Chapter 18.55
CRITICAL AREAS

Sections:

Article I. Purpose and General Provisions

18.55.010    Purpose and goals.

18.55.020    Authority.

18.55.030    Relationship to other regulations.

18.55.040    Administrative procedures.

18.55.050    Fees.

18.55.070    Administrative rules.

18.55.080    Interpretation.

18.55.090    Jurisdiction – Critical areas.

18.55.100    Protection of critical areas.

Article II. Best Available Science

18.55.110    Best available science.

Article III. Applicability, Exemptions, and Exceptions

18.55.120    Applicability.

18.55.130    Mapping.

18.55.140    Signs and fencing of critical areas.

18.55.150    Exemptions.

18.55.160    Exception – Public agency or private utility.

18.55.170    Variances.

18.55.180    Exception – Reasonable use.

Article IV. Critical Areas Report

18.55.190    Critical areas reports – Requirements.

18.55.200    Mitigation requirements.

18.55.210    Mitigation sequencing.

18.55.220    Mitigation plan requirements.

Article V. Unauthorized Alterations and Enforcement

18.55.230    Unauthorized critical area alterations and enforcement.

Article VI. General Critical Area Protective Measures

18.55.250    Notice on title.

18.55.260    Critical area tracts.

18.55.270    Building setbacks.

18.55.280    Bonds to ensure mitigation, maintenance, and monitoring.

18.55.290    Critical area inspections.

Article VII. Wetlands – Designation and Rating

18.55.300    Designation and rating of wetlands.

Article VIII. Wetlands – Additional Report Requirements

18.55.310    Critical areas report.

Article IX. Wetlands – Performance Standards

18.55.320    Performance standards – General requirements.

18.55.330    Performance standards – Mitigation requirements.

Article X. Streams – Designation and Rating

18.55.400    Designation and rating of streams.

Article XI. Streams – Additional Report Requirements

18.55.410    Critical areas report.

Article XII. Streams – Performance Standards

18.55.420    Performance standards – General.

18.55.430    Performance standards – Mitigation requirements.

Article XIII. Fish and Wildlife Habitats of Importance – Designation

18.55.500    Designation of fish and wildlife habitats of importance.

Article XIV. Fish and Wildlife Habitats of Importance – Report Requirements

18.55.510    Critical areas report.

Article XV. Fish and Wildlife Habitats of Importance – Performance Standards

18.55.520    Performance standards – General requirements.

18.55.530    Performance standards – Specific habitats.

Article XVI. Geologically Hazardous Areas – Designation

18.55.600    Purpose.

18.55.610    Designation of geologically hazardous areas.

18.55.620    Designation of specific hazard areas.

Article XVII. Geologically Hazardous Areas – Report Requirements

18.55.630    Critical areas report.

Article XVIII. Geologically Hazardous Areas – Performance Standards

18.55.640    Performance standards – General requirements.

18.55.650    Performance standards – Specific hazards.

Article XIX. Flood Hazard Areas

18.55.700    Flood hazard areas.

18.55.710    Flood fringe – Development standards and permitted alterations.

18.55.720    Zero-rise floodway – Development standards and permitted alterations.

18.55.730    FEMA floodway – Development standards and permitted alterations.

18.55.740    Flood hazard areas – Certification by engineer or surveyor.

18.55.750    Channel relocation and stream meander areas.

Article I. Purpose and General Provisions

18.55.010 Purpose and goals.

A. The purpose of this chapter is to designate and classify ecologically critical and geologic hazard areas in order to protect ecologically critical areas and protect lives and property from hazards, while also allowing for reasonable use of private property.

B. The City finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the City and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, ground water recharge and discharge, erosion control, protection from hazards, historical and archaeological and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

C. By limiting alteration of critical areas, this chapter seeks to:

1. Strive to protect lives and public and private property from flooding;

2. Strive to protect slopes from erosion and sliding;

3. Minimize the potential for damage due to liquefaction and seismic hazards;

4. Protect wetlands from encroachment and degradation and encourage wetland restoration;

5. Protect streams from encroachment and degradation and encourage stream restoration; and

6. Maintain and promote a diversity of species and habitat within the City.

D. The regulations of this chapter are intended to protect critical areas in accordance with the GMA and through the application of best available science.

E. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property.

F. The City’s enactment and enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.020 Authority.

A. As provided herein, the city manager is given the authority to interpret, apply, and enforce this chapter to accomplish the stated purpose.

B. The City may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter.

C. In the event that multiple critical areas occur on a site, it is the authority of the city manager to balance the protection of the multiple critical areas and provide appropriate mitigation. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.030 Relationship to other regulations.

A. These critical areas regulations shall be in addition to zoning and other regulations adopted by the City. Compliance with other regulations does not exempt the applicant from critical areas regulations.

B. The critical area regulations set forth in KMC 16.05.060(B) shall apply to all critical areas located within the jurisdiction of the Kenmore shoreline master program.

C. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA) (Chapter 19.35 KMC).

D. Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

E. Compliance with the provisions of this chapter does not constitute compliance with other federal, State, and local regulations and permit requirements that may be required (for example, shoreline substantial development or conditional use permits, shoreline variances, the Washington State Department of Fish and Wildlife hydraulic project approval (HPA), Army Corps of Engineers Section 404 permits, and National Pollution Discharge Elimination System (NPDES) permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. [Ord. 12-0334 § 7; Ord. 11-0329 § 3 (Exh. 1).]

18.55.040 Administrative procedures.

The administrative procedures followed during the critical area review process shall conform to the standards and requirements of the City development regulations, except that, where critical areas are located within the jurisdiction of the Kenmore shoreline master program, administrative procedures shall conform to the standards and requirements of Chapter 16.75 KMC. This shall include, but not be limited to, timing, permits, variances, exemptions, exceptions, appeals, and fees associated with applications covered by this chapter. [Ord. 12-0334 § 8; Ord. 11-0329 § 3 (Exh. 1).]

18.55.050 Fees.

The City by resolution shall establish fees for critical area review processing and other services provided by the City as required by this chapter. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.070 Administrative rules.

