Chapter 18.10
ENVIRONMENTAL PROTECTION*

Sections:

Environmental Policy

18.10.010    Authority.

18.10.015    Codes adopted by reference.

18.10.020    Definitions – Adoption by reference.

18.10.030    Additional definitions.

18.10.040    WAC sections adopted by reference.

18.10.050    Designation of responsible official.

18.10.060    Lead agency determination and responsibilities.

18.10.070    Categorical exemptions and threshold determinations – Adoption by reference.

18.10.080    Categorical exemptions and threshold determinations – Time estimates.

18.10.090    Integration with permit and land use decision.

18.10.100    Categorical exemptions – Adoption by reference.

18.10.110    Categorical exemptions – Flexible thresholds.

18.10.120    Categorical exemptions – Determination.

18.10.130    Threshold determination – Review at conceptual stage.

18.10.140    Threshold determination – Environmental checklist.

18.10.145    Optional DNS process.

18.10.150    Threshold determination – Mitigated DNS.

18.10.160    Environmental impact statement (EIS) – Adoption by reference.

18.10.170    EIS – Preparation.

18.10.180    EIS – Additional elements.

18.10.190    EIS – Commenting – Adoption by reference.

18.10.200    Public notice.

18.10.210    Designation of official to perform consulted agency responsibilities.

18.10.220    Using existing environmental documents – Adoption by reference.

18.10.230    SEPA decisions – Adoption by reference.

18.10.240    SEPA decisions.

18.10.250    SEPA decisions – Substantive authority.

18.10.260    SEPA – Policies.

18.10.270    Appeals.

18.10.280    Notice/statute of limitations.

18.10.290    Compliance with SEPA – Adoption by reference.

18.10.300    Environmentally critical areas.

18.10.310    Fees.

18.10.320    Forms – Adoption by reference.

18.10.330    WACs on file.

Critical Areas Regulations

18.10.340    Purpose.

18.10.350    Intent.

18.10.360    Environmentally critical areas.

18.10.370    Applicability.

18.10.380    Agency resource maps.

18.10.390    Definitions.

18.10.400    Exemptions.

18.10.410    Critical areas studies.

18.10.420    Public agency and utility exemption.

18.10.430    Variances.

18.10.440    Nonconforming activities.

18.10.450    Density calculations in critical areas.

18.10.460    Notice on title.

18.10.470    Repealed.

18.10.480    Temporary marking – Permanent survey marking – Signs.

18.10.490    Mitigation.

18.10.500    Monitoring.

18.10.510    Critical Areas Mitigation Fund.

18.10.515    Critical area tracts, buffer areas and building setback areas.

Development Standards

18.10.520    Mine hazard areas and erosion hazard areas – Protection mechanisms and permitted alterations.

18.10.530    Areas of special flood hazard – Protection mechanisms and permitted alterations.

18.10.540    Repealed.

18.10.550    Repealed.

18.10.560    Landslide hazard areas – Protection mechanisms and permitted alterations.

18.10.570    Seismic hazard areas – Protection mechanisms and permitted alterations.

18.10.580    Steep slope hazard areas – Protection mechanisms and permitted alterations.

18.10.590    Wetlands – General protection mechanisms.

18.10.600    Regulated wetland activities.

18.10.610    Allowed wetland activities.

18.10.615    Wetland delineations.

18.10.620    Wetland rating system.

18.10.630    Repealed.

18.10.640    Wetland buffer width requirements.

18.10.650    Exceptions to wetland buffer width requirements.

18.10.660    Performance standards.

18.10.670    –

18.10.690    Repealed.

18.10.700    Avoiding wetland impacts.

18.10.710    Minimizing wetlands impacts.

18.10.720    Mitigating for wetland impacts.

18.10.730    Repealed.

18.10.740    Repealed.

18.10.750    Mitigation plan required.

18.10.760    Mitigation plan information requirements.

18.10.765    Lakes – Lake Sammamish.

18.10.770    Streams – General protection mechanisms.

18.10.775    Alterations to streams and buffers.

18.10.780    Stream rating system.

18.10.785    Stream buffer width requirements.

18.10.790    Exceptions to stream buffer width requirements.

18.10.795    Mitigation for streams.

18.10.796    Critical aquifer recharge areas (CARAs).

Administration

18.10.805    Long-term maintenance of wetlands and streams.

18.10.810    Bonds for restoration and mitigation activities.

18.10.820    Enforcement and penalties for critical areas.

18.10.830    Civil penalties.

18.10.840    Notices and orders.

18.10.850    Revocation or refusal to accept application.

18.10.860    Criminal penalties.

18.10.870    Vesting (environmental protection).

18.10.880    Appeals.

18.10.890    Judicial review.

18.10.900    Administrative rules.

18.10.910    Amendments.

18.10.920    Fees.

18.10.930    Assessment relief.

Shoreline Regulations

18.10.940    Shoreline Master Program adopted.

18.10.950    –

18.10.1050    Repealed.

Transfer of Development Rights

18.10.2005    Purpose and intent of the transfer of development rights program.

18.10.2010    State enabling legislation.

18.10.2020    Definitions.

18.10.2030    Designation of sending and receiving sites.

18.10.2035    TDR bank – Purpose and authorization.

18.10.2037    Administration of TDR bank.

18.10.2040    Sending TDRs – Certification, application and procedures.

18.10.2050    Receiving TDRs – Standards, applications and procedures.

18.10.2060    Appeals.

18.10.2070    Monitoring TDR certificates.

18.10.2080    Repeal.

18.10.2090    Other authority.

*Prior legislation: Ords. 2049, 2054, 2072.

Environmental Policy

18.10.010 Authority.

The City adopts the ordinance codified in this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120 and the SEPA rules, WAC 197-11-904. This chapter contains the City’s SEPA procedures and policies. The SEPA rules contained in Chapter 197-11 WAC must be used in conjunction with this chapter. (Ord. 2108 § 10.1.1, 1996; Ord. 1633 § 2, 1984).

18.10.015 Codes adopted by reference.

Unless otherwise specifically stated therein, all codes which are adopted or referenced in this chapter shall be as such codes now exist or are hereinafter amended. (Ord. 2185 § 1, 1998).

18.10.020 Definitions – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference, as supplemented in this chapter:

WAC

197-11-700    Definitions.

197-11-702    Act.

197-11-704    Action.

197-11-706    Addendum.

197-11-708    Adoption.

197-11-710    Affected tribe.

197-11-712    Affecting.

197-11-714    Agency.

197-11-716    Applicant.

197-11-718    Built environment.

197-11-720    Categorical appeal.

197-11-721    Closed record appeal.

197-11-722    Consolidated appeal.

197-11-724    Consulted agency.

197-11-726    Cost-benefit analysis.

197-11-728    County/city.

197-11-730    Decision-maker.

197-11-732    Department.

197-11-734    Determination of nonsignificance (DNS).

197-11-736    Determination of significance (DS).

197-11-738    EIS.

197-11-740    Environment.

197-11-742    Environmental checklist.

197-11-744    Environmental document.

197-11-746    Environmental review.

197-11-748    Environmentally sensitive area.

197-11-750    Expanded scoping.

197-11-752    Impacts.

197-11-754    Incorporation by reference.

197-11-756    Lands covered by water.

197-11-758    Lead agency.

197-11-760    License.

197-11-762    Local agency.

197-11-764    Major action.

197-11-766    Mitigated DNS.

197-11-768    Mitigation.

197-11-770    Natural environment.

197-11-772    NEPA.

197-11-774    Nonproject.

197-11-775    Open record hearing.

197-11-776    Phased review.

197-11-778    Preparation.

197-11-780    Private project.

197-11-782    Probable.

197-11-784    Proposal.

197-11-786    Reasonable alternative.

197-11-788    Responsible official.

197-11-790    SEPA.

197-11-792    Scope.

197-11-793    Scoping.

197-11-794    Significant.

197-11-796    State agency.

197-11-797    Threshold determination.

197-11-799    Underlying governmental action.

(Ord. 2185 § 2, 1998; Ord. 2108 § 10.1.2, 1996; Ord. 1633 § 28, 1984).

18.10.030 Additional definitions.

In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this chapter, the following terms shall have the following meanings, unless the content indicates otherwise:

Department: Any division, subdivision, or organizational unit of the City established by ordinance, rule, or order.

SEPA rules: Chapter 197-11 WAC adopted by the Department of Ecology.

Early notice: The City’s response to an applicant stating whether it considers issuance of the determination of significance likely for the applicant’s proposal. (Ord. 2108 § 10.1.3, 1996; Ord. 1633 § 4, 1984).

18.10.040 WAC sections adopted by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference:

WAC

197-11-040    Definitions.

197-11-050    Lead agency.

197-11-055    Timing of the SEPA process.

197-11-060    Content of environmental review.

197-11-070    Limitations on actions during SEPA process.

197-11-080    Incomplete or unavailable information.

197-11-090    Supporting documents.

197-11-100    Information required of applicants.

197-11-158    GMA project review – Reliance on existing plans, laws, and regulations.

197-11-164    Planned actions – Definition and criteria.

197-11-168    Ordinances or resolutions designating planned actions – Procedures for adoption.

197-11-172    Planned actions – Project review.

197-11-210    SEPA/GMA integration.

197-11-220    SEPA/GMA definitions.

197-11-225    Purpose, policy applicability and definitions.

197-11-228    Overall integration procedures.

197-11-230    Timing of an integrated GMA/SEPA process.

197-11-232    Integration procedures for preliminary planning, environmental analysis and expanded scoping.

197-11-235    Integrating documents.

197-11-259    Determination of nonsignificance for MTCA remedial action.

(Ord. 2185 § 3, 1998; Ord. 2108 § 10.1.4, 1996; Ord. 1633 § 3, 1984).

18.10.050 Designation of responsible official.

A.    For those proposals for which the City is a lead agency, the responsible official shall be the Planning Director/Manager or such other person as the Mayor may designate in writing.

B.    For all proposals for which the City is a lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required EIS, and perform any other functions assigned to the lead agency or responsible official by those sections of the SEPA rules that have been adopted by reference. (Ord. 2108 § 10.1.5, 1996; Ord. 1633 § 5, 1984).

18.10.060 Lead agency determination and responsibilities.

A.    The responsible official or the department receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and WAC 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.

B.    When the City is not the lead agency for a proposal, all departments of the City shall use and consider as appropriate either the DNS or the final EIS of the lead agency in making decisions on the proposal. No City department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency unless the City determines a supplemental environmental review is necessary under WAC 197-11-600.

C.    If the City, or any of its departments, receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination, and must be resolved within fourteen (14) days of receipt of the determination, or the City must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the fourteen (14) day time period. Any such petition on behalf of the City may be initiated by the responsible official or any department.

D.    The responsible official is authorized to make agreements as to lead agency status or shared lead agency’s duties for a proposal under WAC 197-11-942 and 197-11-944.

E.    The responsible official shall require sufficient information from the applicant to identify other agencies with jurisdiction. (Ord. 2185 § 4, 1998; Ord. 2108 § 10.1.6, 1996; Ord. 1633 § 6, 1984).

18.10.070 Categorical exemptions and threshold determinations – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference, as supplemented in this chapter:

WAC

197-11-300    Purpose of this part.

197-11-305    Categorical exemptions.

197-11-310    Threshold determination required.

197-11-315    Environmental checklist.

197-11-330    Threshold determination process.

197-11-335    Additional information.

197-11-340    Determination of nonsignificance (DNS).

197-11-350    Mitigated DNS.

197-11-355    Optional DNS process.

197-11-360    Determination of significance (DS)/initiation of scoping.

197-11-390    Effect of threshold determination.

(Ord. 2185 § 5, 1998; Ord. 2108 § 10.1.7, 1996; Ord. 1633 § 7, 1984).

18.10.080 Categorical exemptions and threshold determinations – Time estimates.

The time estimates contained in this section apply when the City processes licenses for all private projects and governmental proposals, for which the City is acting as lead agency for purposes of this chapter.

A.    Categorical Exemptions: The City will normally identify whether an action is categorically exempt within seven (7) days of receiving a completed application. The Planning Director/Manager shall certify when an application is complete based on review of the environmental checklist. If additional information is required to supplement the checklist, the application shall not be certified complete until the required information is received by the Planning Director/Manager.

B.    Threshold Determinations: It is the policy of the City to make a threshold determination on a completed application within ninety (90) days after the application and supporting documentation are complete.

C.    Complete Application: A complete application for a threshold determination consists of the following information:

1.    The proposed action:

a.    A description of the proposed action,

b.    Site information, including site plans, vicinity maps, and other information required for a land use certification or other Development/Land Use Permit application;

2.    The environmental checklist;

3.    Additional information/environmental checklist (WAC 197-11-335). The environmental checklist covers sixteen (16) subjects. If after review of the environmental checklist it is determined that there is insufficient information to make a threshold determination, additional information will be required using any one (1) or more of the following:

a.    The applicant will provide more information on subjects in the checklist,

b.    The City makes its own further study,

c.    The City will consult with other agencies, requesting information on the proposal’s potential impacts which lie within other agencies’ jurisdiction or expertise.

D.    Certification of Completeness: The Planning Director/Manager shall certify when an application is complete based on review of the environmental checklist. If additional information is required to supplement the checklist, the application shall not be certified until the required information is received by the Planning Director/Manager. Under state law and City policy, an applicant’s proposal must receive a determination of significance or nonsignificance within the ninety (90) day period, subject to the following:

1.    The applicant may request an additional thirty (30) days for the threshold determination.

2.    It is the policy of the City that adequate information must be provided before a decision can be made. The City will not accept, nor commence processing, environmental checklists which are not deemed complete.

3.    The City will normally complete threshold determinations on actions where the applicant recommends in writing than an EIS be prepared, because of the probable significant adverse environmental impacts described in the application, within fifteen (15) working days of receiving a completed application.

4.    The responsible official will normally respond to a request for early notice within ten (10) working days. The threshold determination will normally be made within fifteen (15) working days of receipt of the changed or clarified proposal, environmental checklist and/or permit application. (Ord. 2108 § 10.1.8, 1996; Ord. 1954 § 1, 1992; Ord. 1633 § 8, 1984).

18.10.090 Integration with permit and land use decision.

Under state law, the procedure for review of Project Permits shall be combined with the environmental review process, both procedural and substantive. The process under the State Environmental Policy Act (SEPA) and this chapter shall integrate the following procedures, insofar as possible, with any applicable process for decision-making on permit and land use applications:

A.    Staff review of the application under City codes and regulations and the environmental review and determination thereon;

B.    The staff report on the application, and the report or documentation concerning environmental review;

C.    Hearings and other public processes, including required public notices, required by City code or regulation, and hearings and other public processes, including public notices, required or conducted under SEPA. This section shall include appeals, except as otherwise expressly provided by this Code;

D.    Such other review processes as the Planning Director/Manager shall determine. (Ord. 2108 § 10.1.9, 1996; Ord. 1954 § 2, 1992).

18.10.100 Categorical exemptions – Adoption by reference.

The City adopts the following rules for categorical exemption of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference, as supplemented in this chapter:

WAC

197-11-800    Categorical exemptions.

197-11-880    Emergencies.

197-11-890    Petitioning DOE to change exemptions.

(Ord. 2108 § 10.1.10, 1996; Ord. 1633 § 9, 1984).

18.10.110 Categorical exemptions – Flexible thresholds.

A.    The City establishes the following exempt levels for minor new construction based on local conditions:

1.    For residential dwelling units in WAC 197-11-800(1)(b)(i), up to four (4) dwelling units;

2.    For agricultural structures in WAC 197-11-800(1)(b)(ii), up to ten thousand (10,000) square feet;

3.    For office, school, commercial, recreational service, or storage buildings in WAC 197-11-800(1)(b)(iii), up to four thousand (4,000) square feet, and up to twenty (20) parking spaces;

4.    For parking lots in WAC 197-11-800(1)(b)(iv), up to twenty (20) parking spaces;

5.    For landfills and excavations in WAC 197-11-800(1)(b)(v), up to one hundred (100) cubic yards.

B.    The responsible official shall send copies of all adopted flexible thresholds to the Department of Ecology, Headquarters Office, Olympia, Washington. (Ord. 2108 § 10.1.11, 1996; Ord. 1633 § 10, 1984).

18.10.120 Categorical exemptions – Determination.

A.    When the City receives an application for a license or, in the case of governmental proposals, a department initiates a proposal, the responsible official shall determine whether the license and/or the proposal is exempt. The determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter shall apply to the proposal. The City shall not require completion of an environmental checklist for an exempt proposal.

B.    In determining whether or not a proposal is exempt, the responsible official shall make certain the proposal is properly defined and shall identify the governmental license required. If a proposal includes exempt and nonexempt actions, the responsible official shall determine the lead agency, even if the license application that triggers the consideration is exempt.

C.    Existing Documents May Provide Sufficient Environmental Protection:

1.    The City shall review the Project Permit application to determine whether existing documents may provide sufficient environmental protection and shall:

a.    Determine whether the applicable regulations require studies that adequately analyze all of the Project Permit application’s specific probable adverse environmental impacts;

b.    Determine if the applicable regulations require measures that adequately address such environmental impacts;

c.    Determine whether additional studies are required and/or whether the Project Permit application should be conditioned with additional mitigation measures;

d.    Provide prompt and coordinated review by government agencies and the public on compliance with applicable environmental laws and plans, including mitigation for specific project impacts that have not been considered and addressed at the plan or development regulation level;

e.    Review and document consistency with Comprehensive Plan and Land Use Code development regulations.

2.    In its review of a Project Permit application, the City may determine, pursuant to the criteria of RCW 43.21C.240(1) and (2), the requirements for environmental analysis, protection and mitigation measures in the applicable development regulations, comprehensive plan and/or in other applicable local, state or federal laws provide adequate analysis of and mitigation for the specific adverse environmental impacts of the application.

3.    If the City’s Comprehensive Plans, subarea plans, and development regulations adequately address a project’s probable specific adverse environmental impacts, as determined under subsection (C)(1) of this section, or RCW 43.21C.240(1) and (2), the City shall not impose additional mitigation under SEPA during project review.

4.    A comprehensive plan, development regulation or other applicable local, state or federal law provides adequate analysis of and mitigation for the specific adverse environmental impacts of an application when:

a.    The impacts have been avoided or otherwise mitigated; or

b.    The City has designated as acceptable certain levels of service, land use designations, development standards or other land use planning required or allowed by Chapter 36.70A RCW.

5.    In its decision whether a specific adverse environmental impact has been addressed by an existing rule or law of another agency with jurisdiction with environmental expertise with regard to a specific environmental impact, the City shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the City shall base or condition its project approval on compliance with these other existing rules or laws.

6.    Nothing in this section limits the authority of the City in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided in Chapter 43.21C RCW.

D.    Planned Actions:

1.    A planned action does not require a threshold determination or the preparation of an environmental impact statement under SEPA, but is subject to environmental review and mitigation under SEPA.

2.    A “planned action” means one (1) or more types of project action that:

a.    Are designated planned actions by an ordinance or resolution adopted by the City;

b.    Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with:

(1)    A comprehensive plan or subarea plan adopted under Chapter 36.70A RCW, or

(2)    A fully contained community, a master planned resort, a master planned development or a phased project;

c.    Are subsequent or implementing projects for the proposals listed in subsection (D)(2)(b) of this section;

d.    Are located within an urban growth area, as defined in RCW 36.70A.030;

e.    Are not essential public facilities, as defined in RCW 36.70A.200; and

f.    Are consistent with the City’s Comprehensive Plan adopted under Chapter 36.70A RCW.

3.    Limitations on Planned Actions: The City shall limit planned actions to certain types of development or to specific geographical areas that are less extensive than the jurisdictional boundaries of the City, and may limit a planned action to a time period identified in the environmental impact statement or the adoption of this Code.

E.    If a proposal includes both exempt and nonexempt actions, the City may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

1.    The City shall not give authorization for:

a.    Any nonexempt action,

b.    Any action that would have an adverse environmental impact, or

c.    Any action that would limit the choice of reasonable alternatives;

2.    The City may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if the nonexempt actions were not approved; and

3.    The City may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if the nonexempt actions were not approved.

F.    Periodic Review: The periodic review of mineral resource operations pursuant to Chapter 18.05 IMC is categorically exempt as an ongoing enforcement and inspection activity; provided, that there are no material changes in the scope of work occurring at the mineral resource site. WAC 197-11-800(13). Material changes in the scope of work will be reviewed in accordance with IMC Table 18.06.130 and may require environmental review. (Ord. 2233 § 16, 1999; Ord. 2108 § 10.1.12, 1996; Ord. 1633 § 11, 1984).

18.10.130 Threshold determination – Review at conceptual stage.

A.    If the City’s only action on a proposal is a decision on a Building Permit or other licenses that require detailed project plans and specifications, the applicant may request in writing that the City conduct environmental review prior to submission of the detailed plans and specifications.

B.    In addition to the environmental documents, an applicant shall submit the following information for early environmental review:

1.    The material required for a Site Development Permit or other Project Permit application submittal;

2.    Other information as the responsible official may determine;

3.    If the only action is a decision on a permit for excavation, clearing and/or grading of land, the plans and specifications required by the City for a Clearing and Grading Permit shall be submitted for early environmental review. (Ord. 2108 § 10.1.13, 1996; Ord. 1633 § 12, 1984).

18.10.140 Threshold determination – Environmental checklist.

A.    Filing Environmental Checklist: A completed environmental checklist shall be filed at the same time as an application for a permit, license, certificate, or other approval not exempted by this chapter. The checklist shall be in the form of WAC 197-11-960 with such additions that may be required by the responsible official in accordance with WAC 197-11-906(4).

B.    Environmental Checklist Not Needed: A checklist is not needed if the City and the applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency.

C.    Environmental Checklist to Determine Lead Agency: The City shall use the environmental checklist to determine the lead agency and, if the City is the lead agency, for determining the responsible official and for making the threshold determination.

D.    Completing Environmental Checklist: For private proposals, the applicant is required to complete the environmental checklist as required in WAC 197-11-315(2). The City may provide assistance as necessary. For City proposals the department initiating the proposal shall complete the environmental checklist for that proposal.

E.    City to Complete Environmental Checklist: The City may decide to complete all or part of the environmental checklist for a private proposal under WAC 197-11-315(2), if either of the following occurs:

1.    The City has technical information on a question or questions that is unavailable to the private applicant; or

2.    The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. (Ord. 2108 § 10.1.14, 1996; Ord. 1633 § 13, 1984).

18.10.145 Optional DNS process.

A.    If the responsible official has a reasonable basis for determining that significant adverse environmental impacts are unlikely, the responsible official may elect to use the single integrated comment period set forth in this section. If this process is used, a second comment period will typically not be required when the DNS is issued.

B.    If the optional process set forth in this section is used, the responsible official shall:

1.    State on the first page of the notice of application that is expects to issue a DNS for the proposal, and that:

a.    The optional DNS process is being used;

b.    This may be the only opportunity to comment on the environmental impacts of the proposal;

c.    The proposal may include mitigation measures under applicable codes, and the project review process may incorporate or require mitigation measures regardless of whether an EIS is prepared;

d.    A copy of the subsequent threshold determination for the specific proposal may be obtained upon request (in addition, the City may maintain a general mailing list for threshold determination distribution);

2.    List in the notice of application the conditions being considered to mitigate environmental impacts, if a mitigated DNS is expected;

3.    Comply with the requirements for a notice of application and public notice in RCW 36.70B.110; and

4.    Send the notice of application and environmental checklist to:

a.    Agencies with jurisdiction, the Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal; and

b.    Anyone requesting a copy of the environmental checklist for the specific proposal (in addition, the City may maintain a general mailing list for checklist distribution).

C.    If the responsible official indicates on the notice of application that a DNS is likely, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application in accordance with IMC 18.10.060, WAC 197-11-940 and 197-11-948.

D.    The responsible official shall consider timely comments on the notice of application and either:

1.    Issue a DNS or mitigated DNS with no comment period using the procedures in subsection E of this section;

2.    Issue a DNS or mitigated DNS with a comment period using the procedures in subsection E of this section, if the responsible official determines a comment period is necessary;

3.    Issue a DS; or

4.    Require additional information or studies prior to making a threshold determination.

E.    If a DNS or mitigated DNS is issued under subsection (D)(1) or (2) of this section, the responsible official shall send a copy of the DNS or mitigated DNS to the Department of Ecology, agencies with jurisdiction, those who commented, and anyone requesting a copy. A copy of the environmental checklist need not be recirculated. (Ord. 2185 § 6, 1998).

18.10.150 Threshold determination – Mitigated DNS.

A.    The responsible official may issue a determination of nonsignificance (DNS) based on conditions attached to the proposal by the responsible official, or on changes to, or clarifications of, the proposal made by the applicant.

B.    An applicant may request in writing early notice of whether a DS is likely. The request must:

1.    Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the City is lead agency; and

2.    Precede the City’s actual threshold determination for the proposal.

C.    The responsible official’s response to the request for early notice shall:

1.    State whether the City currently considers issuance of a DS likely and, if so, indicate the general or specific areas of concern that are leading the City to consider a DS; and

2.    State that the applicant may change or clarify the proposal to mitigate the indicated impacts, and may revise the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

D.    When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the City shall base its threshold determination on a changed or clarified proposal.

1.    If the City indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the City shall issue and circulate a determination of nonsignificance if the City determines that no additional information or mitigation measures are required.

2.    If the City indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the City shall make the threshold determination, issuing a DNS or DS as appropriate.

3.    The applicant’s proposed mitigation measures, clarifications, changes, or conditions must be in writing and must be specific.

4.    Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies, or other documents.

E.    Comment Period: The City shall not act upon a proposal for which a mitigated DNS has been issued for fourteen (14) days after the date of issuance.

F.    Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the licensing decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any matter specifically prescribed by the City. Failure to comply with the designated mitigation measures shall be grounds for suspension and/or revocation of any license issued.

G.    If the City’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the City should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) relating to the withdrawal of a DNS.

H.    The City’s response under subsection B of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarification or changes to a proposal, as opposed to a written request for early notice, shall not bind the City to consider the clarifications or changes in its threshold determination. (Ord. 2185 § 7, 1998; Ord. 2108 § 10.1.15, 1996; Ord. 1633 § 14, 1984).

18.10.160 Environmental impact statement (EIS) – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference, as supplemented by this chapter:

WAC

197-11-400    Purpose of EIS.

197-11-402    General requirements.

197-11-405    EIS types.

197-11-406    EIS timing.

197-11-408    Scoping.

197-11-410    Expanded scoping.

197-11-420    EIS preparation.

197-11-425    Style and size.

197-11-430    Format.

197-11-435    Cover letter or memo.

197-11-440    EIS contents.

197-11-442    Contents of EIS on nonproject proposals.

197-11-443    EIS contents when prior nonproject EIS.

197-11-444    Elements of the environment.

197-11-448    Relationship of EIS to other considerations.

197-11-450    Cost-benefit analysis.

