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Title 19
OTHER DEVELOPMENT REGULATIONS1Chapters:
19.02 Critical Areas Regulations
19.04 Repealed
19.06 Recycling Collection Point
19.08 Landscape Regulations
19.10 Signs
19.12 Design Regulations
19.14 Off-Street Parking
19.16 Loading Areas
19.18 Height, Yard, and Area
19.20 Dedication of Streets and Highways
19.22 Performance Standards
19.24 Impact Fees
19.25 Transportation Impact Analysis and Concurrency Management
19.26 Wireless Communications Facilities (WCFs)
19.28 Quarrying, Mining, Excavating, Processing and Stockpiling
19.30 Recreational Vehicle Parks
19.31 Essential Public Facilities
19.32 Miscellaneous Use Regulations
19.34 Accessory Dwelling Units
19.36 Home Occupations
19.38 Mixed Use Development and Design Standards
Chapter 19.02
CRITICAL AREAS REGULATIONSSections:
Article I. General Provisions
19.02.005 Definitions.
19.02.010 Policy, goals, purpose, and intent.
19.02.020 Applicability, regulated activities, and exempt activities.
19.02.030 Exceptions.
19.02.040 Assessment relief.
Article II. Critical Areas
19.02.050 Finding of fact.
19.02.060 Frequently flooded areas.
19.02.070 Geologically hazardous areas.
19.02.080 Critical aquifer recharge areas.
19.02.090 Wetlands – Category and buffer widths.
19.02.100 Fish and wildlife conservation areas – Habitat types and buffer widths.
19.02.110 Resource lands.
19.02.120 Critical areas maps and databases.
Article III. Critical Area Permits
19.02.130 General requirements.
19.02.140 Application.
19.02.150 Permit review.
19.02.160 Criteria for permit review, approval, denial, and issuance.
19.02.170 Variance.
19.02.180 Permit fees.
Article IV. Development Standards for Critical Areas
19.02.190 Critical area development standards.
19.02.200 Critical areas management incentives.
19.02.210 Critical area tracts and easements.
19.02.220 Deed restrictions and setbacks.
Article V. Mitigation of Critical Area Impacts
19.02.230 Mitigation sequencing – Decision criteria.
19.02.240 Mitigation plans.
19.02.250 Critical area impact mitigation.
19.02.260 Alternative mitigation strategies.
19.02.270 Mitigation area performance standards.
Appendices
Appendix A Wetland rating criteria.
Appendix B Critical areas report content.
Appendix C Mitigation plan requirements.
Appendix D Definitions.
Appendix E Critical area identification form.
Appendix F Critical area buffer risk and opportunity rating form.
Appendix G WAC 222-16-030 (Rev. 2004).
Article I. General Provisions
19.02.005 Definitions.
The definition of terms used in this chapter are provided in Appendix D, Definitions, of this chapter. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.010 Policy, goals, purpose, and intent.
A. Policy. It is the policy of the city of Enumclaw (city) to require site evaluation, planning and review prior to project permitting and construction to:
1. Avoid or minimize damage to critical areas wherever possible;
2. Recognize and respond to the need for flood control and flood-resistant building practices within frequently flooded areas;
3. Identify and regulate geologically hazardous areas that either are not suited for, or would probably impose significant limitations on, building construction, road construction or disturbance and be consistent with public health and safety concerns;
4. Identify and protect aquifer recharge areas for aquifers used for potable water;
5. Require that land use activities not dependent upon the location of a critical area be located in areas outside of the identified or delineated critical area and its associated buffer;
6. Achieve no net loss of wetland function and value by requiring restoration or enhancement of degraded wetlands or creation of new wetlands to offset losses that are unavoidable;
7. Define and protect fish and wildlife habitat conservation areas; and
8. Be consistent with public health and safety concerns.
B. Goals. By regulating land use activities within critical areas and their attendant buffers, this chapter seeks to:
1. Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, volcanic eruptions, or flooding;
2. Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species;
3. Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas;
4. Allow modification and/or obliteration of low function and value wetland, stream, and wildlife habitats in conjunction with off-site mitigation and restoration in designated areas where the addition of created and/or enhanced habitats will increase fish and wildlife production, public benefits, and economic viability in the city limits and urban growth areas; and
5. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and habitat conservation areas.
C. Purpose. The purpose of this chapter is to protect the public health, safety, and welfare of the citizens of the city as well as the critical areas regulated within the city by:
1. Defining, designating, and classifying ecologically sensitive and hazardous areas to be regulated in the city;
2. Providing city officials with information to evaluate, approve, condition, or deny public or private development proposals based upon the regulations outlined in this chapter;
3. Enforcing the regulations outlined in this chapter to prevent the adverse impacts of development within and adjacent to critical areas;
4. Protecting the public against critical area losses due to:
a. Unnecessary maintenance and replacement of public facilities, including the dredging of ports and navigation channels;
b. Publicly funded mitigation of avoidable impacts;
5. Protecting the private property rights of property owners in the city by alerting appraisers, assessors, owners, and potential buyers or lessees to the development limitations of critical areas;
6. Providing alternative enforcement strategies, incentives, and/or compensation to property owners whose property would be rendered partially or fully undevelopable due to the enforcement of the regulations outlined in this chapter, and who, by cooperating with the city in implementing the regulations outlined in the chapter rather than pursuing reasonable use alternatives, allow for a net improvement in the regulated critical area’s habitat quality and wildlife/fish production;
7. Protecting, enhancing, restoring, and mitigating impacts to regulated critical areas and their functions and values, while also allowing for reasonable use of private property and economic viability in the city;
8. Implementing the current goals, policies, guidelines, and requirements of the city’s comprehensive plan, the State of Washington (State) Growth Management Act, and the State Environmental Policy Act (SEPA); as well as all updated (future) versions of city environmental regulations and community (or comprehensive) plans, applicable state community development and environmental regulations, and applicable federal regulations.
D. Intent. The regulations detailed in this chapter are intended to provide the city a basis for protecting, restoring, enhancing, and/or obliterating (with approved mitigation) the designated and classified critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.
In addition, it is the intent of the city that activities in or affecting wetlands not threaten public safety, cause nuisances, or destroy or degrade natural wetland functions and values by:
1. Impeding flood flows, reducing flood storage capacity, or impairing natural flood control functions, thereby resulting in increased flood heights, frequencies, or velocities on other lands;
2. Increasing water pollution through location of domestic waste disposal systems in wetlands, unauthorized application of pesticides and herbicides, disposal of solid waste at inappropriate sites, creation of unstable fills, or the destruction of wetland soils and vegetation;
3. Increasing erosion;
4. Decreasing breeding, nesting, and feeding areas for many species of waterfowl and shorebirds, including those rare and endangered;
5. Interfering with the exchange of nutrients needed by fish and other forms of wildlife;
6. Decreasing habitat for fish and other forms of wildlife;
7. Adversely altering the recharge or discharge functions of wetlands, thereby impacting ground water or surface water supplies;
8. Significantly altering wetland hydrology and thereby causing either short- or long-term changes in vegetative composition, soils characteristics, nutrient cycling, or water chemistry;
9. Destroying sites needed for education and scientific research, such as outdoor biophysical laboratories, living classrooms, and training areas; or
10. Destroying or damaging aesthetic and property values, including significant public view sheds. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.020 Applicability, regulated activities, and exempt activities.
A. All regulated activities shall be subject to the provisions of this chapter. The provisions of this chapter shall apply to all lands, all land uses, and development activities, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or its associated buffer except as consistent with the purposes and requirements of this chapter and as authorized by the administrator.
1. Regulated Activities. Regulated activities include, but are not limited to, clearing (vegetation), draining, dredging, dumping or stockpiling (native or nonnative organic or inorganic materials), excavating, filling, flooding, grading, harvesting, obstructing, pile driving, or shading (with human-made structures) within critical areas and their associated buffers.
2. The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of this chapter, including, but not limited to, the following:
a. Building permit;
b. Clearing and grading permit;
c. Forest practices permit;
d. Conditional use permit;
e. Shoreline conditional use permit;
f. Shoreline substantial development permit;
g. Shoreline exemption;
h. Shoreline variance;
i. Short subdivision;
j. Subdivision;
k. Planned unit development;
l. Binding site plan;
m. Zoning variance;
n. Zoning code amendment; or
o. Any other adopted permit or required approval not expressly exempted by this chapter.
3. Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter.
4. The city shall not grant any approval or permission to conduct a regulated activity in a critical area unless the activity is in compliance with this chapter or unless the activity is expressly exempted by this chapter.