Applicable departments within the City are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.080 Interpretation.

In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under State statute. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.090 Jurisdiction – Critical areas.

A. The City shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with best available science and the provisions herein.

B. Critical areas regulated by this chapter include:

1. Wetlands as designated in KMC 18.55.300, Designation and rating of wetlands;

2. Streams as designated in KMC 18.55.400, Designation and rating of streams;

3. Fish and wildlife habitats of importance as designated in KMC 18.55.500, Designation of fish and wildlife habitats of importance;

4. Geologically hazardous areas as designated in KMC 18.55.610, Designation of geologically hazardous areas; and

5. Frequently flooded areas as designated in KMC 18.55.700, Flood hazard areas.

C. All areas within the City meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

D. Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this chapter and ensure protection of the functions and values of critical areas. “Adjacent” shall mean any activity located:

1. On a site immediately adjoining a critical area;

2. A distance equal to or less than the required critical area buffer width and building setback;

3. A distance equal to or less than one-half mile (2,640 feet) from a bald eagle nest;

4. A distance equal to or less than 900 feet from the closest nest of a heron rookery; or

5. Within the floodway, floodplain or channel migration zone. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.100 Protection of critical areas.

Any action taken pursuant to this chapter shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with mitigation sequencing (KMC 18.55.210) to avoid, minimize, restore, and compensate for adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions and values of critical areas. [Ord. 11-0329 § 3 (Exh. 1).]

Article II. Best Available Science

18.55.110 Best available science.

A. Protection for Functions and Values and Anadromous Fish. Critical areas reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas. The best available science is scientific information applicable to the critical area prepared by local, State or federal natural resource agencies, a qualified scientific professional or team of qualified scientific professionals, that is consistent with criteria established in WAC 365-195-900 through 365-195-925. Special consideration shall be given to conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat, such as salmon and bull trout, as required by WAC 365-195-900 through 365-195-925. [Ord. 11-0329 § 3 (Exh. 1).]

Article III. Applicability, Exemptions, and Exceptions

18.55.120 Applicability.

A. The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the City whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the City. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

B. The City shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first assuring compliance with the requirements of this chapter. For development on lands regulated under the Kenmore shoreline master program, compliance with this chapter includes compliance with the requirements of the shoreline master program as well as with the requirements of this chapter.

C. Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter. [Ord. 12-0334 § 9; Ord. 11-0329 § 3 (Exh. 1).]

18.55.130 Mapping.

A. The approximate location and extent of critical areas are shown on the City’s critical area maps. These maps are to be used as a guide and may be updated as new critical areas are identified. They are a reference and do not provide a final critical area designation. The exact location of a critical area and its boundary shall be determined on-site through a field investigation by a qualified professional.

B. The following maps identify known critical areas located in the City:

1. Wetlands and Streams.

a. City stream and wetland inventory;

b. King County critical areas map folio.

2. Fish and Wildlife Habitats of Importance.

a. Washington State Department of Fish and Wildlife priority habitat and species maps;

b. Washington State Department of Natural Resources official water type reference maps, as amended;

c. Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors Reports published by the Washington State Conservation Commission; and

d. Washington State Department of Natural Resources State natural area preserves and natural resource conservation area maps.

3. Geologically Hazardous Areas.

a. King County critical areas map folio, as modified by the City;

b. U.S. Geological Survey landslide hazard and seismic hazard maps;

c. Washington State Department of Natural Resources seismic hazard maps for Western Washington; and

d. Washington State Department of Natural Resources slope stability maps.

4. Flood Hazard Areas. Federal Emergency Management Administration flood insurance rate maps and studies. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.140 Signs and fencing of critical areas.

A. Signs.

1. Temporary Markers. The outer perimeter of the critical area or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur, and verified by the city manager prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction, and shall not be removed until permanent signs, if required, are in place.

2. Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the city manager may require that the applicant install permanent signs along the boundary of a critical area or buffer.

Permanent signs shall be made of a metal face and attached to a metal post, or another material of equal durability. Signs must be posted at an interval of every 50 feet. If the length of the lot is 50 feet or less, one sign per lot is required. The sign must be maintained by the property owner in perpetuity. Signs must be placed in a visible location and remain visible throughout any future site development. The signs shall include the City’s logo and shall be worded as follows or with alternative language approved by the city manager based on specifications available from the City:

Environmentally Critical Area

Do Not Disturb

Contact the City of Kenmore

425-398-8900

Regarding Uses and Restriction

B. Fencing.

1. The city manager shall condition any permit or authorization issued pursuant to this chapter to require the applicant to install a permanent fence at the edge of the critical area and buffer, when fencing will prevent future impacts to the habitat conservation area.

2. The applicant shall be required to install a permanent natural wood, split-rail fence around the critical area and buffer.

3. Fencing installed shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts.

4. Fencing is not required for single-family residential lots where subdivision is not proposed. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.150 Exemptions.

Exempt activities shall avoid impacts to critical areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense to prior condition or better.

A. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, State, and federal laws and requirements:

1. Activities, including routine maintenance, involving artificial drainage features intentionally created from nonwetland sites, including but not limited to grass-lined swales, irrigation and drainage ditches, detention facilities, and landscape features;

2. Normal and routine maintenance, operation and reconstruction of existing roads, streets, utilities and associated rights-of-way and structures; provided, that reconstruction of any structures may not increase the impervious surface area or remove flood storage capacity;

3. Normal maintenance and repair, and reconstruction or remodeling of residential or commercial structures, or legal preexisting and ongoing uses of the site; provided, that reconstruction of any structures may not increase the previously approved building footprint;

4. Site investigative work and studies necessary for preparing land use applications, including soils tests, water quality studies, wildlife studies and similar tests and investigations, where such activities do not require construction of new roads or significant amounts of excavation; and provided, that any disturbance of the critical area shall be the minimum necessary to carry out the work or studies and disturbed areas shall be immediately restored;

5. Educational activities, scientific research, and passive outdoor recreational activities, including but not limited to interpretive field trips, birdwatching, and pervious trails for hiking, that will not have a significant adverse effect on the critical area;

6. Emergency activities necessary to prevent an immediate threat to public health, safety, property or welfare;

7. Minor activities not mentioned above and determined by the city manager to have minimal impacts to a critical area;

8. Installation, construction, replacement, repair or alteration of utilities and their associated facilities, lines, pipes, mains, equipment or appurtenances in improved City street rights-of-way.