197-11-455    Issuance of DEIS.

197-11-460    Issuance of FEIS.

(Ord. 2108 § 10.1.16, 1996; Ord. 1633 § 15, 1984).

18.10.170 EIS – Preparation.

A.    Preparation of draft and final EISs and SEISs (Supplemental Environmental Impact Statement) shall be under the direction of the responsible official. Before the City issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

B.    The draft and final EIS or SEIS shall be prepared at the City’s option by the City staff, the applicant, or by a consultant approved by the City. If the responsible official requires an EIS for a proposal and determines that someone other than the City will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the City’s procedure for EIS preparation, including approval of the draft and final EIS prior to distribution.

C.    The City may require an applicant to provide information the City does not possess, including specific investigations; however, the applicant is not required to supply information that is not required under this chapter, or that is being requested from another agency; provided, however, this does not apply to information the City may request under another ordinance or statute.

D.    Subject to delays caused by the applicant’s failure to provide information requested by the City and other delays beyond the City’s control, an EIS will be completed within one (1) year of the date of the declaration of significance unless the City and the applicant agree in writing to a different estimated time period for completion of the EIS. (Ord. 2164 § 14, 1997; Ord. 2108 § 10.1.17, 1996; Ord. 1633 § 16, 1984).

18.10.180 EIS – Additional elements.

The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determination or perform any other function or purpose under this chapter:

A.    Economy;

B.    Social policy analysis;

C.    Cost-benefit analysis;

D.    Such other elements as may be required by the responsible official. (Ord. 2108 § 10.1.18, 1996; Ord. 1633 § 17, 1984).

18.10.190 EIS – Commenting – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference, as supplemented in this chapter:

WAC

197-11-500    Purpose of this part.

197-11-502    Inviting comment.

197-11-504    Availability and cost of environmental documents.

197-11-508    SEPA register.

197-11-535    Public hearings and meetings.

197-11-545    Effect of no comment.

197-11-550    Specificity of comments.

197-11-560    FEIS response to comments.

197-11-570    Consulted agency costs to assist lead agency.

(Ord. 2108 § 10.1.19, 1996; Ord. 1633 § 18, 1984).

18.10.200 Public notice.

A.    Whenever the City issues a threshold determination, or EIS requiring public notice, the City shall give public notice of the determination or the availability of the environmental documents and whether any public hearing will be held as follows:

1.    If public notice is required, the notice shall state whether a DS or DNS has been issued and when comments are due, or that the EIS is available;

2.    If no public notice is required, the City shall give notice by:

a.    Publishing notice in the local newspaper,

b.    Any other means of notice deemed appropriate by the responsible official, based on the type of proposal involved.

B.    Whenever the City issues a DS, the City shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408.

C.    The City shall require an applicant to compensate the City for the costs of compliance with the public notice requirements as determined by the City for the applicant’s proposal. (Ord. 2746 § 8 (Exh. C), 2015; Ord. 2108 § 10.1.20, 1996; Ord. 1633 § 19, 1984).

18.10.210 Designation of official to perform consulted agency responsibilities.

A.    The responsible official shall be responsible for preparation of written comments for the City in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a draft EIS.

B.    The responsible official shall be responsible for the City’s compliance with WAC 197-11-550 whenever the City is a consulted agency, and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the City. (Ord. 2108 § 10.1.21, 1996; Ord. 1633 § 20, 1984).

18.10.220 Using existing environmental documents – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference:

WAC

197-11-600    When to use existing environmental documents.

197-11-610    Use of NEPA documents.

197-11-620    Supplemental environmental impact statements.

197-11-625    Addenda – Procedures.

197-11-630    Adoption – Procedures.

197-11-635    Incorporation by reference – Procedures.

197-11-640    Combining documents.

(Ord. 2108 § 10.1.22, 1996; Ord. 1633 § 21, 1984).

18.10.230 SEPA decisions – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference:

WAC

197-11-650    Purpose of this part.

197-11-655    Implementation.

197-11-660    Substantive authority and mitigation.

197-11-680    Appeals.

197-11-700    Definitions.

(Ord. 2108 § 10.1.23, 1996; Ord. 1633 § 22, 1984).

18.10.240 SEPA decisions.

For nonexempt proposals, the DNS or final EIS for the proposal shall accompany the Administration’s recommendation to any appropriate advisory body such as the Development Commission, or Planning Policy Commission. (Ord. 2108 § 10.1.24, 1996; Ord. 1633 § 23, 1984).

18.10.250 SEPA decisions – Substantive authority.

A.    The City may attach conditions to a license or approval for a proposal so long as:

1.    Such conditions are necessary to mitigate specific adverse environmental impacts clearly identified in an environmental document prepared pursuant to this chapter; and

2.    Such conditions are in writing; and

3.    Such conditions are reasonable and capable of being accomplished; and

4.    The City has considered whether other local, state, or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

5.    Such conditions are based on one (1) or more policies in SEPA Policies (IMC 18.10.260) and cited in the permit, approval, license, or other decision document.

B.    The City may deny a permit or approval for a proposal on the basis of SEPA so long as:

1.    A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a final EIS or final supplemental EIS; and

2.    A finding is made that the mitigation measures are insufficient to mitigate the identified impact; and

3.    The denial is based on one (1) or more policies identified in SEPA Policies (IMC 18.10.260) and identified in writing in the decision document. (Ord. 2108 § 10.1.25, 1996; Ord. 1633 § 24, 1984).

18.10.260 SEPA – Policies.

A.    The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the City.

B.    The City adopts by reference the policies in the following City codes, ordinances, resolutions, and plans as now exist and as may hereafter be amended:

Chapter 8.06 IMC, Uniform Litter Control Code.

Chapter 8.16 IMC, Mine Shafts, Tunnels, and Vaults.

Chapter 9.22 IMC, Noise.

IMC Title 12, Streets, Sidewalks and Public Places.

IMC Title 13, Public Services.

IMC Title 16, Buildings and Construction.

Resolution 80-14, Construction Work Hours, 9-2-80.

Issaquah Traffic Circulation and Planning Study, 9-2-82.

Resolution 88-8, Transportation Functional Classification Plan, 8-18-88.

The Standards/Requirements Section of the “Issaquah Street Standards,” 11-15-2010.

Issaquah Parks and Recreation Plan, 5-2-83.

Resolution 84-07, Issaquah 2000, 7-16-84.

Ordinance 1624, Issaquah Comprehensive Sanitary Sewer Plan, 7-16-84.

Issaquah Fire Department Master Plan, 6-17-85.

Human Services Policy Statement, 9-15-86.

Resolution 87-01, Recreation Service Area, 2-2-87.

Resolution 87-9, Annexation Boundary – Bellevue/Issaquah, 7-7-87.

Comprehensive Water System Plan.

Comprehensive Sewer Plan.

King County Surface Water Design Manual.

Issaquah Creek Basin and Nonpoint Action Plan, 1996.

Resolution 88-9, Downtown Building Design Guidelines, 9-19-88.

Policy on Mix of Single-Multifamily Housing, 12-19-88.

Ordinance 1815, Mobile Home Relocation, 3-2-89.

Chapter 90.58 RCW, Shoreline Management Act of 1971.

Resolution 90-13, Shoreline Master Program, 6-4-90.

Resolution 92-12, Policy Statements from 1991 Puget Sound Water Quality Management Plan, 6-1-92.

Resolution 92-25, Issaquah Wildlife and Recreation Trails Plan, 11-18-92.

Ordinance 1983, Land Use Development Design Standards, 6-9-93.

Ordinance 2061, Comprehensive Plan and Parks Plan, 4-18-95, as amended.

Ordinance 2108, Land Use Code, 4-15-96, as amended.

Rate Study for Mitigation Fees for General Government Buildings, 6-5-08.

Rate Study for Mitigation Fees for Law Enforcement Facilities, 6-5-08.

Rate Study for Impact Fees for Fire Protection Facilities in Eastside Fire and Rescue, Washington, 4-11-06.

Rate Study for Parks, Open Space and Recreational Facilities Impact Fees, 12-10-14.

Rate Study for Traffic Impact Fees, 12-10-14.

Nexus Study for Bicycle and Pedestrian Mitigation Fees, 12-10-14.

(Ord. 2733 § 4 (Exh. H), 2015; Ord. 2600 § 3, 2010; Ord. 2524 § 3, 2008; Ord. 2523 § 6, 2008; Ord. 2301 § 3, 2001; Ord. 2230 § 2, 1999; Ord. 2108 § 10.1.26, 1996; Ord. 2031 § 4, 1994; Ord. 2016 § 1, 1994; Ord. 2003 § 1, 1993; Ord. 1983 § 3, 1993; Ord. 1957 § 1, 1992; Ord. 1940 § 1, 1992; Ord. 1930 § 1, 1992; Ord. 1904 § 2, 1991; Ord. 1893 § 1, 1991; Ord. 1886 § 40, 1991; Ord. 1817 § 1, 1989; Ord. 1633 § 25, 1984).

18.10.270 Appeals.

Refer to IMC 18.04.250 to 18.04.260 regarding appeals. (Ord. 2301 § 5, 2001; Ord. 2108 § 10.1.27, 1996; Ord. 1633, 1984).

18.10.280 Notice/statute of limitations.

A.    The City, applicant for, or proponent of an action may publish a Notice of Decision pursuant to RCW 43.21C.080 for any action.

B.    The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the City Clerk, applicant, or proponent pursuant to RCW 43.21C.080. (Ord. 2108 § 10.1.28, 1996; Ord. 1633 § 27, 1984).

18.10.290 Compliance with SEPA – Adoption by reference.

The City adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference, as supplemented in this chapter:

WAC

197-11-900    Purpose of this part.

197-11-902    Agency SEPA policies.

197-11-916    Application to ongoing actions.

197-11-920    Agencies with environmental expertise.

197-11-922    Lead agency rules.

197-11-924    Determining the lead agency.

197-11-926    Lead agency for government proposals.

197-11-928    Lead agency for public and private proposals.

197-11-930    Lead agency for private projects with one agency with jurisdiction.

197-11-932    Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city.

197-11-934    Lead agency for private projects requiring licenses from a local agency, not a county/city, and one (1) or more state agencies.

197-11-936    Lead agency for private projects requiring licenses from more than one state agency.

197-11-938    Lead agencies for specific proposals.

197-11-940    Transfer of lead agency status to a state agency.

197-11-942    Agreements on lead agency status.

197-11-944    Agreements on division of lead agency duties.

197-11-946    DOE resolution of lead agency disputes.

197-11-948    Assumption of lead agency status.

(Ord. 2108 § 10.1.29, 1996; Ord. 1633 § 29, 1984).

18.10.300 Environmentally critical areas.

A.    The best available maps, special studies, and other information provided with the application and/or provided in accordance with the critical areas ordinance, Shoreline Master Program and other regulations shall designate the location of environmentally critical areas within the City. For each environmentally critical area, the exemptions within WAC 197-11-800 that are inapplicable for that area are WAC 197-11-800(1), (2)(b), (2)(c), (2)(d), (2)(e), (2)(f), (2)(g), (2)(h), (6)(a), (14)(c), (24)(a) through (g), (25)(d), (25)(f), (25)(h), and (25)(i). Unidentified exemptions shall continue to apply within environmentally critical areas of the City.

B.    The responsible official shall designate additional environmentally critical areas under the standards of WAC 197-11-908, and shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the Washington State Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally critical area designation shall have full force and effect of law as of the date of filing.

C.    The City shall treat proposals located wholly or partially within an environmentally critical area no differently than other proposals under this chapter, making a threshold determination for all such proposals. The City shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally critical area.

D.    Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped. (Ord. 2501 § 22, 2007; Ord. 2108 § 10.1.30, 1996; Ord. 1633 § 30, 1984).

18.10.310 Fees.

The City shall require the following fees for its activities in accordance with the provisions of this chapter:

A.    Threshold Determination: For every environmental checklist the City will review when it is lead agency, the City shall collect a fee of $150.00 from the proponent of the proposal prior to undertaking a basic threshold determination. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of fees. When the City assists the applicant or completes the environmental checklist at the applicant’s request or under IMC 18.10.140 (Threshold Determination – Environmental Checklist), or when the environmental review of the proposal is complex, the fee for making a threshold determination shall be $350.00. For any complex review requiring staff time in excess of ten (10) hours, the City shall charge an hourly rate of $60.00 for the additional time.

B.    Environmental Impact Statement:

1.    When the City is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of the City, the City may charge and collect a reasonable fee from any applicant to cover costs incurred, including overhead, by the City in preparing the EIS. The responsible official shall advise the applicant of the projected costs for the EIS prior to actual preparation.

2.    The responsible official may determine that the City will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the City, and may bill such costs and expenses directly to the applicant. Such consultants shall be selected by the City.

3.    The applicant shall pay the projected amount to the City prior to commencing work. The City will refund the excess, if any, at the completion of the EIS. If the City’s costs exceed the projected costs, the applicant shall immediately pay the excess. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (B)(1) or (2) of this section which remain after incurred costs, including overhead, are paid.

4.    For all proposals in which the City is the lead agency and the responsible official determines that an EIS is required, the applicant shall be charged $500.00 or a fee equal to five (5) percent of the costs of the draft and the final environmental impact statements, whichever is greater, to cover the City’s administrative costs of supervision and preparation. For the purpose of this section, cost of an environmental impact statement shall include the cost of preparation and publication, including printing, collating, binding, and circulation of the preliminary and final EIS. Applicants may be required to post bond or otherwise insure payment of such costs. In the event the actual cost of the draft and final EIS exceeds the estimated cost of the EIS agreed upon by the City and the applicant, such excess shall be paid to the City by the applicant prior to final action by the City.

C.    The City may collect a reasonable fee from an applicant to cover the costs of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

D.    The City may charge any person for copies of any document prepared under this chapter, and for mailing the document in a manner provided by Chapter 42.17 RCW. (Ord. 2108 § 10.1.31, 1996; Ord. 1856 § 1, 1990; Ord. 1633 § 31, 1984).

18.10.320 Forms – Adoption by reference.

The City adopts the following forms and sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference:

WAC

197-11-960    Environmental checklist.

197-11-965    Adoption notice.

197-11-970    Determination of nonsignificance (DNS).

197-11-980    Determination of significance and scoping notice (DS).

197-11-985    Notice of assumption of lead agency status.

197-11-990    Notice of action.

(Ord. 2108 § 10.1.32, 1996; Ord. 1633 § 32, 1984).

18.10.330 WACs on file.

The City Clerk shall maintain on file for public use and examination three (3) copies of the Washington Administrative Code sections referred to in this chapter. (Ord. 2108 § 10.1.33, 1996; Ord. 1633 § 33, 1984).

Critical Areas Regulations

18.10.340 Purpose.

The purpose of this chapter is to identify environmentally critical areas and to supplement the development requirements contained in the various use classifications in the Issaquah Municipal Code by providing for additional controls without violating any citizen’s constitutional rights. (Ord. 2108 § 10.2.1, 1996).

18.10.350 Intent.

It is the intent of the City to balance the community vision which includes:

A.    Environmental protection and preservation;

B.    Diversified economic growth which has been planned and which is compatible with the vision of the community; and

C.    Overall improvement of the quality of life for the residents of Issaquah.

The City shall implement this vision through directing appropriate development to areas of the City in which the development will have the least adverse impact to the environment. High impact land use shall be located in areas that will have the least detrimental adverse effect to environmentally critical areas. In areas that development may have a substantial risk to potentially, adversely impact environmentally critical areas, only low impact land use shall be permitted. (Ord. 2301 § 3, 2001; Ord. 2233 § 17, 1999; Ord. 2108 § 10.2.2, 1996).

18.10.360 Environmentally critical areas.

Coal mines, streams, wetlands, lakes, steep slopes, protective buffers, watersheds, aquifer recharge areas, as well as areas subject to erosion, flooding, landslides, and seismic hazards, constitute environmentally critical areas that are of special concern to the City. The standards and mechanisms established in this chapter are intended to protect these environmentally critical areas in Issaquah. By regulating development and alterations to critical areas, this chapter seeks to:

A.    Protect members of the public and public resources and facilities from injury, loss of life, property damage or financial losses due to flooding, erosion, landslides and seismic events, soil subsidence and steep slope failures;

B.    Protect unique, fragile and valuable elements of the environment including wildlife and its habitat;

C.    Mitigate unavoidable impacts to environmentally critical areas by regulating alterations in and adjacent to critical areas;

D.    Prevent cumulative adverse environmental impacts to water availability, water quality, wetlands and streams;

E.    Minimize erosion potential;

F.    Avoid alteration to wetland hydrology that causes either short- or long-term changes in native vegetational composition, soils characteristics, nutrient cycling or water chemistry;

G.    Protect the public trust as to navigable waters and aquatic resources;

H.    Meet the requirements of the National Flood Insurance Program and maintain Issaquah as an eligible community for federal flood insurance benefits;

I.    Alert members of the public including, but not limited to, appraisers, owners, potential buyers or lessees to the development limitations of critical areas;

J.    Provide City officials with sufficient information to protect critical areas;

K.    Implement the policies of the State Environmental Policy Act, Chapter 43.21C RCW, the Issaquah Municipal Code, the City of Issaquah Comprehensive Plan and the Shoreline Master Program; and

L.    Educate the public about the long-term care of critical areas. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2500 § 5, 2007; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.3, 1996).

18.10.370 Applicability.

A.    The regulations and standards of the Issaquah Municipal Code and the Land Use Code pertaining to the several use classifications shall be subject to the general provisions, requirements, and conditions contained in this chapter. When any provision of any chapter of the Issaquah Municipal Code, Shoreline Master Program or the Land Use Code conflicts with this chapter, that provision which provides more protection to the critical areas shall apply unless specifically provided otherwise in this chapter. The provisions of this Code shall prevail over any inconsistent ordinance that has not been reviewed for compliance with the City’s GMA Comprehensive Plan. Streams and wetlands classified under the City of Issaquah Shoreline Master Program shall be governed by the rules and regulations pertaining to setbacks and buffer requirements under that ordinance only when a critical area study documents that the smaller buffer required through the Shoreline Master Program would not cause significant impacts to the stream or wetlands. Development for which the City of Issaquah Shoreline Master Program is applicable will still be governed by and need to conform to regulations, other than buffer and setback requirements, as set forth in this Code, including: flood storage capacity; flood-proofing measures, etc.

B.    The provisions of this Code shall be held to be the minimum requirements in their interpretation in order to serve the purposes of this chapter.

C.    The City, prior to fulfilling the requirements of this chapter, shall not grant any approval or permission to alter the condition of any land, water or vegetation, or to construct or alter any structure or improvement including, but not limited to, the following: Commercial or Residential Building Permits or other land use actions; Right-of-Way Construction Permits; Grading and Clearing permits; Right-of-Way Permits; Shoreline Conditional Use Permits; shoreline environmental redesignations; Shoreline Substantial Development Permits; shoreline variances; short subdivisions; subdivisions; utility and other use permits; variances; zone reclassifications; or any subsequently adopted permits or required approvals not expressly exempted by this chapter.

D.    The City shall perform a critical areas review for any permit or approval requested for a development proposal on a site which includes or is adjacent to one (1) or more critical areas, unless otherwise provided in this chapter. The critical area review requires, at a minimum, that the following review process occur, as part of all development applications:

1.    The City shall review the information submitted by the applicant to:

a.    Confirm the nature and type of the critical areas and evaluate the critical areas study;

b.    Determine whether the development proposal is consistent with this chapter;

c.    Determine whether any proposed alterations to critical areas are necessary;

d.    Determine if the mitigation and monitoring plans and bonding measures proposed by the applicant are sufficient to protect the public health, safety and welfare consistent with the goals, purposes, objectives and requirements of this chapter;

e.    Determine if the proposed action warrants a biological assessment based on the requirements of the Endangered Species Act.

2.    The applicant shall submit an affidavit which:

a.    Declares that the applicant has no knowledge that critical areas on the proposed development site have been illegally altered; or

b.    Shall list all known alterations to the critical area.

3.    The applicant shall demonstrate that any development proposal submitted conforms to the purposes, standards and protection mechanisms of this chapter.

4.    The development proposal shall, if required, contain a critical areas study in accordance with IMC 18.10.400.

E.    The City may approve, approve with conditions, or deny any development proposal in order to comply with the requirements and carry out the goals, purposes, objectives and requirements of this chapter.

F.    It shall be the responsibility of the Director to implement the policies and objectives of this Code.

G.    All decisions in regards to this chapter shall be made through the appropriate land use permitting process or as noted in this chapter. In the event that the proposal, as it relates to this chapter, does not require any other related or unrelated permits or approvals and this chapter does not specify a review process, it shall be reviewed by the City through the Level 1 Review process.

H.    The Director is authorized to adopt written procedures and establish administrative rules for the purpose of carrying out the provisions of this Code.

I.    The Director shall maintain and make available to the public all available information applicable to any critical area and its buffer.

J.    The Director shall on an annual basis establish a list of qualified professional scientists and technical experts to assist in the implementation of the provisions of this Code.

K.    Approval of a 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.

L.    The provisions of this chapter shall apply to all forest practices over which the City has jurisdiction pursuant to Chapter 76.09 RCW, WAC Title 222, and any Memorandum of Understanding between the Washington Department of Natural Resources and the City. In addition, this chapter shall apply to all property which has been cleared and/or graded without an approved forest practice application and which is subsequently proposed for development. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.4, 1996).

18.10.380 Agency resource maps.

A.    The approximate location and estimated extent of critical areas in the City are displayed on the Issaquah Natural Resources and Critical Areas Map Folios, the National Wetlands Inventory, the Issaquah Shoreline Environment Designation Maps and any other pertinent maps the City utilizes as resource material. These maps are to be used as a guide to the general location and extent of critical areas.

B.    It is presumed that critical areas not shown on these maps may exist in the City. These critical areas not currently mapped are protected under all the provisions of this Code.

C.    In the event that any of the critical area designations shown on the maps conflict with the criteria set forth in this chapter, the criteria shall control.

D.    Any areas which are requesting to be annexed to the City shall be required to perform a critical areas inventory as a requirement of annexation. (Ord. 2108 § 10.2.5, 1996).

18.10.390 Definitions.

If any definition in this chapter conflicts with definitions in the Shoreline Master Program (SMP), the definitions in the SMP shall take precedence where applied to areas inside shoreline jurisdiction.

Adjacent: For the purpose of critical areas, within one hundred (100) feet of a critical area, or more, as decided by the Director, if development of the property may impact the critical area.

Alteration: Any human-induced action which adversely impacts the existing condition of a critical area. Alterations include, but are not limited to, grading; filling; dredging; draining; channeling; cutting, pruning, limbing or topping, clearing, relocating or removing vegetation; applying herbicides or pesticides or any hazardous or toxic substance; discharging pollutants (excluding treated storm water); grazing domestic animals; paving (including construction and application of gravel); modifying for surface water management purposes; or any other human activity that adversely impacts the existing vegetation, hydrology, wildlife or wildlife habitat. Alteration does not include walking, passive recreation, fishing or other similar activities.

Applicant: Any person or business entity which applies for a development proposal, permit or approval subject to review under this chapter.

Appropriate land use permitting process: The permitting process (Level 1, Level 2, Level 3, Level 4, Building Permit, Grading Permit, etc.) which the proposed project is proceeding through for approval. For instance, if a proposed project requires a Level 3 Review for approval, prior to the Building Permit stage, then the Level 3 process would be considered the “appropriate land use permitting process.”

Aquifer: A body of soil or rock that contains sufficient saturated material to conduct groundwater and yield usable quantities of groundwater to springs and/or wells.

Aquifer recharge area: Areas that are determined to have a recharging effect on aquifers used as a source for potable water, and are vulnerable to contamination from recharge.

Base flood: A flood having a one (1) percent chance of being equaled or exceeded in any given year. It is also referred to as the “one hundred (100) year flood.” The base flood is determined as defined by the latest FEMA FIRM maps. In areas where the Flood Insurance Study includes detailed base flood calculations, those calculations may be used until projections of future flows are completed and approved by the City.

Base flood elevation: The water surface elevation of the base flood. It shall be referenced to the National Geodetic Vertical Datum of 1929.

Best management practices: The physical, structural, and/or managerial practices that use the best available technologies or techniques, either separately or in combination, to prevent or reduce the degradation of any critical area or natural resources. For example, these conservation practices or systems of practices and management measures would:

A.    Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxins, and sediment; and

B.    Minimize adverse impacts to surface water and groundwater flow, circulation patterns, and to the chemical, physical, and biological characteristics of critical areas.

Biofiltration swale: A shallow drainage conveyance with relatively gentle side slopes, generally with flow depths less than one (1) foot which are designed to reduce pollutant concentrations in water by filtering the polluted water through biological materials.

Biological assessment (Endangered Species Act): An analysis of a proposed action by a qualified professional in order to determine if the action will result in a “take” of a threatened or endangered species, as listed under the Endangered Species Act.

Biologist: A person who has earned a degree in biological sciences from an accredited college or university, or a person who has equivalent educational training and has experience as a practicing biologist.

Building setback area: The area between the critical area buffer and the building setback line. This area is provided to ensure that the building and associated construction activities do not result in significant adverse impacts to the adjacent critical area, and to provide physical and/or visual separation between the development and the critical area.

Building setback line: A line which establishes a definite point beyond which the foundation of a structure shall not extend.

Canopy: The highest layer of vegetation within a forest community.

Clearing: The destruction or removal of vegetation from a site by physical, mechanical, chemical, or other means. This does not mean landscape maintenance or pruning consistent with accepted horticultural practices which does not impair the health or survival of the trees.

Coal mine hazard areas: Those areas of the City directly underlain by or affected by abandoned coal mine working such as adits, tunnels, drifts or air shafts.

Compensatory mitigation: Replacing project-induced losses or impacts.

Compensatory storage: New, excavated storage volume equivalent to any flood storage capacity which has been or would be eliminated by filling or grading within the floodplain. “Equivalent” shall mean that the storage removed shall be replaced by equal volume between corresponding one (1) foot contour intervals that are hydraulically connected to the floodway through their entire depth.

Conservation easement: An easement dedicated to the City to restrict the use of environmentally sensitive property in order to protect, preserve, maintain, improve, restore, and otherwise conserve the property in perpetuity.

Critical aquifer recharge areas (CARAs): Areas that are determined to have a critical recharging effect on aquifers used as a source for potable water, and are vulnerable to contamination from recharge.

Critical area buffer: A designated area adjoining to and a part of a steep slope or landslide hazard area which protects slope stability, attenuation of surface water flows and landslide hazards reasonably necessary to minimize risk, or a designated area adjacent to and a part of a stream or wetland that is an integral part of the stream or wetland ecosystem. Critical area buffers are essential to maintenance and protection of the critical area. Buffer areas protect critical areas from degradation in various ways, including the following: stabilizing slopes and preventing erosion; filtering suspended solids, nutrients and harmful toxic substances; moderating the impacts of storm water runoff; moderating microclimate; supporting and protecting plant and animal species and biotic communities associated with the critical area; and reducing disturbances to the resources to the critical area typically caused by the activities of humans and domestic animals.

