20:1	30:1
Moderate (6 – 7 points)	13:1	17:1	30:1	40:1
High (>7 points)	16:1	20:1	40:1	50:1

c. The responsible official has the authority to reduce wetland mitigation ratios under the following circumstances:

(1) Documentation by a qualified wetland specialist demonstrates that the proposed mitigation actions have a very high likelihood of success based on prior experience;

(2) Documentation by a qualified wetland specialist demonstrates that the proposed actions for compensation will provide functions and values that are significantly greater than the wetland being affected;

(3) The proposed actions for compensation are conducted in advance of the impact and are shown to be successful;

(4) In wetlands where several HGM classifications are found within one (1) delineated wetland boundary, the areas of the wetlands within each HGM classification can be scored and rated separately and the mitigation ratios adjusted accordingly, if all the following apply:

(a) The wetland does not meet any of the criteria for wetlands with “special characteristics,” as defined in the rating system;

(b) The rating and score for the entire wetland is provided as well as the scores and ratings for each area with a different HGM classification;

(c) Impacts to the wetland are all within an area that has a different HGM classification from the one used to establish the initial category; and

(d) The proponents provide adequate hydrologic and geomorphic data to establish that the boundary between HGM classifications lies at least fifty (50) feet outside of the footprint of the impacts.

5. Indirect Wetland Impacts Due to Loss of Buffer Function or Stormwater Discharges. Wetland mitigation shall be required in accordance with the wetland mitigation standards in this subsection for the following indirect wetland impacts:

a. Buffer loss resulting from wetland fills permitted under this section;

b. Reduction of wetland buffers beyond the maximum reduction allowed under Section 40.450.040(C)(2); provided, that such reductions are limited as follows:

(1) Road and utility crossings in the wetland buffer approved in accordance with Section 40.450.040(C)(5); and

(2) The total indirect wetland impact from buffer reductions is less than one-quarter (1/4) acre.

c. Unavoidable loss of wetland function due to stormwater discharges that do not meet the wetland protections standards in Chapter 40.386.

6. Wetland Buffers Required for Mitigation. Wetland mitigation shall, at a minimum, be protected by the water quality function wetland buffers required in Table 40.450.030-2:

a. If the wetland mitigation will provide habitat functions that require larger buffers per Table 40.450.030-2, wetland mitigation credit shall be reduced to account for loss of wetland buffer area and function if the required buffers are not provided;

b. Reductions to the required buffers may be applied in accordance with Sections 40.450.040(C) and (D)(5); and

c. All wetland buffers shall be included within the mitigation site and subject to the conservation covenant required under Section 40.450.030(F)(3).

7. Alternate Wetland Mitigation.

a. Wetland Mitigation Banking.

(1) Construction, enhancement or restoration of wetlands to use as mitigation for future wetland development impacts is permitted subject to the following:

(a) A wetland permit shall be obtained prior to any mitigation banking. If a wetland permit is not obtained prior to mitigation bank construction, mitigation credit shall not be awarded. On projects proposing off-site wetland banking in addition to required wetland mitigation, a separate wetland permit shall be required for each activity. The performance and maintenance bond requirements of Sections 40.450.040(H)(3)(c) and (d) shall not be applicable, provided there are no requests for mitigation credit prior to the county determining the mitigation banking is successful. If mitigation banking is not fully functioning, as defined in the wetland permit, at the time mitigation credit is requested, Sections 40.450.040(H)(3)(c) and (d) shall apply;

(b) Federal and state wetland regulations, if applicable, may supersede county requirements;

(2) The mitigation credit allowed will be determined by the county, based on the wetland category, condition and mitigation ratios as specified in Section 40.450.040(D)(4). Prior to granting mitigation banking credit, all wetland mitigation banking areas must comply with Sections 40.450.030(E)(4)(b) and (c), and, if applicable, Section 40.450.040(H)(3);

(3) On projects proposing off-site wetland banking in addition to required wetland mitigation, a separate permit fee will be required for each activity;

(4) Purchase of banked wetland credits is permitted to mitigate for wetland impacts in the same watershed provided the applicant has minimized wetland impacts, where reasonably possible, and the following requirements are met:

(a) Documentation, in a form approved by the Prosecuting Attorney, adequate to verify the transfer of wetland credit shall be submitted, and