B. Operation, Maintenance or Repair. Operation, maintenance or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair.

C. Modification to Existing Structures.

1. Structural modification of, addition to, or replacement of single detached residences in existence before November 27, 1990, which do not meet the building setback or buffer requirements for wetlands, streams or landslide hazard areas if the modification, addition, replacement or related activity does not increase the existing footprint of the residence lying within the above-described buffer or building setback area by more than 500 square feet over that existing before November 27, 1990. No portion of the modification, addition or replacement may be located closer than the closest point of the residence to the critical area or, if the existing residence is in the critical area, no portion may extend farther into the critical area.

2. Structural modification of, addition to, or replacement of structures, except single detached residences, in existence before November 27, 1990, which do not meet the building setback or buffer requirements for wetlands, streams or landslide hazard areas if modification, addition, replacement or related activity does not increase the existing footprint of the structure lying within the above-described building setback area, critical area or buffer.

D. Activities within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a City-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater.

E. Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the city manager:

1. The removal of vegetation listed in King County’s noxious weed list.

2. The removal of trees that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property, from critical areas and buffers; provided, that the city manager determines that the disturbance to the critical area is minimal.

3. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed vegetation shall be replaced in-kind or with similar native species within one year in accordance with an approved restoration plan. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.160 Exception – Public agency or private utility.

A. If strict application of this chapter would prohibit a development by:

1. A public agency; or

2. A private entity delivering water, sewer, stormwater, electrical, or gas services (private utility);

then the agency or private utility may apply for relief from strict application of this chapter through an exception pursuant to this section, unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC.

B. Exception Request and Review Process. An application for a public agency or private utility exception shall be made to the City and shall include a critical areas report, including mitigation plan, if necessary, and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (SEPA).

C. City Manager Review. The city manager shall review the application as a Type 2 land use decision under KMC 19.25.020. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with the public agency and private utility exception criteria in subsection D of this section.

D. Public Agency and Private Utility Exception Criteria. The criteria for review and approval of a public agency or private utility exception are as follows:

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

2. The development proposal benefits the public; and

3. Strict application of this chapter would restrict or prohibit the development proposal; and

4. The development proposal minimizes impacts to the critical area or buffer to the maximum extent practical, for example, through placement of facilities on previously disturbed areas, boring rather than trenching for utilities, use of pervious or other low impact materials, etc.; and

5. The development proposal mitigates impacts to the critical area functions and values to the maximum extent practical, consistent with the best available science and with the objective of no net loss of critical area functions and values. For impacts to wetlands, the development proposal should strive to meet the mitigation performance standards outlined in KMC 18.55.330(G) and (H). [Ord. 16-0418 § 1 (Att. A); Ord. 12-0334 § 10; Ord. 11-0329 § 3 (Exh. 1).]

18.55.170 Variances.

A. Variances from the buffer width and building setback standards of this chapter may be authorized by the City in accordance with the procedures set forth in the City’s zoning code, unless the project is located on lands regulated under the Kenmore shoreline master program. Projects on lands regulated under the Kenmore shoreline master program are regulated under the procedures of Chapter 16.75 KMC.

B. No variance is allowed in order to create additional lots.

C. The City may grant a variance; provided, that the applicant demonstrates that:

1. There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location or surroundings that do not apply generally to other properties and which support the granting of a variance from the buffer width requirements; and

2. Such variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question; and

3. The granting of such buffer width variance will not be materially detrimental to the public welfare or injurious to the property or improvement; and

4. The granting of the buffer width variance will not significantly impact the subject critical area; and

5. The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

6. The granting of the variance is consistent with the general purpose and intent of the City’s comprehensive plan and adopted development regulations.

D. Conditions May Be Required. In granting any variance, the City may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

E. City Manager Review. The city manager shall review the application. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the variance criteria in this section.

F. Time Limit.

1. Establishment of any development activity authorized pursuant to a variance shall occur within four years of the effective date of the decision for such variance. This period may be extended for one additional year by the city manager if the applicant has submitted the applications necessary to authorize the development activity and has provided written justification for the extension.

2. For the purpose of this subsection, “establishment” shall occur upon the issuance of all local permit(s) needed to begin the development activity; provided, that the improvements authorized by such permits are completed within the timeframes of said permits.

G. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. [Ord. 12-0334 § 11; Ord. 11-0329 § 3 (Exh. 1).]

18.55.180 Exception – Reasonable use.

A. If the application of this chapter pertaining to critical areas will prevent the applicant from making any reasonable use of the subject property, the applicant may apply for an exception pursuant to this section unless the project is located on lands regulated under the Kenmore shoreline master program. Projects on lands regulated under the Kenmore shoreline master program are regulated under the procedures of Chapter 16.75 KMC. An application for a reasonable use exception must accompany a development permit application through the City’s review and decision process.

1. Criteria for Granting. The city manager shall grant a reasonable use allowance only when the following criteria are met:

a. The applicant demonstrates that the application of this chapter will deny all reasonable use of the subject property otherwise allowed by applicable law;

b. The development activities involve the least intrusion into and disruption of the critical area necessary to allow a reasonable use of the subject property;

c. The development activities will not cause or result in damage to properties other than the subject property and will not endanger the public health, safety or welfare;

d. The applicant’s inability to make reasonable use of the subject property has not resulted from any of the following:

(1) Prior subdivision or segregation of the subject property, or changes to the boundaries of the subject property through a boundary line adjustment or otherwise; or

(2) Prior actions taken in violation of this chapter or any local, State, or federal law or regulation;

e. No other reasonable use of the property has less impact on the critical area;

f. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor; and

g. Mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter.