Critical areas: Any of those areas which are subject to natural hazards or those land features which support unique, fragile, or valuable natural resources including fish, wildlife and other organisms and their habitat and such resources which, in their natural state, carry, hold or purify water. Critical areas include the following landform features: erosion hazard areas, flood hazard areas, coal mine hazard areas, landslide hazard areas, seismic hazard areas, steep slope areas, streams, wetlands, and aquifer recharge areas. Critical area buffers are integral to the health of the critical area and therefore for functional purposes are considered a part of the critical area. However, unless indicated otherwise, measurements from critical areas are made from the outside edge of the protected landform feature (e.g., wetland, stream, etc.) and not from the outside edge of the buffer.

Critical Areas Mitigation Fund: The special fund created for the purpose of creating, restoring or purchasing critical areas, including wetlands and/or wetland buffers. All funds received from civil penalties resulting from violations of this Code are deposited into the fund, and administered by the City Director of Finance.

Critical areas review: The evaluation performed by the City as part of its review of an application for a permit or approval to ensure that impacts to critical areas have been addressed where appropriate.

Critical areas study: A study prepared by a qualified professional on any of the following elements of a critical area: existing conditions, potential impacts and mitigation measures. The study is typically prepared in conjunction with a development proposal.

Critical areas tract: A separate tract that is created to protect the critical area and its buffer, whose ownership is assured, as provided in IMC 18.10.515.

Critical drainage area: An area which has been formally determined by the Public Works Department to require more restrictive regulation than City-wide standards afford, in order to mitigate severe flooding, drainage, erosion or sedimentation problems, which have resulted or will result from the cumulative impacts of development and urbanization.

Critical facilities: Those facilities necessary to protect the public health, safety or welfare which are defined under the occupancy categories of Essential Facilities, Hazardous Facilities and Special Occupancy Structures in the Uniform Building Code as adopted. These facilities include but are not limited to schools, hospitals, police stations, fire departments and other emergency response facilities, and nursing homes. Critical facilities also include hazardous material storage or production sites.

Deleterious substances: Include, but are not limited to, chemical and microbial substances that are not classified as hazardous materials per this chapter, whether the substances are in usable or waste condition, that have the potential to pose a significant groundwater hazard, or for which monitoring requirements or treatment-based standards are enforced under Chapter 246-290 WAC.

Density credits: A system/formula used to transfer a portion of the allowed development density for critical areas onto another area of the proposal site/property.

Developable site area: Developable site area is the gross site area minus deductions for critical areas and associated buffers as required by this chapter.

Development activity: Any activity which would require a Land Use Permit or approval from the City or any other local, state or federal jurisdiction. Development activity includes, but is not limited to: clearing or grading activity, building or constructing activity, dredging or filling, etc.

Development Commission: Refers to the City Development Commission.

Development, high impact: See High impact land use.

Development, low impact: See Low impact land use.

Development proposal site: The legal boundaries of the parcel or parcels of land for which an applicant has applied for authority from the City to carry out a development proposal.

Director: The Director of the Planning Department of the City or his/her designees unless otherwise noted. In the absence of a Director, the Planning Manager shall assume the responsibilities of the Director as set forth in this Code.

Ditch: A long, narrow human-built excavation that conveys storm water, agricultural runoff or irrigation water that is not identified as a classified or unclassified stream in the Issaquah Creek Final Basin and Nonpoint Action Plan (1996). Also see definition of “streams.”

Economic growth: Residential, commercial and industrial development which provides housing, jobs, services and other community needs. It also includes community facilities and utilities such as parks, trails, and sewer, water and transportation systems.

Emergent wetland: A regulated wetland with at least thirty (30) percent of the surface area covered by erect, rooted, herbaceous vegetation as the uppermost vegetative strata.

Enhancement: Actions performed to increase the functions and values of a stream, wetland or other areas.

Erosion: The process in which soil particles are mobilized and transported by natural agents such as wind, rain splash, frost action or stream flow.

Erosion hazard areas: Those areas of King County and the City containing soils which, according to the USDA Soil Conservation Service, the 1973 King County Soils Survey and any subsequent revisions or additions thereto, may experience severe to very severe erosion hazard. This group of soils includes, but is not limited to, the following when they occur on slopes of fifteen (15) percent or greater: Alderwood gravelly sandy loam (AgD), Alderwood-Kitsap (Akf), Beausite gravelly sandy loam (BeD and BeF), Kitsap silt loam (Kpd), Oval gravelly sand loam (OvD and OvF), Ragnar fine sandy loam (RaD), Ragnar-Indianola Association (RdE), and any occurrence of River Wash (Rh).

Essential habitat: Habitat necessary for the survival of federally listed threatened, endangered and sensitive species and state-listed priority species.

Excavation: The mechanical removal of earth.

Existing and ongoing agriculture: Those activities conducted on lands defined in RCW 84.34.020(2) and those activities involved in the production of crops or livestock, for example, the operation and maintenance of farm and stock ponds or drainage ditches; operation and maintenance of ditches; irrigation systems including irrigation laterals, canals, or irrigation drainage ditches, changes between agricultural activities; and normal maintenance, repair, or operation of existing serviceable structures, facilities, or improved areas.

Activities which bring a nonagricultural area into agricultural use are not part of an ongoing operation. An operation ceases to be ongoing when the area on which it is conducted is converted to a nonagricultural use or has lain idle for more than two (2) years, unless the idle land is registered in a federal or state soils conservation program, or unless the activity is maintenance of irrigation ditches, laterals, canals, or drainage ditches related to an existing and ongoing agricultural activity. Forest practices are not included in this definition.

Exotic: Any plant or animal that is not native to the Puget Sound region.

FEMA: Federal Emergency Management Agency.

Fill/fill material: A deposit of material placed by human or mechanical means.

Flood hazard areas: Those areas of the City subject to inundation by the base flood. These include, but are not limited to, streams, lakes, wetlands, closed depressions, floodways and floodplains. A flood hazard area consists of the following components which shall be determined by the City after obtaining, reviewing and utilizing base flood elevation and available floodway data:

A.    “Floodplain” means the total area subject to inundation by the base flood. The floodplain includes both rapidly flowing water and standing water.

B.    “Floodway” means the channel of the stream and that portion of the adjoining floodplain which is necessary to contain and discharge the base flood flow without increasing the base flood elevation more than one (1) foot. The floodway is determined by the latest FEMA FIRM map.

Flood insurance rate map (FIRM): The official map on which the Federal Insurance Administration has delineated flood hazard areas.

Flood protection elevation: An elevation that is one (1) foot above the highest base flood elevation, as defined by FEMA Flood Insurance Rate Map (FIRM) and the Issaquah Creek Basin and Nonpoint Action Plan, whichever is greater.

Floodproofing: Any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate the potential of flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents (from IMC 16.36.030, flood hazard ordinance).

Forested wetland: A wetland with at least thirty (30) percent of the surface area covered by woody vegetation greater than twenty (20) feet in height.

Geologist: A practicing geologist licensed as a professional geologist with the state of Washington.

Geotechnical engineer: A practicing geotechnical/civil engineer licensed as a professional civil engineer with the state of Washington who has at least four (4) years of professional employment as a geotechnical engineer.

Grading: An act which changes or alters the predevelopment conditions of the site surface.

Grazed wet meadows: Emergent wetlands, typically having up to six (6) inches of standing water during the wet season and dominated under normal conditions by meadow emergents such as reed canary grass, spike rushes, bulrushes, sedges, and rushes. During the growing season, the soil is often saturated but not covered with water. Grazed wet meadows frequently have been or are being used for livestock activities.

Hazardous materials: Any material, either singularly or in combination, that is a physical or health hazard, whether the materials are in usable or waste condition; and any material that may degrade surface water or groundwater quality when improperly stored, handled, treated, used, produced, recycled, disposed of, or otherwise mismanaged. Hazardous materials shall also include: all materials defined as or designated by rule as a dangerous waste or extremely hazardous waste under Chapter 70.105 RCW and Chapter 173-303 WAC; hazardous materials shall also include petroleum or petroleum products that are in liquid phase at ambient temperatures, including any waste oils or sludges.

Heron rookery: A nesting area for a colony of heron or egrets which is generally located in a grove of tall trees.

High impact land use: A land use which would require substantial environmental mitigation in order to alleviate adverse impacts to the environment or the community’s health, safety or welfare. Substantial mitigation would be determined through the SEPA process.

Hydric soil: A soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined following the methods described in the currently followed federal manual for identifying and delineating jurisdictional wetlands.

Hydrophytic vegetation: Macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. The presence of hydrophytic vegetation shall be determined following the methods described in the “1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands.”

In-kind compensation: To replace wetlands with substitute wetlands whose characteristics (vegetative class, function and value) and wetland rating or category closely approximate those destroyed or degraded by a regulated activity.

Landslide: The movement of a mass of loosened rocks or earth down a hillside or slope, and includes snow avalanches.

Landslide hazard areas: Those areas of the City subject to a severe risk of landslide. A geotechnical report is required for all relevant projects to determine steepness of slope, permeability of soils, occurrence of springs, and groundwater level. The study shall be performed by a licensed geotechnical engineer. Landslide hazard areas include the following areas:

A.    Slopes greater than forty (40) percent.

B.    Any area with a combination of:

1.    Slopes of greater than fifteen (15) percent;

2.    Impermeable soils (typically silt and clay) frequently interbedded with granular soils (predominantly sand and gravel); and

3.    Springs or groundwater seepage.

C.    Any area which has shown movement during the Holocene epoch (from ten thousand (10,000) years ago to present) or which is underlain by mass wastage debris of that epoch.

D.    Any area potentially unstable as a result of rapid stream incision, stream bank erosion, or undercutting by wave action.

E.    Any area which shows evidence of, or is at risk from, snow avalanches.

F.    Any area located on an alluvial fan, presently subject to or potentially subject to, inundation by debris flows or deposition of stream-transported sediments.

Light equipment: Construction equipment including, but not limited to, chain saws, wheelbarrows, post-hole diggers and all handheld tools.

Low impact land use: Land use which would not require substantial environmental mitigation in order to alleviate adverse impacts to the environment or the community’s health, safety or welfare. Substantial mitigation would be determined through the SEPA process.

Lowest floor: The lowest enclosed area, including the basement, of a structure. An area used solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building’s lowest floor; provided, that any such enclosed area meets all of the structural requirements of the flood hazard protection and alteration standards.

Maintenance: A procedure intended to assist with the long-term health of critical areas. Aside from the maintenance period relating to a restoration or creation project, activities may include removal of weeds, litter control, etc., not the performance of complex restoration efforts. Maintenance allows for the critical areas to evolve as a natural part of the environment.

Master planned developments: A comprehensive site plan intended to guide the development of a specific parcel of land, including necessary utilities, locations of land uses, and density provisions.

Mitigation banking: A system for providing compensatory mitigation in advance of authorized impacts of development in which credits are generated through restoration, creation, and/or enhancement of the critical area, for example, the restoration, creation, and/or enhancement of wetlands, and in exceptional circumstances, preservation of adjacent wetlands, wetland buffers, and/or other aquatic resources; provided, that no net loss of wetlands occurs.

Mitigation plan: A plan conducted by a qualified professional describing the design and/or implementation of any or all of the actions listed in the definition of “mitigation” in this section.

Mitigation project: Actions necessary to replace project-induced critical areas and buffer losses, including land acquisition, planning, construction plans, monitoring and contingency action.

Monitoring: Evaluating the impacts of development on the biological, hydrological and geological elements of such systems and assessing the performance of required mitigation measures through the collection and analysis of data by various methods for the purposes of understanding and documenting changes in natural ecosystems and features, and includes gathering baseline data.

Native Growth Protection Easement (NGPE): An easement granted to the City or other nonprofit entity for the protection of native vegetation within a critical area or critical area buffer.

Native vegetation: Vegetation comprised of plant species which are indigenous to the Puget Sound region and which reasonably could have been expected to naturally occur on the site. Native vegetation does not include noxious weeds.

Nonnative invasive vegetation: Vegetation, plant species and cultivars that are not indigenous to the Puget Sound region in the vicinity of the City of Issaquah and which establish and propagate with such vigor as to outcompete native vegetation and result in the degradation of the natural environment. Nonnative invasive vegetation includes noxious weeds (defined below) such as but not limited to Himalayan blackberry (Rubus discolor, R. procerus), Evergreen blackberry (R. lacinatus), Ivy (Hedera spp.), Holly (Ilex spp.), and Japanese knotweed (Polygonum cuspidatum).

Normal rainfall: That rainfall which is at or near the mean of the accumulated annual rainfall record, based upon the water year for the City as recorded at an official rain gauge in the Issaquah area designated in an administrative rule by the Public Works Director, or if no such designation is made, the official annual rainfall as obtained from information in the Draft Issaquah Valley Groundwater Management Plan.

Noxious weed: Any plant which when established is highly destructive, competitive, or difficult to control by cultural or chemical practices (see Chapter 5.10 RCW). The state noxious weed list in Chapter 16-750 WAC is the officially adopted list of noxious weeds as compiled by the State Noxious Weed Control Board. Also included as noxious weeds are those listed with the King County Noxious Weed List, WAC 16-750-0005.

Off-site compensation: To replace wetlands away from the site on which a wetland has been impacted by a regulated activity.

On-site compensation: To replace wetlands at the site on which a wetland has been impacted by a regulated activity.

Ordinary high water mark: On all lakes, streams, and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department; provided, that in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark adjoining freshwater shall be the line of mean high water.

Out-of-kind compensation: To replace wetlands with substitute wetlands whose characteristics (vegetative class, functions and values) do not closely approximate those destroyed or degraded by a regulated activity. Plant associations of infrequent occurrence: One (1) or more plant species on a landform type which because of the rarity of the habitat or the species involved or both, or for other botanical or environmental reasons, do not often occur in the City or King County.

Practicable alternative: An alternative that is available and capable of being carried out after taking into consideration existing technology, cost and logistics in light of overall project purposes, and having fewer impacts to critical areas. It may include an area not owned by the applicant, which could reasonably have been or be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed activity.

Public agency: Any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, special purpose districts, local service districts, any agency of the state of Washington, the United States or any state thereof, or any federally recognized Indian tribe.

Qualified professional: A person or persons who perform studies, field investigations, plans, etc., on critical areas and have an educational background and/or relevant experience in the field in which they are performing the study. (Example: a qualified professional to perform a critical area report on wetlands must have an undergraduate or higher degree, from an accredited university or college, in biology, botany, environmental science or similar field and five (5) years’ work experience performing wetland studies (and/or professional certification), including field delineations, written reports, mitigation plans, etc.)

Raptor: A bird of prey which is a member of either the Falconiformes or Strigiformes orders.

Reasonable use: A legal concept that has been articulated by federal and state courts in regulatory takings cases. In a takings case, the decision-maker must balance the public’s interests against the owner’s interests by considering the nature of the harm the regulation is intended to prevent, the availability and effectiveness of alternative measures, and the economic loss borne by the owner. Public interest factors include the seriousness of the public problem, the extent to which the land involved contributes to the problem, the degree to which the regulation solves the problem, and the feasibility of less oppressive solutions.

Regulated activities: Any of the following activities which are directly undertaken or originate in a regulated critical area or its buffer:

A.    The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

B.    The dumping, discharging, or filling with any material;

C.    The draining, flooding, or disturbing of the water level or water table;

D.    The driving of pilings;

E.    The placing of obstructions;

F.    The construction, reconstruction, demolition, or expansion of any structure;

G.    The destruction or alteration of wetlands vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland; provided, that these activities are not part of a forest practice governed under Chapter 76.09 RCW and its rules; or

H.    Activities that result in a significant change of water temperature, a significant change of physical or chemical characteristics of wetlands water sources, including quantity, or the introduction of pollutants.

Repair or maintenance: An activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter additional regulated wetlands are not included in this definition.

Restoration: Actions performed to return a stream, wetland, or other areas to a state in which its stability and functions approach its unaltered state as closely as possible.

Right-of-way: Any road, alley, street, avenue, arterial, bridge, highway, or other publicly owned ground or place used for the free passage of vehicular and pedestrian traffic and other services, including utilities.

Routine stream maintenance: The removal of instream organic and inorganic materials which could exacerbate erosion or flooding.

Salmonid: A member of the fish family salmonidae. In the City these include chinook, coho, chum, sockeye and pink salmon and steelhead.

Scrub-shrub wetland: A wetland with at least thirty (30) percent of its surface area covered by woody vegetation less than twenty (20) feet in height as the uppermost strata.

Sediment: Waterborne particles, graded or undefined, occurring by erosive action.

Sedimentation: The action or process of deposition of soil and organic particles displaced, transported and deposited by water or wind.

Seismic hazard areas: Those areas of the City subject to severe risk of earthquake damage as a result of seismically induced settlement or soil liquefaction. These conditions may occur in areas underlain by cohesionless soils of low density usually in association with a shallow groundwater table.

SEPA: State Environmental Policy Act (Chapter 43.21C RCW) or as amended.

Serviceable: Presently usable.

Steep slope hazard areas: Any ground that rises at an inclination of forty (40) percent or more within a vertical elevation change of at least ten (10) feet (a vertical rise of ten (10) feet or more for every twenty-five (25) feet of horizontal distance). A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least ten (10) feet of vertical relief.

A.    The “toe of a slope” is a distinct topographic break in a slope which separates slopes inclined at less than forty (40) percent from slopes equal to or in excess of forty (40) percent. Where no distinct break exists, the toe of a steep slope is the lowermost limit of the area where the ground surface drops ten (10) feet or more vertically within a horizontal distance of twenty-five (25) feet.

B.    The “top of a slope” is a distinct, topographic break in a slope which separates slopes inclined at less than forty (40) percent from slopes equal to or in excess of forty (40) percent. Where no distinct break in slope exists, the top of a slope shall be the uppermost limit of the area where the ground surface rises ten (10) feet or more vertically within a horizontal distance of twenty-five (25) feet.

Stormwater facility: A constructed component of a stormwater drainage system, designed or constructed to provide detention/retention of stormwater and water quality treatment. Stormwater facilities include but are not limited to detention ponds, retention ponds, constructed stormwater wetlands, infiltration devices, vaults, biofiltration swales, and on-site stormwater management best management practices (BMPs) such as bioretention, rain gardens, vegetated roofs, and permeable pavements.

Streams: Those areas of the City where surface waters from natural sources such as streams, lakes, groundwater, springs or surface flows produce a defined channel or bed. A defined channel or bed is an area which demonstrates clear evidence of the passage of water and includes, but is not limited to, bedrock channels, gravel beds, sand and silt beds and defined-channel swales. The channel or bed need not contain water year-round. Streams also include constructed or channelized streams used to convey water which flowed in a naturally defined channel prior to construction of such watercourse. This definition is not meant to include excavated or other entirely artificial watercourses, including irrigation ditches, swales, roadside ditches, canals, storm or surface water runoff devices.

Structure: That which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner.

Substantial improvement: Any repair, reconstruction, or improvement of a structure that would displace floodwater.

Unavoidable and necessary impacts: Impacts to regulated critical areas that remain after a person proposing to alter regulated wetlands has demonstrated that no practicable alternative exists for the proposed project.

Utilities: Water, sewer, storm drainage, natural gas, telephone, electric and cable communications, etc.

Utility corridor: Areas identified in the Comprehensive Plan for utility lines, including electric, gas, sewer and water lines, and public right-of-way and other dedicated utility right-of-way on which one (1) or more utility lines are currently located. The term “other dedicated utility right-of-way” means ownership, easements, permits, licenses or other authorizations affording utilities the right to operate and maintain utility facilities on private property.

Variance: An adjustment in the application of a zoning regulation to a particular piece of property in a situation where the property, because of special circumstances found to exist on the land, is deprived, as a result of imposition of the zoning regulations, of privileges commonly enjoyed by other properties in the same vicinity and zone. The adjustment in the application of the regulations shall remedy the disparity in privilege. A variance shall not be used to convey special privileges not enjoyed by other properties in the same vicinity and zone and subject to the same Land Use Code restrictions.

Vegetation: Any and all organic plant life growing at, below, or above the soil surface.

Vegetative classes: Descriptive classes of the wetlands taxonomic classification system of the U.S. Fish and Wildlife Service (“Classification of Wetlands and Deepwater Habitats of the United States,” Cowardin et al., 1979, FWS/OBS-79/31).

Violation: The violation of: any provision of this chapter; the administrative rules promulgated thereunder; or any permit, approval or stop work order; or any other order issued pursuant thereto.

Water dependent use: A principal use which can only exist when the land/water interface provides biological or physical conditions necessary for the use.

Wellhead protection area (WHPA): The surface and subsurface area surrounding a well or well field that supplies a public water system through which contaminants are likely to pass and eventually reach the water well(s) as designated under the Federal Clean Water Act.

Wetland buffers: A parcel or strip of land that is designated to remain permanently vegetated to provide protection to an adjacent wetland from impact.

Wetland classes, classes of wetlands or wetland types: Descriptive classes of the wetlands taxonomic classification system of the United States Fish and Wildlife Service (Cowardin et al., 1979). See also definition of “vegetative classes.”

Wetland creation: Actions performed to intentionally establish a wetland at a site where one did not formerly exist.

Wetland delineation: The field identification and survey of a wetland edge, conducted by a qualified wetland professional, based on the procedures provided in the currently approved federal manual and applicable supplements and WAC 173-22-035.

Wetland functions, beneficial functions, or functions and values: The beneficial roles served by wetlands including, but not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, groundwater recharge and discharge, erosion control, wave attenuation, historical and archaeological and aesthetic value protection, and recreation. These beneficial roles are not listed in order of priority.

Wetland mitigation (compensatory): The compensation stage of the mitigation sequence where impacts to the functions and values of wetlands are replaced through creation or re-establishment, rehabilitation, or enhancement of other wetlands. Types of compensatory mitigation include:

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

B.    Re-establishment. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. Activities could include removing fill material, plugging ditches or breaking drain tiles. Re-establishment results in a gain in wetland acres and functions.

C.    Rehabilitation. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions and processes of a degraded wetland. Activities could involve breaching a dike to reconnect wetlands to a floodplain, restoring tidal influence to a wetland, or breaking drain tiles and plugging drainage ditches. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres.

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

Wetland professional: A professional scientist or technical expert who by training and/or experience is qualified to provide expertise in matters related to wetlands.

Wetlands: “Wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate conversion of wetlands.

Wetpond: An artificial body of water dug as a part of a surface water management system. (Ord. 2783 § 5 (Exh. A5.b), 2016; Ord. 2669 § 1 (Exh. A), 2013; Ord. 2525 §§ 4, 7, 2008; Ord. 2500 § 6, 2007; Ord. 2497 § 6, 2007; Ord. 2491 § 4, 2007; Ord. 2455 § 2, 2006; Ord. 2314 § 1, 2001; Ord. 2301 § 3, 2001; Ord. 2164 § 10, 1997; Ord. 2108 § 10.2.6, 1996).

18.10.400 Exemptions.

The following are general exemptions to the provisions of this chapter and the administrative rules; however, provisions of this section are not exempt from the City of Issaquah Shoreline Master Program when applicable. These exemptions are not subject to any review or approval process, except where noted.

A.    Emergencies that threaten the public health, safety and welfare as determined by the Director are exempt and shall not be subject to any review and approval process.

B.    The following agricultural activities in existence on the date that the ordinance codified in this chapter becomes effective, and performed not less than once every five (5) years thereafter, are exempt and not subject to any review and approval process:

1.    Grazing of livestock;

2.    Mowing of hay, grass or grain crops;

3.    Tilling, disking, planting, seeding, harvesting and related activities for pasture, food crops, grass seed or sod; provided, that such activities shall not involve the conversion of any Class 1 or 2 wetland or buffer or Class 1 or 2 stream or buffer not currently under agricultural use and shall not take place on steep slopes;

4.    Normal and routine maintenance of farm ponds, fish ponds, manure lagoons, and livestock watering ponds; provided, that such activities shall not involve conversion of any wetland not currently being used for such activity.

C.    Normal and routine maintenance of existing irrigation and drainage ditches, including, but not limited to, vegetation control, and removal of sediment and debris, is exempt from this chapter and not subject to any review or approval process as an isolated action, except that the City shall be notified prior to such activities occurring; provided, however, that this exception shall not apply to any ditches used by salmonids unless the Washington State Department of Fisheries will grant hydraulic approval concurrently with or following City approval.

D.    Public water, electric and natural gas distribution, public sewer collection, cable communications, telephone utility and related activities undertaken pursuant to City-approved best management practices, as follows:

1.    Normal and routine maintenance or repair of existing utility structures, utility corridors or rights-of-way;

2.    Relocation, repair, replacement, modification, operation and upgrading of facilities (i.e., lines, mains, pipes, equipment and/or appurtenances, and electric facilities, not including substations) within rights-of-way or utility corridors; provided, that such activities shall be undertaken in accordance with City-approved best management practices, which shall include restoration;

3.    The relocation and upgrading of utilities within established easements and dedicated tracts shall include prior notification of the Director.

This does not exempt projects from other City permit review processes or SEPA review if required by the City’s codes and regulations.

E.    Maintenance, operation, repair, modification or replacement of publicly improved roadways or recreation areas. Any alteration involving the expansion of improvements into previously unimproved areas shall include approval of the Director.

F.    Public agency development proposals whose construction contract was awarded before the effective date of the ordinance codified in this chapter are exempt; provided, that any regulation in effect at the time of such award shall apply to such proposal, except for the provisions established in IMC 18.10.420 (Public Agency and Utility Exemption).

G.    Routine stream maintenance by a public entity which has been approved through the SEPA review process and by the Washington State Department of Fish and Wildlife.

H.    Master planned developments, where these developments are subject to binding development requirements approved by the City, including protection of the critical areas. Approved critical areas requirements shall meet or exceed the intent of the City’s adopted critical areas regulations. Master planned developments which do not contain critical areas regulations within their binding development requirements will be subject to the requirements of the City’s adopted critical areas regulations.

The following are exemptions to various sections in this chapter and listed only for reference to those applicable sections:

1.    IMC 18.10.410 (Critical Areas Studies) lists provisions in which a critical area study may not be required and where certain development proposals, due to their nature, may not require a critical areas study based on City field investigations. See IMC 18.10.410(B) for the specifics.

2.    IMC 18.10.515 (Critical Area Tracts, Buffer Areas and Building Setback Areas) lists when street trees are allowed in and along the roadway rights-of-way portion of a critical area buffer. See IMC 18.10.515(C) for the specifics.

I.    IMC 18.10.580 (Steep Slope Hazards) lists provisions in which an exception from the requirements of that chapter may be approved by the Director. See IMC 18.10.580(D) for the specifics.