(b) A plat note along with information on the title shall be recorded in a form approved by the Prosecuting Attorney as adequate to give notice of the requirements of this section being met by the purchase of banked wetland credits;

b. Cumulative Effects Fund. The county may accept payment of a voluntary contribution to an established cumulative effects fund for off-site watershed-scale habitat and wetland conservation in lieu of wetland mitigation of unavoidable impacts in the following cases:

(1) Residential building and home business permits where on-site enhancement and/or preservation is not adequate to meet the requirements of Section 40.450.040(D)(4);

(2) Approved reasonable use exceptions where sufficient on-site wetland and wetland buffer mitigation is not practical;

(3) Small impacts affecting less than one-tenth (1/10) acre of wetland where on-site enhancement and/or preservation is not adequate to meet the requirements of Section 40.450.040(D)(4); or

(4) As an additional mitigation measure when all other mitigation options have been applied to the greatest extent practicable.

8. Stormwater Facilities. Stormwater facilities are allowed in wetlands with habitat scores less than six (6) on the rating form, in compliance with the following requirements:

a. Stormwater detention and retention necessary to maintain wetland hydrology are authorized; provided, that the responsible official determines that wetland functions will not be degraded; and

b. Stormwater runoff is treated for water quality in accordance with the requirements of Chapter 40.386 prior to discharge into the wetland.

9. Utility Crossings. Crossing wetlands by utilities is allowed, provided the activity is not prohibited by Section 40.450.040(D)(1), and provided all the following conditions are met:

a. The activity does not result in a decrease in wetland acreage or classification;

b. The activity results in no more than a short-term six (6) month decrease in wetland functions; and

c. Impacts to the wetland are minimized.

10. Other Activities in a Wetland. Activities not involving stormwater management, utility crossings, or wetland mitigation are allowed in a wetland, provided the activity is not prohibited by Section 40.450.040(D)(1), and provided all the following conditions are met:

a. The activity shall not result in a reduction of wetland acreage or function; and

b. The activity is temporary and shall cease or be completed within three (3) months of the date the activity begins.

(Amended: Ord. 2009-01-01; Ord. 2014-12-05; Ord. 2015-11-24; Ord. 2019-03-05; Ord. 2020-12-01)

E. Mitigation Plans.

1. General. Mitigation plans are required for activities in a buffer or wetland. Content requirements which are inappropriate and inapplicable to a project may be waived by the responsible official upon request of the applicant at or subsequent to the preapplication consultation provided for in Section 40.450.040(F)(1).

2. Preliminary Mitigation Plan. The purpose of the preliminary plan is to determine the feasibility of the project before extensive resources are devoted to the project. The responsible official may waive the requirement for a preliminary mitigation plan when a wetland permit is not associated with a development permit application (listed in Section 40.450.010(B)). The preliminary mitigation plan consists of two (2) parts: baseline information for the site and a conceptual plan. If off-site wetland mitigation is proposed, baseline information for both the project site and mitigation site is required.

a. Baseline information shall include:

(1) Wetland delineation report as described in Section 40.450.030(D)(2);

(2) Copies of relevant wetland jurisdiction determination letters, if available, such as determinations of prior converted crop lands, correspondence from state and federal agencies regarding prior wetland delineations, etc.;

(3) Description and maps of vegetative conditions at the site;

(4) Description and maps of hydrological conditions at the site;

(5) Description of soil conditions at the site based on a preliminary on-site analysis;

(6) A topographic map of the site; and

(7) A functional assessment of the existing wetland and buffer.

(a) Application of the rating system in Section 40.450.020(B) will generally be considered sufficient for functional assessment;

(b) The responsible official may accept or request an alternate functional assessment methodology when the applicant’s proposal requires detailed consideration of specific wetland functions;

b. The contents of the conceptual mitigation plan shall include:

(1) Goals and objectives of the proposed project;

(2) A wetland buffer width reduction plan, if width reductions are proposed, that includes:

(a) The land use intensity, per Table 40.450.030-4, of the various elements of the development adjacent to the wetlands;

(b) The wetland buffer width(s) required by Tables 40.450.030-2 and 40.450.030-3;

(c) The proposed buffer width reductions, including documentation that proposed buffer width reductions fully protect the functions of the wetland in compliance with Section 40.450.040(C);

(3) A wetland mitigation plan that includes:

(a) A sequencing analysis for all wetland impacts;

(b) A description of all wetland impacts that require mitigation under this chapter; and

(4) Map showing proposed wetland and buffer. This map should include the existing and proposed buffers and all proposed wetland impacts regulated under this chapter;

(5) Site plan;

(6) Discussion and map of plant material to be planted and planting densities;

(7) Preliminary drainage plan identifying location of proposed drainage facilities including detention structures and water quality features (e.g., swales);

(8) Discussion of water sources for all wetlands on the site;

(9) Project schedule;

(10) Discussion of how the completed project will be managed and monitored; and

(11) A discussion of contingency plans in case the project does not meet the goals initially set for the project.