B. Exempt Activities. With the approval of the administrator (director of community development), the uses listed below shall be exempt from the provisions of this chapter and are allowed within a critical area to the extent that the uses are consistent with the provisions of other applicable local, state, and federal laws, regulations and requirements; and are not prohibited by any other chapter or law; and provided they are conducted using best management practices, except where such activities result in the conversion of a critical area to a use to which it was not previously subjected; and provided further, that forest practices and conversions shall be governed by current state regulations.
All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. By finding that an activity proposed within a critical area or its associated buffer is exempt from the provisions of this chapter, the administrator is not granting permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.
The following are exempt activities or allowable uses:
1. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife including activities undertaken for purposes of habitat enhancement that is part of an enhancement project which has received prior written approval from the city and any other agency with jurisdiction over such activity;
2. Outdoor recreational activities, including fishing, bird watching, hiking, boating, horseback riding, swimming, canoeing, and bicycling;
3. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, or alteration of the wetland by changing existing topography, water conditions or water sources;
4. Existing and ongoing agricultural activities including farming, horticulture, aquaculture, irrigation, ranching or grazing of animals.
a. Cessation of agricultural activities on an area that was previously farmed to allow that area to lie fallow as part of a conventional, rotational cycle (or for any other regular or normal farming practice) is considered to be part of an ongoing agricultural operation and is not to be considered as a cessation of farming or as a change in land use.
b. Cessation of farming activities in response to government programs designed to control commodity production shall not be considered a permanent cessation of farming activity or a change in land use unless the land is left fallow or unfarmed for a period of seven years beyond the termination of the government program. Farming activities can resume after seven or more years, but the administrator has the authority to impose new critical areas regulations on all land use activities initiated at the end of the seven-year period and beyond.
c. Cessation of farming activities in response to market conditions or economic irregularities adversely impacting farming activities will not be considered a cessation of farming activities or a change in land use unless the land is left fallow or unfarmed for a period of five years or longer. Farming activities can resume after five or more years, but the administrator has the authority to impose new critical areas regulations on all land use activities initiated at the end of the seven-year period and beyond.
d. Activities undertaken to bring an area back into agricultural use and production following a period of nonfarm use may not be considered, in the judgment of the administrator, part of an ongoing operation. As a result, such activities may not be exempt from the provisions of this chapter.
e. An operation ceases to be ongoing when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations;
5. The maintenance (but not construction) of drainage ditches;
6. Education, scientific research, and use of nature trails;
7. Navigation aids, boundary markers, and boat mooring buoys;
8. Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, impacts shall be minimized and disturbed areas shall be immediately restored;
9. Emergency repair or construction activities or vegetation harvesting (mowing) that the city determines to be necessary to protect the health, safety, or welfare of area residents;
10. Normal maintenance, repair, or operation of existing serviceable structures, facilities, or improved areas. Maintenance and repair does not include any modification that changes the character, scope, or size of the original structure, facility, or improved area and does not include the construction of a maintenance road;
11. Public and private pedestrian trails, except in wetlands, subject to the following:
a. The trail surface shall meet all other requirements including water quality standards set forth in the city’s applicable storm water management regulations;
b. Whenever possible the trail surface should be comprised of materials that allow the maximum amount of storm water runoff infiltration;
c. When required by the administrator trails within nonwetland critical areas and/or their associated buffers total widths of the buffers where the trail is located shall be increased, where possible, to a width equal to the width of the trail corridor, including disturbed areas; plus the originally prescribed wetland buffer width; and
d. Trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report.
e. Trails may be allowed in wetlands if the administrator can demonstrate that the public education benefits are greater than the detrimental effects of the wetland impacts associated with the construction, maintenance, and long-term operation of the trail. The impacts of administrator-approved trail installation, public or private, shall be mitigated by the project proponent. Mitigation efforts may include unconventional mitigation activities such as:
i. Purchase and installation of educational/interpretive signage within the wetland and the adjacent buffer;
ii. Purchase of materials and construction of unobtrusive viewing platforms and/or blinds; and
iii. Purchase of materials and installation of habitat features such as duck boxes, goose platforms, large woody debris to be installed as downed logs or snags, or native animal species to augment or increase species diversity;
12. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the administrator, are allowed:
a. The removal of the following vegetation with hand labor and light equipment:
i. Invasive and noxious weeds;
ii. English Ivy (Hedera helix);
iii. Himalayan blackberry (Rubus discolor, R. procerus); and
iv. Evergreen blackberry (Rubus laciniatus);
b. The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:
i. The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;
ii. Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;
iii. All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease or pest transmittal to other healthy vegetation;
iv. Unless otherwise directed by the administrator, the landowner shall replace any significant trees that are removed as part of an approved land use or development project with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year in accordance with an approved restoration plan.
(A) Significant trees are conifer species greater than six inches in diameter at breast height (dbh) and deciduous species greater than eight inches dbh.
(B) Replacement trees may be planted at a different, but nearby, location than the trees that were removed if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area.
(C) Unless otherwise directed by the administrator, tree species removed will be replaced with the same species.
(D) Replacement trees shall be species that are native and indigenous to the site and a minimum of one inch in diameter at breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball;
v. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods of removal that will minimize impacts; and
vi. Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this title;
c. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW, and any applicable city code sections; provided, that the removed vegetation shall be replaced in-kind or with similar native species within one year in accordance with an approved restoration plan; and
d. Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;
13. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the administrator; provided, that their use shall be restricted in accordance with State Department of Fish and Wildlife Management recommendations and the regulations of the State Department of Agriculture and the U.S. Environmental Protection Agency; and
14. Utility projects which have minor or short-duration impacts to critical areas, as determined by the administrator in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water. Such allowed minor utility projects shall meet the following criteria:
a. There is no practical alternative to the proposed activity with less impact on critical areas;
b. The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and
c. The activity involves disturbance of an area less than 75 square feet.
C. Exemption Request and Review Process. The proponent of the activity that is not specifically listed above may submit a written request for exemption to the administrator that describes the activity and states the exemption listed in subsection B of this section that may apply.
The administrator shall review the exemption request to verify that it complies with this title and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the administrator. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.
D. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property that would otherwise be allowed under the current code and would be consistent with other allowable uses.
E. It is not the intent of this chapter to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards (see RCW 36.70A.020(12)).
F. The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public.
G. It is not the intent of this chapter to repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. Where this chapter provides more protection to critical areas, however, the provisions of this chapter shall prevail unless specifically provided otherwise in this chapter. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.030 Exceptions.
A. Exception – Subdivisions with Substantial Completion of Infrastructure. A building permit application shall not be denied under this chapter if there has been substantial completion of the infrastructure of the plat within which the subject property of the permit is specifically located. A determination of substantial completion shall be based on the administrator’s assessment of existing constructed infrastructure such as streets, utilities, and drainage improvements.
1. Typically “substantial completion” means the amount of construction within a particular project area has impacted critical areas to the maximum extent that would be attributable to the project actions and on-site mitigation is neither economically nor ecologically viable.
2. The administrator will confer with the city manager, the city’s risk management specialist, and the city attorney regarding the consequences of a decision to deny a building permit for a project with a valid clearing and grading permit, approved site plans, and an authorization to proceed with construction.
B. Exception – Reasonable Use.
1. If the application of this chapter would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.
2. Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The administrator shall prepare a recommendation to the city council based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection (B)(4) of this section.
3. City Council Review. The city council may elect to review an application for reasonable use and may elect to conduct a public hearing pursuant to the provisions of the applicable city code section(s). The city council may approve, approve with conditions, or deny a reasonable use exception request based on the proposal’s ability or lack of ability to comply with all of the reasonable use exception review criteria in subsection (B)(4) of this section.
4. Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions follow; one or more may apply:
a. The application of this chapter would deny all reasonable economic use of the property;
b. No other reasonable economic use of the property has less impact on the critical area;
c. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;
d. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor;
e. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
f. The proposal will result in no net loss of critical area functions and values consistent with the best available science; or
g. The proposal is consistent with other applicable regulations and standards.
5. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.
C. Exception – Public Agency and Utility.
1. If the application of this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.
2. Exception Request and Review Process. An application for a public agency and utility exception shall be made to the city and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The director shall prepare a recommendation to the city council based on review of the submitted information, a site inspection, and the proposal’s ability to comply with public agency and utility exception review criteria in subsection (C)(4) of this section.
3. City Council Review. The city council shall review the public agency exception application and administrator’s recommendation. Following that review, the city council may elect to conduct a public hearing pursuant to the provisions of the applicable city code section. The city council shall approve, approve with conditions, or deny the public agency exception request based on the proposal’s ability or lack of ability to comply with all of the public agency and utility exception criteria in subsection (C)(4) of this section.
4. Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions follow:
a. There is no other practical alternative to the proposed development with less impact on the critical areas;
b. The application of this chapter would unreasonably restrict the ability to provide utility services to the public;
c. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
d. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and
e. The proposal is consistent with other applicable regulations and standards.
5. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.040 Assessment relief.
Landowners who have dedicated an easement or entered into a perpetual conservation restriction with the city to permanently control some or all regulated activities may have that portion of land exempt from special assessments such as sanitary sewers, storm sewers and water mains. (Ord. 2293 § 2 (Exh. A), 2005).
Article II. Critical Areas
19.02.050 Finding of fact.
A. The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.
B. Per RCW 36.70A.030(5), critical areas include:
1. Frequently flooded areas;
2. Geologically hazardous areas;
3. Critical aquifer recharge areas;
4. Wetlands;
5. Fish and wildlife habitat conservation areas. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.060 Frequently flooded areas.
A. Finding of Fact. The city finds that frequently flooded areas provide a variety of valuable and beneficial physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by frequently flooded areas include flood storage, conveyance and attenuation of flood waters as well as channel migration zone management.
B. Technical Information.
1. Applicability. This section shall apply to all areas of special flood hazards and wetlands within the jurisdiction of the city, originally adopted as Chapter 19.04 EMC and amended as a section of this chapter.
a. Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “Flood Insurance Study Rate Map dated September 29, 1989, for the City of Enumclaw” dated September 29, 1989, with accompanying flood insurance maps, is adopted by reference and declared to be part of this chapter. The flood insurance study is on file with the city clerk, city of Enumclaw, City Hall, Enumclaw, Washington.
C. Administrator – Duties.
1. When base flood elevation data has not been provided in accordance with the area identified by the Federal Insurance Administration scientific and engineering report referred to above, the administrator shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source.
a. Where base flood elevation data is provided through the flood insurance study, or as required as in subsection A of this section, obtain and record the actual (as-built) elevation (in relation to mean sea level) of the lowest floor, including basement, of all new or substantially improved structures, and whether or not the structure contains a basement;
b. For all new or substantially improved floodproofed structures:
i. Verify and record actual elevation (in relation to mean sea level); and
ii. Maintain the floodproofing certifications as may be required by the Federal Insurance Administrator or its successor agency.
c. The administrator shall notify adjacent communities and the Washington State Department of Ecology prior to any alteration or relocation of a watercourse, submit evidence of such notification to the Federal Insurance Administration, and require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.070 Geologically hazardous areas.
A. Finding of Fact. Based upon the most recent information, the city has determined that only three of the seven geologically hazardous areas listed in WAC 365-190-080 are relevant to the city. Those three categories of geologically hazardous areas are:
1. Erosion hazard areas;
2. Landslide hazard areas;
3. Seismic hazard areas.
These are the only areas that will be addressed in this chapter.
B. Identification. The identification of geologically hazardous areas involves the collection of baseline data and the preparation of a critical areas report (see Appendices B and E of this chapter) by a qualified professional. In the case of geologic hazards, the qualified professional is a registered engineering geologist or a licensed geotechnical engineer. The following is a list of technical information requirements:
1. Erosion Hazard Areas – Technical Information. Erosion hazard: areas identified as having high or very high water erosion hazard by the U.S. Department of Agricultural Soil Conservation Service as supplied by the SCS area office;
2. Landslide Hazard Areas – Technical Information. Landslide hazard: areas potentially subject to landslides based upon the following combination of geologic, topographic and hydrologic factors:
a. Areas of historic failure including:
i. Those areas delineated by the U.S. Department of Agriculture Soil Conservation Service as having “severe” limitations for building site development;
ii. Those areas mapped as quaternary slumps, earthflows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or Department of Natural Resources Division of Geology and Earth Resources;
b. Areas with all three of the following characteristics:
i. Slopes of 15 percent gradient or greater; and
ii. Hillsides intersecting geologic contacts with a relatively permeable sediment overlaying a relatively impermeable sediment or bedrock; and
iii. Springs or ground water seepage;
c. Areas that have shown movement during the Holocene Epoch or which are underlain or covered by mass wastage debris of the epoch;
d. Slopes that are parallel or subparallel to planes or weakness in subsurface materials;
e. Privately owned areas with slopes that have gradients greater than 80 percent subject to rock fall during seismic shaking;
f. Technical Information.
i. Identify and quantify geologic, topographic and hydrologic factors that might contribute to slope instability. The rate and extent of potential hazards to development activity must be assessed and mitigation measures, if any, evaluated. The proposed development must be analyzed in light of the hazards and effects represented by the landslide exposure on proposed private and public investments. Development operational factors should be included in the analysis to account for the effects of residential landscape irrigation, storm water generation from impervious surfaces and the influence of street conveyance on slope stability.
ii. The submittal of a geotechnical report establishing the suitability of the site for construction shall be required.
iii. If found to be suitable, a professional registered engineer shall design a foundation that accommodates on-site conditions.
3. Seismic Hazard Areas – Technical Information.
a. Identify and quantify geologic factors that might contribute to seismic activity. The rate and extent of potential hazards to development activity must be assessed and mitigation measures, if any, evaluated.
b. The proposed development must be analyzed in light of the hazards and effects represented by the seismic exposure on proposed private and public investments. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.080 Critical aquifer recharge areas.
A. Finding of Fact. No Category I critical aquifer recharge areas have been identified or designated within the city limits of, or within the urban growth area around, the city of Enumclaw (12/2004).
B. Critical Aquifer Recharge Areas – Categories. Critical aquifer recharge areas are categorized as follows:
1. Category I critical aquifer recharge areas include those mapped areas that Enumclaw has determined are highly susceptible to ground water contamination and that are located within a sole source aquifer or a wellhead protection area;
2. Category II critical aquifer recharge areas include those mapped areas that Enumclaw has determined:
a. Have a medium susceptibility to ground water contamination and are located in a sole source aquifer or a wellhead protection area; or
b. Are highly susceptible to ground water contamination and are not located in a sole source aquifer or wellhead protection area; and
3. Category III critical aquifer recharge areas include those mapped areas that Enumclaw has determined have low susceptibility to ground water contamination.
C. Technical Information Requirements. Delineation of the recharge areas on a scaled development plan and detailed information on the following items:
1. Hydrogeological susceptibility to contamination and contamination loading potential;
2. Depth to ground water;
3. Hydraulic conductivity and gradient;
4. Soil permeability and contamination attenuation;
5. A vadose zone analysis including permeability and attenuation properties;
6. An analysis of the recharge area’s toleration for impervious surfaces in terms of both aquifer recharge and the effect on water quality degradation;
7. A summary of the proposed development’s effect on the recharge area, concentrating on items in subsections (C)(4) and (5) of this section;
8. Existing aquifer water quality analysis. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.090 Wetlands – Category and buffer widths.
A. Wetlands are described by wetland class and by wetland category (see Appendix A of this chapter).
1. Technical Information. The exact location of the wetland boundary or boundaries within and in close proximity to the proposed project site shall be determined by the applicant through the performance of a field investigation applying the provisions detailed in EMC 19.02.140(D). Field data collection for the purposes of identifying and delineating a wetland shall be performed by a qualified professional wetland scientist (biologist or ecologist) in concert with qualified biological technicians. The wetland delineation process shall be completed in accordance with current U.S. Army Corps of Engineers and Washington State Department of Ecology standards (see EMC 19.02.140(D)).
2. The qualified professional shall determine, on the basis of established criteria from the Corps and WDOE, if the identified and delineated wetland is regulated and whether said wetland is subject to corps and/or state jurisdiction or is under the jurisdiction of both agencies.
3. Reporting requirements are detailed in EMC 19.02.140, Appendix B, and Appendix E of this chapter.
B. Wetland Category. In the city, wetland category is used to regulate activities within and adjacent to a wetland and in determining the width of the wetland buffer. The wetland category is determined after a wetland has been identified and delineated. Wetland category is determined using the Washington State Wetland Rating System for Western Washington (WDOE Publication No. 04-06-025). Wetlands are evaluated and scored on three criteria (water quality functions, hydrologic functions, and habitat functions).
The WDOE document contains the definitions and scoring methods used for determining if the wetland rating criteria outlined in Appendix A of this chapter are met. The total score for the three functional areas determines the wetland category. Note that streams and lakes are not rated as wetlands, but rather are classified and rated as fish and wildlife conservation areas (EMC 19.02.100).
C. Wetland Buffers. Wetland buffers are established to protect wetland resources from adjacent land uses. The buffer width shall vary by wetland category with the standard buffer width being:
Table 19.02.090(C) – Buffer Widths
Wetland Category
Standard Buffer Width (in feet)
Range of Buffer Widths (in feet)
I
150
100 to 300
II
95
75 to 200
III
50
25 to 100
IV
25
15 to 50
1. Buffer Vegetation Requirements. Wetland buffer zones shall be retained in their natural condition. Where buffer disturbance is unavoidable during adjacent construction, revegetation will be required with native plant materials preferred.