J.    Alterations to erosion, landslide and steep slope critical areas may be allowed for mineral resource and extraction activities, processing, facilities, and related uses in existence prior to August 2, 1999, and performed not less than once every twelve (12) months thereafter.

K.    Removal of Nonnative Invasive Vegetation: Removal of nonnative invasive vegetation from critical areas and associated buffers is encouraged within the City of Issaquah. Removal shall be accomplished through the use of hand labor and/or hand-held light equipment and without the use of herbicides unless alternative methods are approved by the Planning Department.

1.    Maintenance: Maintenance includes the removal of nonnative invasive vegetation within a total area extent of less than one hundred (100) square feet. Maintenance removal of nonnative invasive vegetation does not require City approval.

2.    Enhancement: Enhancement includes the removal of nonnative invasive vegetation within a total area extent of one hundred (100) square feet or more. Enhancement requires Planning Department approval and additional supporting documentation may be required depending on the scale, scope and complexity of the proposal. Supporting documentation may include but is not limited to erosion control measures, plans for revegetation with native plant species and future monitoring/maintenance. (Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2491 § 5, 2007; Ord. 2301 § 3, 2001; Ord. 2233 § 18, 1999; Ord. 2108 § 10.2.7, 1996).

18.10.410 Critical areas studies.

A.    Required: An applicant for a development proposal that includes, or is adjacent to, or could have probable significant adverse impacts to critical areas shall submit a critical areas study as required by the Director, for all critical areas defined in this chapter, to adequately evaluate the proposal and all probable impacts. The need for a critical areas study shall be determined through:

1.    Agency resource maps or studies; or

2.    At the request of the Director after field investigation (by City staff) has been conducted.

B.    Waivers: The Director may waive the requirement for a critical areas study if there is a substantial showing that:

1.    There will be no alteration of the critical areas or required buffers; and

2.    The development proposal will not affect the critical areas in a manner contrary to the goals, purposes, objectives and requirements of this chapter; and

3.    The minimum standards required by this chapter are met;

4.    When no alteration of or adverse impact to the critical area will occur as a result of a remodel activity or any associated construction for additional parking for a single family residential Building Permit for the remodel of a structure; or

5.    A critical areas study was prepared and provided previously for a development which currently requires a single family residential Building Permit and that the previous critical areas study adequately identified the impacts associated with the current development proposal.

C.    Contents of Critical Areas Study: At a minimum a critical areas study shall be prepared at the applicant’s expense, to identify and characterize any critical area as a part of the larger development proposal site; assess any hazards to the proposed development; assess impacts of the development proposal on any critical areas located on or adjacent to the development proposal site; and assess the impacts of any alteration proposed for a critical area. Studies shall propose adequate mitigation, maintenance and monitoring plans and bonding measures. Critical areas studies shall include among other requirements, a scale map of the development proposal site and a written report. The following criteria are the basic requirements for a critical areas study. Refer to the Permit Center in the Planning Department for more specific requirements.

1.    Vicinity Information:

a.    A description and maps at a scale no smaller than one (1) inch = fifty (50) feet (unless otherwise approved by the Director), showing the entire parcel of land owned by the applicant; adjacent area; and the exact boundary of the critical area on the parcel as determined in compliance with appropriate section of this chapter. Maps can be overlaid on aerial photographs;

b.    For parcels containing wetlands, the study must include the location and description of the vegetative cover, including dominant species of the regulated wetland and adjacent area.

2.    Site Plan:

a.    A site plan for the proposed activity at a scale no smaller than one (1) inch = twenty (20) feet (unless otherwise approved by the Director), showing the location, width, depth and length of all existing and proposed structures, roads, sewage treatment, and installations to be located within the critical area and/or its buffer;

b.    The exact sizes and specifications for all regulated activities including the amounts and methods.

3.    Project Description:

a.    The purposes of the project and an explanation why the proposed activity cannot be located at another location on the project site, including an explanation of how the proposed activity is dependent upon the chosen specific location; and

b.    Specific means to mitigate any potential adverse environmental impacts of the applicant’s proposal.

4.    Additional Information: The Director may at a minimum require the following additional information:

a.    Topographic map, including elevations of the site and adjacent lands within the critical area and its buffer at contour intervals as specified by the Director but in most cases no greater than five (5) feet;

b.    Elevations and cross sections;

c.    Assessment of critical area functional characteristics including but not limited to a discussion of the methodology used and documentation of the ecological, aesthetic, economic, or other values of the critical area;

d.    A study of flood, erosion, coal mine or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards; and

e.    Any other information deemed necessary to verify compliance with the provisions of this Code or to evaluate the proposed use in terms of the purposes of this Code.

D.    The City shall develop a list of qualified critical area specialists to conduct critical areas studies. The applicant shall be responsible for the total cost of the critical areas study.

E.    The Director shall circulate the critical areas study to the SEPA Responsible Official, Public Works Department, Planning Department and the River and Streams Board for review and comment.

F.    The Director shall make a final decision regarding the adequacy of the critical areas study or wetland reconnaissance based on the information provided and on comments from the City departments, Rivers and Streams Board and if applicable, the specialist selected to review the study.

G.    If it is determined that the proposed regulated activity will occur within a critical area or critical area buffer, an approval must be granted through the appropriate land use permitting process prior to any development activity occurring on the site. (Ord. 2108 § 10.2.8, 1996).

18.10.420 Public agency and utility exemption.

A.    This section only applies to development proposals not qualifying under IMC 18.10.400. If the application of this chapter would prohibit a development proposal by a public agency or public or private utility, the agency or utility may apply for an exception pursuant to this section. The exemption shall be reviewed through the appropriate land use permitting process or if none is required, then through Level 1 Review. The agency or utility shall prepare a report requesting the exemption and submit it to the Permit Center and shall incorporate other required documents such as land use or Building Permit applications, critical areas studies and SEPA documents.

B.    The Director shall review the report and applications and make the final decision to approve, approve with conditions or deny the exemption based on the following criteria:

1.    There is no other practical alternative to the proposed development with less impact on the critical area; and

2.    The proposal minimizes the impact on critical areas; and

3.    Mitigation measures are proposed as needed to avoid any significant adverse impacts to the critical area.

C.    This exemption shall not allow the use of the following critical areas for regional retention/detention facilities except where there is a clear showing that the facility is required to protect public health and safety or to repair damaged natural resources including:

1.    Class 1 streams or buffers covered by the City’s Shoreline Management Program;

2.    Category I or II wetlands or their buffers with federal or state threatened or endangered plant species; and

3.    Category I or II wetlands or their buffers which provide critical or outstanding actual habitat for the following unless the applicant clearly demonstrates that there would be no adverse impact on critical or outstanding actual habitat for:

a.    Species listed as endangered or threatened by the federal or state government,

b.    Washington Department of Fish and Wildlife priority species,

c.    Herons,

d.    Raptors,

e.    Salmonids and salmon habitat. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.9, 1996).

18.10.430 Variances.

A.    Applicability: The variance procedures herein apply to all property outside the jurisdiction of the Shoreline Master Program. Variances for development on property located within shoreline jurisdiction shall follow the variance process, standards and criteria listed in the Shoreline Master Program (SMP) and Appendix A of the SMP, Critical Area Regulations.

B.    Purpose: The variance provision is provided to property owners who, due to the strict implementation of this chapter and/or to unusual circumstances regarding the subject property, are deprived of privileges commonly enjoyed by other properties in the same vicinity, zone and under the same land use regulations or have been denied all reasonable use of the property; provided, however, that the fact that surrounding properties have been developed under regulations in force prior to the adoption of this Code shall not be the sole basis for the granting of a variance.

C.    Variance Granted: Before any variance may be granted, the applicant must file an application with the Permit Center and must demonstrate to the satisfaction of the Hearing Examiner the ability to meet all of the criteria in subsection D of this section. In the event that the applicant is not able to fulfill all of the criteria in subsection D of this section, a demonstration must be made to the satisfaction of the Hearing Examiner, regarding the ability to successfully meet all of the criteria established in subsection E of this section.

A variance application shall be submitted to the Permit Center along with a critical areas special study, where applicable.

D.    Variance Criteria Established:

1.    The variance is in harmony with the purpose and intent of the relevant City ordinances and the Comprehensive Plan;

2.    The variance shall not constitute a grant of special privilege which would be inconsistent with the permitted uses, or other properties in the vicinity and zone in which the subject property is located;

3.    That such variance is necessary, because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity, located in the same zone as the subject property and developed under the same land use regulations as the subject property requesting the variance;

4.    That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated;

5.    That alternative development concepts that comply with the Code provisions to which the variance is requested have been evaluated, and that undue hardship would result if the strict adherence to the Code provisions were required;

6.    The variance granted is the minimum amount that will comply with the criteria listed above and the minimum necessary to accommodate the permitted uses proposed by the application, and the scale of the use shall be reduced as necessary to meet this requirement; and

7.    The need for the variance is not the result of actions of the applicant or property owner.

E.    Reasonable Use Variance Criteria Established: Only after the determination, by the Hearing Examiner, that the proposal does not meet all of the variance criteria listed above, may the application be reviewed, by the Hearing Examiner at the same public hearing, under the following criteria:

1.    There is no reasonable use of the property left; and

2.    That the granting of this variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated; and

3.    The variance granted is the minimum amount that will comply with the criteria listed above and the minimum necessary to accommodate the permitted uses proposed by the application, and the scale of the use shall be reduced as necessary to meet this requirement; and

4.    The need for the variance is not the result of actions of the applicant or property owner.

F.    Wetland Buffer Variance: The Hearing Examiner may reduce wetland buffer widths beyond requirements of IMC 18.10.650 only through review and approval of a variance application. In addition to the variance requirements the applicant must demonstrate that:

1.    No direct or indirect, short-term or long-term, adverse impacts to wetlands would result from the proposed buffer reduction; and

2.    The project includes a wetland and/or wetland buffer enhancement plan using native vegetation which demonstrates that an enhanced buffer will improve the functional attributes of the buffer to provide additional protection for wetlands functions and values and that the new buffer will provide the same level of protection to the wetland as the original buffer.

G.    Cumulative Impact of Area Wide Requests: In the granting of variances from this Code, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if variances were granted to other developments in the area where similar circumstances exist, the total of the variances should also remain consistent with the policies and intent set forth in this chapter.

H.    Public Hearing: The Hearing Examiner shall hold a public hearing and notice shall be provided under the provisions of the Land Use Code and Issaquah Municipal Code. The applicant or representative(s) shall appear in person at the hearing.

I.    Notice of Hearing Examiner’s Decision: Copies of the Hearing Examiner’s decision shall be mailed to the applicant and to other parties of record not later than three (3) working days following the filing of the decision. “Parties of record” shall include the applicant and all other persons who specifically request notice of the decision by signing a register provided for such purpose at the public hearing.

J.    Appeals: Decisions by the Hearing Examiner may be appealed to the City Council in accordance with IMC 18.04.250, Administrative appeals. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.10, 1996).

18.10.440 Nonconforming activities.

Regulated activities approved prior to the adoption of this chapter but which are not in conformity with the provisions of this chapter are subject to the provisions of Chapter 18.08 IMC. (Ord. 2108 § 10.2.11, 1996).

18.10.450 Density calculation in critical areas.

A.    The following formula for density calculations is designed to provide incentives for the preservation of critical areas and critical area buffers, flexibility in design, and consistent treatment of different types of development proposals. The formula shall apply to all properties on which critical areas such as streams, wetlands, steep slopes, and floodways of streams and associated critical area buffers limit land area available for development. The formula lists the maximum density credits that may be transferred on a particular site from the critical area to a developable site area. However, in some cases the maximum density credits may not be attainable due to other site constraints including but not limited to acreage constraints of the developable site area.

B.    For development proposals containing critical areas and associated critical area buffers that limit development, the Director shall determine allowable dwelling units for residential and allowable floor area for nonresidential or commercial development proposals based on the formulas below.

1.    Residential: The maximum number of dwelling units (DU) for a lot or parcel which contains critical areas and associated critical area buffers that limit development shall be equal to the number of acres in critical area and critical area buffer that limit development, times the number of dwelling units allowed per acre, times the percentage of density credit, plus the number of dwelling units allowed on the remainder of the site; or: (Max. DU) = (Acres in Critical Area and Critical Area Buffer) (DU/Acre) (Density Credit) + (DU allowed on remaining acreage of site).

2.    The density credit figure is derived from the following table:

Density Credits

Percentage of site in buffers and/or critical areas

translates into

Density Credit

1 – 10%

 

100%

11 – 20%

 

90%

21 – 30%

 

80%

31 – 40%

 

70%

41 – 50%

 

60%

51 – 60%

 

50%

61 – 70%

 

40%

71 – 80%

 

30%

81 – 90%

 

20%

91 – 100%

 

10%

3.    The density credit can only be transferred within the development proposal site. The applicant may reduce lot sizes below the minimum required for that zone to accommodate the transfer of density. The applicant may not propose any uses which are not permitted in the underlying zone.

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 of sufficient size for an on-site waste disposal system if no sanitary sewer system exists. In any case, all other established setbacks shall be required, pursuant to Chapter 18.07 IMC.

4.    Nonresidential: The maximum nonresidential or commercial square footage will be determined by the site constraints, including but not limited to: critical areas, associated critical area buffers, impervious surface ratio, height, setbacks, parking requirements, etc. (Ord. 2525 § 7, 2008; Ord. 2447 § 59, 2005; Ord. 2108 § 10.2.12, 1996).

18.10.460 Notice on title.

A.    The owner of any property containing critical areas or buffers on which a development proposal is submitted, except for a public right-of-way or the site of a permanent public facility, shall file for record with the Records and Elections Division of King County a notice approved by the City. Such notice shall provide documentation in the public record of the presence of a critical area or buffer, the application of this chapter to the property, and that limitations on actions in or affecting such areas or buffers may exist. The required contents and form of the notice shall be set forth in administrative rules.

B.    The applicant shall submit proof that the notice has been filed for record before the City shall approve any development proposal for such site or, in the case of subdivisions, short subdivisions and binding site plans, at or before recording. The notice shall run with the land and failure to provide such notice to any purchaser prior to transferring any interest in the property shall be a violation of this chapter. (Ord. 2108 § 10.2.13, 1996).

18.10.470 Critical area tracts, buffer areas and building setback areas.

Repealed by Ord. 2301. (Ord. 2108 § 10.2.14, 1996).

18.10.480 Temporary marking – Permanent survey marking – Signs.

A.    Temporary Marking: The location of the outer extent of the critical area buffer and building setback line pursuant to an approved Development or Land Use Permit shall be marked in the field with orange construction fencing or other appropriate apparatus, as determined by the Director during critical area review. The location of such marking in the field shall be approved by the Director, prior to the commencement of permitted activities. Such field markings shall be maintained throughout the duration of the construction activities.

B.    Survey Markers: Permanent survey stakes using iron or cement markers as established by current survey standards shall be set delineating the boundaries between adjoining properties and the critical areas tracts.

C.    Signs: Boundaries between critical area tracts and adjacent lands shall be identified using permanent signs explaining the type and value of the critical area. The signs shall be designed as follows, unless alternative designs are approved by the Director:

1.    Size and Height: Minimum eight and one-half (8.5) inches tall by eleven (11) inches wide. The overall sign shall be three (3) to five (5) feet high;

2.    Color: White lettering on dark background;

3.    Material: Aluminum sign and wood posts;

4.    Content: The language content of the sign shall be as determined by the Planning Department (examples available at the Permit Center). The title shall be a minimum one-half (1/2) inch tall letters and the text a minimum one-quarter (1/4) inch tall letters;

5.    Installation: The sign shall be secured to a four (4) inch by four (4) inch wood post, long enough to set the post thirty-six (36) inches below grade and back fill with dirt (see Permit Center for sign diagram). (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.15, 1996).

18.10.490 Mitigation.

A.    Mitigation Sequence: Activities and development on sites containing critical areas shall follow the sequence of steps listed below in order of priority to further the goal of no net loss of ecological functions of environmental critical areas:

1.    Avoid impacts altogether by not taking a certain action or parts of an action;

2.    Minimize 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;

3.    Rectify impacts by repairing, rehabilitating or restoring the affected environment;

4.    Compensate for the impact by replacing, restoring, creating, enhancing or providing substitute resources or environments;

5.    Monitor the impact and the compensation projects and taking appropriate corrective measures.

B.    Prior to development activities, mitigation measures shall be in place to protect critical areas and critical area buffers from alterations occurring on all or portions of the site that are being developed.

C.    A mitigation plan shall be required for the design, implementation, maintenance and monitoring of mitigation.

D.    A financial surety in the form of a performance and maintenance bond shall be required for all critical area mitigation efforts. The bonding amounts shall be listed in the mitigation plan, with the performance amount intended to cover the cost of design, installation, monitoring, and maintenance, and shall be an agreed-upon percentage of the performance bond. The bond shall be one hundred fifty (150) percent of the mitigation cost and the maintenance period shall be for five (5) years. If additional work is required after the five (5) year maintenance period is over, the bonding may be extended per the Director.

E.    Other Agency Review: The Director may consult with and solicit comments from any federal, state, regional, or other local agency, including tribes, having any special expertise with respect to any environmental impact prior to approving a mitigation plan. The project proponents should provide sufficient information on plan design and implementation in order for such agencies to comment on the overall adequacy of the mitigation plan. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.16, 1996).

18.10.500 Monitoring.

A.    The City shall require monitoring when mitigation is required for the alteration of a critical area.

B.    Monitoring is required for a minimum of five (5) years.

C.    Where monitoring reveals a significant deviation from predicted impacts or a failure of mitigation measures, the applicant shall be responsible for appropriate corrective action as specified by the Director which, when approved, shall be subject to monitoring. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.17, 1996).

18.10.510 Critical Areas Mitigation Fund.

There is hereby created a Critical Areas Mitigation Fund which shall be administered by the Finance Department. All funds received from civil penalties resulting from violations of this chapter shall be deposited in the fund which shall be used only for the purpose of paying all or part of the cost and expense of enforcing and implementing this chapter. Monies in said fund not needed for immediate expenditure shall be invested for the benefit of the Critical Areas Mitigation Fund pursuant to RCW 36.29.020. For investment purposes, the Director of Finance is hereby designated the Fund Manager. (Ord. 2108 § 10.2.18, 1996).

18.10.515 Critical area tracts, buffer areas and building setback areas.

A.    Critical Area Tracts: Critical area tracts shall be used to protect all landslide and steep slopes hazard areas; mine, flood, erosion and seismic hazard areas; streams; and wetlands in proposals for subdivisions or other development proposals to which they apply, and shall be recorded on all documents of title of record for all affected lots.

1.    Critical area tracts are legally created tracts containing critical areas and their buffers that shall remain undeveloped in perpetuity. Critical area 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.

2.    Permanent survey stakes using iron or cement markers as established by current survey standards shall be set delineating the boundaries between adjoining properties and the critical area tracts.

B.    Protection of Critical Area Tracts: The Director shall require, as a condition of any permit issued pursuant to this Code, that the critical area tract or tracts created pursuant to this section be protected by one of the following methods:

1.    The permit holder shall convey an irrevocable offer to dedicate to the City or other public or nonprofit entity specified by the Director, a native growth protective easement for the protection of native vegetation within a critical area and/or its buffer; or

2.    The permit holder shall establish and record a permanent and irrevocable deed restriction on the property title of all lots containing a critical area tract or 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 tract except for purposes of habitat enhancement as part of an enhancement project that has received prior written approval from the City, and any other agency with jurisdiction over such activity.

C.    Buffer Areas: Buffer areas shall be established from the outer edge of the critical area for wetlands, streams, steep slope hazard areas and landslide hazard areas, as determined by the Director, through review of the critical areas study and based on the minimum buffer requirements set forth in the appropriate section of this Code.

Landscaping, with the exception of street trees, that occurs as a result of new development, shall not intrude into the buffer of any critical area, unless approved by the Director (through a Level 1 Review or through the appropriate land use permitting process). Street trees, consistent with the City “Street Tree Master Program” and approved by the Director, shall be allowed in and along the roadway rights-of-way portion of a critical area buffer. When critical area buffers overlap, the largest buffer width shall be applied to ensure adequate protection for each critical area.

D.    Building Setback Areas: A minimum fifteen (15) foot building setback area shall be established from the outer edge of the critical area buffer for wetlands, streams, steep slope hazard areas and landslide hazard areas.

1.    Prohibitions on the use of hazardous or toxic substances and pesticides or certain fertilizers in this area shall be imposed for setbacks from streams and wetlands.

2.    Minor structural intrusions (e.g., architectural features, patios, decks less than thirty (30) inches above finished grade) may be allowed into the building setback area, if consistent with IMC 18.07.040.

3.    The building setback area shall be illustrated on all preliminary plats, final plats, land use permits, and building permit site plans containing or adjacent to critical areas. (Ord. 2455 § 3, 2006; Ord. 2301 § 3, 2001).

Development Standards

18.10.520 Mine hazard areas and erosion hazard areas – Protection mechanisms and permitted alterations.

A.    Coal Mine Hazard Areas:

1.    General Requirements: Alteration of a site containing a coal mine hazard area may be permitted only when all significant risks associated with abandoned mine workings have been eliminated or mitigated. Appropriate mitigation shall be based upon a critical areas study that has been prepared by a qualified professional.

2.    Building Setback Lines: Building setback lines to accomplish this objective shall be determined by the Director based on the critical areas study.

B.    Erosion Hazard Areas: Alteration of a site containing an erosion hazard area shall meet the following requirements:

1.    Clearing on erosion hazard areas is allowed only from April 1st to November 1st.

2.    Only that clearing necessary to install temporary sedimentation and erosion control measures shall occur prior to clearing for roadways or utilities.

3.    Clearing limits for roads, sewer, water and stormwater utilities, and temporary erosion control facilities shall be marked in the field and approved by the Department of Public Works prior to any alteration of existing native vegetation.

4.    The authorized clearing for roads and utilities shall be the minimum necessary to accomplish project-specific engineering designs and provide necessary electrical clearances.

5.    Clearing of trees permitted pursuant to Chapter 18.12 IMC, Landscaping, may occur in conjunction with clearing for roadways and utilities.

6.    Retained trees, understory, and stumps may subsequently be cleared only if such clearing is a specific element of residential, multifamily, or commercial structure site plan approval. This shall be carried out as a part of a vegetation management plan developed pursuant to criteria established in the administrative rules.

7.    Hydroseeding or other erosion control methods as required in temporary erosion control plans shall be required.

8.    All development proposals shall submit an erosion control plan consistent with this section and other adopted requirements prior to receiving approval. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.19, 1996).

18.10.530 Areas of special flood hazard – Protection mechanisms and permitted alterations.

A.    Application: Development proposals located within areas of special flood hazard shall meet the requirements and definitions of Chapter 16.36 IMC, Areas of Special Flood Hazard. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2405 § 2, 2004; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.20, 1996).

18.10.540 Protection mechanisms and permitted alterations for the one hundred (100) year floodplain.

Repealed by Ord. 2301. (Ord. 2164 § 10, 1997; Ord. 2108 § 10.2.21, 1996).

18.10.550 Floodway – Protection mechanisms and permitted alterations.

Repealed by Ord. 2301. (Ord. 2108 § 10.2.22, 1996).

18.10.560 Landslide hazard areas – Protection mechanisms and permitted alterations.

Development proposals on sites containing landslide hazard areas shall meet the following requirements:

A.    Buffers: A minimum buffer of fifty (50) feet shall be established from all edges of landslide hazard areas and from landslide hazard areas with slopes of less than forty (40) percent unless these areas are approved for alteration pursuant to this section. Existing native vegetation within the buffer area shall be maintained, and the buffer shall be extended beyond these limits as required to mitigate steep slope and erosion hazards, or as otherwise necessary to protect the public health, welfare or safety.

B.    Building Setback: An additional fifteen (15) foot building setback shall also be established from the outer edge of the buffer as regulated by IMC 18.10.515(D), Building Setback Areas.

C.    Alterations:

1.    A landslide hazard area located on a slope forty (40) percent or steeper shall be altered only as allowed under standards for steep slope hazard areas. A landslide hazard area, located on a slope less than forty (40) percent, may only be altered under the following circumstances:

a.    The development proposal will not decrease slope stability on adjacent properties; and

b.    The landslide hazard area can be modified or the development proposal can be designed so that the landslide hazard to the project and adjacent property is eliminated or mitigated, based on criteria including altering of drainage patterns and subsurface flow, and the development proposal on that site is certified as safe by a licensed geotechnical engineer.

2.    Where such alterations are approved, buffers and critical area tracts may also be altered. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.23, 1996).

18.10.570 Seismic hazard areas – Protection mechanisms and permitted alterations.

Development proposals on sites containing a seismic hazard area shall meet the requirements of this section.

A.    Development proposals on-sites containing mapped seismic hazard areas may make alterations to a seismic hazard area only when the applicant demonstrates and the Director concludes that:

1.    Evaluation of site specific subsurface conditions show that the site is not located in a seismic hazard area; or

2.    Mitigation is implemented to the greatest extent feasible, and shall minimize any potential adverse impacts.

B.    Development proposals will be subject to two (2) levels of review standards based on occupancy types – critical facilities and standard structures. The review standards for critical facilities will be based on larger earthquake reoccurrence intervals than the earthquakes considered for standard occupancy structures. The review standards will be set forth in the administrative rules. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.24, 1996).

18.10.580 Steep slope hazard areas – Protection mechanisms and permitted alterations.

Steep slope hazard areas and associated buffers shall not be altered (see definition of “alteration,” IMC 18.10.390) except as expressly authorized below.

Development proposals on sites containing a steep slope hazard area shall meet the requirements of this section.

A.    Buffers:

1.    A minimum buffer shall be established at a horizontal distance of fifty (50) feet from the top or toe and along all sides of slopes forty (40) percent or steeper. Existing native vegetation within the buffer area shall be maintained and the buffer shall be extended beyond these limits as required to mitigate landslide and erosion hazards, or as otherwise necessary to protect the public health, safety and welfare.

2.    The buffer may be reduced to a minimum of ten (10) feet when an applicant demonstrates to the Director, pursuant to a critical areas study, that the reduction will not reduce the level of protection to the proposed development and the critical area as provided by the fifty (50) foot buffer. An occupied building shall not be closer than twenty-five (25) feet (including buffer) to the toe of a steep slope (or altered steep slope).

3.    A decision by the Director to reduce the buffer shall be based on a critical area study that includes the following assessment criteria:

a.    Steep slope development areas shall be subject to site-specific geotechnical studies.

b.    Steep slope development areas shall be subject to engineering design considerations that ensure the stability of steep slope areas. Engineering design considerations shall include but are not limited to the following:

(1)    Soil cuts require slope stability analysis to evaluate the change in relative stability. Based on the results of the stability analysis, retaining structures will be required to replace any lateral soil support lost. In no case shall the factor of safety be less than one and one-half (1.5).

(2)    Soil fills require slope stability analysis and engineering design measures, including keying the fill, compaction, drainage measures, reinforced earth, and structural retaining walls.