2. Appeals. The applicant may appeal a decision of the city manager on a reasonable use allowance application to the hearing examiner pursuant to the provisions of the Kenmore Municipal Code.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the City and shall include a critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 19.35 KMC).

C. City Manager Review. The city manager shall review the application. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the criteria in subsection A of this section.

D. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

E. Time Limit.

1. Establishment of any development activity authorized pursuant to a reasonable use exception shall occur within four years of the effective date of the decision for such reasonable use exception. This period may be extended for one additional year by the city manager if the applicant has submitted the applications necessary to authorize the development activity and has provided written justification for the extension.

2. For the purpose of this subsection, “establishment” shall occur upon the issuance of all local permit(s) needed to begin the development activity; provided, that the improvements authorized by such permits are completed within the timeframes of said permits. [Ord. 12-0334 § 12; Ord. 11-0329 § 3 (Exh. 1).]

Article IV. Critical Areas Report

18.55.190 Critical areas reports – Requirements.

A. Prepared by Qualified Professional. The applicant shall submit a critical areas report prepared by a qualified professional as defined herein.

B. Incorporating Best Available Science. The critical areas report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

C. Critical Areas Report Contents. Requirements for critical areas reports are available from the city manager. In addition, the applicant shall provide any additional known information pertaining to the critical area(s) on the subject property and adjacent properties. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.200 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of critical areas. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved critical areas report and SEPA documents.

B. Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, or to prevent risk from a hazard posed by a critical area. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.210 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for as outlined by WAC 197-11-768, in the following order of preference:

A. Avoiding the impact altogether by not taking a certain action or parts of actions;

B. Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to avoid or reduce impacts;

C. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

D. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

E. Compensating for the impact by replacing or providing substitute resources or environments; and/or

F. Monitoring the impact and the compensation projects and taking appropriate corrective measures.

Mitigation for individual actions may include a combination of the above measures. [Ord. 12-0334 § 13; Ord. 11-0329 § 3 (Exh. 1).]

18.55.220 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the City a mitigation plan as part of the critical areas report. Mitigation plan requirements are available from the city manager.

Within 30 days of installation of the approved mitigation, the applicant shall submit an affidavit signed by the qualified professional described in KMC 18.55.190 certifying that the mitigation has been installed consistent with the approved plan, unless the installed mitigation has been inspected and accepted by the department. [Ord. 11-0329 § 3 (Exh. 1).]

Article V. Unauthorized Alterations and Enforcement

18.55.230 Unauthorized critical area alterations and enforcement.

A. When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The City shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

B. Restoration Plan Required. All development work shall remain stopped and the site stabilized until a restoration plan is prepared and approved by the City. Such a plan shall be prepared by a qualified professional and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The city manager shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum Performance Standards for Restoration. For alterations to wetlands, streams, and fish and wildlife habitat areas of importance the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

1. The historic structural and functional values shall be restored, including water quality and habitat functions;

2. The historic soil types and configuration shall be replicated;

3. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities; and

4. The historic functions and values should be replicated at the location of the alteration.

D. Site Investigations. The city manager is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The inspector shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Monitoring. Monitoring shall be required for five years unless otherwise determined by the city manager. A performance and/or maintenance bond of 125 percent of the estimated cost of restoring the functions and values of the critical area shall be posted to assure that all work or actions are satisfactorily completed or maintained in accordance with the approved plans, specifications, permit or approval requirements, and applicable regulations, and to assure that all work or actions will be completed. [Ord. 11-0329 § 3 (Exh. 1).]

Article VI. General Critical Area Protective Measures

18.55.250 Notice on title.

A. In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county records and elections division according to the direction of the City. The notice shall state the presence of the critical area or buffer on the property, of the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.

B. This notice on title shall not be required for a development proposal by a public agency or public or private utility:

1. Within a recorded easement or right-of-way;

2. Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

3. On the site of a permanent public facility.

C. The applicant shall submit proof that the notice has been filed for public record before the City approves any development proposal for the property or, in the case of subdivisions, short subdivisions, and binding site plans, at or before recording. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.260 Critical area tracts.

A. Critical area tracts shall be used in development proposals for subdivisions, short subdivisions, site plan reviews, commercial and multifamily building permits, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below:

1. All wetlands and buffers;

2. All streams and buffers;

3. All fish and wildlife habitat areas of importance;

4. Geologically hazardous areas and buffers, if applicable; and

5. All other lands to be protected from alterations as conditioned by project approval.

B. Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C. Critical area tracts shall be designated on the face of the plat, short plat or recorded drawing in a format approved by the City. The designation shall include the following restriction:

1. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

2. The right of the City to enforce the terms of the restriction.

D. The City shall determine at the City’s discretion that any required critical area tract be dedicated to the City, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity (such as a land trust, which assures the ownership, maintenance, and protection of the tract). [Ord. 11-0329 § 3 (Exh. 1).]

18.55.270 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. Structures that may extend into or be located in the required setback are listed in KMC 18.30.230. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.280 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to the City final permit approval, such as final plat approval or final building inspection, the City shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the City. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the City to ensure mitigation is fully functional.

B. The performance bond shall be in the amount of 125 percent of the estimated cost of the installed mitigation project (including monitoring) or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C. The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

D. Bonds or other security authorized by this section shall remain in effect until the City determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the City for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the City may demand payment of any financial guarantees or require other action authorized by the City code or any other law.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.290 Critical area inspections.

Reasonable access to the site shall be provided to the City, State, and federal agency review staff for the purpose of inspections of the critical area during any proposal review, restoration, emergency action, or monitoring period. [Ord. 11-0329 § 3 (Exh. 1).]

