Section 40.460.530

40.460.530 Critical Areas Protection

A. General Provisions.

1. Critical areas as defined in Chapters 40.410 through 40.450 which are located within the shoreline jurisdiction are protected under this section.

2. Any allowed use, development, or activity proposed on a parcel with a critical area located in the shoreline jurisdiction shall be regulated under the provisions of this Program.

3. Any allowed use, development, or activity meeting the definition of a development exempt from the shoreline substantial development permit process outlined in WAC 173-27-040 and Section 40.460.230 shall be consistent with the policies and provisions of this Program for critical areas protection.

4. Provisions of the critical areas regulations that are not consistent with the Act and supporting WAC chapters shall not apply in shoreline jurisdiction.

5. Habitat that cannot be replaced or restored within twenty (20) years shall be preserved.

6. Where construction of a single-family residence is proposed, this activity is considered exempt from obtaining a shoreline substantial development permit when the construction is located landward of the ordinary high water mark and does not include placement of fill in wetlands. Construction of single-family residences requiring fill in wetlands must obtain a shoreline substantial development permit in addition to other shoreline approvals as applicable.

7. Unless otherwise stated, no development shall be constructed, located, extended, modified, converted, or altered, or land divided without full compliance with this Program and this title.

8. Unless otherwise stated, critical area buffers within the shoreline jurisdiction shall be protected and/or enhanced in accordance with this Program and this title.

9. Shoreline uses and developments and their associated structures and equipment shall be located, designed and operated using best management practices to protect critical areas.

10. The applicant shall demonstrate all reasonable efforts have been taken to avoid and, where unavoidable, minimize and mitigate impacts such that no net loss of critical area and shoreline ecological function is achieved. Mitigation shall occur in the following order of priority:

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.

11. In addition to compensatory mitigation, unavoidable adverse impacts may be addressed through restoration efforts.

(Amended: Ord. 2018-11-06; Ord. 2020-12-01)

B. Applicable Critical Areas.

For purposes of this Program, the following critical areas will be protected under this Program. An amendment to these regulations will apply in shoreline jurisdiction only if it is adopted as an SMP amendment or update.

1. Critical aquifer recharge areas, defined in Chapter 40.410 as most recently amended by Ordinance 2020-03-01, dated March 10, 2020;

2. Flood hazard areas, defined in Chapter 40.420 as most recently amended by Ordinance 2019-05-07, dated May 21, 2019;

3. Geologic hazard areas, defined in Chapter 40.430 as most recently amended by Ordinance 2019-05-07, dated May 21, 2019;

4. Habitat conservation areas, defined in Chapter 40.440 as most recently amended by Ordinance 2020-12-01, dated December 1, 2020; and

5. Wetlands, defined in Chapter 40.450 as most recently amended by Ordinance 2020-12-01, dated December 1, 2020.

(Amended: Ord. 2015-12-12; Ord. 2018-11-06; Ord. 2020-12-01)

C. Critical Aquifer Recharge Areas.

1. General Provisions. This chapter applies to all critical aquifer recharge areas as defined in Section 40.410.010(C) within shoreline jurisdiction. Chapter 40.410, Critical Aquifer Recharge Areas, is hereby adopted in whole as part of this Program pursuant to Section 40.460.530(B)(1).

(Amended: Ord. 2015-12-12; Ord. 2018-11-06; Ord. 2020-12-01)

D. Flood Hazard Areas.

1. General Provisions.

a. The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in a report entitled “Flood Insurance Study, Clark County, Washington and Incorporated Areas” effective January 19, 2018, and accompanying flood insurance rate maps (FIRMs) and any revisions thereto are hereby adopted by reference and declared to be a part of this Program. The Flood Insurance Study and the FIRMs are on file with the Public Works Department. In addition, Map 27, Potential Channel Migration Zone (CMZ) Areas (Inventory and Characterization Report Volume 1, Lewis and Salmon-Washougal Watersheds and Rural Areas), is incorporated herein by reference.

b. This chapter applies to all development in identified special flood hazard areas as defined in Section 40.420.010(C) within shoreline jurisdiction, including channel migration zones.

c. A statement of exemption pursuant to Section 40.460.230(C) or an application for a shoreline permit (substantial development, variance, or conditional use) pursuant to Sections 40.460.220, 40.460.260 or 40.460.270 is required, and a flood hazard review will be part of the approvals required under this Program.

d. The degree of flood protection required by this section is considered reasonable for regulatory purposes, and is based upon scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside flood hazard areas, or uses permitted within such areas, will be free from flooding or flood damages. This chapter shall not create liability on the part of Clark County, any officer or employee thereof, or the Federal Emergency Management Agency for any flood damages that result from reliance on this chapter or any administrative decision lawfully made thereunder.