(3)    Foundations must be extended to firm, undisturbed native soil, and embedded deep enough to resist lateral loads caused by soil creep (surficial slope movement inherent to all steep slope areas) and other lateral loads which the foundation may be subject to (i.e., seismic and deep seated slope failures).

(4)    Provide subgrade (i.e., reinforced compacted subgrade) or retaining wall design (rockeries are not considered retaining walls or engineered structures) that replaces the support of cuts; designed with a factor of safety of at least one and one-half (1.5). Compacted subgrade without reinforcement or retaining structures will not be considered for the support of cuts.

(5)    Provide effective, positive drainage for all underground elements of structures or facilities.

(6)    All utility connections within steep slope and landslide hazards shall have sufficient flexible connections to avoid utility failure.

c.    All geotechnical analyses prepared shall have a third-party independent review by a qualified geotechnical engineer.

4.    The decision by the Director to reduce the buffer shall include the following conditions:

a.    The applicant shall establish a mechanism that is acceptable to the Director which notifies all future buyers of the lot that the steep slope buffer was reduced and that development has occurred within fifty (50) feet of the steep slope or the steep slope has been eliminated (e.g., notice on title); and

b.    The applicant shall execute an agreement on a form approved by the City Attorney, which indemnifies and holds the City harmless for development within fifty (50) feet of the steep slope.

    Both conditions shall be met prior to the issuance of a Building Permit. The Director may attach additional conditions as necessary to achieve the purpose and intent of this section.

B.    Building Setback: An additional fifteen (15) foot building setback shall also be established from the outer edge of the buffer as regulated by IMC 18.10.515(D), Building Setback Areas.

C.    Critical Areas Tracts: Any continuous steep slope hazard area and its buffers one (1) acre or greater in size shall be placed in separate critical areas tracts in development proposals as described in IMC 18.10.515.

D.    Alterations: Alterations to steep slopes shall be allowed only as follows:

1.    Surface Water Management: Steep slopes may be used for approved surface water conveyance as specified in the City’s currently adopted Surface Water Design Manual. Installation techniques shall minimize disturbance to the slope and vegetation.

2.    Trails: Construction of public and private trails may be allowed on steep slopes, provided they receive site-specific approval by the City as guided by the construction and maintenance standards in the U.S. Forest Service “Trails Management Handbook” (FSH 2309.18, June 1987 as amended) and “Standard Specifications for Construction of Trails” (EM-7720-102, June 1984 as amended); but in no case shall trails be constructed of concrete, asphalt or other impervious surface which would contribute to surface water runoff unless such construction is necessary for soil stabilization or soil erosion prevention.

3.    Utilities: Construction of public and private utility corridors may be allowed on steep slopes in accordance with adopted standards. In the event that standards have not been adopted or are not applicable, the activity may be allowed; provided, that a critical areas study indicates that such alteration will not subject the area to the risk of landslide or erosion.

4.    View Corridors: The City may allow the limited trimming and limbing of vegetation on steep slopes for the creation and maintenance of views; provided, that the soils are not disturbed, plant health is not compromised, and the activity is subject to the applicable City ordinance.

E.    Limited Exemptions:

1.    Slopes forty (40) percent and steeper with a vertical elevation change of up to twenty (20) feet may be exempted from the provisions of this section (through Level 1 Review or through the appropriate land use permitting process), based on the City review and acceptance of a soils report prepared by a geologist or licensed geotechnical engineer when no adverse impact will result from the exemption.

2.    Any slope which has been created through previous, legal grading activities may be regarded as part of an approved development proposal. Any slope which remains equal to or in excess of forty (40) percent following site development shall be subject to the protection mechanisms for steep slopes.

F.    Removal or Introduction of Vegetation on Landslide or Steep Slopes: Unless otherwise specified, the following restrictions apply to vegetation removal or introduction in steep slope hazard areas, landslide hazard areas and their buffers:

1.    There shall be no removal of any vegetation from any steep slope hazard area or buffer except for the limited plant removal necessary for surveying purposes and for the removal of hazardous trees determined to be unsafe by the City Horticulturist or a private, qualified arborist.

2.    On slopes which have been disturbed by human activity or infested by noxious weeds, replacement with native species or other appropriate vegetation may be required subject to approval by the City of an enhancement plan. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2525 § 4, 2008; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.25, 1996).

18.10.590 Wetlands – General protection mechanisms.

Development activity on sites containing wetlands or wetland buffers shall meet the requirements of this chapter. Wetlands and associated buffers shall not be altered (see definition of “alteration,” IMC 18.10.390) except as expressly authorized by this chapter. The applicant is responsible for ensuring that the requirements of all other agencies with jurisdiction have been met. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2455 § 4, 2006; Ord. 2108 § 10.2.26.1 – 4, 1996).

18.10.600 Regulated wetland activities.

Project Permit approval through the appropriate land use permitting process, or if none is required, then through Level 1 Review, shall be obtained from the City prior to undertaking the following activities in a regulated wetland or its buffer unless authorized by IMC 18.10.610(A):

A.    The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

B.    The dumping, discharging, or filling with any material;

C.    The draining, flooding, or disturbing of the water level or water table;

D.    The driving of pilings;

E.    The placing of obstructions or fences;

F.    The construction, reconstruction, demolition, or expansion of any structure;

G.    The destruction or alteration of wetlands vegetation through clearing, grubbing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland; provided, that these activities are not part of a forest practice governed under Chapter 76.09 RCW and its rules;

H.    Activities that result in a significant change of water temperature, a significant change of physical or chemical characteristics of wetlands water sources, including quantity, or the introduction of pollutants;

I.    Any development or construction activity not specifically authorized as an allowed activity in IMC 18.10.610(A);

J.    Restoration or enhancement projects; or

K.    Introduction into any wetland area or associated buffers of all vegetation or wildlife shall be indigenous to the Issaquah region unless authorized by the state of Washington or a federal license or permit. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2455 § 5, 2006; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.26.5, 1996).

18.10.610 Allowed wetland activities.

A.    Activities Not Subject to Review or Approval: The following activities shall be allowed without a wetland reconnaissance or wetland study and without notice to the Director, within a wetland or wetland buffer to the extent that they are not prohibited by any other ordinance or law and provided they are conducted using best management practices, except where such activities result in the conversion of a regulated wetland or wetland buffer to an activity to which it was not previously subjected; and provided further, that forest practices and conversions shall be governed by Chapter 76.09 RCW and its rules. These activities are not subject to any review or approval process.

1.    Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife;

2.    Outdoor recreational activities, including fishing, bird watching, hiking, hunting, boating, swimming and canoeing. Horseback riding and bicycling are allowed only on designated, established, public trails;

3.    The noncommercial 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. Activities on areas lying fallow as part of a conventional rotational cycle are part of an ongoing operation. Activities which bring an area into agricultural use are not part of an ongoing operation. An operation ceases to be ongoing when the area on which it was conducted has been converted to another use or has lain idle for twenty-four (24) consecutive months;

5.    The maintenance (but not construction) of existing ditches. Maintenance includes clearing the ditch of sediment, debris and/or vegetation, but does not include additional excavation that increases the depth or width of the ditch. Excavation of sediment deposited in the ditch shall not exceed the original construction elevation;

6.    Education, scientific research, and use of publicly designated nature trails;

7.    Navigation aids and boundary markers;

8.    Boat mooring buoys;

9.    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;

10.    Minor modification of existing serviceable structures (e.g., utilities, monitoring equipment, etc.) within a buffer where modification does not adversely impact wetland functions;

11.    Site investigative work necessary for land use application submittals such as delineations, surveys, soil logs, percolation tests and other related activities; and

12.    Removal of exotic, invasive plants in wetlands and buffers as established in IMC 18.10.400(K), Removal of Nonnative Invasive Vegetation.

B.    Activities Allowed in Wetland Buffers: In wetland buffers, regulated activities which have minimal adverse impacts within the buffers and no adverse impacts on wetlands may be allowed through the land use permit process, provided they are conducted using best management practices and restoration. These activities include:

1.    Low impact, passive recreation-related activities such as development of pervious recreation trails, nonpermanent wildlife watching blinds, short-term scientific or educational activities; or

2.    Facilities having no feasible alternative on-site locations, where appropriate restoration is included, and which would not adversely affect the function or values of the buffer or wetland, may be allowed in wetland buffers. Stormwater facilities shall not encroach into wetland buffers by more than twenty-five (25) percent of the standard wetland buffer width, per IMC 18.10.640, or use more than twenty-five (25) percent of the total buffer area without a variance. Stormwater vaults located in wetland buffers shall have adequate soil cover to support native vegetation including small trees, shrubs and groundcover. Any wetland buffer area displaced by a stormwater management facility shall be compensated for by adding an equal wetland buffer area in accordance with wetland buffer averaging, IMC 18.10.650(D)(5), so that no net loss of wetland buffer area results from the construction of the facility. Stormwater facilities such as bioretention, rain gardens, or constructed wetlands planted with appropriate native vegetation and trees are allowed without buffer averaging requirements; or

3.    Flood conveyance compensatory storage, where there is no other feasible alternative, where appropriate restoration is included, and where wetland hydrology or vegetation will not be significantly impacted; or

4.    Surface water discharge to a wetland from a stormwater facility or other surface water management activity or facility may be allowed if the discharge enhances the wetland and/or does not increase the rate of flow, change the plant composition in a forested wetland, or decrease the water quality of the wetland; or

5.    Trails. Construction of public and private trails may not be allowed in wetland buffers unless a critical areas study per IMC 18.10.410 documents no loss of buffer functions and values. Additional buffer width equal to the width of the trail tread and the cleared trail shoulders shall be required, except where existing development prevents adding buffer width. In this case, other mitigating measures shall be required to ensure no loss of buffer functions and values.

C.    Utilities in Wetland Buffers: Sewer utility corridors may be allowed in wetland buffers only if the applicant demonstrates that sewer lines are necessary for gravity flow and no other technologically practical alternative exists, and:

1.    The corridor is not located in a wetland or buffer used by species listed as endangered or threatened by the state or federal government or containing critical or outstanding actual habitat of those species, and consider construction timing in areas with heron rookeries or raptor nesting trees;

2.    The corridor alignment including, but not limited to, any allowed maintenance roads shall not encroach into the wetland buffer at any location by more than twenty-five (25) percent of the standard wetland buffer width, per IMC 18.10.640;

3.    Corridor construction and maintenance protects the wetland and buffer and is aligned to avoid cutting trees greater than twelve (12) inches in diameter at breast height, when practical;

4.    An additional, contiguous and undisturbed buffer, equal in width to the proposed nonvegetated areas, including any allowed maintenance roads, is provided to protect the wetland;

5.    The corridor is revegetated with appropriate vegetation native to King County at preconstruction densities or greater immediately upon completion of construction or as soon thereafter as possible, and the sewer utility ensures that such vegetation is established for at least five (5) years;

6.    Any additional corridor access for maintenance is provided, to the extent possible at specific points rather than by a parallel road; and

7.    The width of any necessary parallel road providing access for maintenance is as small as possible, but not greater than fifteen (15) feet, and the location of the road is within the utility corridor on the side away from the wetland.

D.    Temporary Construction Disturbance: Except as otherwise specified, where temporary buffer disturbance has occurred during construction, revegetation with native vegetation is required. (Ord. 2783 § 5 (Exh. A5.c), 2016; Ord. 2669 § 1 (Exh. A), 2013; Ord. 2491 § 6, 2007; Ord. 2455 § 6, 2006; Ord. 2314 § 1, 2001; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.26.6 – 7, 1996).

18.10.615 Wetland delineations.

A.    A wetland report shall be prepared either prior to or with a development application, where a site inspection or other available information indicates the potential presence of a wetland on any portion of the subject property or within two hundred (200) feet of the subject property.

B.    A field identification or delineation of the wetland edge shall be conducted by a qualified wetland professional based on the procedures provided in the currently approved federal manual and applicable regional supplements and WAC 173-22-035.

C.    Wetland delineations and wetland ratings shall be based on the entire extent of the wetland, irrespective of property lines, ownership patterns, or other factors.

D.    The Planning Director/Manager shall approve a wetland delineation and wetland rating prior to approval of development permits. The City may require additional review of a wetland delineation and/or wetland rating by a wetland professional not associated with an applicant. Additional wetland review shall be at the applicant’s expense.

E.    A final wetland delineation report shall be valid for three (3) years. Additional time may be approved by the Planning Director/Manager if an application is proceeding through the permit process in a timely manner. The Planning Director/Manager may require an updated wetland delineation report whenever physical circumstances have markedly and demonstrably changed on the subject property or the surrounding area as a result of natural processes or human activity.

F.    After City approval of the wetland delineation and required wetland buffer, a professional survey of the wetland edge and required wetland buffer shall be shown on the permit application. The survey of the wetland delineation shall be tied to a known monument. (Ord. 2669 § 3 (Exh. A), 2013).

18.10.620 Wetland rating system.

A.    To promote consistent application of standards, wetlands within the City of Issaquah shall be classified according to their characteristics, function and value, and/or their sensitivity to disturbance. Wetlands shall be rated and regulated according to the categories defined by the Washington State Wetland Rating System for Western Washington – 2014 Update (Ecology Publication No. 14-06-029, October 2014) or as revised. This document contains the methods for determining the wetland category.

1.    Wetlands, as defined by this chapter, shall be classified into Category I, Category II, Category III, and Category IV, as follows:

a.    Category I: Category I wetlands are: (1) relatively undisturbed estuarine wetlands larger than one (1) acre; (2) wetlands of high conservation value that are identified by scientists of the Washington Natural Heritage Program/DNR; (3) bogs; (4) mature and old-growth forested wetlands larger than one (1) acre; (5) wetlands in coastal lagoons; (6) interdunal wetlands that score eight (8) or nine (9) habitat points and are larger than one (1) acre; and (7) wetlands that perform many functions well. These wetlands: (1) represent unique or rare wetland types; (2) are more sensitive to disturbance than most wetlands; (3) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or (4) provide a high level of functions. Category I wetlands score between twenty-three (23) and twenty-seven (27) points.

b.    Category II: Category II wetlands are: (1) estuarine wetlands smaller than one (1) acre, or disturbed estuarine wetlands larger than one (1) acre; (2) interdunal wetlands larger than one (1) acre or those found in a mosaic of wetlands; or (3) wetlands with a moderately high level of functions. Category II wetlands score between twenty (20) and twenty-two (22) points.

c.    Category III: Category III wetlands are: (1) wetlands with a moderate level of functions; (2) can often be adequately replaced with a well-planned mitigation project; and (3) interdunal wetlands between one-tenth (0.1) and one (1) acre. Wetlands scoring between sixteen (16) and nineteen (19) points generally have been disturbed in some ways and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands. Category III wetlands score between sixteen (16) and nineteen (19) points.

d.    Category IV: Category IV wetlands have the lowest level of functions and are often heavily disturbed. These are wetlands that we should be able to replace, or in some cases, to improve. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions, and should be protected to some degree. Category IV wetlands score between nine (9) and fifteen (15) points.

e.    Category IV Wetlands Less Than Two Thousand Five Hundred (2,500) Square Feet: Category IV wetlands less than two thousand five hundred (2,500) square feet in size, that are not part of a wetland complex, do not require wetland buffers and may be altered if mitigation is provided to demonstrate no net loss of functions or values, consistent with IMC 18.10.720(B)(3). (Ord. 2790 § 1 (Exh. A), 2016; Ord. 2669 § 1 (Exh. A), 2013; Ord. 2455 § 7, 2006; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27 – 10.2.27.3, 1996).

18.10.630 Wetland buffers.

Repealed by Ord. 2669. (Ord. 2108 § 10.2.27.4, 1996).

18.10.640 Wetland buffer width requirements.

A.    Wetland buffers shall be required for all regulated activities adjacent to wetlands.

B.    Any wetland created, restored or enhanced as mitigation or compensation for approved wetland alterations shall also include the standard wetland buffer required for the category of the created, restored, or enhanced wetland.

C.    All wetland buffers shall be measured from the wetland boundary as delineated using the approved federal manual and applicable regional supplements and surveyed in the field. The width of the wetland buffer shall be determined according to the wetland category, as follows:

Table 18.10.640.C Wetland Buffer Standards 

Category

Wetland Characteristic

Buffer

I
(Wetlands with a total score of 23 to 27 points or more on the DOE Wetland Rating form)

Natural heritage wetlands

190 feet

Bogs

190 feet

Forested

Based on score for habitat or water quality functions

Habitat score of 8 to 9

225 feet

Habitat score of 7

150 feet

Habitat score of 5 to 6

100 feet

Habitat score of 3 to 4

75 feet

II
(Wetlands with a total score of 20 to 22 points on the DOE Wetland Rating form)

Habitat score of 8 to 9

225 feet

Habitat score of 7

150 feet

Habitat score of 5 to 6

100 feet

Habitat score of 3 to 4

75 feet

III
(Wetlands with a total score of 16 to 19 points on the DOE Wetland Rating form)

Habitat score of 7

110 feet

Habitat score of 5 to 6

75 feet

Habitat score of 3 to 4

50 feet

IV
over 2,500 square feet

(Wetlands with a total score of 9 to 15 points on the DOE Wetland Rating form)

Total score for functions of 9 to 15 points

40 feet

IV
less than 2,500 square feet

 

No buffer required

D.    Building Setback: An additional fifteen (15) foot building setback shall also be established from the outer edge of the buffer as regulated by IMC 18.10.515(D), Building Setback Areas. (Ord. 2790 § 1 (Exh. A), 2016; Ord. 2669 § 1 (Exh. A), 2013; Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2455 § 8, 2006; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.5 – 9, 1996).

18.10.650 Exceptions to wetland buffer width requirements.

A.    Existing Conditions:

1.    Previously Established Buffers: Where a wetland buffer has been previously established through City or County development approval on or after November 27, 1990, and is permanently recorded on title or placed within a separate tract, the buffer shall be as previously established, provided it is at least fifty (50) percent of the required standard wetland buffer width in Table 18.10.640.C.

2.    Roads or Infrastructure in Wetland Buffers: Where a legally established road right-of-way or similar infrastructure is located within a wetland buffer, the edge of the improved right-of-way shall be the extent of the buffer, provided it is demonstrated that the buffer area on the opposite side of the right-of-way provides insignificant biological or hydrological functions in relation to the buffer area adjacent to the wetland.

B.    Buffer Requirements for Wetlands Adjacent to Steep Slopes: Wetlands within twenty-five (25) feet of the toe of slopes equal to or greater than forty (40) percent shall have the following minimum buffers:

1.    Where the horizontal length of the slope including small benches and terraces is within the buffer for that wetland category, the buffer width shall be the greater of:

a.    The minimum for that wetland category; or

b.    Twenty-five (25) feet beyond the toe of the slope.

2.    Where the horizontal length of the slope extends beyond the minimum buffer for that wetland category, the buffer shall extend to a point twenty-five (25) feet beyond the minimum buffer for that wetland category.

3.    No reduction to wetland buffer standards in IMC 18.10.640 is allowed.

4.    The Director may recommend buffer averaging in instances where it will provide additional resource protection; provided, that the total area on site contained in the buffer remains the same.

C.    Increasing Wetland Buffer Requirements: The Director shall require increased buffer widths as necessary to protect wetlands. The additional buffer widths and other issues shall be determined by development application review on a case-by-case basis. This determination shall be supported by appropriate documentation demonstrating that an increased buffer is necessary to:

1.    Maintain viable populations of existing species;

2.    Protect critical fish and wildlife habitat;

3.    Protect critical drainage areas;

4.    Protect groundwater recharge or discharge areas;

5.    Protect adjacent land from landslides or severe erosion.

D.    Reducing Wetland Buffer Requirements:

1.    Wetland buffer reduction provisions in this section may be used separately or together; provided, that the cumulative, total wetland buffer reduction shall not exceed twenty-five (25) percent of the required wetland buffer area or encroach into the buffer at any location by more than twenty-five (25) percent of the standard wetland buffer width, per IMC 18.10.640.

2.    A variance is required for wetland buffer reductions exceeding twenty-five (25) percent of the required buffer area or encroachments exceeding twenty-five (25) percent of the standard wetland buffer width.

3.    Wetland Buffer Reduction with Buffer Vegetation Enhancement:

a.    Purpose: The standard wetland buffer widths identified in Table 18.10.640.C may be reduced when enhancement of the existing wetland buffer vegetation would demonstratively improve water quality and habitat functions.

b.    Applicability – Qualifying Wetland Buffers: A wetland buffer may qualify for a buffer reduction under this section when:

(1)    The wetland buffer proposed to be enhanced/reduced meets all of the following characteristics:

(A)    More than forty (40) percent of the buffer area is covered by nonnative and/or invasive plant species; or

(B)    Tree and/or shrub vegetation cover less than twenty-five (25) percent of the buffer area; and

(C)    The wetland buffer has slopes of less than twenty-five (25) percent.

(2)    The proposed development incorporates performance standards to minimize the impacts of the proposed land use, consistent with IMC 18.10.660.

c.    Critical Area Study Required: A critical area study consistent with the requirements of IMC 18.10.410(C) and the following provisions is required in order to evaluate and approve a reduction of the standard buffer width. The critical area study shall:

(1)    Evaluate the water quality, habitat, groundwater recharge, stormwater detention, and erosion protection functions of the wetland buffer;

(2)    Document whether or not the:

(A)    Wetland buffer under consideration meets the criteria established in subsection (D)(3)(b) of this section and qualifies for consideration of a buffer reduction under this section;

(B)    Buffer reduction would adversely affect the functions and values of the adjacent wetland; and

(C)    Ecological structure and function of the reduced buffer after planting enhancement would improve water quality and habitat functions.

(3)    Propose a wetland buffer enhancement plan including:

(A)    Removal of all invasive, nonnative vegetation; and

(B)    Planting of appropriate native tree and shrub species at a minimum planting density of ten (10) feet on center for trees and five (5) feet on center for shrubs; and

(C)    A monitoring and maintenance plan for the enhanced buffer for a five (5) year period, consistent with IMC 18.10.760 and 18.10.810.

d.    Allowed Buffer Reduction: Following are the wetland buffer reductions allowed when all of the criteria in subsections B and C of this section are met:

Wetland Category

Maximum Buffer Reduction at Any Location

Category I and II wetlands

25 percent of the standard buffer width

Category III wetlands with habitat scores of 26 points or more

25 percent of the standard buffer width

Category III with habitat scores less than 26 points and Category IV wetlands

15 percent of the standard buffer width

4.    Wetland Buffer Reduction with Removal of Impervious Surface Area: The standard wetland buffer area may be reduced at a 1:1 ratio with the removal of existing, legally nonconforming impervious surface area located within the wetland buffer area. For example, if one hundred (100) square feet of existing impervious area are removed, the wetland buffer area may be reduced by one hundred (100) square feet. The removed impervious area shall be located closer toward the wetland than the proposed buffer reduction area. The removed impervious area shall be restored with native vegetation, consistent with the wetland buffer enhancement plan requirements in subsection (D)(3)(c)(3) of this section. Existing site characteristics, including buffer vegetation, slopes, etc., and the proposed development shall be considered in determining the location of the allowed reduced buffer area.

5.    Wetland Buffer Averaging Requirements: Standard wetland buffer widths may be modified by averaging buffer widths after review of a critical area study prepared by a qualified wetland professional for compliance with the following criteria:

a.    The proposed site plan demonstrates efforts to avoid and minimize wetland and wetland buffer impacts;

b.    Buffer width averaging is consistent with the best available science and will not adversely impact functions or values;

c.    The total area within the wetland buffer after averaging is not less than the area within the standard buffer prior to averaging. The location of the replacement buffer area shall be contiguous to the standard buffer to be averaged;

d.    The buffer width shall not be reduced by more than twenty-five (25) percent of the standard buffer width at any location, unless a variance is approved in accordance with IMC 18.10.430;

e.    A maximum of fifty (50) percent of the buffer perimeter on a site may be reduced by buffer averaging;

f.    Buffer averaging shall consider physical characteristics on a site, including but not limited to existing wetland and buffer vegetation, slopes, floodplain, hydrology, surface drainage, and association with nearby wetlands and/or streams;

g.    Buffer averaging credit shall not be allowed in areas already protected by the critical area regulations; and

h.    Mitigation, such as revegetation and enhancement of existing vegetation, may be required by the Director. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2455 § 9, 2006; Ord. 2108 § 10.2.27.10, 1996).

18.10.660 Performance standards.

Development on sites with a wetland or wetland buffer shall incorporate the following performance standards to minimize the impacts of the proposed land use, as applicable:

A.    Lights shall be directed away from the wetland. Lighting levels shall meet the outdoor lighting standards for spillover into critical areas, per IMC 18.07.107.

B.    Activities that generate noise shall be located away from the wetland, or noise impacts shall be minimized through design or insulation techniques.

C.    Toxic runoff from new impervious surface area shall be directed away from wetlands.

D.    Treated stormwater runoff may be allowed into wetland buffers. Channelized flow should be prevented.

E.    Use of pesticides, insecticides and fertilizers within one hundred fifty (150) feet of wetland boundary shall be limited and follow best management practices (BMPs).

F.    The outer edge of the wetland buffer shall be planted with dense vegetation and/or fencing to limit pet and human disturbance. (Ord. 2455 § 10, 2006; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.11, 1996).

18.10.670 Mitigation sequence.

Repealed by Ord. 2669. (Ord. 2455 § 11, 2006; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.12, 1996).

18.10.680 Reducing buffer requirements.

Repealed by Ord. 2669. (Ord. 2108 § 10.2.27.13 – 14, 1996).

18.10.690 Utilities in wetland buffers.

Repealed by Ord. 2669. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.15, 1996).

18.10.700 Avoiding wetland impacts.

A.    To further the goal of no net loss of wetland functions or values, regulated activities shall not be authorized in a wetland except as provided in this section or where it can be demonstrated that the impact is both unavoidable and necessary and/or that all reasonable uses are denied through the variance provision established in IMC 18.10.430.

B.    With respect to Category I and II wetlands, an applicant must demonstrate through the variance provision, as established in IMC 18.10.430, that denial of the proposal would preclude all reasonable use of the subject property on the part of the applicant brought about by circumstances peculiar to the subject property.

C.    With respect to Category III and IV wetlands, the following provisions shall apply:

1.    For water-dependent activities, unavoidable and necessary impacts can be authorized by the Director where it is demonstrated that there are no practicable alternatives that would not involve a wetland or which would not have less adverse impact on a wetland, and would not have other significant adverse environmental consequences.

2.    Where non-water-dependent activities are proposed, it shall be presumed that adverse impacts are avoidable. This presumption may be rebutted upon a demonstration to the Director that:

a.    The basic project purpose cannot reasonably be accomplished using one (1) or more other sites in the general region (outside the hydraulic influence area) that would avoid, or result in less, adverse impact on a regulated wetland;

b.    The basic purpose of the project cannot be accomplished by reducing the size, scope, configuration, or density of the project, as proposed, and by using any alternative designs of the project, as proposed, that would avoid, or result in less adverse impact on a wetland or its buffer;

c.    In cases where the applicant has rejected alternatives to the project, as proposed, due to constraints such as zoning, deficiencies of infrastructure, or parcel size, the applicant has made reasonable attempt to remove or accommodate such constraints.