2. Standard Width Buffers. An applicant can elect to use the standard buffer widths to establish those areas within the project site where regulated activities will not occur.
3. Buffer Averaging. Use of standard width buffers in site planning does not preclude the use of buffer averaging as a site planning tool. To be included in an approved site plan, however, a buffer averaging plan must be reviewed and approved by the administrator. Wetland buffer width averaging shall be allowed only where the applicant demonstrates all of the following:
a. That averaging is necessary to avoid an extraordinary hardship to the applicant caused by circumstances peculiar to the property:
i. An extraordinary hardship can include an administrator decision that would yield the applicant’s project unconstructible or yield the property undevelopable.
ii. An administrator decision that would alter a proposed project from being economically feasible to not being economically feasible, particularly if the applicant was reliant on prior city decisions in making economic and project go/no go decisions;
b. That the wetland/stream contains variations in sensitivity due to existing physical characteristics;
c. That width averaging will not adversely impact the wetland functions or values; and
d. That the total area contained within the wetland/stream buffer after averaging is no less than that contained within the standard buffer prior to averaging. If buffer averaging is allowed the buffer width shall not be reduced by more than 40 percent of the standard buffer or be less than 15 feet; and
e. The administrator shall require enhancement of the buffer vegetation to increase buffer functions and values if, based on an on-site evaluation, it is determined that the existing buffer plant community is monotypic (has a single dominant species), is dominated by groundcover species, has an overall plant density of 50 percent or less, and has unobstructed pathways for various pollutants to travel between the adjacent upland (developed or undeveloped) and the protected wetland. The amount of buffer enhancement (vegetation planting, soil augmentation, and addition of woody debris) that shall be required will vary on a case-by-case basis depending upon the potential risk (high, moderate, or low) of adverse impacts stemming from adjacent land use activities.
4. Buffer Width Reduction. An applicant may request the administrator’s approval of a buffer reduction plan that is based upon the condition of the vegetation in the existing buffer, the slope of the land adjacent to the buffer, the proposed land use, the risk of negative impacts to the buffer and wetland, and the opportunity for wildlife and fish species to use the buffer habitat.
a. To evaluate an applicant’s request for buffer reduction, the administrator will require the applicant to submit a “Buffer Risk and Opportunity Assessment” (see Appendix F of this chapter) completed by a qualified professional to evaluate the request using real data.
b. If the assessment rating supports the applicant’s request for buffer width reduction and/or variable width buffers, the administrator will make a decision to allow buffer reduction, with or without mitigation. The range of potential buffer widths is shown in Table 19.02.090(C) – Buffer Widths.
5. Buffer Width Enlargement. The administrator may require increased standard buffer zone widths on a case-by-case basis when a larger buffer is necessary to protect wetlands or stream functions and values based on local conditions. Buffer widths can be increased to the upper end of the ranges shown in Table 19.02.090(C) – Buffer Widths. If the administrator elects to impose larger (wider) buffers on a specific project, the decision to use wider buffers must be supported by best available science and current local data (observations). Buffer widths shall be increased (see Appendix F of this chapter) if the administrator can demonstrate:
a. A larger buffer is necessary to maintain viable populations of existing species; or
b. The wetland or stream is used by species proposed or listed by the federal government or the state as endangered, threatened, rare, sensitive or monitored, critical or outstanding potential habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees; or
c. The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts; or
d. The adjacent land has minimal vegetative cover or slopes greater than 15 percent or, if less than 15 percent, the project proponent is not being required to implement buffer enhancement plans.
6. Abrogation. Nothing in this section or chapter abrogates, compromises or otherwise subordinates the full force, effect and applicability of the Washington State Shoreline Management Act.
7. Preexisting Uses within a Buffer. A use or structure established prior to the effective date of the ordinance codified in this chapter which does not conform to standards set forth herein is allowed to continue and be reasonably maintained; provided, that such activity or structure shall not be expanded or enlarged in any manner that increases the extent of its nonconformity.
8. Repair of Buffer Areas Damaged During Construction. Except as otherwise specified, wetland/stream buffer zones shall be retained in their natural condition. Where buffer disturbance has occurred during construction, revegetation with native vegetation may be required.
9. Allowable Uses in a Critical Area Buffer – Permitted Uses in a Buffer Zone. Regulated activities shall not be allowed in a buffer zone except for the following:
a. Activities having minimal adverse impacts on buffers and no adverse impacts on regulated wetlands. These may include low intensity, passive recreational activities such as:
i. Construction and use of trail systems and trail support systems designed with adequate storm water management and natural erosion control features. Trails shall be located only in the outer 25 percent of a wetland buffer, with barriers to intrusion on the side of the trail closer to the critical area, and should avoid damaging significant trees and other habitat elements;
ii. Nonpermanent wildlife watching blinds, short-term scientific or educational activities;
iii. Sports fishing or hunting activities; and
iv. Storm water discharge devices designed to spread runoff along the delineated edge of the wetland or stream;
b. With respect to buffers adjacent to Category II, III, and IV wetlands, storm water management facilities may be placed in a wetland buffer if:
i. There is no reasonable alternative location for constructing and operating a storm water management system;
ii. The applicant can demonstrate to the administrator that locating the runoff management (runoff collection, storage, and dispersal) system within the buffer is critical to maintaining wetland hydrology; and
iii. The storm water discharge is dispersed along, not concentrated at, the delineated edge of the wetland (the interface between the wetland and the buffer); or
c. With respect to Category III and IV wetlands, mandatory development-related land use activities having no feasible alternative location. If the administrator allows such development activities within the standard buffer, all buffer impacts shall be mitigated per a mitigation plan approved by the administrator. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.100 Fish and wildlife conservation areas – Habitat types and buffer widths.
A. Finding of Fact. There are eight types of habitat listed in WAC 365-190-080(5) to be designated as fish and wildlife habitat conservation areas. In addition, there are six considerations to be factored into the designation process. Within the city of Enumclaw and its urban growth areas there are only two types of habitat present that will be classified or designated as fish and wildlife habitat conservation areas. The two types are stream habitat and buffers (riparian areas) adjacent to regulated streams or water bodies.
The latter will be important in the overall effort to restore and enhance salmonid habitat as well as for creating open space corridors adjacent to the two major watercourses in, or in close proximity to, the city. Those two watercourses, Boise Creek and Newaukum Creek, and their associated buffers will be candidate areas for critical area mitigation opportunities that are consistent with goals and objectives defined in the city’s comprehensive plan and in the watershed restoration and management plans being developed in water resource inventory area (WRIA) 9, which is the Green River watershed, and in WRIA 10, which is the White River watershed.
B. Technical Information. The following is a list of technical information to be included in a critical areas report (see Appendix E of this chapter) prepared by a qualified professional for submittal to the city as part of a critical areas permit:
1. Using standard field data collection methods, a qualified professional will identify and delineate stream and riparian habitats located within and immediately adjacent to a proposed project site.
2. Habitat areas suited for any life stage of any endangered, threatened, and sensitive species or priority habitats defined by the Washington State Department of Fish and Wildlife shall be identified, delineated, and reported to the city.
3. The investigation shall include relative density and species richness, breeding, habitat, seasonal range dynamics and movement corridors.
4. The analysis shall address the relative tolerance by species of human activities.
5. The development proposal shall be evaluated in terms of its influence on the above wildlife factors.
6. The location of fish-bearing streams, corresponding buffers, and the high water mark shall be identified on a site plan that shall be included in the critical areas report.
7. The administrator will review the technical information presented in the critical areas report. Based upon the description of potential development-related impacts and the discussion of potential risk of impacts to fish and wildlife species as well as their respective habitats, the administrator will recommend the need for preparation of a mitigation plan.
8. The administrator shall require the applicant to submit a final critical areas report identifying fish and wildlife habitat conservation areas (or the lack thereof) and including a mitigation plan as necessary prior to approval of any development-related permits, including a critical areas permit.
C. Streams and Watercourses. Streams and watercourses are classified primarily on the basis of salmonid fish use. Formerly these habitat features were classified using the Washington State Department of Natural Resources (DNR) water typing system (WAC 222-16-030), a system designed to regulate forest practices in areas adjacent to wetlands, watercourses, and water bodies. The list below shows the original water type and the revised water type:
1. Type 1 water, which has been changed to Type S for streams and watercourses of statewide significance;
2. Type 2 water, which has been changed to Type F for fish-bearing streams with perennial flow;
3. Type 3 water, which has been changed to Type F for fish-bearing streams with intermittent flow;
4. Type 4 water, which has been changed to Type Np for streams with perennial or intermittent flow, but without direct fish use;
5. Type 5 water, which has been changed to Type Ns for intermittent and ephemeral streams or watercourses that are not used by fish, but have enough flow energy to scour a stream channel to mineral soil;
6. Type 5 water, which has been changed to Type O for watercourses that do not have enough flow energy to scour a stream channel to mineral soil or bedrock and that do not have fish use. This latter type is sometimes referred to as a swale or drainage swale.