2. Regulated Activities.

a. Within special flood hazard areas, development may be allowed for those uses allowed in this Program pursuant to Section 40.460.530(D)(1)(c).

b. All uses not allowed by this Program are prohibited, except as follows:

(1) In accordance with Chapter 86.16 RCW, repairs, reconstruction, or improvements to a lawfully established structure:

(a) Which do not increase the ground floor area; and

(b) That are not substantial improvements as defined in Section 40.420.010(C).

(2) Floodway encroachments are prohibited unless certification by a licensed professional engineer registered in the state of Washington is provided demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge. If it has been adequately demonstrated that the encroachment will not result in increased flood levels, all new non-residential construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this Program.

3. Standards.

a. Construction in special flood hazard areas is subject to the standards specified in Section 40.420.020.

b. Structural flood hazard reduction measures are allowed only when necessary to protect existing development.

c. When necessary, in-stream structures shall be located, designed, and maintained in such a manner that minimizes flood potential and the damage affected by flooding.

d. Fills are prohibited in floodplains except where the applicant clearly demonstrates that the geohydraulic characteristics will not be altered in a way that increases flood velocity or risk of damage to life or property, and flood storage capacity will not be reduced (see Section 40.460.560(B)).

e. Fill shall be avoided in critical areas or buffers where possible. Pile or pier supports or other support methods shall be utilized instead of fills whenever feasible, particularly for permitted development in floodways or wetlands.

f. Dikes and levees shall not be placed in the floodway except for current deflectors necessary for protection of bridges and roads.

g. Removal of beaver dams to control or limit flooding shall be avoided where feasible and allowed only in coordination with WDFW and receipt of all applicable state permits.

(Amended: Ord. 2018-11-06; Ord. 2020-12-01)

E. Geologic Hazard Areas.

1. General Provisions.

a. Geologic hazard areas include steep slope hazard areas, landslide hazard areas, seismic hazard areas, and volcanic hazard areas as defined in Section 40.430.010.

b. Approximate locations of geologic hazard areas are identified on adopted maps which are on file with the County Auditor. Where the maps and definitions of geologic hazard areas conflict, the definitions shall prevail.

c. Where development proposals require a geologic hazard area review under Section 40.430.030, the review will be part of the approvals required under this Program.

2. Regulated Activities.

a. All construction, development, earth movement, clearing, or other site disturbance which requires a permit, approval or other authorization from the County in or within one hundred (100) feet of a geologic hazard area shall comply with the requirements of this Program.

b. Class IV G forest practices (conversions) are regulated under this Program.

3. Standards.

a. Required buffers and setbacks for development activities in geologic hazard areas are specified in Section 40.430.020.

b. The Shoreline Administrator may approve buffers and setbacks which differ from those required by Section 40.430.020(D)(1) if the applicant submits a geologic hazard area study described in Section 40.430.030(C), which technically demonstrates and illustrates that the alternative buffer provides protection which is greater than or equal to that provided by the buffer required in Section 40.430.020(D)(1).

c. The Shoreline Administrator may increase buffers or setbacks where necessary to meet requirements of the International Building Code.

(Amended: Ord. 2020-12-01)

F. Habitat Conservation Areas.

1. General Provisions.

a. Designated habitat areas are those defined in Section 40.100.070 and those described below:

(1) Water bodies defined as waters of the state (RCW 90.48.020), including waters, bed, and bank;

(2) DNR Classification System Type S, F, Np, and Ns water bodies as defined and mapped based on WAC 222-16-030 (Forest Practices Rules);

(3) Riparian Priority Habitat Areas. Areas extending landward on each side of the stream or water body from the ordinary high water mark to the edge of the one hundred (100) year floodplain, or the following distances, if greater:

(a) DNR Type S waters, two hundred fifty (250) feet;

(b) DNR Type F waters, two hundred (200) feet;

(d) DNR Type Ns waters, seventy-five (75) feet;

(4) Other Priority Habitats and Species Areas (PHS) as defined in the most current WDFW Priority Habitats and Species List, including areas within one thousand (1,000) feet of individual species points mapped by WDFW. The county shall defer to WDFW in regards to classification, mapping and interpretation of priority habitat species. Determination of habitat categories applicable to a site shall be based on the definitions and best available science that were current at the time the application under review is vested pursuant to Chapter 40.510.

b. In the event of inconsistencies, official habitat area definitions shall prevail over county-wide maps in determining applicability of this section. The county shall follow the recommendations of WDFW in the interpretation of site-specific conditions as they relate to the definition of priority habitat and species.

c. The portion of the riparian priority habitat area nearest to the OHWM shall be set aside for vegetation conservation and protection of the water body within the shoreline jurisdiction.

d. Where development proposals require a habitat review under Section 40.440.030, the review will be part of the approvals required under this Program.

e. The reasonable use provisions in Chapter 40.440 do not apply to habitat conservation areas regulated under this Program.