D.    If an applicant for a development proposal which has Category III or IV wetlands can demonstrate to the satisfaction of the Director that application of the standards provided in this chapter will deny all reasonable use of the property, development as conditioned shall be allowed if the applicant also demonstrates all of the following to the satisfaction of the Director. The Director has the option to forward the decision to a Hearing Examiner through the variance provision outlined in IMC 18.10.430.

1.    That the proposed project is water-dependent or requires access to the wetland as a central element of its basic function, or is not water-dependent but has no practicable alternative pursuant to this section;

2.    That no reasonable use with less impact on the wetland and its buffer is possible (e.g., agriculture, aquaculture, transfer or sale of development rights or credits, sale of open space easements, etc.);

3.    That there is no feasible on-site alternative to the proposed activities, including reduction in density, phasing of project implementation, change in timing of activities, revision of road and lot layout, and/or related site planning considerations, that would allow a reasonable use with less adverse impacts to wetlands and wetland buffers;

4.    That the proposed activities will result in minimum feasible alteration or impairment to the wetland’s functional characteristics and its existing contours, vegetation, fish and wildlife resources, and hydrological conditions;

5.    That disturbance of wetlands has been minimized by locating any necessary alteration in wetland buffers to the extent possible;

6.    That the proposed activities will not jeopardize the continued existence of endangered, threatened, rare, sensitive, or monitor species as listed by the federal government or the state of Washington;

7.    That the proposed activities will not cause significant degradation of groundwater or surface water quality;

8.    That the proposed activities comply with all state, local and federal laws, including those related to sediment control, pollution control, floodplain restrictions, and on-site wastewater disposal;

9.    That any and all alterations to wetlands and wetland buffers will be mitigated as provided in IMC 18.10.750;

10.    That there will be no damage to nearby public or private property and no threat to the health or safety of people on or off the property; and

11.    That the inability to derive reasonable use of 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. 2669 § 1 (Exh. A), 2013; Ord. 2108 § 10.2.27.16 – 19, 1996).

18.10.710 Minimizing wetlands impacts.

A.    After it has been determined by either the Hearing Examiner or the Director pursuant to IMC 18.10.700 (Avoiding Wetland Impacts) that losses of wetlands are necessary and unavoidable or that all reasonable use has been denied, the applicant shall take deliberate measures to minimize wetland impacts.

B.    Minimizing impacts to wetlands shall include but is not limited to:

1.    Limiting the degree or magnitude of the regulated activity;

2.    Limiting the implementation of the regulated activity;

3.    Using appropriate and best available technology;

4.    Taking affirmative steps to avoid or reduce impacts;

5.    Sensitive site design and siting of facilities and construction staging areas away from regulated wetlands and their buffers;

6.    Involving resource agencies early in site planning;

7.    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, resting, nesting or spawning activities;

8.    Prohibiting the intentional introduction of nonnative vegetation, except in conjunction with approved restoration projects; and

9.    Providing preventative measures for soil erosion such as inspections and a monitoring plan. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.20 – 21, 1996).

18.10.720 Mitigating for wetland impacts.

A.    Goal: All approved impacts to regulated wetlands require compensatory mitigation so that the goal of no net loss of wetland function, value and acreage is achieved. Mitigation actions shall provide equivalent or greater wetland and buffer functions compared to wetland and buffer conditions existing prior to the proposed alteration.

B.    Wetland Mitigation Ratios:

1.    The following ratios apply to mitigation which is in kind, on site, the same wetland category, timed prior to or concurrent with alteration, and has a high probability of success. The first number specifies the acreage of required wetlands to be created, re-established, rehabilitated or enhanced and the second number specifies the acreage of existing wetlands proposed for alteration.

2.    Minimum Replacement Ratio: In order to maintain no net loss of wetland acreage, in all cases the wetland creation or re-establishment ratio shall be a minimum of 1:1.

Category and Type of Wetland Impacts

Creation or Re‑establishment

Rehabilitation Only

Creation or Re‑establishment (R/C) and Rehabilitation (RH)

Creation or Re‑establishment (R/C) and Enhancement (E)

Category IV
Greater than 2,500 SF in size

1.5:1

3:1

1:1 R/C and 1:1 RH

1:1 R/C and 2:1 E

All Category III

2:1

4:1

1:1 R/C and 2:1 RH

1:1 R/C and 4:1 E

Category II

3:1

6:1

1:1 R/C and 4:1 RH

1:1 R/C and 8:1 E

Category I Forested

6:1

12:1

1:1 R/C and 10:1 RH

1:1 R/C and 20:1 E

Category I – based on score for functions

4:1

8:1

1:1 R/C and 6:1 RH

1:1 R/C and 12:1 E

Category I Natural Heritage site

Not allowed

6:1
Rehabilitation of a Natural Heritage site

Not allowed

Not allowed

Category I Bog

Not allowed

6:1
Rehabilitation of a bog

Not allowed

Not allowed

3.    Category IV Wetlands Less Than Two Thousand Five Hundred (2,500) Square Feet: Category IV wetlands less than two thousand five hundred (2,500) square feet in size, that are not part of a wetland complex, may be altered if mitigation is provided to demonstrate no net loss of functions or values. No buffer is required for these wetlands. The following criteria shall apply in preferential order to avoid or mitigate impacts to Category IV wetlands less than two thousand five hundred (2,500) square feet in size:

a.    Preserve the wetland or demonstrate through mitigation sequencing that avoidance or minimization of impacts have been considered; or

b.    Relocate the wetland on site by creating, re-establishing or rehabilitating a new, equal size wetland; or

c.    Enhance an equal area of another existing wetland on site, demonstrating equivalent or greater functions; or

d.    Protect significant on-site trees. Protect an area of significant trees equal to the wetland area or enhance an equal upland area with native tree planting. This shall not apply to areas already protected as critical area buffers and shall be in addition to the tree retention requirements in IMC 18.12.1385; or

e.    Off-site mitigation opportunities may be considered.

4.    Increased Mitigation Ratio: The Director may increase the ratios under the following circumstances:

a.    Uncertainty as to the probable success of the proposed restoration or creation;

b.    Significant period of time between destruction and replication of wetland functions;

c.    Projected losses in functional value; or

d.    Off-site compensation.

e.    Mitigation ratios may be increased for remedial actions along with other penalties resulting from illegal, unpermitted wetland alterations.

5.    Decreased Mitigation Ratio:

a.    The Director may decrease the replacement ratios specified in this section; provided, that findings of critical areas studies coordinated with the participation of agencies having expertise demonstrates that no net loss of wetlands function or value is attained under the decreased ratio.

C.    Wetland Buffer Requirements for Mitigation Wetlands: Wetland buffer impacts are assumed when wetland fill or modification is proposed. A new wetland buffer shall be established around the wetland mitigation area equal in width to the standard wetland buffer width specified in IMC 18.10.640.

D.    Criteria for Approval: Given the uncertainties in scientific knowledge and the need for expertise and monitoring, wetland compensatory projects may be permitted only when the Director finds that the compensation project is associated with an activity or development proposal directly associated with an approved Hearing Examiner’s and/or Director’s decision (as set forth in IMC 18.10.700) or an approved variance (IMC 18.10.430), and that the restored, created, or enhanced wetland will be as persistent as the wetland it replaces. A maintenance bond will be required pursuant to IMC 18.10.810.

E.    Type of Compensation Project: Compensation areas shall be determined according to function, acreage, type, location, time factors, ability to be self sustaining and projected success. Wetland functions and values shall be calculated using the best professional judgment of a qualified wetland professional using the best available techniques. Multiple compensation projects may be proposed for one (1) project in order to best achieve the goal of no net loss.

F.    In-Kind Compensation:

1.    In-kind compensation shall be provided except where the applicant can demonstrate that:

a.    Scientific problems such as exotic vegetation and changes in watershed hydrology make implementation of in-kind compensation impossible; or

b.    Out-of-kind replacement will best meet identified regional goals (e.g., replacement of historically diminished wetland types)

G.    Timing:

1.    Where feasible, mitigation projects shall be completed prior to activities that will disturb wetlands. In all other cases, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development.

2.    Construction of compensation projects shall be timed to reduce impacts to existing wildlife and flora.

H.    Location:

1.    On-site compensation shall be provided except where the applicant can demonstrate that:

a.    The hydrology and ecosystem of the original wetland and those who benefit from the hydrology and ecosystem will not be substantially damaged by the on-site loss; and

b.    On-site compensation is not scientifically feasible due to problems with hydrology, soils, waves, or other factors; or

c.    Compensation is not practical due to potentially adverse impact from surrounding land uses; or

d.    Existing functional values at the site of the proposed restoration are significantly greater than lost wetland functional values; or

e.    Established regional goals for flood storage, flood conveyance, habitat or other wetland functions have been established and strongly justify location of compensatory measures at another site.

2.    Off-site compensation shall occur within the same watershed as the wetland loss occurred.

3.    In selecting compensation sites, applicants shall pursue siting in areas conducive to wetland creation, enhancement, or restoration based on recommendations of a wetland biologist and approved by the City.

I.    Wetland Mitigation Banking: The City may consider and approve replacement or enhancement of unavoidable adverse impacts to wetlands caused by development activities through an approved wetland mitigation bank, in advance of authorized impacts. Criteria governing the creation and use of a mitigation bank shall be established in administrative rules.

J.    Cooperative Projects:

1.    The Director may encourage, facilitate, and approve cooperative projects wherein a single applicant or other organization with demonstrated capability may undertake a compensation project with funding and/or support from other applicants under the following circumstances:

a.    Restoration, creation or enhancement at a particular site may be scientifically difficult or impossible; or

b.    Creation of one (1) or several larger wetlands may be preferable to many small wetlands.

2.    Persons proposing cooperative compensation projects shall:

a.    Submit a joint permit application;

b.    Demonstrate compliance with all standards;

c.    Demonstrate the organizational and fiscal capability to act cooperatively; and

d.    Demonstrate that long-term management can and will be provided. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.22 – 28, 1996).

18.10.730 Wetland restoration and creation.

Repealed by Ord. 2669. (Ord. 2108 § 10.2.27.29 – 35, 1996).

18.10.740 Wetland enhancement.

Repealed by Ord. 2669. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.36 – 39, 1996).

18.10.750 Mitigation plan required.

A.    All wetland mitigation required pursuant to this Code either as a permit condition or as the result of an enforcement action shall follow a mitigation plan prepared by qualified wetland professionals and approved by the Director. Any compensation project prepared pursuant to this section and approved by the Director shall become part of the application for the project proposal.

B.    The applicant shall receive written approval of the mitigation plan by the Director prior to commencement of any wetland mitigation activity.

C.    Demonstration of Competence: Applicants shall meet the following minimum performance requirements to the satisfaction of the Director:

1.    Demonstrate sufficient scientific expertise, supervisory capability, and financial resources to successfully carry out the project;

2.    Demonstrate the capability of monitoring the site and make corrections during this period if the project fails to meet projected goals; and

3.    Protect and manage or provide for the protection and management of the compensation area to avoid further development or degradation and to provide for long-term persistence of the compensation area. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2108 § 10.2.27.40 – 42, 1996).

18.10.760 Mitigation plan information requirements.

A required mitigation plan shall be prepared in consultation with the Director and qualified wetland professionals. The scope and specific requirements of a mitigation plan are dependent 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. The mitigation plan shall contain at a minimum the following components; however, the Director may request additional information as required for the decision-making process:

A.    Identification of Project Team: A Compensation Project Manager shall be named and the qualifications of each team member involved in preparing the mitigation plan and implementing and supervising the project shall be provided, including educational background and areas of expertise, training and experience with comparable projects.

B.    Baseline Information: A written assessment and accompanying maps of the environmental conditions of the impacted regulated wetland and the mitigation site if different.

C.    Environmental Goals and Objectives: A written report shall be provided identifying goals and objectives of the mitigation plan. The goals and objectives shall be related to the functions and values of the original wetland or if out-of-kind, the type of wetland to be emulated and an analysis of the likelihood of success of the created or restored wetland.

D.    Evaluation Criteria: Specific criteria, including ecological, geological, or hydrological criteria, shall be provided for evaluating whether or not the goals and objectives of the project will be met and whether or not remedial action or contingency measures should be initiated.

E.    Detailed Landscape Construction Plans: Drawings and written specifications describing the mitigation techniques and materials to be used.

F.    Monitoring Program: A program outlining the approach for monitoring construction of the compensation project and for assessing a completed project shall be provided, including a protocol of how the monitoring data will be evaluated by agencies that are tracking the progress of the mitigation project. All mitigated wetlands shall be monitored at least annually for a minimum of five (5) years. Additional monitoring may be required by the Director depending on the recommendations of the first monitoring report.

G.    Maintenance Program: All wetlands located adjacent to proposed development shall be maintained by the property owner in perpetuity based on direction from the Director with input from City staff.

H.    Contingency Plan: Identification of potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates project performance standards are not being met. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.27.43 – 49, 1996).

18.10.765 Lakes – Lake Sammamish.

Development activity within two hundred (200) feet of the ordinary high water mark (OHWM) of Lake Sammamish is subject to the Shoreline Master Program (SMP). The SMP contains all policies, standards and regulations for development adjacent to Lake Sammamish. (Ord. 2669 § 3 (Exh. A), 2013).

18.10.770 Streams – General protection mechanisms.

Development activity on sites containing streams or stream buffers shall meet the requirements of this chapter. Streams and associated buffers shall not be altered (see definition of “alteration,” IMC 18.10.390) except as expressly authorized by this chapter. The applicant is responsible for ensuring that the requirements of all other agencies with jurisdiction have been met. In addition, the following general protections apply to streams and associated buffers:

A.    Development proposals on sites containing streams shall meet the requirements of IMC 18.10.770 through 18.10.795. Streams and associated buffers shall not be altered except as expressly authorized by this chapter and all approved alterations require mitigation plans. The applicant is responsible for ensuring that the requirements of all other agencies with jurisdiction have been met.

B.    The applicant must notify affected communities and native tribes of alteration plans prior to any alteration of a stream, submit evidence of such notification to the Federal Insurance Administration, and any alterations must be consistent with IMC 18.10.520 through 18.10.530.

C.    There shall be no introduction of any vegetation or wildlife which is not indigenous to the Pacific Northwest into any stream critical area or associated buffers unless authorized by the state of Washington or a federal license or permit. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2525 § 4, 2008; Ord. 2455 § 12, 2006; Ord. 2108 § 10.2.28, 1996).

18.10.775 Alterations to streams and buffers.

No structures shall be permitted within streams or stream buffers except as outlined in the following subsections:

A.    Stream Crossings: Stream crossings may be allowed only if they meet the requirements as follows:

1.    All road and utility crossings shall use bridges or other construction techniques which do not disturb the stream bed or bank; however, in the case of Class 2, 3 or 4 streams, appropriate methods demonstrated to provide fisheries protection may be used if the applicant demonstrates that such methods and their implementation will pose no harm to the stream and will not inhibit migration of fish and will accommodate one hundred (100) year flood flows as established by the City. This shall be accomplished through bridge crossing design and/or appropriate flood control facilities constructed as part of the project design. Any structure spanning a stream shall be designed so the supporting foundation is outside the ordinary high water mark;

2.    All crossings shall be constructed during summer low flow and be timed to avoid stream disturbance during periods when use is critical to salmonids;

3.    Crossings shall not occur over salmonid spawning areas unless no other possible crossing site exists on the subject property;

4.    Crossings shall not diminish the flood carrying capacity of the stream;

5.    Underground utility crossings shall be located at a preferred depth of four (4) feet below the maximum depth of scour for the base flood predicted by a Washington State licensed civil engineer and be constructed in a manner approved by the Washington State Department of Fisheries; and

6.    Crossings shall be minimized and serve multiple purposes and properties whenever possible.

B.    Relocations: The following relocations may be allowed if they meet all requirements and are approved by all agencies with jurisdiction.

1.    Class 1 streams shall not be relocated, except for approved restoration projects.

2.    Class 2 streams shall not be relocated except for approved restoration projects and public road projects which have been authorized by the exemption process set out in IMC 18.10.400.

3.    Class 3 and 4 streams may be relocated under a mitigation plan for the purpose of enhancement of in-stream resources. Appropriate floodplain protection measures must be used. The relocation shall occur on site; provided, that upon demonstration that on-site relocation is impracticable, the City may consider off-site relocation if the location is in the same drainage sub-basin and the applicant obtains all necessary easements and waivers from affected property owners.

4.    Prior to any stream relocation, an applicant must demonstrate that the proposed project meets the following criteria, based on information provided by a licensed geotechnical engineer and a biologist. All work performed must also be carried out under the supervision of a licensed geotechnical engineer and a biologist. The criteria include the following:

a.    The equivalent base flood storage volume and function will be maintained;

b.    There will be no adverse impact to local groundwater;

c.    There will be no increase in velocity;

d.    There will be no interbasin transfer of water;

e.    The biological values of the stream will be maintained or enhanced;

f.    Performance standards as set out in the mitigation plan are met;

g.    The relocation conforms to other applicable laws.

C.    Trails: Construction of public and private trails is not allowed in stream buffers unless a critical areas study per IMC 18.10.410, Critical areas studies, documents no loss of buffer functions and values. The buffer area used for the trail tread and cleared trail shoulders shall be replaced by adding an equal area to the buffer. Where existing development prevents adding the replacement buffer, other mitigation measures shall be required to ensure no loss of buffer functions and values. Other mitigating measures may include off-site mitigation along the same stream as the trail. The critical areas study shall evaluate and recommend the best location(s) for the replacement buffer and any off-site mitigation.

D.    Stream Channel Stabilization: Stream channels may be stabilized when movement of the stream channel threatens existing residential or commercial structures, public improvements, unique natural resources, or the only existing access to property, and when stabilization is done in accordance with the requirements in IMC 18.10.530 and the administrative rules.

E.    Surface Water Management: The following surface water management actions may be allowed (through the appropriate review and approval process, or Level 1 review if none is specified) only if they meet the following requirements:

1.    Surface water discharges to streams from stormwater facilities or other surface water management structures having no feasible alternative on-site locations may be allowed so long as the discharge complies with the provisions of the City’s currently adopted Stormwater Design Manual.

2.    Flood conveyance compensatory storage, where there is no other feasible alternative, where appropriate restoration is included, and where wetland hydrology will not be significantly affected.

3.    Stream buffers may be used for stormwater facilities when:

a.    Authorized by the exemption process set out in IMC 18.10.400; and

b.    All requirements of the City’s currently adopted Stormwater Design Manual are met; and

c.    There are no significant adverse impacts to the stream or its resources; and

d.    The stormwater facilities shall not encroach into stream buffers by more than twenty-five (25) percent of the standard stream buffer width, per IMC 18.10.785, or use more than twenty-five (25) percent of the total buffer area without a variance; and

e.    Any stream buffer area displaced by a stormwater facility shall be compensated for by adding an equal stream buffer area in accordance with stream buffer averaging, IMC 18.10.790(D)(6), so that no net loss of stream buffer area results from the construction of the facility. Stormwater vaults located in stream buffers shall have adequate soil cover to support native vegetation including small trees, shrubs and groundcover; and

f.    Stormwater facilities such as bioretention, rain gardens, or constructed wetlands planted with appropriate native vegetation and trees are allowed without buffer averaging requirements.

4.    Streams and buffers may be altered to remove exotic or invasive vegetation, and for restoration of floodplains and habitat, so long as the project will have no lasting adverse impacts that result from construction on any stream and all requirements of the City’s currently adopted Stormwater Design Manual and all other applicable codes are met.

F.    Utilities in Stream Buffers:

1.    Utility Construction: Construction of utilities shall be permitted in the outermost twenty-five (25) percent of a stream buffer only when it has been determined through Level 1 Review or through the appropriate land use permitting process that:

a.    No practical alternative location is available; and

b.    The utility corridor meets the criteria set forth in the applicable City ordinance including, but not limited to, requirements for installation, replacement of vegetation, and maintenance; and

c.    Impacts to the buffer area are minimized and restoration is implemented to the greatest extent feasible; and

d.    The requirements for sewer utility corridors in IMC 18.10.610(C) shall also apply to stream buffers.

G.    Enhancement Independent of Development Proposals:

1.    Enhancement of streams, not associated with any other development proposal, may be allowed when the City, or any state agency with jurisdiction, determines that such enhancement benefits stream functions. Such enhancement shall be performed under a plan for the design, implementation, maintenance and monitoring of the project prepared by a civil engineer and a biologist and shall be carried out under the direct supervision of a biologist.

2.    Stream restoration projects for fish habitat enhancement by a public agency unassociated with mitigation of a specific development proposal may be allowed. Such projects are limited to placement of log controls, spawning gravel, and other specific salmonid habitat improvements to be performed under direct supervision of a biologist, within the approved Washington State Department of Fisheries window, if applicable.

3.    Removal of exotic or invasive plants within streams and buffers is allowed. A City-approved mitigation plan is required before removal of vegetation commences.

H.    Drainage Ditch Maintenance: Drainage ditches must be maintained through use of best management practices developed in consultation with City, state and federal agencies with expertise or jurisdiction.

I.    Revegetation shall include only native plant species, except in conjunction with approved restoration projects.

J.    Where construction activities occur adjacent to a stream buffer, an erosion control specialist, provided by the applicant, shall visit the site at least once a day during construction, and report daily to the City’s inspector, for the purpose of monitoring potential erosion problems and specifying erosion control measures necessary to protect the critical area. (Ord. 2783 § 5 (Exh. A5.d), 2016; Ord. 2669 § 1 (Exh. A), 2013; Ord. 2525 § 4, 2008; Ord. 2455 § 13, 2006).

18.10.780 Stream rating system.

A.    Class 1 Streams: “Class 1 streams” means those streams identified as “shorelines of the state” under the City Shoreline Master Program, pursuant to Chapter 90.58 RCW.

B.    Class 2 Streams with Salmonids: “Class 2 streams with salmonids” means those streams smaller than Class 1 streams that flow year-round during periods of normal rainfall and all streams that are used by salmonids.

C.    Class 2 Streams: “Class 2 streams” means those streams smaller than Class 1 streams that flow year-round during years of normal rainfall with no salmonids.

D.    Class 3 Streams: “Class 3 streams” means those streams that are intermittent or ephemeral during years of normal rainfall and areas not used by salmonids.

E.    Class 4 Streams: “Class 4 streams” are constructed or channelized streams, that are intermittent, are not used by salmonids and do not provide salmonid habitat, and/or are not directly connected to a Class 1, 2, or 3 stream by an above ground channel. (Ord. 2455 § 14, 2006; Ord. 2301 § 3, 2001; Ord. 2164 § 11, 1997; Ord. 2108 § 10.2.29, 1996).

18.10.785 Stream buffer width requirements.

A.    Location of Ordinary High Water Mark: All buffers shall be measured from the ordinary high water mark as identified in the field or, if that cannot be determined, from the top of the bank. In braided channels, the ordinary high water mark or top of bank shall be determined so as to include the entire stream feature.

B.    Special Exception: For properties on which easements were granted for creek channel improvements constructed by the City to increase conveyance and on the same side of the creek as the improvements, the ordinary high water mark (OHWM) existing prior to the construction of the improvements by the City shall govern the establishment of building setbacks for the properties. The buffer area established using the OHWM identified at the time the channel improvements are constructed shall be surveyed and recorded as a covenant running with the land. Buildings on these parcels of land shall adhere to the fifteen (15) foot building setback to the stream buffer. The establishment of the OHWM under this exception does not establish the OHWM used for building setbacks under the City’s Shoreline Master Program. (Note: Both OHWM standards, Critical Areas – Stream buffer and the Shoreline Master Program, shall be used in determining the appropriate building setback lines for development of these properties.)

C.    Stream Buffer Width Standards: The following buffers on each side of the ordinary high water mark are minimum requirements:

1.    Class 1 streams – one hundred (100) foot buffer.

2.    Class 2 streams used by salmonids – one hundred (100) foot buffer.

3.    Class 2 streams – seventy-five (75) foot buffer.

4.    Class 3 streams – fifty (50) foot buffer.

5.    Class 4 streams – twenty-five (25) foot buffer.

D.    Changes to existing legal nonconforming situations shall comply with Nonconforming Situations, IMC 18.08.050(I).

E.    Any stream restored, relocated, replaced or enhanced because of alterations should have at least the minimum buffer required for the class of stream involved.

F.    Building Setback: An additional fifteen (15) foot building setback shall also be established from the outer edge of the buffer as regulated by IMC 18.10.515(D), Building Setback Areas. (Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2455 § 15, 2006).

18.10.790 Exceptions to stream buffer width requirements.

A.    Buffer Requirements for Streams Adjacent to Steep Slopes: When the ordinary high water mark of any stream is within twenty-five (25) feet of the toe of slopes equal to or greater than forty (40) percent the following minimum buffers shall be provided:

1.    Where the horizontal length of the slope including small benches and terraces is within the buffer for that stream class, the buffer shall be the greater of:

a.    The minimum buffer for that stream class; or

b.    Twenty-five (25) feet beyond the top of the slope.

2.    Where the horizontal length of the slope extends beyond the minimum buffer for that stream class, the buffer shall extend to a point twenty-five (25) feet beyond the minimum buffer for that stream class.

3.    No reduction to stream buffer standards in IMC 18.10.785(C) is allowed.

B.    Buffer Requirements for Streams Adjacent to Other Critical Areas: Any stream adjoined by riparian wetland or other adjacent critical area shall have the buffer which applies to the wetland or other adjacent critical area, unless the stream buffer requirements are more expansive.

C.    Increasing Stream Buffer Requirements: Issaquah shall require increased buffer widths as necessary to protect streams. The additional buffer widths and other issues shall be determined during project review and will be based on the results of a critical area study with consideration of and including, but not limited to:

1.    Critical drainage areas;

2.    Location of hazardous materials;

3.    Critical fish and wildlife habitat;

4.    Landslide or erosion hazard areas;

5.    Groundwater recharge and discharge; and

6.    The location of trail or utility corridors.

D.    Reducing Stream Buffer Requirements:

1.    Stream buffer reduction provisions in this section may be used separately or together; provided, that the cumulative, total stream buffer reduction shall not exceed twenty-five (25) percent of the required stream buffer area or encroach into the buffer at any location by more than twenty-five (25) percent of the standard stream buffer width, per IMC 18.10.785(C).

2.    A variance is required for stream buffer reductions exceeding twenty-five (25) percent of the required buffer area or encroachments exceeding twenty-five (25) percent of the standard stream buffer width.