Article VII. Wetlands – Designation and Rating

18.55.300 Designation and rating of wetlands.

A. Designating Wetlands. All areas within the City meeting the wetland designation criteria in the Washington State Identification and Delineation Manual (1997), regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

B. Wetland Ratings. Wetlands shall be rated using criteria outlined below:

1. Wetlands Classification. Wetlands, as defined by this chapter, shall be designated Class 1, Class 2, and Class 3 according to the criteria below.

a. Class 1 wetlands are those wetlands that meet any of the following criteria:

(1) Documented habitat for federal or State listed endangered or threatened fish, animal, or plant species; or

(2) Wetlands listed as high quality habitats in the Natural Heritage Information System; or

(3) Wetlands with irreplaceable ecological functions, including sphagnum bogs and fens or natural forested swamps; or

(4) Wetlands of exceptional local significance, specifically those wetlands proximal to and influenced by the main stem of Swamp Creek, the Sammamish River, or Lake Washington.

b. Class 2 wetlands are those wetlands which are not Class 1 wetlands and meet any of the following criteria:

(1) Wetlands that have significant functions that may not be adequately replicated through creation or restoration; or

(2) Wetlands associated with Type 2 or 3 streams; or

(3) Wetlands greater than one acre in size; or

(4) Wetlands equal to or less than one acre having three or more classes of wetland vegetation (as defined in Classification of Wetlands and Deepwater Habitats of the United States (Cowardin et al., 1979)); or

(5) Wetlands containing a forested wetland class.

c. Class 3 wetlands are those wetlands not rated as Class 1 or 2 wetlands, but greater than 1,000 square feet in size.

C. Buffer Areas.

1. The establishment of buffer areas shall be required for all development proposals and activities in or adjacent to wetland areas. The purpose of the buffer shall be to protect the integrity, function, and value of the critical area, and/or to protect life, property and resources from risks associated with development on unstable or critical lands. Buffers shall be protected during construction by placement of a temporary barricade, on-site notice for construction crews of the presence of the critical area, and implementation of appropriate erosion and sedimentation controls. Native vegetation removal or disturbance is not allowed in established buffers.

2. Required buffer widths (KMC 18.55.320(F)) shall reflect the sensitivity of the particular critical area and resource or the risks associated with development and, in those circumstances permitted by these regulations, the type and intensity of human activity and site design proposed to be conducted on or near the critical area. [Ord. 11-0329 § 3 (Exh. 1).]

Article VIII. Wetlands – Additional Report Requirements

18.55.310 Critical areas report.

Requirements for critical areas reports for wetlands are available from the city manager. [Ord. 11-0329 § 3 (Exh. 1).]

Article IX. Wetlands – Performance Standards

18.55.320 Performance standards – General requirements.

A. Activities may only be permitted in a wetland or wetland buffer if the applicant can show that the proposed activity will not degrade the functions and values of the wetland and other critical areas and no other feasible site design exists that results in less encroachment or impact to the wetland or wetland buffer.

B. Activities and uses shall be prohibited from wetlands and wetland buffers, except as provided for in this chapter.

C. Class 1 Wetlands. Activities and uses shall be prohibited from Class 1 wetlands, except as provided for in the public agency and utility exception or reasonable use exception sections of this chapter.

D. Class 2 and 3 Wetlands. Activities may be permitted, if the city manager determines, based upon review of special studies completed by qualified professionals, that the activity meets avoidance and minimization requirements outlined in KMC 18.55.210 and will not:

1. Adversely affect water quality;

2. Adversely affect fish, wildlife, or their habitat;

3. Have an adverse effect on drainage and/or stormwater detention capabilities;

4. Lead to unstable earth conditions or create an erosion hazard or contribute to scouring actions;

5. Be materially detrimental to any other property or the City as a whole; or

6. Have adverse effects on any other critical areas.

E. Limited Exemption. Class 3 wetlands less than 1,000 square feet may be exempted from the provisions of KMC 18.55.300 to 18.55.330 and may be altered by filling or dredging if the City determines that the cumulative impacts do not unduly counteract the purposes of this chapter and are mitigated pursuant to an approved mitigation plan.

F. Wetland Buffers.

1. Wetland buffers shall be established as follows:

Wetland Type

Buffer Width (Feet)

Class 1

150

Class 2

100

Class 3

60

2. Measurement of Wetland Buffers. Wetland buffers shall be measured from the wetland edge as delineated and marked in the field using the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual and current regional supplements or as may be revised in WAC 173-22-035 and 173-22-080 or the most recent approved federal manual and regional supplements.

3. Increased Wetland Buffer Widths. The city manager shall require increased buffer widths in accordance with the recommendations of a qualified professional biologist and the best available science on a case-by-case basis when a larger buffer is necessary to protect wetland functions and values based on site-specific characteristics. This determination shall be based on one or more of the following criteria:

a. A larger buffer is needed to protect other critical areas;

b. The buffer has a slope greater than 30 percent or is susceptible to erosion and standard erosion-control measures will not prevent adverse impacts to the wetland. In such cases, the buffer shall be increased to include the slope or the standard buffer shall be drawn from the top of the slope, whichever provides greater protection.

4. Averaged or Reduced Buffer Widths. Buffer widths may be averaged or reduced if an applicant receives approval as provided in this section. An applicant may request either (1) buffer averaging, or (2) buffer reduction with enhancement. A combination of these two buffer modification approaches shall not be used.

a. Wetland Buffer Width Averaging. The city manager may allow averaging of the wetland buffer width in accordance with an approved critical areas report and the best available science on a case-by-case basis. Averaging of buffer widths may only be allowed where a qualified professional biologist demonstrates that:

(1) Additional protection to the wetland will be provided through implementation of a buffer enhancement plan;

(2) It will not reduce wetland functions or values;

(3) The wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation, and the wetland would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;

(4) The total area contained in the buffer after averaging is no less than that which would be contained within the standard buffer; and

(5) For Class 1 and 2 wetlands, the buffer width shall not be reduced by more than 20 percent in any one place. For Class 3 wetlands, the buffer width shall not be reduced to less than 50 feet in any one place.

b. Buffer Reduction with Enhancement. Standard buffer widths for degraded wetland buffers may be reduced through a combination of buffer enhancement and low impact development strategies. The applicant shall demonstrate that through enhancing the buffer and use of low impact development strategies the reduced buffer will function at a higher level than the standard buffer. Buffers may be reduced in the following manner according to wetland type:

Wetland Category

Maximum Buffer Reduction

Minimum Buffer Width (Feet)

1

25 percent

112.5 feet

2

25 percent

75 feet

3

25 percent

45 feet

c. Decisional Criteria. Prior to approval of a reduced buffer, a critical areas application shall meet all of the decisional criteria listed below. A reduced buffer will be approved in a degraded wetland buffer only if:

(1) It will provide an overall improvement in water quality;

(2) It will provide an overall enhancement to fish, wildlife, or their habitat;

(3) It will provide a net improvement in drainage and/or stormwater detention capabilities;

(4) It will not lead to unstable earth conditions or create an erosion hazard;

(5) It will not be materially detrimental to any other property or the City as a whole; and

(6) All exposed areas are stabilized with native vegetation, as appropriate.

d. Buffer Enhancement Plan. As part of the buffer reduction request, the applicant shall submit a buffer enhancement plan prepared by a qualified professional and fund a review of the plan by the City’s wetland consultant. The plan shall assess the habitat, water quality, stormwater detention, ground water recharge, shoreline protection, and erosion protection functions of the buffer; assess the effects of the proposed modification on those functions; and address the six criteria listed in subsection (F)(4)(c) of this section.

5. Buffer Conditions Shall Be Maintained. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers shall be retained in an undisturbed condition.

6. Buffer Uses. The following uses may be permitted within a wetland buffer in accordance with the review procedures of this chapter, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent wetland:

a. Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife;

b. Passive Recreation. Passive recreation facilities designed in accordance with an approved critical areas report, including:

(1) Walkways and trails; provided, that those pathways that are generally parallel to the perimeter of the wetland shall be located in the outer 25 percent of the buffer area;

(2) Walkway and trail surfaces shall be made of pervious materials except that public multipurpose trails may be of impervious materials if they meet all other requirements, including water quality;

(3) Wildlife viewing structures; and

(4) Fishing access areas;

c. Stormwater Management Facilities. Grass-lined swales and dispersal trenches may be located in the outer 25 percent of the buffer area of Class 2 and 3 wetlands only. All other surface water management facilities are not allowed within the buffer area.

7. Building Setback. A building setback from the buffer edge is required per KMC 18.55.270. [Ord. 12-0334 § 14; Ord. 11-0329 § 3 (Exh. 1).]

18.55.330 Performance standards – Mitigation requirements.

A. Mitigation Shall Achieve Equivalent or Greater Ecological Functions. Mitigation for alterations to wetlands and buffers shall achieve equivalent or greater ecologic functions than exist in the impacted wetland and buffer. Mitigation plans shall be generally consistent with the Department of Ecology Guidelines found in Wetland Mitigation in Washington State – Part 2, Version 1, March 2006, Publication No. 06-060-011b.

B. Mitigation for Lost Functions and Values. Mitigation actions shall address functions affected by the alteration to achieve functional equivalency or improvement, and shall provide similar wetland functions as those lost except when:

1. The lost wetland provides minimal functions as determined by a site-specific function assessment and the proposed mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal watershed assessment plan or protocol; or

2. Out-of-kind replacement will best meet formally identified regional goals, such as replacement of historically diminished wetland types.

C. Buffers for Mitigation Shall Be Consistent. All mitigation sites shall have buffers consistent with the buffer requirements of this chapter, unless determined by the city manager through a variance or a reasonable use exemption that a different buffer would provide adequate protection to the critical area.

D. Preference of Mitigation Actions. Mitigation sequencing outlined in KMC 18.55.210 shall be demonstrated in each development proposal. Mitigation actions that require compensation by replacing, enhancing, or substitution shall occur in the following order of preference:

1. Restoring wetlands on upland sites that were formerly wetlands.

2. Creating wetlands in upland areas, considering degraded areas first.

3. Enhancing significantly degraded wetlands.

4. Preserving high quality wetlands that are under imminent threat.

E. Type and Location of Mitigation. Mitigation actions shall be conducted within the same sub-drainage basin or on the same site as the alteration except when all of the following apply:

1. There are no reasonable on-site or in-subdrainage-basin opportunities, or on-site and in-subdrainage-basin opportunities do not have a high likelihood of success due to development pressures or adjacent land uses, or on-site buffers or connectivity is inadequate;

2. Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the impacted wetland; and

3. Off-site locations shall be in the same subdrainage basin unless established regional or watershed goals for water quality, flood or conveyance, habitat or other wetland functions have been established and strongly justify location of mitigation at another site.

F. Mitigation Timing. Where feasible, mitigation or restoration 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. Construction of mitigation projects shall be timed to reduce impacts to existing wildlife and flora.

G. Mitigation Ratios.

1. Acreage Replacement Ratios. The following ratios shall apply to creation or restoration that is in-kind, on-site, the same class, timed prior to or concurrent with alteration, and has a high probability of success. These ratios do not apply to remedial actions resulting from unauthorized alterations; greater ratios shall apply on a case-by-case basis. These ratios do not apply to the use of credits from a State-certified wetland mitigation bank. The first number specifies the acreage of replacement wetlands and the second specifies the acreage of wetlands altered.

Class 1

3 to 1

Class 2

2 to 1

Class 3

1 to 1

The required acreage replacement ratios for wetlands within the jurisdiction of the Kenmore shoreline master program are different from these standards. See KMC 16.65.010(C) for required wetland mitigation ratios in the shoreline jurisdiction.

2. Increased Replacement Ratio. The city manager may increase the ratios under the following circumstances:

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

b. A significant period of time will elapse between impact and replication of wetland functions; or

c. Mitigation will occur off-site versus on-site; or

d. Proposed mitigation will result in a lower category wetland or reduced functions relative to the wetland being impacted; or

e. The impact was an unauthorized impact.