A buffer, consisting of natural vegetation, shall be required along all streams as classified by the DNR water typing classification system (WAC 222-16-030). The native growth buffer shall be established on both sides of the stream or watercourse and shall extend landward from the ordinary high water of the water body. The following buffer widths are the standard buffer width requirements:
DNR Water Type S
100-foot buffer
DNR Water Type F
75-foot buffer
DNR Water Type Np
50-foot buffer
DNR Water Type Ns
25-foot buffer
Water Type O is not a DNR classification, but has been adopted into this chapter to provide regulatory guidance for vegetated swales. The city will not impose a buffer requirement on water Type O unless the administrator is convinced, on the basis of available field data and personal knowledge, that a buffer is needed to protect downstream critical areas from a risk of significant adverse impact due to on-site water quality degradation.
D. Buffer Width Averaging, Reduction, and Enlargement. If approved by the administrator, buffer width averaging, buffer width reduction, and buffer width enlargement will be consistent with the provisions specified in EMC 19.02.090. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.110 Resource lands.
Mineral resource lands may only be developed in accordance with Chapter 19.28 EMC. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.120 Critical areas maps and databases.
A. The city shall maintain inventory maps showing the general locations of critical areas as well as a database with supporting information. Each critical area will have its own individual map or overlay. These maps shall be available for use by public and private entities.
B. There are maps in the current comprehensive plan that show the approximate location and extent of critical areas in the city. These maps are not intended to be used for site engineering or planning and are not a substitute for the critical areas identification and delineations process required in other sections of this chapter. Additional critical areas are presumed to exist, and are protected under all the provisions of this chapter. In the event that any of the critical area designations shown on the map conflict with the criteria set forth in this chapter, the criteria shall control. (Ord. 2293 § 2 (Exh. A), 2005).
Article III. Critical Area Permits
19.02.130 General requirements.
No regulated activity shall occur within a critical area, or its associated buffer, without the project proponent or applicant having applied for and obtained a critical area permit (see Type I and II permits, EMC Title 15), unless said regulated activity requires another Type I through V permit, in which case said other Type I through V permit shall be the vehicle by which compliance with this chapter is verified. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.140 Application.
A. Who Must Apply. Any individual, company, agency, or other entity proposing to undertake a regulated activity in the city must apply for a Type I through Type V permit (per EMC Title 15) prior to initiating any site-altering activity that is not allowed under EMC 19.02.020.
B. Information Requirements. The administrator is authorized to adopt written information requirements for critical area permits (refer to Appendix E of this chapter). Unless the city waives one or more of the following information requirements, application for a critical area permit under this chapter includes, but is not limited to, the following information:
1. Name and contact information for the project proponent or applicant;
2. Address and/or legal description of the proposed project site;
3. A description of the site, including the size of the proposed site;
4. A description of adjacent properties, including a description of the current use(s) on those properties, a description of the vegetation and vegetation conditions on those properties, the name(s) and contact information for all adjacent property owners, and a listing of any easements that will be needed on adjacent properties or that exist on the proposed project site that grant use to entities other than the project site owner(s);
5. A description of the proposed project activity;
6. A critical areas report that documents the ecological, aesthetic, economic, or other values of the critical areas, including a discussion of the methodology used to identify, delineate, and survey critical areas described in the report (refer to Appendix B of this chapter for minimum report content requirements);
7. Site plan(s) or site map(s) at a scale no smaller than one inch equals 40 feet showing the entire parcel of land owned (or under a contract to purchase) by the applicant. In addition the site plan or site map must show:
a. All critical area boundaries and their associated buffers identified and delineated within and in close proximity to the proposed project;
b. Existing and proposed site topography and drainage features (i.e., ditches, streams, culverts, pipelines, etc.);
c. All significant trees, which includes all conifers with a six-inch dbh or greater and all deciduous species with an eight-inch or greater dbh;
d. All existing structures, utilities, roadways, and other site improvements; and
e. The proposed storm water management plan;
8. A description of site development alternatives and an evaluation of those alternatives vis-à-vis any proposed critical area alterations. Include a rationale for not avoiding or minimizing impacts to critical areas identified within the project site;
9. A mitigation plan may be submitted to the administrator at the time the applicant submits a critical areas permit application (or a Type III through Type V permit application) or the administrator may allow the applicant to defer submittal of the mitigation until after the preliminary project design has been reviewed by the administrator. The applicant will be required, however, to submit a final mitigation plan (see Appendix C of this chapter for mitigation plan requirements) describing mitigation projects for all unavoidable critical area impacts before any project permits are approved by the administrator. The final mitigation plan shall include baseline information, environmental goals and objectives, a financial guarantee quantity worksheet to “bond” the proposed mitigation activities, detailed construction plans, performance standards, a three- to five-year monitoring program, and a contingency plan.
C. Preparation of a Critical Areas Report. A critical areas report (see Appendices B and D of this chapter) must be prepared by a qualified professional (critical areas consultant) with expertise in the critical area of concern, as defined in this chapter.
1. The critical areas consultant will be retained by the applicant to complete any of the following activities: critical area site analysis and evaluation, site restoration and/or enhancement, and site development plan or project design. The consultant will be selected from a list of qualified professionals (as defined in WAC 365-195-905(4) and Appendix D of this chapter) that shall be maintained by and on file with the administrator.
2. The applicant may use the professional services of any qualified professional to assist with critical areas assessment and reporting whether they are or are not listed on the city-maintained list. The administrator may request a qualification statement from any consultant providing professional services to an applicant, particularly when critical areas assessments and reporting are part of a proposed land use action or development plan.
D. Critical Area Boundary. Critical area boundary shall be determined by the applicant through the performance of a field investigation.
1. The administrator, when requested by the applicant, may waive the delineation of the boundary requirement for the applicant and, in lieu of delineation by the applicant, perform the delineation.
a. All wetland delineations will be completed in accordance with the methodologies defined in the U.S. Army Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1) an the Washington State Wetlands Identification and Delineation Manual (WDOE Publication No. 96-94); or in accordance with future revised delineation manuals required by federal and state agencies.
2. The administrator shall consult with qualified critical areas consultants and technical experts or other experts as needed to perform the delineation.
3. The applicant may be charged for the costs incurred in accordance with the provisions of this section.
4. Where the administrator delineates a wetland at the request of the applicant, such delineation shall be considered a final determination.
5. Where the applicant delineates the critical area boundary, the administrator shall verify the accuracy of, and may adjust, the boundary. If the applicant contests the adjusted boundary, the administrator shall, at the applicant’s expense, obtain expert services to render a final delineation.
E. Best Available Science. A critical areas report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter. Recommendations for buffer width averaging, buffer width reduction, and buffer impact mitigation actions must be based in best available science, which includes local expertise and site-specific knowledge.
F. Additional Studies. When an applicant submits an application for a critical area permit, the application shall indicate whether any environmentally critical area is located on the site. If the administrator determines that sufficient environmental information to evaluate a proposal is not available, the administrator shall notify the applicant that special environmental studies are required.
1. Special environmental studies may include a comprehensive site inventory and analysis, a wetland study, a geotechnical study, a discussion of potential impacts from the proposed development, and specific measures designed to mitigate any potential on- or off-site adverse environmental impacts of the applicant’s proposal.
2. The administrator shall develop and maintain a detailed list of required study contents.
3. All special studies shall be completed by a firm or individual selected, in concert between the city and the applicant, from a list of qualified professional critical area consultants that is maintained by and available from the administrator. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.150 Permit review.
A. As part of the permit review process, the city shall:
1. Verify the information submitted by the applicant;
2. Evaluate the available current city critical areas maps and data files to determine if there are identified critical areas within or in close proximity to the proposed project site. The administrator may require the applicant to submit a critical area reconnaissance report (CARR) form (see Appendix B of this chapter) to assist in the determination regarding the presence of identified and regulated critical areas. The CARR form must be prepared by a qualified professional;
3. Determine whether the proposed project is likely to impact the functions or values of critical areas; and
4. Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.