3. Final Mitigation Plan. The contents of the final mitigation plan shall include:

a. The approved preliminary mitigation plan and all conditions imposed on that plan. If the preliminary mitigation plan requirement is waived, the final plan shall include the content normally required for the preliminary plan listed in Sections 40.450.040(E)(2)(a), (E)(2)(b)(1), and (E)(2)(b)(2).

b. Performance Standards. Specific criteria shall be provided for evaluating whether or not the goals and objectives of the mitigation project are being met. 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.

c. Detailed Construction Plans. Written specifications for the mitigation project shall be provided. The specifications shall include: the proposed construction sequence, grading and excavation details, water and nutrient requirements for planting, specification of substrate stockpiling techniques, and planting instructions, as appropriate. These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

d. Monitoring Program. The mitigation plan shall include a description of a detailed program for monitoring the success of the mitigation project.

(1) The mitigation project shall be monitored for a period necessary to establish that the mitigation is successful, but not for a period of less than five (5) years. Creation and forested wetland mitigation projects shall be monitored for a period of at least ten (10) years;

(2) Monitoring shall be designed to measure the performance standards outlined in the mitigation plan and may include but not be 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;

(3) A monitoring protocol shall be included outlining how the monitoring data will be evaluated by agencies that are tracking the progress of the project;

(4) Monitoring reports shall be submitted annually, or on a prearranged alternate schedule, for the duration of monitoring period;

(5) Monitoring reports shall analyze the results of monitoring, documenting milestones, successes, problems, and recommendations for corrective and/or contingency actions to ensure success of the mitigation project.

e. Associated Plans and Other Permits. To ensure consistency with the final mitigation plan, associated plans and permits shall be submitted, including, but not limited to:

(1) Engineering construction plans;

(2) Final site plan or proposed plat;

(3) Final landscaping plan;

(4) Habitat permit;

(5) WDFW HPA;

(6) USACE Section 404 permit; and

(7) WDOE Administrative Order or Section 401 certification.

f. Evidence of Financial and Scientific Proficiency. A description of how the mitigation project will be managed during construction and the scientific capability of the designer to successfully implement the proposed project. In addition, a demonstration of the financial capability of the applicant to successfully complete the project and ensure it functions properly at the end of the specific monitoring period.

g. 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.

(Amended: Ord. 2020-12-01)

F. Wetland Permit – Application.

1. Pre-Permit Consultation. Any person intending to apply for a wetland permit is encouraged, but not required, to meet with the department during the earliest possible stages of project planning in order to discuss wetland impact avoidance, minimization, compensatory mitigation, and the required contents of a mitigation plan before significant commitments have been made to a particular project design. Effort put into pre-permit consultations and planning will help applicants create projects which will be more quickly and easily processed.

2. Applications. Applications for wetland permits shall be made to the department on forms furnished by the department. Unless the responsible official waives one (1) or more of the following information requirements, applications shall include:

a. Wetland delineations and buffer width designations pursuant to Sections 40.450.020 and 40.450.030;

b. A site plan for the proposed activity overlaid on an aerial photograph at a scale no smaller than one (1) inch equals one hundred (100) feet (1" = 100', a scaling ratio of 1:1,200) showing the location, width, depth and length of all existing and proposed structures, roads, stormwater facilities, sewage treatment, and installations within the wetland and its buffer;

c. The exact sites and specifications for all development activities proposed within wetlands and wetland buffers, including the amounts and methods;

d. A proposed preliminary mitigation plan meeting the requirements of Section 40.450.040(E). If the preliminary plan requirement has been waived, a final mitigation plan shall be required in its place.