3.    Stream Buffer Reduction for Class 1 and Class 2 Streams with Salmonids: Prior to the City’s approval of a stream buffer reduction, an applicant shall first demonstrate the proposed site plan avoids and minimizes the amount of buffer reduction, consistent with IMC 18.10.490.

4.    Stream Buffer Reduction with Buffer Vegetation Enhancement:

a.    Purpose: The standard stream buffer widths identified in IMC 18.10.785(C) may be reduced when enhancement of the existing stream buffer vegetation would demonstratively improve water quality and habitat functions.

b.    Applicability – Qualifying Stream Buffers: A stream buffer may qualify for a buffer reduction under this section when:

(1)    The stream buffer proposed to be enhanced/reduced meets all of the following characteristics:

(A)    More than forty (40) percent of the buffer area is covered by nonnative and/or invasive plant species; or

(B)    Tree and/or shrub vegetation cover less than twenty-five (25) percent of the buffer area; and

(C)    The stream buffer has slopes of less than twenty-five (25) percent.

(2)    The proposed development incorporates performance standards to minimize the impacts of the proposed land use, consistent with IMC 18.10.660.

c.    Critical Area Study Required: A critical area study consistent with the requirements of IMC 18.10.410(C) and the following provisions is required in order to evaluate and approve a reduction of the standard buffer width. The critical area study shall:

(1)    Evaluate the water quality, habitat, groundwater recharge, stormwater detention, and erosion protection functions of the stream buffer;

(2)    Document whether or not the:

(A)    Stream buffer under consideration meets the criteria established in subsection (D)(4)(b) of this section and qualifies for consideration of a buffer reduction under this section;

(B)    Buffer reduction would adversely affect the functions and values of the adjacent stream; and

(C)    Ecological structure and function of the reduced buffer after planting enhancement would improve water quality and habitat functions.

(3)    Propose a stream buffer enhancement plan including:

(A)    Removal of all invasive, nonnative vegetation; and

(B)    Planting of appropriate native tree and shrub species at a minimum planting density of ten (10) feet on center for trees and five (5) feet on center for shrubs; and

(C)    A monitoring and maintenance plan for the enhanced buffer for a five (5) year period, consistent with IMC 18.10.760 and 18.10.810.

d.    Allowed Buffer Reduction: Following are the stream buffer reductions allowed when all of the criteria in subsections B, C and D of this section are met:

Stream Class

Maximum Buffer Reduction at Any Location

Class 2, 3, and 4 streams

25 percent of the standard buffer width

Class 2(S) and Class 1 streams

25 percent of the standard buffer width
(see subsection (D)(3) of this section)

5.    Stream Buffer Reduction with Removal of Impervious Surface Area: The standard stream buffer area may be reduced at a 1:1 ratio with the removal of existing, legally nonconforming impervious surface area located within the stream buffer area. For example, if one hundred (100) square feet of existing impervious area are removed, the stream buffer may be reduced by one hundred (100) square feet. The removed impervious area shall be located closer toward the stream than the proposed buffer reduction area. The removed impervious area shall be restored with native vegetation, consistent with the stream buffer enhancement plan requirements in subsection (D)(4)(c)(3) of this section. Existing site characteristics, including buffer vegetation, slopes, etc., and proposed development shall be considered in determining the location of the allowed reduced buffer area.

6.    Stream Buffer Averaging Requirements: Standard stream buffer widths may be modified by averaging buffer widths after review of a critical area study prepared by a qualified professional for compliance with the following criteria:

a.    The proposed site plan demonstrates efforts to avoid and minimize stream and stream buffer impacts;

b.    Buffer width averaging is consistent with the best available science and will not adversely impact functions or values;

c.    The total area within the stream buffer after averaging is no less than the area within the standard buffer prior to averaging. The location of the replacement buffer area shall be contiguous with the standard buffer to be averaged;

d.    The buffer width shall not be reduced by more than twenty-five (25) percent of the standard buffer width at any location, unless a variance is approved in accordance with IMC 18.10.430;

e.    A maximum of fifty (50) percent of the buffer perimeter on a site may be reduced by averaging;

f.    Buffer averaging shall consider physical characteristics on a site, including but not limited to existing buffer vegetation, slopes, floodplain, hydrology, surface drainage, and association with nearby streams and wetlands. Buffer averaging shall not be allowed within the designated floodway of streams;

g.    Buffer averaging credit shall not be allowed in areas already protected by the critical area regulations; and

h.    Mitigation, such as revegetation and enhancement of existing vegetation, may be required by the Director. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2455 § 16, 2006; Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.30, 1996).

18.10.795 Mitigation for streams.

A.    Mitigation shall be conducted as defined in IMC 18.10.390, as provided in IMC 18.10.490, and in this section.

B.    Standards for Restoration, Enhancement or Replacement:

1.    Restoration is required when a stream or its buffer has been altered in violation of this chapter or any other ordinance applying to the treatment of streams, or when an unapproved or unanticipated alteration occurs during the construction of an approved development proposal; provided, that a mitigation plan for the restoration demonstrates that:

a.    The stream is degraded and will not be further degraded by the restoration activity;

b.    The restoration will reliably and demonstrably improve the water quality and fisheries and wildlife habitat of the stream;

c.    The restoration will have no lasting significant adverse impacts on any in-stream resource; and

d.    All work will be carried out under the direct supervision of a biologist.

e.    The following minimum performance standards shall be met for restoration of a stream; provided, that these standards may be modified if the applicant can demonstrate that greater habitat value can be obtained:

(1)    The natural or channel dimensions existing immediately prior to the development proposal (unless illegally altered), including identical depth, width, length and gradient at the location and the horizontal alignment (meander lengths) should be replaced to replicate the conditions immediately prior to the development proposal (unless illegally altered);

(2)    The bottom should be restored with identical or similar materials;

(3)    The bank and buffer configuration should be restored to the natural conditions;

(4)    The channel, bank and buffer areas should be replanted with native vegetation which replicates the optimal in species, sizes and densities; and

(5)    The natural habitat value should be restored.

2.    Replacement or enhancement is required when the City permits or approves the alteration of a stream or buffer. There will be no net loss of stream functions on a development proposal site and no impact on stream functions above or below the site due to approved alterations.

a.    Replacement: When an approved alteration involves the relocation of a stream, the performance standards in subsection (B)(1)(e) of this section are required in order to replicate the structure and function of the original stream, unless the applicant can demonstrate that greater habitat value can be obtained through varying these standards.

b.    Enhancement: Enhancement, when allowed, should improve the functions and values of the streams. Surface water management or flood control alterations shall not be considered enhancement unless other functions and values are simultaneously increased.

c.    On-Site: Replacement or enhancement for streams shall be accomplished in streams, and shall occur on-site unless the applicant demonstrates that: on-site replacement or enhancement is not possible; the off-site alternative is in the same drainage sub-basin; and greater biological and hydrological values will be derived.

3.    Monitoring Program: Stream and stream buffer monitoring shall be required in accordance with IMC 18.10.500.

4.    Maintenance Program: All streams and stream buffers adjacent to proposed development shall be maintained in perpetuity based on direction from the Director with input from City staff. (Ord. 2301 § 3, 2001; Ord. 2108 § 10.2.31, 1996. Formerly 18.10.800).

18.10.796 Critical aquifer recharge areas (CARAs).

A.    Purpose and Intent: The purpose of this section is to establish critical aquifer recharge areas (CARAs) and groundwater protection standards to protect the Issaquah Creek Valley aquifer from degradation and depletion. The intent is to minimize loss of recharge quantity, to maintain the protection of supply wells for public drinking water, and to prevent contamination of groundwater.

B.    Applicability:

1.    The provisions of this section shall apply to regulated activities occurring within Class 1, Class 2 and Class 3 CARAs as identified in subsection (C) of this section, Classification, and on the City of Issaquah Critical Aquifer Recharge Area Classification Map, as may be updated as new information becomes available, on file with the Planning Department and incorporated into this section by reference.

2.    A hydrogeologic critical area assessment report shall be submitted to add or remove areas to the CARA classification map. The City will determine if site characteristics meet the mapping criteria for a CARA designation.

C.    Classification: CARAs shall be classified based on the following criteria:

1.    Class 1 CARAs include those mapped areas located within the one (1) or five (5) year capture zone of a wellhead protection area.

2.    Class 2 CARAs include those mapped areas located within the ten (10) year capture zone of a wellhead protection area.

3.    Class 3 CARAs include those mapped areas outside wellhead protection areas that are identified as high aquifer recharge potential areas based on characteristics of surficial geology and soil types.

D.    Implementation: Best management practices governing groundwater quality standards for CARA are found in Chapter 13.29 IMC, Groundwater Quality Protection Standards. Groundwater quantity standards and requirements for infiltration are found in Chapter 13.28 IMC, Stormwater Management Policy.

E.    Groundwater Reports: In order to protect groundwater quality, the City may require a groundwater monitoring plan and/or a hydrogeologic critical area assessment report for new development projects.

F.    Prohibited and Restricted Uses: The Table of Permitted Land Uses (IMC 18.06.130) establishes the land uses and related activities that are prohibited in Class 1, 2 and 3 CARAs. Existing uses that have a long-term potential to degrade water quality in the WHPA shall discontinue, remove or mitigate potential impacts.

G.    State and Federal Regulations: Applicants shall be required to provide documentation of compliance with state and/or federal standards and regulations. Nothing in this section shall relieve an applicant from the requirements of any other federal, state, or local law or regulation. (Ord. 2525 § 4, 2008; Ord. 2500 § 7, 2007).

Administration

18.10.805 Long-term maintenance of wetlands and streams.

All regulated wetlands and streams located on property to be developed shall be maintained in perpetuity by the property owner in accordance with the provisions of this chapter. (Ord. 2301 § 3, 2001).

18.10.810 Bonds for restoration and mitigation activities.

A.    Performance Bonds: Mitigation required pursuant to a development proposal must be completed prior to the City’s granting of final approval of the development proposal. If the applicant demonstrates that seasonal requirements or other circumstances beyond its control prevent completion of the mitigation prior to final approval, the applicant may post a performance bond equal to one hundred fifty (150) percent of the total cost of the mitigation project to complete, or other security instrument which guarantees that all required mitigation measures will be completed no later than the time established by the City in accordance with this chapter.

B.    Maintenance/Monitoring Bonds: The City shall require the applicant whose development proposal is subject to a mitigation plan to post a maintenance/monitoring bond equal to fifty (50) percent of the estimated maintenance and monitoring cost, or other security instrument in an amount determined sufficient to guarantee satisfactory workmanship, materials, and performance of structures and improvements allowed or required by this chapter for a period of five (5) years.

C.    Performance and maintenance/monitoring bonds or other security instruments shall also be required for restoration of a critical area not performed as part of a mitigation plan, except no bond shall be required for minor stream restoration carried out pursuant to this chapter.

D.    Bonds or other security instruments shall be in a form and amount approved by the Director and the City Attorney and shall remain in effect until the Director determines in writing that performance and maintenance standards have been met.

E.    Enforcement of Bonds: Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation or restoration. (Ord. 2108 § 10.2.32, 1996).

18.10.820 Enforcement and penalties for critical areas.

A.    The enforcement provisions for critical areas are intended to encourage compliance and protect critical areas and the public from harm. To achieve these ends, violators will not only be required to restore damaged critical areas, insofar as that is possible, but will also be required to pay a civil penalty for the redress of ecological, recreational, and economic values lost or damaged due to their unlawful action. The provisions in this section are in addition to, and not in lieu of, any other penalty, sanction or right of action provided by law.

B.    In all cases, the owner of the land shall be named as a party to the notice and order. In addition to any other persons who may be liable for violations, the owner shall be jointly and severally liable for the restoration of a site and payment of any civil penalties imposed.

C.    Violation of this chapter means the violation of any provision of this chapter; the administrative rules promulgated hereunder; any permit or approval or stop work order; any other order issued pursuant hereto; any of the terms and conditions of any critical area tract or setback area, easement or other covenant, plat restriction or binding assurance; any mitigation plan; or of any contract or agreement concluded pursuant to the above-mentioned provisions of this chapter.

D.    Each violation of this Code, or any rule or regulation adopted, or any permit, permit condition, or order issued pursuant to this Code, shall be a separate offense, and, in the case of a continuing violation, each day’s continuance shall be deemed to be a separate and distinct offense.

E.    Any person incurring a penalty may apply in writing within thirty (30) calendar days of receipt of the penalty to the Director for remission or mitigation of such penalty. Upon receipt of the application, the Director may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty.

F.    All costs, fees, and expenses in connection with enforcement actions may be recovered as damages against the violator.

G.    Aiding or Abetting: Any person who, through an act of commission or omission procures, aids or abets in the violation shall be considered to have committed a violation for the purposes of the penalty.

H.    The Director may bring appropriate actions at law or equity, including actions for injunctive relief, to ensure that no uses are made of critical areas or their buffers that are inconsistent with this Code. (Ord. 2108 §§ 10.2.33.1 – 8, 1996).

18.10.830 Civil penalties.

A.    Any person in violation of this chapter shall be subject to civil penalties assessed as follows:

1.    An amount reasonably determined by the Director to be equivalent to the economic benefit that the violator derives from the violation as measured by the greater of the resulting increase in market value of the property or the value received by the violator, or savings of construction costs realized by the violator performing any act in violation of this chapter.

2.    An amount, not to exceed $25,000, that is reasonably based upon the nature and gravity of the violation and the cost to the City of enforcing this chapter against the violator.

3.    Penalties under this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the City. The notice shall describe the violation, approximate the date(s) of violation, and shall order the acts constituting the violation to cease and desist, or, in appropriate cases, require necessary corrective action within a specific time.

4.    Any civil penalty recovered under this section shall be deposited in the Critical Areas Mitigation Fund for use by the City in protecting or restoring critical areas as set forth in IMC 18.10.510.

5.    No civil penalty shall be imposed under this chapter upon the City or City employees for any act or omission relating to the administration or enforcement of this chapter. (Ord. 2108 § 10.2.33.9, 1996).

18.10.840 Notices and orders.

The Director is authorized to issue violation notices and administrative orders, levy fines, and/or institute legal actions in court.

A.    Recourse to any single remedy shall not preclude recourse to any of the other remedies.

B.    The Director may serve upon a person a cease and desist order if an activity being undertaken on a critical area or its buffer is in violation of this Code or related Director’s decision. Whenever any person violates this Code or any permit issued to implement this Code, the Director may issue an order reasonably appropriate to cease such violation and to mitigate any environmental damage resulting therefrom.

1.    The order shall set forth and contain:

a.    A description of the specific nature, extent, and time of violation and the damage or potential damage; and

b.    A notice that the violation or the potential violation cease and desist or, in appropriate cases, the specific corrective action to be taken within a given time. A civil penalty may be issued with the order.

2.    The cease and desist order issued under this section shall become effective immediately upon receipt by the person to whom the order is directed.

3.    Failure to comply with the terms of a cease and desist order can result in enforcement actions including, but not limited to, the issuance of a civil penalty.

4.    Orders and penalties issued pursuant to this subsection may be appealed as provided for in IMC 18.10.880.

C.    Any person who undertakes any activity within a critical area or its buffer without first obtaining a permit required by this Code, except as allowed in each section under the allowed activities provision, or any person who violates one (1) or more conditions of any permit required by this Code or of any order issued pursuant to subsection (C)(2) of this section, shall incur a penalty allowed per violation.

1.    In the case of a continuing violation, each permit violation and each day of activity without a required permit shall be a separate and distinct violation.

2.    The penalty amount shall be set in consideration of the previous history of the violator and the severity of the environmental impact of the violation.

3.    Penalties provided from this section shall be appealable to King County Superior Court. (Ord. 2108 §§ 10.2.33.10 – 12, 1996).

18.10.850 Revocation or refusal to accept application.

A.    1.    In addition to revocation and suspension upon violation of this chapter, a permit or approval that is subject to critical areas review may be revoked or suspended upon failure by an applicant to disclose a change of circumstances on the development proposal site which materially affects his or her ability to meet the permit or approval conditions, or which makes inaccurate the critical area study that was the basis for imposing permit or approval conditions.

2.    In addition to any other enforcement method, to further the remedial purposes of this section, the City shall refuse to accept any application for a permit or approval for a development proposal for any property on which a violation of this chapter; the administrative rules promulgated thereunder; or any permit, approval, order, easement, plan, or agreement issued pursuant thereto has occurred. Such refusal shall continue until the violation is cured by restoration and accepted as complete by the City and by payment of any civil penalty imposed for the violation; provided, that applications for permits or approvals shall be accepted to the extent necessary to accomplish any required cure.

3.    In order to further the remedial purpose of this section, the City shall refuse to accept any application for a Development Proposal Permit or approval from any person found to have violated this chapter until the violation is cured by restoration accepted as complete by the City, or until a mitigation plan and performance bond to ensure completion has been approved by the City and payment of any civil penalty imposed has been made; provided, that applications shall be accepted to the extent necessary to accomplish any required cure.

4.    For the purposes of this subsection, a person will be deemed to have been found in violation of this chapter:

a.    When a notice and order alleging a violation is issued and not timely appealed; or

b.    When a determination is made by the code enforcement officer that a person has committed a violation, unless that determination is timely appealed to an appropriate court and is thereupon reversed or otherwise stayed.

B.    Any person subject to the provisions of this chapter who violates any provision of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area, within a reasonable time, to its condition prior to such violation. (Ord. 2108 §§ 10.2.33.12 – 13, 1996).

18.10.860 Criminal penalties.

As an alternative to any other judicial or administrative remedy provided in this chapter or by law or other ordinance, any person who willfully or knowingly violates any provision of this chapter, or any order issued pursuant to this chapter, or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000 and/or imprisonment in the City jail for a term not to exceed ninety (90) days. Each day such violation continues to occur, shall be considered an additional misdemeanor offense. (Ord. 2108 § 10.2.34, 1996).

18.10.870 Vesting (environmental protection).

Pursuant to WAC 197-11-660, mitigation measures or denials shall be based on policies, plans, rules, or regulations formally designated by the City as a basis for the exercise of substantive authority and in effect when the DNS, MDNS, or DEIS is issued. Any other projects under review or initiated that have not filed a fully complete Building Permit application that meet all applicable State and City law or fully complete short plat and/or preliminary/final plat application that meet all applicable State and City law shall not be vested, including projects in the EIS stage. Nothing herein shall be deemed to create or extend an applicant’s vesting rights. (Ord. 2746 § 2 (Exh. C), 2015; Ord. 2108 § 10.2.35, 1996).

18.10.880 Appeals.

Refer to IMC 18.04.250 to 18.04.260 regarding appeals. (Ord. 2301 § 5, 2001; Ord. 2108 § 10.2.36, 1996).

18.10.890 Judicial review.

Refer to IMC 18.04.250 to 18.04.260 regarding appeals. (Ord. 2301 § 5, 2001; Ord. 2108 § 10.2.37, 1996).

18.10.900 Administrative rules.

A.    The Director is authorized to establish administrative rules to carry out the purposes and intents of this chapter.

B.    Consolidation: The processing of Land Use Permits which have a critical area or areas located on the subject property or properties shall consolidate the review of the land use proposal and the review of the critical area. Critical area review shall be incorporated into the appropriate land use permitting process and all aspects of that review and decision-making shall be governed by the rules, regulations and procedures applicable to the Land Use Permit requested. (Ord. 2108 § 10.2.38, 1996).

18.10.910 Amendments.

A.    These regulations and the National Wetlands Inventory and Issaquah Critical Areas Map Folios may from time to time be amended as new information concerning critical areas location, soils, hydrology, flooding, plants and wildlife, etc., become available.

B.    Amendments shall be made in accordance with the procedures and requirements in the general statutes. As new information becomes available that would facilitate the decision-making process that information need not be formally adopted for such purposes. (Ord. 2108 § 10.2.39, 1996).

18.10.920 Fees.

A.    At the time of a land use application which requires a critical areas study or a wetland reconnaissance or other request for service, or appeal, the applicant shall pay a fee as established in the City Fee Schedule adopted pursuant to Chapter 3.65 IMC.

B.    Sufficient fees shall be charged to the applicant to cover the costs of evaluation of the critical areas study, reconnaissance or other request. These fees will be used to recover costs for City staff review and may be used by the Director to retain expert consultants to provide services pertaining to the review of the critical areas study or aspects thereof including: determinations, functional assessments, and evaluation of mitigation measures.

C.    As deemed necessary, the Director may assess additional reasonable fees as needed to monitor and evaluate critical area regulations compliance and mitigation measures. (Ord. 2108 § 10.2.40, 1996).

18.10.930 Assessment relief.

The King County Assessor shall consider critical area regulations in determining the fair market value of land. Any owner of an undeveloped critical area who has dedicated an easement or entered into a perpetual conservation restriction with the City or a nonprofit organization to permanently control some or all regulated activities in the critical area shall have that portion of land assessed consistent with those restrictions. Such landowner shall also be exempted from special assessments on the controlled critical area to defray the cost of municipal improvements such as sanitary sewers, storm sewers, and water mains. (Ord. 2108 § 10.2.41, 1996).

Shoreline Regulations

18.10.940 Shoreline Master Program adopted.

A.    The Issaquah Shoreline Master Program, dated February 2013, is adopted as the City’s Shoreline Master Program pursuant to the Washington State Shoreline Management Act of 1971 as amended (Chapter 90.58 RCW). The Shoreline Master Program is adopted under the authority granted by the Act and Chapter 173-26 WAC.

B.    Shoreline exemptions, shoreline substantial development permits, shoreline variances and shoreline conditional use permits shall be subject to all of the applicable procedural requirements of Chapter 18.04 IMC. (Ord. 2669 § 1 (Exh. A), 2013; Ord. 2108 § 10.3.1, 1996; Ord. 1863 § 2, 1990).

18.10.950 Exemption application.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.2, 1996; Ord. 1863 § 2, 1990).

18.10.960 Permit application.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.3, 1996; Ord. 1863 § 2, 1990).

18.10.970 Permit fee.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.4, 1996; Ord. 1863 § 2, 1990).

18.10.980 Public notice.

Repealed by Ord. 2669. (Ord. 2301 § 5, 2001; Ord. 2108 §§ 10.3.5 – 10.3.5.3, 1996; Ord. 1863 § 2, 1990).

18.10.990 Planning Director/Manager review.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.5.4, 1996; Ord. 2033 § 4, 1994; Ord. 2014 § 4, 1993; Ord. 1863 § 2, 1990).

18.10.1000 Appeals.

Repealed by Ord. 2669. (Ord. 2301 § 5, 2001; Ord. 2108 § 10.3.5.5, 1996; Ord. 1863 § 2, 1990).

18.10.1010 Review period.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.5.6, 1996; Ord. 1863 § 2, 1990).

18.10.1020 Nonconforming development.

Repealed by Ord. 2664. (Ord. 2108 § 10.3.5.7, 1996; Ord. 1863 § 2, 1990).

18.10.1030 Rescinding permits.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.5.8, 1996; Ord. 1863 § 2, 1990).

18.10.1040 Expiration of permits.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.5.9, 1996; Ord. 1863 § 2, 1990).

18.10.1050 Definitions.

Repealed by Ord. 2669. (Ord. 2108 § 10.3.5.10, 1996; Ord. 1863 § 2, 1990).

Transfer of Development Rights (TDR)

18.10.2005 Purpose and intent of the transfer of development rights program.

The intent of the TDR program is to transfer density from eligible sending sites to eligible receiving sites through a voluntary process that will:

A.    Decrease development pressure on critical areas by providing property owners with the opportunity for a reasonable economic return by transferring development rights from parcels with these critical areas to land more suited for urban development. Key focus areas are salmon habitat, riparian corridors, and floodways throughout the Tibbetts Creek and Issaquah Creek Basins.

B.    Increase the opportunities for providing parks.

C.    Promote design and development consistent with the City’s vision as established in the Comprehensive Plan; Olde Town Design Standards; Urban Villages; and the Central Issaquah Plan.

D.    Allow the transfer of development rights:

1.    Between parties, through direct sale of development rights from a qualified sending site property owner to a qualified receiving site property owner; and

2.    Between the City and a sending or receiving site property owner where the City may act as a TDR bank for development rights by purchasing TDRs from qualified sending sites and/or by pre-selling them to an applicant for use on a qualified receiving site; and

3.    Between King County’s TDR bank and a City receiving site, as authorized through an interlocal TDR Agreement. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2010 State enabling legislation.

This chapter is adopted pursuant to RCW 36.70A.090, Comprehensive plans – Innovative techniques, which states, “A comprehensive plan should provide for innovative land use management techniques, including, but not limited to, density bonuses, cluster housing, planned unit developments, and the transfer of development rights.” (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2020 Definitions.

Following are specific definitions for certain words, terms and phrases used in this section of the Issaquah Land Use Code. Where any of these definitions conflict with definitions used in other titles of the Municipal Code, the definitions herein shall prevail when used in the context of this chapter. Other terms used in this section may be defined in Chapter 18.02 IMC.

Bank: See “TDR bank.”

CIP: Central Issaquah Plan.

Creek side restoration: A project approved by the City for the restoration of creek side areas for the benefit of anadromous fish habitat.

Designated Official: The designee of the Administration empowered by the Mayor to administer this chapter.

Designated property: Those parcels shown as TDR sending or receiving sites on the TDR Sending and Receiving Sites Map. The sending site development rights are required to become certified by the City before TDRs may be sold or transferred. (See IMC 18.10.2040(B), TDR Certification.)

Easement, conservation: A voluntary, publicly recorded restriction, in a form approved by the Designated Official, in order to protect resources such as agricultural lands, historic structures, open space and wildlife habitat. The easement may include all or part of a parcel. In perpetuity, no new development shall take place within the areas covered by the easement. However, the construction and maintenance of a soft-surface, natural trail could be allowed, if part of a City-approved plan.

Equivalent residential units (ERUs): One ERU is equal to either one residential unit (single family or multifamily), or 1,200 square feet of nonresidential entitlement.

Exchange Rate: A transfer ratio or multiplier, determined by the Designated Official or King County’s TDR Official, as appropriate, to correct for the market imbalance in value between development rights in sending and receiving sites.

Extinguishment document, quit claim deed: When a development right is purchased and then used, the right to build a dwelling unit on the sending site is “extinguished.” It is used up and cannot be used again in any other location. The quit claim deed and extinguishment document records the sale and use of the development right on both the sending site and the receiving site and states how the development rights are applied.

King County TDR bank: An entity authorized by King County to:

1.    Facilitate the private TDR market by bridging the time gap between willing sellers and buyers of TDRs;

2.    Act as a revolving fund for continued land protection through buying, holding, and selling TDRs (proceeds from TDR sales are used for future land protection); and

3.    Catalyze city-county TDR agreements by strategically acquiring development rights from high priority conservation rural/resource lands in the County that are of compelling interest for specific cities to see protected.

Letter of intent, TDR certification: A signed letter provided by the City documenting availability of development rights for sale from a sending site. For those sending sites outside the City limits, this letter will be provided by King County.

Park: Land acquired for public use for active or passive recreational use.