2. Regulated Activities.

a. All construction, development, earth movement, clearing, or other site disturbance proposals within a habitat area which require a permit, approval, or other authorization from the county shall be reviewed pursuant to Chapter 40.440 and shall comply with the requirements of this section.

b. Proposed new single-family residential development occurring immediately outside but within three hundred (300) feet of designated priority species habitat polygons or within one hundred (100) feet of designated nonriparian priority habitat polygons shall require consultation with WDFW prior to issuance of a development permit. In such cases, further review under this section is not required unless WDFW finds that there are potential adverse impacts.

c. Agricultural activities within designated riparian habitat areas are subject to the provisions of this section and Section 40.440.040(B).

d. Class IV G forest practices (conversions) are regulated under this Program.

3. Standards.

a. Any alterations within designated habitat areas in shoreline jurisdiction require review and approval prior to clearing or development and prior to issuance of any County permit or statement of exemption.

b. Alterations within the designated habitat areas shall:

(1) Avoid impacts to the habitat conservation areas during project planning and development to the extent possible;

(2) Substantially maintain the level of habitat functions and values as characterized and documented using best available science;

(3) Minimize habitat disruption or alteration beyond the extent required to undertake the proposal; and

(4) Compensate for impacts to the habitat conservation areas to meet the standard of no net loss of shoreline ecological functions. Mitigation measures and proposals must demonstrate use of best available science.

c. In the event that impacts to habitat areas cannot be avoided, development and approval of a mitigation plan in accordance with the provisions of Sections 40.440.020(A)(3) through (8) is required.

(Amended: Ord. 2015-12-12; Ord. 2020-12-01)

G. Wetlands.

1. General Provisions.

a. Where development proposals require a wetlands review under Section 40.450.030, the review will be part of the approvals required under this Program. Such review is required for any development activity that is within wetlands and wetland buffers subject to this Program, unless specifically authorized by a statement of exemption. Requirements for wetland permit applications are provided in Sections 40.450.040(B), (C), and (D).

b. This section shall not apply to wetlands created from nonwetland sites including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, stormwater facilities, farm ponds, landscape amenities and unintentionally created wetlands created as a result of the construction of a public or private road, street, or highway after July 1, 1990; provided, that wetlands created as mitigation shall not be exempt.

c. A wetland determination is required in conjunction with the submittal of a development permit application. The Shoreline Administrator shall determine the probable existence of a wetland on the parcel involved in the development permit application. If wetlands or wetland buffers are found to exist on a parcel, wetland delineation is required.

d. The location of a wetland and its boundary shall be determined through the performance of a field investigation utilizing the methodology contained in the Wetlands Delineation Manual and as specified in Chapter 40.450. If a wetland is located off site and is inaccessible, the best available information shall be used to determine the wetland boundary and category. Methodology is specified in Section 40.450.030(D).

e. All buffers shall be measured horizontally outward from the delineated wetland boundary.

f. Wetland buffer widths shall be determined by the Shoreline Administrator in accordance with the standards in Section 40.450.030, except as follows:

(1) The exceptions to urban plat requirements in Section 40.450.030(E)(3) do not apply in the Shoreline Management Area; and

(2) The adjusted buffer width standards in Section 40.450.030(E)(4)(a) shall be limited to a maximum width reduction of twenty-five percent (25%) from the required buffer at any location within the Shoreline Management Area; and

(3) The adjusted buffer width standards in Sections 40.450.030(E)(4)(b)(2) and 40.450.030(E)(4)(c) do not apply in the Shoreline Management Area.

g. The wetland buffer reductions allowed in Section 40.450.040(C)(1) shall only be approved within the Shoreline Management Area subject to the following:

(1) Reductions for the Low Impact Development Design measures in Section 40.450.040(C)(1)(b) shall not be allowed in the Shoreline Management Area; and