3. Fees. At the time of application, the applicant shall pay a filing fee pursuant to Chapter 6.110A.

(Amended: Ord. 2004-06-11; Amended: Ord. 2020-12-01)

G. Wetland Permit – Processing.

1. Procedures. Wetland permit applications shall be processed using the application procedures in Chapter 40.510 unless specifically modified herein:

a. Type I Wetland Permit. The following wetland permits shall be reviewed under the Type I review process described in Section 40.510.010:

(1) Buffer modification only;

(2) Wetland impacts resulting in less than 0.10 acre of direct wetland impact;

(3) Wetland permits associated with residential building permits, regardless of impact;

(4) Wetland permits associated with home business permits, regardless of impact;

(5) Reauthorization of approved wetland permits;

(6) Programmatic wetland permits that are SEPA exempt.

b. Type II Wetland Permit. The following wetland permits shall be reviewed under the Type II review process described in Section 40.510.020:

(1) Wetland impacts resulting in 0.10 acre, or more, of direct wetland impact, other than residential building and home business permits;

(2) Programmatic wetland permits that require SEPA review;

(3) Programmatic permit applications subject to Type II review shall not be subject to the distribution requirements of Section 40.510.020(E)(2)(a)(3). 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.

c. Type III Wetland Permit. Reasonable use exceptions, other than residential and home business permits, made under Section 40.450.010(B)(4), shall be reviewed under the Type III review process described in Section 40.510.030.

d. Modifications to conservation covenants required under Section 40.450.030(F)(3) shall be consistent with the standards of this chapter and will be processed subject to the following:

(1) Modification to a covenant approved by a Type I decision shall be subject to a Type I review process.

(2) Modification to a covenant approved by a Type II decision shall be subject to a Type I review process if the responsible official finds the requested change:

(a) Does not increase the potential adverse impact to wetlands or buffers; and

(b) Does not involve an issue of broad public interest, based on the record of the decision; and

(3) Modification to a covenant approved by a Type II decision shall be subject to a Type II review process if it is not subject to Type I review.

(4) Modification to a covenant approved by a Type III decision shall be subject to a Type I review process if the responsible official finds the modification:

(a) Provides an increased benefit to wetlands or wetland buffers; and

(b) Does not involve an issue of broad public interest, based on the record of the decision; and

(5) Modification to a covenant approved by a Type III decision shall be subject to a Type II review process if the responsible official finds the requested change in the decision:

(a) Does not increase the potential adverse impact to wetlands or wetland buffers allowed by the covenant or SEPA determination; and

(b) Does not involve an issue of broad public interest, based on the record of the decision.

(6) Modification to a covenant approved by a Type III decision shall be subject to a Type III review process if it is not subject to Type I or II review.

(7) Modification requests submitted with other applications will be processed as specified in Section 40.500.010(D)(2).

e. Removal of wetland covenants shall be approved by Clark County Council.

2. Consolidation. The department shall, to the extent practicable and feasible, consolidate the processing of wetland permits with other county regulatory programs which affect activities in wetlands, such as SEPA review, subdivision, grading, and site plan approval, so as to provide a timely and coordinated permit process. Where no other county permit or approval is required for the wetland activity, the wetland permit shall be processed in accordance with Section 40.450.040(G)(1).

3. Notification. In addition to notices otherwise required pursuant to Section 40.450.040(G)(1), notice of Type II and Type III wetland permit applications shall be given to federal and state agencies that have jurisdiction over, or an interest in, the affected wetlands.

(Amended: Ord. 2008-06-02; Ord. 2009-12-01; Ord. 2019-05-07; Amended: Ord. 2020-12-01)

H. Wetland Permit – Preliminary Approval.

1. Decision Maker. A wetland permit application which has been consolidated with another permit or approval request which requires a public hearing (e.g., preliminary plat) shall be heard and decided in accordance with the procedures applicable to such other request. Any other wetland permit application shall be acted on by the responsible official within the timeline specified in Chapter 40.510 for the required permit type.

2. Findings. A decision preliminarily approving or denying a wetland permit shall be supported by findings of fact relating to the standards and requirements of this chapter.

3. Conditions. A decision preliminarily approving a wetland permit shall incorporate at least the following as conditions:

a. The approved preliminary mitigation plan;

b. Applicable conditions provided for in Section 40.450.030(E)(4);

c. Posting of a performance assurance pursuant to Section 40.450.040(J); and

d. Posting of a maintenance assurance pursuant to Section 40.450.040(J).

4. Administrative Appeal. A consolidated wetland permit decision may be administratively appealed in conjunction with, and within the same limitation period, applicable to the other county permit or approval; provided, that wetland permits preliminarily issued or denied by the responsible official may be appealed in the same manner, and within the same limitation period, applicable to a Type II process under Section 40.510.020.