B. If the proposed project is within, adjacent to, or is likely to impact a critical area, the city shall:
1. Require the applicant to complete a field study of the project site and immediate surrounding area to the administrator. The applicant shall be required, at a minimum, to submit a critical areas report (see Appendix B of this chapter) to the administrator. The critical areas report must be prepared by a qualified professional;
2. Review and evaluate the critical areas report;
3. Determine whether the development proposal conforms to the purposes and performance standards of this chapter, including the criteria in EMC 19.02.160(A) and (B). (Ord. 2293 § 2 (Exh. A), 2005).
19.02.160 Criteria for permit review, approval, denial, and issuance.
A. A permit shall only be granted if the permit, as conditioned, is consistent with the purposes and intent of this chapter. Additionally, permits shall only be granted if:
1. A proposed action:
a. Avoids significant adverse impacts to critical areas; or
b. Takes affirmative and appropriate measures to minimize significant adverse impacts to critical areas; or
c. Mitigates (compensates for) unavoidable significant adverse impacts to critical areas; and
d. Assures no net loss of wetland function and value;
2. The proposal is compatible in design, scale, and use with other development or potential development in the area; and
3. The proposed actions implement, to the maximum extent possible, the best available construction, design, and development techniques that will result in the least adverse impact to the critical area.
B. Any alteration to a critical area, unless otherwise provided for in this chapter, shall be reviewed and approved, approved with conditions, or denied based on the proposal’s ability to comply with all of the following criteria:
1. The proposal minimizes the impact on critical areas in accordance with mitigation sequencing, EMC 19.02.230;
2. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
3. The proposal is consistent with the general purposes of this title and the public interest;
4. Any alterations permitted to the critical area are mitigated in accordance with mitigation requirements, EMC 19.02.250;
5. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and
6. The proposal is consistent with all other applicable local, state, and federal regulations and standards.
C. The city may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter.
D. Except as provided for by this chapter, any project that cannot adequately mitigate its impacts to critical areas in the sequencing order of preferences in EMC 19.02.230 shall be denied.
E. Favorable Determination. If the administrator determines that the proposed activity meets the criteria in this section and complies with the applicable provisions of this chapter, the administrator shall prepare a written notice of determination and identify any required conditions of approval. The notice of determination and conditions of approval shall be included in the project file and be considered in the next phase of the city’s review of the proposed activity in accordance with any other applicable codes or regulations.
1. Any conditions of approval included in a notice of determination shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous determination pending rereview of the proposal and conditions of approval by the administrator.
2. A favorable determination should not be construed as endorsement or approval of any underlying permit or approval.
F. Unfavorable Determination. If the administrator determines that a proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the criteria in subsection B of this section and the provisions of this chapter, the administrator shall prepare written notice of the determination that includes findings of noncompliance.
1. No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the provisions of this chapter.
2. Following notice of determination that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this chapter, the applicant may request consideration of a revised critical areas report. If the revision is found to be substantial and relevant to the critical area review, the administrator may reopen the critical area review and make a new determination based on the revised report.
G. Completion of the Critical Area Review. The city’s determination regarding critical areas pursuant to this chapter shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved.
H. Appeals. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.170 Variance.
A. Variance. Variances from the standards of this chapter may be authorized by the administrator in accordance with the procedures set forth in the zoning variance section of the city code. The city council shall review the request and make a written finding that the request meets or fails to meet the variance criteria.
B. Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:
1. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;
2. The special conditions and circumstances do not result from the actions of the applicant;
3. A literal interpretation of the provisions of this chapter would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;
4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;
5. The granting of the variance is consistent with the general purpose and intent of this chapter, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;
6. The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and
7. The granting of the variance is consistent with the general purpose and intent of the current comprehensive plan and adopted development regulations.
C. Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.
D. Time Limit. The city shall prescribe a time limit of five years within which the action for which the variance is required shall have begun, be completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.
E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.180 Permit fees.
A. Filing Fees. At the time of a critical area permit application, the applicant shall pay a filing fee determined by the city fee resolution.
B. Financial Guarantees. At the time of a critical area permit approval, the applicant will be required to post a financial guarantee for all critical area alteration mitigation activities. The financial guarantee shall be paid prior to initiating any activities in a critical area. The financial guarantee amount will vary by project and may be determined by:
1. The applicant securing three bona fide bids from experienced landscaping contractors or qualified critical area restoration contractors to install, maintain, and monitor a mitigation plan that has been approved by the administrator. The highest bid will determine the bond amount. The administrator can, at the applicant’s expense, solicit an independent bid for installation, maintenance, and monitoring of the approved plan if the administrator believes the applicant’s submittal is significantly lower than expected.
2. The administrator can prepare, or have prepared, a standard bond quantity worksheet to determine the bond quantity.
3. The applicant depositing a cash deposit in a joint city/applicant interest-bearing account at a local financial institution.
a. Interest accrued while the cash deposit is held in deposit at the financial institution will be deposited in the applicant’s interest account.
b. No funds will be dispersed from the cash account or the interest account unless the applicant fails to implement the approved mitigation plan within a reasonable time period (12 months) following approval of the mitigation plan and site plans and the initiation of construction.
c. If the applicant fails to perform as directed in the approved mitigation plan, both the interest and cash accounts will be forfeited by the applicant to the administrator.
4. Financial guarantees posted for mitigation projects will be posted in two parts, a construction guarantee and a maintenance/monitoring guarantee. After the applicant has implemented the construction and planting phases of the mitigation project and the mitigation effort is approved by the administrator, the construction portion of the financial guarantee will be released to the applicant. Following the end of the five-year maintenance and monitoring period and a review by the administrator indicating the project has been approved, the maintenance and monitoring financial guarantee will be released to the applicant. (Ord. 2293 § 2 (Exh. A), 2005).
Article IV. Development Standards for Critical Areas
19.02.190 Critical area development standards.
A. Special Flood Hazard Areas – Development Standards. In all areas of special flood hazard, the following standards are required:
1. Anchoring.
a. All new construction and substantial improvement shall be anchored to prevent flotation, collapse or lateral movement of structures.
b. All manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, the use of over-the-top or frame ties to ground anchor (reference FEMA’s “Manufactured Home Installation in Flood Hazard Areas” guidebook for additional techniques).
2. Construction Materials and Methods.
a. All new construction and substantial improvement shall be constructed with materials and utility equipment resistant to flood damage.
b. All new construction and substantial improvement shall be constructed using methods and practices that minimize flood damage.
c. Electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during the condition of flooding.
3. Utilities.
a. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.
b. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the system into floodwaters.
c. On-site waste disposal systems shall be located to avoid impairment or contamination of systems or from systems during flooding.
4. Subdivision Proposals – Flood Hazard Areas.
a. All subdivision proposals shall be consistent with the need to minimize flood damage.
b. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.
c. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage.
d. Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less).
5. Review of Building Permits – Flood Hazard Areas. Where elevation data is not available either through the flood insurance study or from other authoritative source, applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The administrator may use historical data, high water marks, photographs of past floods, etc., where available to determine flood level. The applicant is required to elevate the proposed finished floor elevation and place mechanical systems (example: HVAC ducts) that are not floodproof in a crawl space at least one foot above flood level in an identified flood zone. Failure to comply with this section may result in higher insurance rates.
6. Residential Construction – Flood Hazard Areas.
a. New construction or substantial improvement of any residential structure shall have the lowest floor, including basement, elevated to or above base flood elevation.
b. Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for entry and exit of floodwaters. Design for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:
i. A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.
ii. The bottom of all openings shall be no higher than one foot above grade.
iii. Openings shall be equipped with screens, louvers or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters.
7. Nonresidential Construction – Flood Hazard Areas. New construction or substantial improvement of any commercial, industrial or other nonresidential structure shall either have the highest floor, including basement, elevated to or above the level of the base flood elevation; or, together with attendant utility and sanitary facilities, shall:
a. Be floodproofed so that below one foot above the base flood level the structure is watertight with walls substantially impermeable to the passage of water;
b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of the buoyancy;
c. Be certified by a registered professional engineer or architect that the design methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based upon their development and/or review of the structural design, specifications and plans. Such certification shall be provided to the official as set forth above;
d. Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in subsection (A)(5) of this section;
e. Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based upon rates that are one foot below floodproofed level (e.g., a building floodproofed to one foot above the base flood level will be rated as at the base flood level).
8. Manufactured Homes – Flood Hazard Areas. All manufactured homes to be placed or substantially improved within zones A1-30, AH and AE on the community’s FIRM shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is to or above the base flood elevation; and be securely anchored to an adequately anchored foundation system in accordance with the provisions set forth in subsection (A)(1)(b) of this section.