Public Open Space: Property owned by the City of Issaquah, King County or State Departments of Parks and Recreation and Natural Resources that is set aside to serve the purposes of protecting and conserving critical areas and natural systems.

Stewardship plan: A comprehensive plan for the long-term protection and use of property (open space or park) protected through the TDR Program, developed by the property owner, monitored and enforced by the City of Issaquah. If prepared for privately held property, the plan must be approved by the City. Regardless, the plan must include:

1.    A course of action that prevents degradation of the values, structure and functions of the natural resources and open space and includes enhancements, as necessary, to improve the open space qualities of the property;

2.    An inventory of the existing conditions as well as all critical areas and their buffers;

3.    A plan showing any existing or proposed park improvements, protected natural areas and proposed enhancements;

4.    A timeline for implementing any enhancements and follow-up monitoring and maintenance; and

5.    A funding plan including personnel, capital and surety for implementation of the stewardship plan.

TDR bank: The TDR bank (“bank”) is operated by the City for the purpose of buying, selling and holding development rights. The City may act in its capacity as a buyer and seller of development rights pursuant to IMC 18.10.2035, TDR bank – Purpose and authorization.

TDR base density: The developable units on a residentially zoned property calculated per IMC 18.10.450, Density calculations in critical areas. For commercial and retail zoned property, unless otherwise defined in an approved development agreement or in the CIP, TDR base density shall be calculated based on the maximum square footage of the buildable area of the site divided by one thousand two hundred (1,200) square feet.

TDR certificate: A recorded document, issued by the City or King County (and authorized by the City), showing the number of development rights available from a sending site to be used at a TDR receiving site.

TDR receiving site: Property in the City limits where existing urban services and infrastructure can accommodate additional development. TDR receiving sites are designated on the TDR Sending and Receiving Sites Map.

TDR sending site: Property in the City limits that has been designated as a sending site on the TDR Sending and Receiving Sites Map. Sending sites also include property in the King County Rural or Resource Zones of the Issaquah Creek Basin as described in the King County Water Resource Inventory Area (WRIA) 8 Issaquah Creek Subarea and containing environmentally critical areas as defined in the King County Interlocal Agreement, and properties located in the CIP area designated for park improvements. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2030 Designation of sending and receiving sites.

Sending sites and receiving sites are established based on their ability to meet the purpose and intent and designation criteria of the TDR program.

A.    TDR Sending and Receiving Sites Map: TDR sending and receiving sites are designated by the City on the TDR Sending and Receiving Sites Map.

B.    Designation Criteria – Sending Sites:

1.    Inside City Limits: The site is privately or publicly owned, and not zoned Tradition Plateau-Natural Resource Conservation Area (TP-NRCA), Conservancy-Recreation (C-Rec), Community Facilities-Facilities (CF-F), Community Facilities-Recreation (CF-R), Community Facilities-Open Space (CF-OS), or Conservancy-Residential (C-Res) and meets one (1) or more of the following criteria:

a.    The site includes at least thirty (30) percent critical areas and/or required critical area buffers; or

b.    The site is contiguous with existing public open space; or

c.    Retention of all or part of the site in permanent open space will achieve one (1) or more of the goals and policies adopted in the Comprehensive Plan; or

d.    The site has limited access for vehicular ingress/egress due to critical areas, excessive grade or adjacent property configuration; or reasonable access to wet utility connections; or

e.    The site is located adjacent to a creek side restoration site; or

f.    The site has been identified as a potential park site.

2.    Outside City Limits: Through an interlocal agreement with King County, the City will set criteria for privately owned TDR sending sites outside the City limits, consistent with the provisions of an interlocal TDR agreement.

C.    Designation Criteria – Receiving Sites: Parcels with more than fifty (50) percent critical area and/or their associated buffers are not eligible to be receiving sites, except for those sites that are over fifty (50) percent in the critical aquifer recharge area. Properties accessing 229th Avenue SE cannot be receiving sites because of requirements established for the 229th traffic signal. Receiving sites meet one (1) or more of the following criteria:

1.    The parcel is within three-quarters (3/4) of a mile from the Issaquah Transit Center, south of I-90 and is zoned Multifamily-High, Mixed Use Residential, Retail, Intensive Commercial or Professional Office; or

2.    The parcel is within one-quarter (1/4) mile of a transit stop and zoned Retail, Intensive Commercial, Professional Office, or Multifamily-High within the Olde Town Subarea and the site’s primary access and street frontage are located on “major streets” as defined as: Gilman Boulevard east of SR 900, Front Street, Newport Way, Sunset Way, SR 900, NW Sammamish Road, NW Maple Street, East Lake Sammamish Parkway (ELSP), SE 56th Street to one thousand two hundred (1,200) feet east of ELSP, Issaquah-Fall City Road, or Issaquah-Pine Lake Road SE; or

3.    The parcel is a CBD or multifamily zoned property within the Olde Town Design Standards area or located within the Central Issaquah Plan area; or

4.    The parcel is within the existing development area or established expansion areas of an urban village. Transfer of TDRs into a UV project subject to a development agreement shall be subject to the following:

a.    The TDRs shall be in addition to and not as a substitute for the development rights as specified in the development agreement.

b.    The TDRs shall not cause any of the existing or planned infrastructure to fall below the infrastructure’s capacity to handle the maximum density as set forth in the development agreement.

c.    The property owner seeking the TDRs shall, as determined by the Master Developer, reimburse the Master Developer (1) a pro rata share of the costs of installed or required infrastructure and paid mitigations; and (2) a pro rata share of the costs for entitlement allocation.

d.    The property owner seeking the TDRs shall mitigate all other increased adverse environmental and other impacts of the additional TDRs.

D.    TDR Map Amendments:

1.    Adding a Sending Site: A proposal to add a sending site to the TDR Sending and Receiving Sites Map shall be reviewed as a Land Use Code amendment, Level 1 review (IMC 18.04.330 through 18.04.360). Review and decisions shall be made based on the proposal’s ability to meet the criteria established in this chapter.

2.    Adding a Receiving Site: a proposal to add a receiving site to the TDR Sending and Receiving Sites Map shall be reviewed as a Land Use Code amendment, Level 3 review (IMC 18.04.410 through 18.04.450). Reviews and decisions shall be made based on the proposal’s ability to meet the criteria established in this chapter. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2035 TDR bank – Purpose and authorization.

The purpose of establishing the City TDR bank (“bank”) is to (1) facilitate the purchase and sale of development rights; (2) purchase privately held TDR certificates; and (3) acquire open space and park lands, as directed by the City Council.

A.    The bank may acquire development rights from any designated sending site as identified in IMC 18.10.2030, Designation of sending and receiving sites.

B.    The bank may collect funds or other donations from any designated TDR sending or receiving site, as identified in IMC 18.10.2030, Designation of sending and receiving sites.

C.    The bank may purchase and hold title to existing TDR certificates.

D.    The bank may sell TDR certificates in advance of property acquisition and use the funds to fulfill the purpose of this chapter including the purchase of land for open space or parks.

E.    Development rights purchased by the bank through the outright purchase of a sending site property, or through the purchase of only the development rights from a sending site property, may be retained by the bank indefinitely.

F.    Transferred development rights must be certified by the City and may be purchased by an applicant for a land use development project within the City for immediate use; or an applicant may purchase TDRs to hold for future use without expiration; or TDRs may be sold or transferred to another party. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2037 Administration of TDR bank.

A.    The Designated Official is authorized to administer the TDR bank, including but not limited to:

1.    Managing the activities of the bank;

2.    Authorizing and monitoring the availability of TDR certificates;

3.    Monitoring compliance with the interlocal TDR agreement executed with King County;

3.    Administering development rights purchases, sales and issuance of letters of intent and certifications;

4.    Providing periodic summary reports of the bank activity to the City Council; and

5.    Setting the value of bank-issued TDR certificates.

B.    The Designated Official shall keep records of the dates, amounts and locations of development rights that have been:

1.    Issued a letter of intent;

2.    Purchased and certified; and

3.    Sold and extinguished.

C.    The bank shall dispose of revenues, as directed by the City Council for the following purposes:

1.    Purchasing development rights from and acquisition of open space properties;

2.    Purchasing development rights from and acquisition of park properties;

3.    Purchasing existing privately held TDR certificates; or

4.    The bank may use a limited portion of the funds collected by the bank to facilitate the implementation of this chapter. These expenditures (not to exceed five (5) percent without City Council approval) may include, but are not limited to, establishing and maintaining Internet web pages, marketing the TDR program, legal expenses, procuring title reports and appraisals and reimbursing the costs incurred by City departments for administering the bank fund and executing development rights purchases and sales. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2040 Sending TDRs – Certification, application and procedures.

A.    Qualifying a Sending Site for the Transfer of Development Rights:

1.    Eligibility: In order to sell or transfer development rights, the property owner must receive certification from either the City, or King County consistent with the provisions of the City’s TDR interlocal agreement.

2.    Calculation of TDRs:

a.    Inside City Limits: The Designated Official shall review the application and calculate the allowable number of development rights for the sending site.

i.    For residentially zoned sending sites, the TDR base density shall be calculated as defined in IMC 18.10.450, Density calculations in critical areas. Developable units on a subject property equal the property’s TDR base density. For parcels zoned SF-E (1.24 du/acre), the TDR base density shall be calculated beginning with four (4) dwelling units per acre and then calculated as defined in IMC 18.10.450, Density calculations in critical areas.

ii.    For nonresidentially zoned properties, the TDR base density shall be calculated based on the maximum buildable square footage of the buildable area on the site divided by one thousand two hundred (1,200) square feet.

b.    Outside City Limits: The maximum transferable number of development rights by a sending site outside of the City limits shall be established through the King County certification process as required by the Issaquah/King County interlocal agreement. Each TDR unit certified by King County in this manner may be used by an Issaquah receiving site with the same process and requirements of an “Inside City Limits” sending site TDR unit.

3.    TDR Certificate Letter of Intent: When located in the City, the Designated Official shall prepare and issue a TDR certificate letter of intent for the sending site which documents the available development rights on said sending site. When any of these development rights are certified, the letter of intent shall also be reissued to reflect the new amount of remaining development rights.

4.    TDR Certificate Letter of Intent Revision Request: The applicant may request, in writing, that the Designated Official revise the TDR certificate within ninety (90) days of the issuance of the TDR certification letter of intent when:

a.    The development rights have not been sold; and

b.    The applicant demonstrates that the TDR rights were improperly calculated; or

c.    The applicant provides additional studies, data or other information demonstrating that an adjustment of the TDR rights would be appropriate.

B.    TDR Certification:

1.    Certifying TDRs:

a.    Inside City Limits: The Designated Official shall certify the transferable development rights from a sending site, as required in subsection (B)(2) of this section, TDR Certificate Content. After the sale or transfer of all or a portion of a sending site’s TDRs, and the designation of the specific area(s) of the property as permanent open space as required in subsection (B)(3) of this section is completed, the TDR certificate may be issued.

b.    Outside City Limits: TDR certification on sending sites outside the City limits within King County shall be as required by Chapter 21A.37 KCC.

c.    Prior to the release of building permits, the receiving site applicant shall deliver the TDR certificate(s) to the City and a quit claim deed and extinguishment document shall be recorded on the sending site(s) and receiving site after approval of the receiving site project.

2.    TDR Certificate Content: A TDR certificate is a recorded document, showing the number of development rights available from a qualified sending site to be used by a TDR receiving site and shall delineate the number of development rights including:

a.    The number of transferred rights or ERUs; and

b.    The number of peak hour trips; and

c.    The amount of impervious surface transferable to a TDR receiving site or the additional square footage of gross floor area (above the base building height or maximum building height established in IMC 18.07.360, District standards table, for the underlying zoning district of the TDR receiving site) transferable to a TDR receiving site.

3.    Preservation of Open Space or Dedication of Park Land Resulting from TDR Conversion: As part of the development rights transfer and prior to the issuance of the TDR certificate, the sending site property owner is required to document that the site, or portion of the site, is no longer developable and shall be preserved to fulfill the intent of this chapter in one (1) of the following ways, as determined by the Designated Official:

a.    By Deed: The sending site property owner shall deed the ownership of the property to the City subject to dedicating the property as public open space or public park land. The dedication shall include a restriction on future development and on the installation of new utilities except:

i.    To allow any third party with right under an existing ingress, egress, utility, or similar easement that was established or recorded prior to the effective date of said easement to exercise such rights; and

ii.    To use and maintain linear or underground utilities; provided, that any area disturbed by such activity is promptly restored to the original grade and revegetated.

b.    By Conservation Easement: For open space properties only, the sending site property may retain title to the property by recording a conservation easement in perpetuity over the parcel. The conservation easement shall be to the benefit of the City, publicly recorded with King County, on a form approved by the City; and include the preparation and implementation of a stewardship plan to ensure the property is maintained for the benefit and protection of the natural resources, including wildlife, scenic corridors, and water quality. All conservation easements shall allow City access to the property to ensure compliance with the conservation easement. The conservation easement shall include:

i.    All of the critical area and associated buffer; and

ii.    That portion of the developable site area equal to the percentage of TDRs sold and certified.

c.    For sending sites purchased by the City, where the City wishes to sell all or some of the TDRs, the City shall record a declaration of covenant in perpetuity over the property, which shall include all of the critical area and a portion of the developable site area as required for property retained in private property and shall include the preparation of a stewardship plan as required in subsection (B)(3)(b) of this section, preservation of open space.

4.    Reissuing TDR Certificates: The Designated Official shall administer the TDR program by reissuing or retiring certificates when some or all of a parcel’s development rights have been transferred. A TDR certificate must be reissued and recorded after the sale of TDRs to the receiving site owner and the recording of a conservation easement, covenant or deeding of the sending site property as public open space or park land. The reissued TDR certificate shall clearly state the number of remaining TDRs available for that sending site parcel. If no TDRs are available, that information shall also be recorded.

C.    Determining the Number of Units Remaining on a Sending Site:

1.    Transferring All of the TDRs: All or a portion of the TDRs certified by the Designated Official may be sold. If all of the TDRs are transferred, no further development shall occur on the sending site and the entire parcel shall remain in permanent open space or park land in perpetuity, forestry or agriculture in accordance with the provisions of subsection (B)(3) of this section.

2.    Transferring TDRs Over Time: TDRs from a sending site may be sold over time to more than one (1) receiving site until all development rights are sold or the property owner chooses to develop the remainder of the property.

3.    Calculating Any Remaining Density on the Sending Site: If only a portion of the TDR units from a sending site are sold and transferred, the number of dwelling units or, in the case of commercially zoned land, the buildable square footage permitted on the remainder property, shall be determined in accordance with the conservation easement and provisions of IMC 18.10.450, Density calculations in critical areas, based on the percentage of critical area on the site. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2050 Receiving TDRs – Standards, applications and procedures.

A.    Standards for Transferring Development Rights to a Receiving Site: Certified development rights can be accommodated on a receiving site based on the following design and development criteria:

1.    Applicability: Receiving sites may use the purchased TDRs to meet the provisions of an approved development agreement or to exceed the allowable development for new development or modification to existing development, in accordance with this chapter; provided, that all development and design standards required by the underlying zoning district shall be met, unless the standards are adjusted through IMC 18.07.250, Administrative adjustment of standards.

2.    Residential Dwelling Units: Additional residential density may be approved through a Level 3 (IMC 18.04.410 through 18.04.450) review based on the following residential density limits in the following table:

Table 18.10.2050(A)(2): Residential Density

TDR Value: 1 TDR = one dwelling unit up to the following limits:

Receiving Site Zone (Underlying Zoning)

Density Limits (Increase of 25%)

MF-M & MUR (14.52 dwelling units per acre)

18 dwelling units per acre

MF-H (29 dwelling units per acre)

36 dwelling units per acre

Other Zones

36 dwelling units per acre; or, as specifically allowed through a development agreement or the CIP.

3.    Building Height and/or Gross Floor Area: The maximum building height for all zoning districts is established in IMC 18.07.360, District standards table. Through transfer of development rights, a receiving site may propose additional square footage of gross floor area above the base building height or maximum building height as established in the following table:

Table 18.10.2050(A)(3) 

Process and Conditions for Maximum Building Heights for Receiving Sites1, 5

Receiving Site Zoning District

Maximum building height allowed in underlying zoning district in IMC 18.07.360, District standards table

Process and Conditions for Maximum Building Height with Purchase of TDRs

Administrative Adjustment of Standards2

TDR Value:

NA

1 TDR = 1,200 sq. ft.6

MF-M

50 ft.

65 ft.

MF-H3

65 ft.

65 ft.

PO

65 ft.

80 ft.

R

65 ft.

80 ft.

IC

65 ft.

80 ft.

CBD4

65 ft.

80 ft.

CF-F

Determined by the most restrictive contiguous zoning

CF-R

Determined by the most restrictive contiguous zoning

UV

Determined by the development agreement

1 Maximum height for structures in shoreline jurisdictions is thirty-five (35) feet (Issaquah Shoreline Master Program).

2 The complete receiving site proposal is processed as established in IMC 18.06.130, Table of Permitted Land Uses, based on the review process for the proposed land use in the underlying zoning district.

3 Receiving site parcels zoned MF-H (along Sunset Way) are not permitted additional height above the maximum building height due to their small lot size. Other MF-H receiving sites (on South Front Street) are not permitted additional height to be consistent with the other MF-H receiving sites.

4 All projects in the CBD are required to meet the Olde Town Design Standards.

5 For properties located in the Central Issaquah Plan area, refer to that document for allowed heights.

6 Purchased TDRs from sending sites may be subject to an exchange rate, as determined by the Designated Official or through King County’s TDR Bank, as appropriate.

4.    Impervious Surface Limits: Impervious surface limits on the receiving site may be increased as defined in the following table:

Table 18.10.2050(A)(4) 

Process and Conditions for Impervious Surface Ratio Limits in Receiving Sites

TDR value: 1 TDR = 1,200 sq. ft5

Receiving Site Zoning District

Impervious Surface Ratio Allowed in Underlying Zoning District

IMC 18.07.360, District standards table

Process and Conditions for Impervious Surface Ratio Limit with Purchase of TDRs

Administrative Adjustment of Standards2

Development Agreement reviewed and approved through a Level 3 review

Conditions: Meet the conditions established in IMC 18.07.350, Other standards not identified

Conditions: Commercial and mixed use (commercial and residential) projects are required to meet Olde Town Design Standards for CBD3

MF-M Multifamily – Medium

50%

65%

75%

MF-H Multifamily – High

50%

65%

75%

PO Professional Office

65%

80%

90%

R Retail

65%

80%

90%

IC Intensive Commercial

65%

80%

90%

CBD Cultural and Business District4

85%

95%4

N/A

UV

Determined through the provisions of the development agreement

CIP zones

Refer to the Central Issaquah Plan for standards

1 The critical aquifer recharge area is identified on maps in the Permit Center and includes wellhead protection areas based on one (1), five (5) and ten (10) year capture zones.

2 The complete receiving site proposal is processed as established in IMC 18.06.130, Table of Permitted Land Uses, based on the review process for the proposed land use in the underlying zoning district.

3 Multifamily projects are required to meet Olde Town Design Standards for MF-M and MF-H Districts.

4 All projects in the CBD are required to meet the Olde Town Design Standards.

5 Purchased TDRs from sending sites may be subject to an exchange rate, as determined by the Designated Official or through King County’s TDR bank, as appropriate.

5.    Transportation Concurrency: The proposal, with TDRs, must meet the City’s transportation concurrency requirements (IMC 18.15.260).

6.    The City may, in its sole discretion, elect not to accept conveyance of the property if intended as open space, and require the property owner to retain the property and record a permanent conservation easement thereon in accordance with IMC 18.10.2040(B)(3)(b), preservation of open space resulting from TDR conversion.

7.    Procedures:

a.    Using Certified TDRs: The total number of development rights from a sending site may be transferred to one (1) or more designated receiving sites.

b.    Impact Fees: Unless otherwise provided for in a development agreement, all impact fees shall be based on the final number of residential units and the total (base + TDRs) commercial/retail square footage in the receiving site proposal.

c.    Conditions of Approval: The conditions of approval shall include: (1) requirement of developer to purchase, record and certify the TDRs prior to release of building permits; (2) issuance, by the Designated Official, of an updated TDR certificate and/or letter of intent for the sending site(s); and (3) the extinguishment document for sending and receiving site to be recorded by receiving site property owner before building permit issuance.

d.    Notice of Decision: Notice of decision shall be provided in accordance with IMC 18.04.240, Notice of decision. A notice of decision for the project shall clearly state: (1) the number of TDRs transferred to the receiving site; and (2) the incorporation of TDRs into the approved project through the total density, peak trips, square footage, impervious surface, height and other related standards.

e.    TDR Development Rights: TDR development rights once used for a land use application are valid only for the specified parcel for which they were originally approved for use and may not be transferred to a different parcel unless the original parcel is subdivided in accordance with subsection D of this section, Subdivision of TDR Receiving Sites, or if the original proposal has been withdrawn by the property owner.

f.    Quit Claim Deed and Extinguishment Document with TDR Certificate: A TDR certificate is required to document the use of TDRs on all sending sites and receiving sites that have sold or incorporated additional development rights on their property through the TDR process. A quit claim deed and extinguishment document with the attached TDR certificate shall be recorded on the sending site and the receiving site parcels describing:

i.    How the TDR rights are used on the receiving site per IMC 18.10.2040(B), TDR Certification; and

ii.    The number of TDRs used; and

iii.    The source of the TDRs.

B.    Application Process and Procedures for Using TDRs:

1.    Application: A complete application for a project proposing to use TDRs on a designated receiving site shall comply with IMC 18.04.150, Complete application – Sufficiency review, and shall include a recent title report for the property included in the application.

2.    Process:

a.    Development Agreements: If a development agreement is required, it shall be processed through a Level 5 review. A development agreement shall include property description and maps, as required in IMC 18.07.650, Master Site Plan contents, and establish the following development and design standards:

i.    Residential density and/or square footage maximum;

ii.    Provisions for exceeding maximum building height, if proposed, including modulation to lessen the bulk of the building;

iii.    Required buffers to adjacent land;

iv.    Mitigation of impacts to adjacent properties;

v.    Landscaping standards;

vi.    Consistency with the Comprehensive Plan vision for the subarea in which the property is located; and

vii.    Other provisions as agreed to by the City and property owner.

b.    Urban Villages: An urban village development agreement, aside from Lakeside base entitlement, requires a major modification to increase the existing development density for an urban village. The major modification process for each urban village is established within the existing development agreements for the specific urban village.

c.    Proposals for receiving sites using only the TDR unit peak trips shall be processed according to IMC 18.06.130, Table of Permitted Land Uses, required by subsection (A) of this section, Standards for Transferring Development Rights to a Receiving Site.

d.    The process required for the use of additional height, impervious surface, density and commercial square footage on a receiving site is established in this section as required in subsection (A) of this section, standards for transferring development rights to a receiving site.

e.    Administrative Adjustment of Standards (AAS): An AAS may be required in order to accommodate the proposed development on the receiving site as established in this section; Table 18.10.2050(A)(3), Process and Conditions for Maximum Building Heights for Receiving Sites; Table 18.10.2050(A)(4), Process and Conditions for Impervious Surface Ratio Limits in Receiving Sites; and as defined in IMC 18.07.280, Prohibited standards, that limit AAS applications.

f.    When a property owner intends to deed property to the City pursuant to IMC 18.10.2040(B)(3), the property owner shall:

i.    Warrant to the City, in a form acceptable to the City, that to the best of the property owner’s knowledge, no hazardous substances have been released on the property; and

ii.    Prior to any such transfer, provide the City with access to and allow the City to inspect the property and all books and records relating to the property.

C.    Requirements Prior to the Release of Building Permits for Receiving Site Projects Using TDRs: Following building permit approval, and prior to building permit issuance, the receiving site applicant shall deliver the TDR certificates and proof of the transaction showing the purchase of the development rights by the applicant for use at a receiving site to the City. The development rights must be purchased and a TDR quit claim deed and extinguishment document must be recorded on the sending site and receiving site parcels conveying transferable development rights (TDRs) as defined in IMC 18.10.2040(B), TDR Certification.

D.    Subdivision of TDR Receiving Sites:

1.    Plat Application: TDR receiving sites may be subdivided in accordance with the requirements of Chapter 18.13 IMC, Subdivisions. The preliminary plat or short plat application shall include a pro rata portion of the development rights transferred to the original parcel to each parcel created by the subdivision. At time of application, the applicant shall provide a signed option letter indicating the buyer, seller, sending and receiving site tax parcel number(s) and the number of development rights to be acquired. The pro rata assignment of transferred development rights shall only be in whole units. Individual TDRs may not be divided and the individual uses of a TDR may not be assigned to a new parcel.

2.    Plat Modifications: The Hearing Examiner’s decision on a preliminary plat and the Designated Official’s decision on a short plat may modify the assignment of TDRs proposed by the applicant when such modification is necessary to comply with the provisions of subsection B of this section, Application, Process and Procedures for Using TDRs, or the objectives of IMC 18.13.010, Purpose.

3.    Plat Approval: Upon plat approval, the new assignment of the TDRs shall be shown on the face of the short plat or final plat approved by the City and shall be recorded with King County. Final plat approval shall be contingent on the applicant providing TDR certificates with the equivalent number of additional development rights necessary within the plat as approved by the City. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2060 Appeals.

A.    Any decision under this section will not be subject to appeal except as part of an appeal of the entire project. An appeal of a TDR determination may be incorporated under a project appeal under IMC 18.04.250, Administrative appeals.

B.    Decisions by the Hearing Examiner regarding the transfer of development rights may be appealed to Superior Court in accordance with IMC 18.04.258, Judicial and/or Growth Management Hearings Board appeals. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2070 Monitoring TDR certificates.

A.    The Designated Official shall keep records and monitor both the issuance and transfer of TDR certificates and related conservation easements, and the development they represent.

B.    An annual status report on the issuance and transfer of TDRs and related stewardship plans, number of TDR transactions, properties preserved, and revenue managed by the bank shall be made. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2080 Repeal.

If this chapter of the IMC is repealed by the City Council, the density of all sending sites not transferred as TDRs shall be the density allowed by IMC 18.07.070, Density. If some, but not all, of the development rights from one (1) sending site were sold, the remainder of the property shall be developed as allowed in the conservation easement or covenant and by IMC 18.07.070, Density, unless an agreement with the City Council was approved prior to the repeal of this chapter. Any projects built per IMC 18.10.2005 through 18.10.2090 shall not be considered a nonconforming use as defined in IMC 18.02.160, Definitions – N, Nonconforming situation. (Ord. 2684 § 1 (Exh. A), 2013).

18.10.2090 Other authority.

Nothing in this chapter is intended to limit the City’s authority under the State Environmental Policy Act or any other source. The Planning Department shall be responsible for administering this Code as established in IMC 18.01.050, Authority and vested rights. (Ord. 2684 § 1 (Exh. A), 2013).