5. Duration. Wetland permit preliminary approval shall be valid for a period of three (3) years from the date of issuance or termination of administrative appeals or court challenges, whichever occurs later, unless:

a. A longer period is specified in the permit; or

b. The applicant demonstrates good cause to the responsible official’s satisfaction for an extension not to exceed an additional one (1) year.

(Amended: Ord. 2020-12-01)

I. Wetland Permit – Final Approval.

1. Issuance. The responsible official shall issue final approval of the wetland permit authorizing commencement of the activity permitted thereby upon:

a. Submittal and approval of a final mitigation plan pursuant to Section 40.450.040(E)(3);

b. Installation and approval of field markings as required by Section 40.450.030(F)(2);

c. The recording of a conservation covenant as required by Section 40.450.030(F)(3);

d. The posting of a performance assurance as required by Section 40.450.040(H)(3);

2. Duration.

a. Wetland or Wetland Buffer Impacts. Final approval shall be valid for the period specified in the final wetland permit, or the associated development approval. Extension of the permit shall only be granted in conjunction with extension of an associated permit;

b. Compensatory Mitigation. The compensatory mitigation requirements of the permit shall remain in effect for the duration of the monitoring and maintenance period specified in the approval.

(Amended: Ord. 2007-11-13; Amended: Ord. 2020-12-01)

J. Wetland Permit Financial Assurances.

1. Types of Financial Assurances. The responsible official shall accept the following forms of financial assurances:

a. An escrow account secured with an agreement approved by the responsible official;

b. A bond provided by a surety for estimates that exceed five thousand dollars ($5,000);

c. A deposit account with a financial institution secured with an agreement approved by the responsible official;

d. A letter of commitment from a public agency; and

e. Other forms of financial assurance determined to be acceptable by the responsible official.

2. Financial Assurance Estimates. The applicant shall submit itemized cost estimates for the required financial assurances. The responsible official may adjust the estimates to ensure that adequate funds will be available to complete the specified compensatory mitigation upon forfeiture. In addition the cost estimates must include a contingency as follows:

a. Estimates for bonds shall be multiplied by one hundred fifty percent (150%);

b. All other estimates shall be multiplied by one hundred ten percent (110%).

3. Waiver of Financial Assurances. For Type I wetland permits, the responsible official may waive the requirement for one or both financial assurances if the applicant can demonstrate to the responsible official’s satisfaction that posting the required financial assurances will constitute a significant hardship.

4. Acceptance of Work and Release of Financial Assurances.

a. Release of Performance Assurance. Upon request, the responsible official shall release the performance assurance when the following conditions are met:

(1) Completion of construction and planting specified in the approved compensatory mitigation plan;

(2) Submittal of an as-built report documenting changes to the compensatory mitigation plan that occurred during construction;

(3) Field inspection of the completed site(s); and

(4) Provision of the required maintenance assurance.

b. Release of Maintenance Assurance. Upon request, the responsible official shall release the maintenance assurance when the following conditions are met:

(1) Completion of the specified monitoring and maintenance program;

(2) Submittal of a final monitoring report demonstrating that the goals and objectives of the compensatory mitigation plan have been met as demonstrated through:

(a) Compliance with the specific performance standards established in the wetland permit; or

(b) Functional assessment of the mitigation site(s); and

c. Incremental Release of Financial Assurances. The responsible official may release financial assurances incrementally only if specific milestones and associated costs are specified in the compensatory mitigation plan and the document legally establishing the financial assurance.

5. Transfer of Financial Assurances. The responsible official may release financial assurances at any time if equivalent assurances are provided by the original or a new permit holder.

6. Forfeiture. If the permit holder fails to perform or maintain compensatory mitigation in accordance with the approved wetland permit, the responsible official may declare the corresponding financial assurance forfeit pursuant to the following process:

a. The responsible official shall, by registered mail, notify the wetland permit holder/agent that is signatory to the financial assurance and the financial assurance holder of nonperformance with the terms of the approved wetlands permit;

b. The written notification shall cite a reasonable time for the permit holder, or legal successor, to comply with provisions of the permit and state the county’s intent to forfeit the financial assurance should the required work not be completed in a timely manner;

c. Should the required work not be completed timely, the county shall declare the assurance forfeit;

d. Upon forfeiture of a financial assurance, the proceeds thereof shall be utilized either to correct the deficiencies which resulted in forfeiture or, if such correction is deemed by the responsible official to be impractical or ineffective, to enhance other wetlands in the same watershed or contribute to an established cumulative effects fund for watershed scale habitat and wetland conservation.