(2) All other applicable land use intensity modification measures listed in Section 40.450.040(C)(1) shall be implemented.

h. All wetland reviews require approval of a preliminary and a 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).

i. Wetland reviews under this Program shall be according to the application, processing, preliminary approval, and final approval procedures set out in Section 40.450.040(F) through (I) and are part of the approvals required under this Program.

j. Provisions for programmatic permits are included in Section 40.450.040(K).

k. Provisions for emergency wetland permits are included in Section 40.450.040(L).

l. The reasonable use provisions in Chapter 40.450 do not apply to wetlands regulated under this Program.

m. Section 40.460.530(A)(10), regarding avoidance, minimization and mitigation sequence of impacts to critical areas and shoreline ecological functions, applies to wetland buffers.

2. Regulated Activities.

No development or activity in wetlands or wetland buffers subject to this Program shall be allowed unless it is demonstrated that:

a. The proposed development or activity will not result in a net loss of wetland functions to the point of net loss of shoreline ecological function; and

b. The proposed development or activity complies with all state, local and federal laws, including those related to sediment control, pollution control, floodplain restrictions, stormwater management, wetlands protection, and on-site wastewater disposal.

3. Standards.

a. Stormwater Facilities.

(1) Stormwater dispersion practices and facilities that comply with the standards of Chapter 40.386 shall be allowed in all wetland buffers where no net loss of shoreline ecological functions can be demonstrated. Stormwater outfalls for dispersion facilities shall comply with the standards in Section 40.460.530(G)(3)(b).

(2) 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) per Section 40.450.040(C)(4)(b); provided, the facilities shall be built on the outer twenty-five percent (25%) of the buffer and not degrade the existing buffer function and are designed to blend with the natural landscape.

b. Road and utility crossings into and through wetlands and wetland buffers are allowed provided all the following conditions are met:

(1) Buffer functions, as they pertain to protection of the adjacent wetland and its functions, are replaced;

(2) Impacts to the buffer and wetland are first avoided and minimized; and

(3) The activity does not result in a decrease in wetland acreage or classification.

c. Regulated activities not involving stormwater management, road and utility crossings, or a buffer reduction via enhancement are allowed in the buffer if all the following conditions are met:

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

(2) The activity will not result in a permanent structure in the buffer;

(3) The activity will not result in a reduction of buffer acreage or shoreline ecological function; and

(4) The activity will not result in a reduction of wetland acreage or shoreline ecological function.

d. Wetland mitigation for unavoidable impacts shall be required using the following prioritization:

(1) On-Site. Locate mitigation according to the following priority:

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

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

(2) Off-Site. Locate mitigation within the same watershed, as shown on Section 40.450.040, 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;

(3) 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

(4) Out-of-Kind. Mitigate in a different landscape position and/or HGM classification based on a reference to a naturally occurring wetland system.

e. The various types of wetland mitigation allowed are listed below in the general order of preference.

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

(2) Rehabilitation, which is 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. Re-establishment 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.

(3) 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 hydro-period, create hydric soils, and support the growth of hydrophytic plant species.

(4) 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 non-native or invasive species, modifying site elevations or the proportion of open water to influence hydro-periods, or some combination of these activities.

f. The mitigation ratios for each of the mitigation types described in Section 40.460.530(G)(3)(e) are specified in Section 40.450.040(D)(4). Section 40.450.040(D)(4)(c)(4) does not apply to this program.

g. The Shoreline Administrator 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; and

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

h. Wetland mitigation shall be required in accordance with the wetland mitigation standards in this section for the following indirect wetland impacts:

(1) Buffer loss resulting from wetland fills permitted under this section;

(2) Reduction of wetland buffers beyond the maximum reduction allowed under Section 40.460.530(G)(1)(f) of this section; provided, that such reductions are limited as follows:

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

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

(3) Unavoidable loss of wetland function due to stormwater discharges that do not meet the wetland protection standards in Chapter 40.386.

i. Wetland mitigation shall be protected by the water quality function wetland buffers required in Table 40.450.030-2.

(1) Reductions to the required buffers may be applied in accordance with Sections 40.450.040(C) and (D)(5) within the limitations allowed under Section 40.460.530(G)(1)(f) of this section.

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

j. Alternate Wetland Mitigation in the form of credits from an approved in-lieu fee program or as provided in Section 40.450.040(D)(7) which includes:

(1) Wetland mitigation banking; and

(2) Contributions to the county’s cumulative effects fund.

(Amended: Ord. 2012-07-16; Ord. 2015-12-12; Ord. 2020-12-01)