3. Decreased Replacement Ratio.

a. The city manager may decrease the replacement ratios required for Class 1 and 2 wetlands to 2:1 and 1.5:1, respectively, under the following circumstances:

(1) The applicant’s qualified biologist provides documentation that increases the certainty of success of the proposed wetland restoration or creation. At a minimum, this documentation shall include ground water monitoring in the area of proposed restoration or creation in the early growing season over a sufficient period of time to determine that there is a high probability of creating or restoring wetlands in that location; or

(2) Proposed mitigation will result in a higher functioning wetland (higher class) relative to the functions of the wetland being impacted; or

(3) The mitigation is successfully installed for a period of one year prior to the wetland being impacted. Successful installation shall be determined by a qualified biologist.

b. When a decreased replacement ratio is allowed, the mitigation shall be monitored for a period of no less than 10 years.

H. Wetlands Enhancement as Mitigation.

1. Impacts to wetlands may be mitigated by enhancement of existing significantly degraded wetlands. Applicants proposing to enhance wetlands must produce a critical areas report that identifies how enhancement will increase the functions of the degraded wetland and how this increase will adequately mitigate for the loss of wetland area and function at the impact site. An enhancement proposal must also show whether existing wetland functions will be reduced by the enhancement actions.

2. At a minimum, enhancement acreage shall be double the acreage required for creation or restoration.

I. Mitigation Banking. The City may consider and approve mitigation banking as a form of compensatory mitigation for wetland impacts when the provisions of this chapter require mitigation and when it is clearly demonstrated that the use of a bank will provide equivalent or greater replacement of critical area functions and values when compared to on-site mitigation; provided, that all of the following criteria are met:

1. Banks shall only be used when they provide significant ecological benefits including long-term conservation of critical areas, important species, habitats, and when they are consistent with the City comprehensive plan and create a viable alternative to the piecemeal mitigation for individual project impacts to achieve ecosystem-based conservation goals.

2. The bank shall be established in accordance with the Washington State Draft Mitigation Banking Rule (Chapter 173-700 WAC) or as revised, and Chapter 90.84 RCW and the federal mitigation banking guidelines as outlined in the Federal Register Volume 60, No. 228, November 28, 1995. These guidelines establish the procedural and technical criteria that banks must meet to obtain State and federal certification.

3. Preference shall be given to mitigation banks that implement restoration actions that have been identified formally by an adopted shoreline restoration plan or the Lake Washington/Cedar/Sammamish (WRIA 8) Watershed Chinook Salmon Conservation Plan. [Ord. 12-0334 §§ 15, 16; Ord. 11-0329 § 3 (Exh. 1).]

Article X. Streams – Designation and Rating

18.55.400 Designation and rating of streams.

A. Stream Classification. Streams shall be designated Type 1, Type 2, Type 3, and Type 4 according to the criteria in this section.

1. Type 1 streams are those streams identified as “shorelines of the State” under Chapter 90.58 RCW, including the Sammamish River and the main stem of Swamp Creek.

2. Type 2 streams are those streams that are:

a. Natural streams that have perennial (year-round) flow and are used by salmonid fish; or

b. Natural streams that have intermittent flow and are used by salmonid fish.

3. Type 3 streams are those streams that are:

a. Natural streams that have perennial flow and are used by fish other than salmonids; or

b. Natural streams that have intermittent flow and are used by fish other than salmonids.

4. Type 4 streams are those natural streams with perennial or intermittent flow that are not used by fish.

B. Ditches. Ditches are artificial drainage features created in uplands through purposeful human action, such as irrigation and drainage ditches, grass-lined swales, and canals. Purposeful creation must be demonstrated through documentation, photographs, statements and/or other evidence. Ditches are excluded from regulation as streams, unless they are used by fish. Drainage setbacks are required as per the City’s surface water runoff policy (Chapter 13.35 KMC). [Ord. 11-0329 § 3 (Exh. 1).]

Article XI. Streams – Additional Report Requirements

18.55.410 Critical areas report.

Requirements for critical areas reports for streams are available from the city manager. [Ord. 11-0329 § 3 (Exh. 1).]

Article XII. Streams – Performance Standards

18.55.420 Performance standards – General.

A. Establishment of Stream Buffers. The establishment of buffer areas shall be required for all development proposals and activities in or adjacent to streams. The purpose of the buffer shall be to protect the integrity, function, and value of the stream and provide habitat for heron and other wildlife. Buffers shall be protected during construction by placement of a temporary barricade, on-site notice for construction crews of the presence of the stream, and implementation of appropriate erosion and sedimentation controls. Native vegetation removal or disturbance is not allowed in established buffers.

Required buffer widths shall reflect the sensitivity of the stream or the risks associated with development and, in those circumstances permitted by these regulations, the type and intensity of human activity and site design proposed to be conducted on or near the critical area.

B. Stream Buffers.

1. The following buffers are established for streams to protect functions and values, including heron habitat:

Stream Type

Buffer Width (Feet)

Type 1 and Little Swamp Creek

150

Type 2

100

Type 3

50

Type 4

25

2. Measurement of Stream Buffers. Stream buffers shall be measured perpendicularly from the ordinary high water mark.

3. Increased Stream Buffer Widths. The city manager shall require increased buffer widths in accordance with the recommendations of a qualified professional and the best available science on a case-by-case basis when a larger buffer is necessary to protect stream functions and values based on site-specific characteristics. This determination shall be based on one or more of the following criteria:

a. A larger buffer is needed to protect other critical areas;

b. The buffer has a slope greater than 30 percent or is susceptible to erosion and standard erosion-control measures will not prevent adverse impacts to the stream. The buffer should be measured from the toe of the slope. In such cases, the buffer shall be increased to include the slope or the standard buffer shall be drawn from the top of the slope, whichever provides greater protection.