(Amended: Ord. 2020-12-01)

K. Programmatic Permits for Routine Maintenance and Operations of Utilities and Public Facilities. The responsible official may issue programmatic wetland permits for routine maintenance and operations of utilities and public facilities within wetlands and wetland buffers, and for wetland enhancement programs. It is not the intent of the programmatic permit process to deny or unreasonably restrict a public agency or utility’s ability to provide services to the public. Programmatic permits only authorize activities specifically identified in and limited to the permit approval and conditions.

1. Application Submittal Requirements. Unless waived by the responsible official with specific findings in the approval document in accordance with Section 40.450.040(K)(2), applications for programmatic wetland 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 wetlands and wetland buffers;

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

d. The range of functions and values of wetlands potentially affected by the permit;

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

(1) Procedures for identification of wetlands and wetland buffers;

(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 wetland or wetland buffer 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; and

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

2. Findings. A decision preliminarily approving or denying a programmatic wetland permit shall be supported by findings of fact relating to the standards and requirements of this chapter.

3. Approval Conditions. Approval of a programmatic wetland permit shall incorporate at least the following as conditions:

a. The approved programmatic permit plan;

b. Annual reporting requirements; and

c. A provision stating that duration of the permit.

4. Duration and Reauthorization.

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

(1) An annual performance based reauthorization program is approved within the permit; or

(2) A shorter duration is supported by findings.

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

(1) Reauthorization is reviewed and approved through the process described in Section 40.450.040(K)(1).

(2) Permit conditions and performance standards may be modified through the reauthorization process.

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

(Amended: Ord. 2020-12-01)

L. Wetland Permit – Emergency.

1. Authorization. Notwithstanding the provisions of this chapter or any other laws to the contrary, the responsible official may issue prospectively or, in the case of imminent threats, retroactively a temporary emergency wetlands permit if:

a. The responsible official determines that an unacceptable threat to life or loss of property will occur if an emergency permit is not granted; and

b. The anticipated threat or loss may occur before a permit can be issued or modified under the procedures otherwise required by this act and other applicable laws.

2. Conditions. Any emergency permit granted shall incorporate, to the greatest extent practicable and feasible but not inconsistent with the emergency situation, the standards and criteria required for nonemergency activities under this act and shall:

a. Be limited in duration to the time required to complete the authorized emergency activity, not to exceed ninety (90) days; and

b. Require, within this ninety (90) day period, the restoration of any wetland altered as a result of the emergency activity, except that if more than the ninety (90) days from the issuance of the emergency permit is required to complete restoration, the emergency permit may be extended to complete this restoration.

3. Notice. Notice of issuance of an emergency permit shall be published in a newspaper having general circulation in Clark County not later than ten (10) days after issuance of such permit.

4. Termination. The emergency permit may be terminated at any time without process upon a determination by the responsible official that the action was not or is no longer necessary to protect human health or the environment.

(Amended: Ord. 2020-12-01)

M. Revocation. In addition to other remedies provided for elsewhere in this chapter, the responsible official may suspend or revoke wetland permit(s) issued in accordance with this chapter and associated development permits, pursuant to the provisions of Title 32, if the applicant or permittee has not complied with any or all of the conditions or limitations set forth in the permit, has exceeded the scope of work set forth in the permit, or has failed to undertake the project in the manner set forth in the permit.

(Amended: Ord. 2020-12-01)

N. Enforcement. At such time as a violation of this chapter has been determined, enforcement action shall be commenced in accordance with the enforcement provisions of Title 32, and may also include the following:

1. Applications for county land use permits on sites that have been cited or issued an administrative notice and order under Title 32 of this code, or have been otherwise documented by the responsible official for activities in violation of this chapter, shall not be processed for a period of six (6) years provided:

a. The county has the authority to apply the permit moratorium to the property; and

b. The county records the permit moratorium;

c. The responsible official may reduce or wave the permit moratorium duration upon approval of a wetland permit under Section 40.450.040.

2. Compensatory mitigation requirements under Sections 40.450.040(C) and (D) may be increased by the responsible official as follows:

a. All or some portion of the wetland or wetland buffer impact cannot be permitted or restored in place; and

b. Compensatory mitigation for the impact is delayed more than one year from the time of the original citation or documentation of the violation.

(Amended: Ord. 2006-05-27; Ord. 2020-12-01)