9. Floodways – Flood Hazard Areas. Located within areas of special flood hazard, as established in the section involving basis for establishing areas of special flood hazards, EMC 19.02.060(B)(1)(a), are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:
a. Prohibit encroachments, including fill, new construction, substantial improvement and other development unless certification by a registered professional engineer or architect is provided demonstrating that the encroachment shall not result in increased flood levels during the occurrence of the base flood discharge.
b. Construction or reconstruction of residential structures is prohibited within designated floodways, except for:
i. Repairs, construction or improvements to a structure which do not increase the ground floor area; and
ii. Repairs, reconstruction or improvements to a structure, the cost of which does not exceed 50 percent of the market value of the structure either:
(A) Before the repair, reconstruction or improvement has started; or
(B) If the structure has been damaged, and is being restored, before damage occurred.
iii. Work done on structures to comply with existing health, sanitary or safety codes or to structures identified as historical places shall not be included in the 50 percent.
c. If subsection A of this section is satisfied, all new construction and substantial improvement shall comply with the applicable flood hazard reduction provisions as set forth in the provisions for flood hazard reduction.
d. The city will control the degree of alteration of natural floodplains, wetlands, stream channels and natural protective barriers to help accommodate the storage or channeling of floodwaters, through provisions in the adopted storm water design manual regulations.
B. Geologically Hazardous Areas.
1. Erosion Hazard Areas – Development Standards.
a. Erosion hazard areas shall be avoided as locations for building construction, roads or utility systems, where mitigation is not feasible.
b. Development activities or their support infrastructure shall not be allowed that would directly or indirectly worsen the erosion hazard identified in the site analysis.
c. Land clearing, grading, and filling shall not be permitted between October 15th and April 1st.
2. Landslide Hazard Areas – Development Standards.
a. Documented landslide hazard areas shall be avoided as locations for building construction, roads or utility systems where mitigation is not feasible.
b. If the degree of hazard warrants some development activity, postconstruction slope stabilization and appropriately upgraded road construction specifications shall be employed to eliminate as completely as practicable any public or private exposure to landslide hazards or abnormal maintenance or repair costs.
c. Land clearing, grading, and filling shall not be permitted between October 15th and April 1st.
3. Seismic Hazard Areas – Development Standards.
a. The list below defines critical facilities that will require engineering and design elements suitable for protecting public health and safety as well as other critical areas when sited in a seismic hazard area:
i. Hospitals and other medical facilities having surgery and emergency treatment areas;
ii. Structures housing, supporting or containing sufficient quantities of toxic or explosive substances to be dangerous to the safety of the general public if released;
iii. Covered structures whose primary occupancy is public assembly, with capacity of greater than 300 persons;
iv. Buildings for schools through secondary or day care centers, with a capacity of greater than 250 students;
v. Buildings for colleges or adult education schools, with a capacity of 500 students or greater;
vi. Medical facilities with 50 or more resident incapacitated patients;
vii. Jails and detention facilities; and
viii. All structures with occupancy of greater than 5,000 people.
C. Critical Aquifer Recharge Areas – Development Standards.
1. The site analysis will create a water quality baseline which will serve as a minimum standard that shall not be further degraded by proposed development.
2. The creation of additional impervious surfaces shall be limited to that amount described in the site analysis that will ensure adequate aquifer recharge and water quality protection.
3. Permits shall ensure that all best management practices are employed to avoid introducing pollutants into the aquifer. This includes the complete collection and disposal of storm water outside of the aquifer recharge area for all development impervious surfaces.
D. Wetlands – Development Standards.
1. Development standards for wetland habitat and wetland buffers are defined in EMC 19.02.090 and 19.02.130 through 19.02.180.
2. The applicant will not initiate any habitat-altering activities within a regulated wetland adjacent to a stream or river prior to having obtained approval for the proposed mitigation plan and a valid hydraulic project approval (HPA) from the Washington State Department of Fish and Wildlife.
3. The applicant will not initiate any work in an area that has been or has the potential to be designated as a wetland or fish and wildlife habitat conservation area without obtaining either a valid Section 404 permit or a letter indicating the affected wetland is isolated issued by the U.S. Army Corps of Engineers, Regulatory Branch.
E. Fish and Wildlife Habitat Conservation Areas – Development Standards.
1. No permit for land use activities involving the alteration of identified fish and wildlife habitat conservation areas shall be granted by the administrator unless mitigation of adverse effects that will ensure continuation of baseline populations for all endangered, threatened and sensitive species can be provided.
2. Development will not be allowed in fish and wildlife habitat conservation areas without administrator approval if listed species (those species listed on the Federal Endangered Species List and the State of Washington Priority Habitat and Species List) and their critical habitats will suffer population declines, migration route interruption, or habitat degradation; the administrator may approve development in fish and wildlife conservation areas if it can be demonstrated that:
a. Mitigation measures (best management practices) intended to minimize or eliminate adverse affects on species and habitat are incorporated in the development plans; and
b. The applicant provides valid and scientifically supportable information demonstrating that adequate regional populations will be maintained after the development activities have ceased and the site is occupied.
3. Development reviews shall include regional species occurrence and movements and will avoid creating isolated subpopulations where warranted.
4. A grading, restoration, and erosion control plan shall be approved by the city prior to initiating any work proposed adjacent to a fish-bearing stream or buffer.
5. Any disturbance in the buffer area shall be restored and rehabilitated to ensure erosion and water quality is not degraded from predevelopment conditions.
6. Any disturbance in the buffer area shall be restored and rehabilitated to ensure restoration of native vegetation (trees, shrubs, and groundcover) within the fish and wildlife habitat conservation area.
7. The applicant will not initiate any work in a stream (below the ordinary high water mark) without having a valid hydraulic project approval (HPA) issued by the Washington State Department of Fish and Wildlife and, if necessary, a valid Section 404 permit issued by the U.S. Army Corps of Engineers, Regulatory Branch.
8. In the event that a federal or state protected species or its associated habitat is de-listed or the federal and state policies regarding listed species and habitats are modified or removed, the administrator will decide how fish and wildlife conservation areas will be managed from a permitting perspective. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.200 Critical areas management incentives.
A. Limited Density Transfer.
1. For development proposals on lands containing Category II, III or IV wetlands and any category of wetland buffers, the administrator shall determine allowable dwelling units for residential development proposals based on the formulas below.
2. The following formula for density calculations is designed to provide incentives for the preservation of wetlands and wetland buffers, flexibility in design, and consistent treatment of different types of development proposals. The formula shall apply to all properties within existing residential zones on which wetlands and wetland buffers are located.
3. The maximum number of dwelling units (DU) for a lot or parcel which contains wetlands and wetland buffers shall be equal to:
(Acres in Wetland or Buffer) x (DU/Acre) x (Density Credit)
4. The density credit figure is derived from the following table:
Percentage of Site in Buffer
Density Credit
100%
100%
90%
90%
80%
80%
70%
70%
60%
60%
50%
50%
40%
40%
30%
30%
20%
20%
10%
10%
5. The density credit can only be transferred within the development proposal site. To the extent that application of the formula may result in lot sizes less than the minimum allowed by the underlying district, they are hereby authorized; provided, that the resultant lot is no less than 50 percent of the required size. In no event shall a reduction in lot size result in lot sizes less than 7,200 square feet or result in a change in use from that allowed in the underlying zone district. Deductions of up to 50 percent for setbacks and width at building are also authorized as long as the lot standards do not conflict with the family of International Building Code requirements.
6. The administrator shall require and approve a binding site plan, submitted by the applicant indicating lot sizes, lot configurations, building envelopes, and elevations, and structure profiles as a condition of allowing any reduction on the standards of the underlying zone. Any density credit (for wetlands only) resulting in reduction of standards for the underlying zone district shall also require a variance from the board of adjustment.
B. Nonmonetary Compensation for Voluntary Increases in Critical Habitat Set-Asides. This is a program by which the city would provide nonmonetary compensation for applicants or landowner cooperation in establishing larger than the minimum required buffers adjacent to designated critical areas or riparian areas adjacent to aquatic habitats such as streams, ponds, or lakes.
1. An example of this program would be the administrator compensating a land owner (whose active agricultural operation initiated prior to the adoption of any sensitive or critical areas regulations) for voluntarily creating buffers adjacent to a stream to protect the fish and wildlife habitat and protect water quality.
a. As an example, the city could supply the materials and labor to install and maintain the fencing necessary to exclude livestock from the stream channel and its associated buffer as compensation for the voluntary establishment of buffers; or
b. The city could supply the materials and labor needed to install off-channel livestock watering facilities; or
c. The city would supply the farmer with a quantity of hay equivalent to the amount of hay lost due to creating the buffer set-aside.
2. To fund this type of compensation program, the city is hereby authorized to:
a. Levy a conservation fee on all dairy and meat products sold at retail outlets located within the limits of the city; or
b. The city could negotiate a perpetual grant from the salmon recovery fund to fund the projects and use a nonprofit entity dedicated to salmon habitat restoration (i.e., Mid-Sound Fisheries Enhancement Group) to implement the program.
C. Open Space, Forestry, and Agricultural Current Use Assessment Programs. Under established programs authorized by state law (Chapter 83.34 RCW and related sections) the administrator could encourage an applicant or applicants as property owners to seek property tax relief as compensation for establishing minimum required buffers adjacent to critical areas when they are exempt under the current Chapter 19.02 EMC.
1. The administrator is hereby authorized to develop a tax relief information packet and provide said packet to land owners in the city of Enumclaw and immediately surrounding areas.
2. The administrator would have the authority to prepare documents indicating the designation of property currently designated as open space, forestry, and agricultural to critical area buffer, a designation that should lower tax liability on the dedicated lands.
3. The administrator would also be authorized to prepare property tax relief requests for properties that an applicant or applicants designated as fish and wildlife habitat conservation areas or critical area buffers. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.210 Critical area tracts and easements.
A. Critical Area Management Tracts. As a condition of any permit, the city may require the permit holder to create a separate critical area management tract containing the areas determined to be critical areas. Critical area management tracts are legally created tracts containing critical areas, and compensation areas that shall remain undeveloped in perpetuity, except for allowed activities pursuant to this chapter. Critical area management tracts are an integral part of the lot in which they are created, are not intended for sale, lease or transfer, and shall be included in the area of the parent lot for purposes of subdivision method and minimum lot size.
B. Protection of Critical Area Management Tracts. The city may require, as a condition of any permit, that the critical area management tracts be protected and maintained in perpetuity by a critical area management easement which must be recorded. In addition, an entity that will be responsible for the maintenance and protection of the critical area tract must be designated as part of the permit.
C. Marking During Construction. The location of the outer extent of the critical area and the areas to be disturbed pursuant to an approved permit shall be marked in the field to prevent unnecessary disturbance by individuals and equipment during the development or construction of the permitted activity. Such field markings shall be approved by the city prior to the commencement of permitted activities. Such field markings shall be maintained throughout the duration of the permit.
D. Permanent Marking. The city may require the boundary of a critical area management tract be permanently identified by signs, the location, size, and wording of which must be approved by the administrator. These signs should be worded as follows: “Protection of this natural area is in your care. Alteration or disturbance is prohibited by law. Please call the city community development department for more information.”
E. Additional Requirements. Site-specific criteria shall be developed to determine if additional conditions are warranted to ensure the preservation and protection of critical areas are needed. These conditions include, but are not limited to, fencing, educational signage, and other passive recreational amenities. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.220 Deed restrictions and setbacks.
A. Deed Restrictions. The permit holder shall establish and record a permanent and irrevocable deed restriction on the property title of all lots containing critical area management tracts created as a condition of this permit. Such deed restriction(s) shall prohibit in perpetuity the development, alteration, or disturbance of vegetation within the critical area management tract except for allowed activities and regulated activities allowed by a permit issued pursuant to this chapter.
B. Setbacks. Building setbacks must be recorded on the property title for all critical areas identified and delineated on the project site and in close proximity of the project site. As it pertains to the provisions of this chapter, a building setback is an additional open area between the delineated edge of an identified critical area and a permanent structure or improvement.
1. Major structures and improvements shall be set back 25 feet from any landslide critical area tract, and 15 feet from any flood hazard zone, or erosion hazard critical area tract. Major structures and improvements shall be set back a minimum of 15 feet from the outer edge of any wetland or stream buffer.
2. The administrator may increase the setback to protect the proposal or adjacent properties from adverse impacts and may decrease the setback if the reduction does not result in significant adverse impacts to the proposal or adjacent properties. The setback can be decreased to no less than 10 feet. (Ord. 2293 § 2 (Exh. A), 2005).
Article V. Mitigation of Critical Area Impacts
19.02.230 Mitigation sequencing – Decision criteria.
A. Eligibility for Reasonable Use Exception Application.
1. It is the city’s responsibility to review all regulated land use activities and approve only those land use proposals that will not adversely impact public health and safety, public investments in infrastructure, and natural resources managed as a public trust.
2. It is the responsibility of an applicant requesting plan approval and development permits for a proposed land use action to ensure that all reasonable and practical project alternatives have been thoroughly evaluated in an effort to avoid adversely impacting public health and safety, public investments in infrastructure, and natural resources managed as a public trust.
3. To be consistent with the goals and objectives of its current comprehensive plan and the provisions of this chapter, the city shall require an applicant to clearly demonstrate that all efforts have been exhausted in the process of preparing a proposed development plan (land use activity).
4. The applicant having exhausted all reasonable and practical efforts to avoid impacts, it is the responsibility of the administrator to ensure that all unavoidable impacts to regulated critical areas are mitigated.
B. Compensatory Mitigation – Decision Criteria. Compensatory mitigation for alterations to critical areas, particularly wetlands and fish and wildlife habitat conservation areas, shall, in a reasonable period of time, achieve equivalent or greater biologic function within the critical area altered or in a viable alternative mitigation area. Compensatory mitigation plans shall be consistent with best available science (BAS) as well as local knowledge and expertise.
1. Mitigation of critical area impacts associated with a proposed land use activity shall be required in the following order of preference:
a. Impact avoidance: avoiding the impact altogether by not taking a certain action or parts of an action. When it has been demonstrated, to the satisfaction of the administrator, that impact avoidance is neither practical nor prudent, the administrator shall approve one of the following, in descending order of preference;
b. Impact minimization: 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. Impact rectification: rectifying the impact by repairing, rehabilitating, or restoring the affected environment. This may include off-site mitigation areas and the restoration of previously impacted habitats in other critical areas in the same or adjacent watershed;
d. Impact reduction over time: reducing or eliminating the impact over time by preservation and maintenance operations;
e. Impact compensation: compensating for the impact by replacing, enhancing, or providing substitute resources or environments. This may include mitigation alternatives such as wetland mitigation banking, fee-in-lieu, and other creative approaches to mitigation that will result in a net increase in critical area function and value.
C. Minimizing Wetlands Impacts – Decision Criteria. After it has been determined by the city council, based on information presented to the council by the administrator and the applicant, that the loss of critical areas is necessary and unavoidable or that all reasonable economic use has been denied:
1. The applicant shall implement project planning and implementation measures intended to minimize critical area impacts; and
2. Efforts to minimize critical area impacts shall include but are not limited to:
a. Limiting the degree or magnitude of the regulated activity;
b. Limiting the implementation of the regulated activity;
c. Using appropriate and best available technology;
d. Taking affirmative steps to avoid or reduce impacts;
e. Sensitive site design and siting of facilities and construction staging areas away from regulated wetlands and their buffers;
f. Involving resource agencies early in site planning; and
g. Providing protective measures such as siltation curtains, hay bales and other siltation prevention measures, scheduling the regulated activity to avoid interference with wildlife and fisheries rearing, nesting or spawning activities.
D. Mitigation of Unavoidable Critical Area Impacts as Part of a Reasonable Use Exception. If the administrator has determined that implementation of an applicant’s land use proposal results in adverse impacts to critical areas identified within, or immediately adjacent to, the proposed project site and the application of the provisions of this chapter would deny all reasonable use of the property, the administrator may allow a proposed development that is consistent with the general purposes of this chapter and the public interest to proceed; provided, that the city council finds that:
1. Enforcement of the provisions of this chapter would otherwise deny all reasonable use of the property;
2. There is no other reasonable use with less impact on the wetland;
3. The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the property;
4. Any proposed alteration of the wetland is the minimum necessary to allow for reasonable use of the property;
5. There is no feasible on-site alternative, including reduction in density and site-planning considerations;
6. The inability to derive reasonable economic use from the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance codified in this chapter. (Ord. 2293 § 2 (Exh. A), 2005).
19.02.240 Mitigation plans.
A. All wetland enhancement, restoration, or creation projects required pursuant to this chapter either as a permit condition or as the result of an enforcement action shall follow a mitigation plan prepared by a qualified professional and approved by the administrator.
1. Preparation of the mitigation report is an expense borne by the applicant and/or violator.
2. The minimum content of a critical area mitigation plan is outlined in Appendix C of this chapter.
3. Unless the administrator, in consultation with a qualified professional, determines, based on the size and nature of the development proposal, the nature of the impacted wetland, and the degree of cumulative impacts on the wetland from other development proposals, that the scope and specific requirements of the mitigation plan may be reduced from what is listed in Appendix B of this chapter, the mitigation plan shall include information in response to every item listed.
B. The applicant or violator shall receive written approval of the mitigation plan by the city prior to commencement of any wetland restoration, creation or enhancement ac