4. Buffer Reduction with Enhancement. Standard buffer widths for degraded buffers may be reduced through a combination of buffer enhancement and low impact development strategies. The applicant shall demonstrate that through enhancing the buffer and use of low impact development strategies the reduced buffer will function at a higher level than the standard buffer. Buffers may be reduced in the following manner according to stream type:

Stream Type

Maximum Buffer Reduction

Minimum Buffer Width (Feet)

Type 1 and Little Swamp Creek

25 percent

112.5 feet

Type 2

25 percent

75 feet

Type 3

25 percent

37.5 feet

Type 4

25 percent

18.75 feet

a. Prior to approval of a reduced buffer, a critical areas application shall meet all of the decisional criteria listed below. A reduced buffer will be approved in a degraded stream buffer only if:

(1) It will provide an overall improvement in water quality;

(2) It will provide an overall enhancement to fish, wildlife, or their habitat;

(3) It will provide a net improvement in drainage and/or stormwater detention capabilities;

(4) It will not lead to unstable earth conditions or create an erosion hazard;

(5) It will not be materially detrimental to any other property or the City as a whole; and

(6) All exposed areas are stabilized with native vegetation, as appropriate.

b. As part of the buffer reduction request, the applicant shall submit a buffer enhancement plan prepared by a qualified professional and fund a review of the plan by the City’s wetland consultant. The plan shall assess the habitat, water quality, stormwater detention, ground water recharge, shoreline protection, and erosion protection functions of the buffer; assess the effects of the proposed modification on those functions; and address the six criteria listed in subsection (B)(4)(a) of this section.

5. Buffer Conditions Shall Be Maintained. Except as otherwise specified or allowed in accordance with this chapter, stream buffers shall be retained in an undisturbed condition.

6. Buffer Uses. The following uses may be permitted within a stream buffer in accordance with the review procedures of this chapter, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent stream:

a. Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife;

b. Passive Recreation. Passive recreation facilities designed in accordance with an approved critical areas report, including:

(1) Walkways and trails; provided, that those pathways that are generally parallel to the perimeter of the stream shall be located in the outer 25 percent of the buffer area;

(2) Walkway and trail surfaces shall be made of pervious materials except that public multipurpose trails may be of impervious materials if they meet all other requirements, including water quality;

(3) Wildlife viewing structures; and

(4) Fishing access areas.

c. Stormwater Management Facilities. Grass-lined swales and dispersal trenches may be located in the outer 25 percent of the buffer area. All other surface water management facilities are not allowed within the buffer area.

7. Building Setback. A building setback is required from the edge of the buffer per KMC 18.55.270.

C. Stream Crossings. Stream crossings may be allowed and may encroach on the otherwise required stream buffer if:

1. All crossings use bridges or other construction techniques which do not disturb the stream bed or bank, except that bottomless culverts or other appropriate methods demonstrated to provide fisheries protection may be used for Type 2 or 3 streams if the applicant demonstrates that such methods and their implementation will pose no harm to the stream nor inhibit migration of fish;

2. All crossings are constructed during the summer low flow and are timed to avoid stream disturbance during periods when use is critical to salmonids;

3. Crossings do not occur over salmonid spawning areas unless the City determines that no other possible crossing site exists;

4. Bridge piers or abutments are not placed within the Federal Emergency Management Agency (FEMA) floodway or below the ordinary high water mark;

5. Crossings do not diminish the flood-carrying capacity of the stream;

6. Underground utility crossings are laterally drilled and located at a depth of four feet below the maximum depth of scour for the base flood predicted by a civil engineer licensed by the State of Washington. Temporary bore pits to perform such crossings may be permitted within the stream buffer established in this chapter; and

7. Crossings are minimized and serve multiple purposes and properties whenever possible.

D. Stream Relocations.

1. Stream relocations may be allowed only for:

a. All stream types as part of a public project for which a public agency and utility exception is granted pursuant to this chapter; or

b. Type 3 or 4 streams for the purpose of enhancing resources in the stream if:

(1) Appropriate floodplain protection measures are used; and

c. The location occurs on-site except that relocation off-site may be allowed if the applicant demonstrates that any on-site relocation is impracticable, the applicant provides all necessary easements and waivers from affected property owners and the off-site location is in the same drainage sub-basin as the original stream.

2. For any relocation allowed by this section, the applicant shall demonstrate, based on information provided by a civil engineer and a qualified biologist, that:

a. The equivalent base flood storage volume and function will be maintained;

b. There will be no adverse impact to local ground water;

c. There will be no increase in velocity;

d. There will be no interbasin transfer of water;

e. There will be no increase in the sediment load;

f. There is an overall increase in habitat function and value for salmonids and other fish;

g. Requirements set out in the mitigation plan are met;

h. The relocation conforms to other applicable laws; and

i. All work will be carried out under the direct supervision of a qualified biologist.

E. Stream Enhancement. Stream enhancement not associated with any other development proposal may be allowed if accomplished according to a plan for its design, implementation, maintenance and monitoring prepared by a civil engineer and a qualified biologist and carried out under the direction of a qualified biologist.

F. Minor Stream Restoration. A minor stream restoration project for fish habitat enhancement may be allowed if:

1. The project results in an increase in stream functions and values;

2. The restoration is sponsored by a public agency with a mandate to do such work;

3. The restoration is not associated with mitigation of a specific development proposal;

4. The restoration is limited to removal of non-native vegetation and enhancement of riparian vegetation, placement of rock weirs, log controls, spawning gravel and other specific salmonid habitat improvements;

5. The restoration only involves the use of hand labor and light equipment; or the use of helicopters, cranes, or aerial equipment which deliver supplies to the project site; provided, that they have no contact with critical areas or their buffers; and

6. The restoration is performed under the direction of a qualified biologist. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.430 Performance standards – Mitigation requirements.

A. Stream Mitigation. Mitigation of adverse impacts to riparian habitat areas shall result in equivalent functions and values on a per function basis, be located as near to the alteration as feasible, and be located in the same subdrainage basin as the impacted habitat.

B. Alternative Mitigation for Stream Areas. The performance standards set forth in this section may be modified at the City’s discretion if the applicant demonstrates that greater habitat functions, on a per function basis, can be obtained in the affected subdrainage basin as a result of alternative mitigation measures. [Ord. 11-0329 § 3 (Exh. 1).]

Article XIII. Fish and Wildlife Habitats of Importance – Designation

18.55.500 Designation of fish and wildlife habitats of importance.

A. Fish and wildlife habitats of importance are those habitat areas that meet any of the following criteria:

1. Documented presence of species listed by the federal government or the State of Washington as endangered or threatened; or

2. Heron rookeries or active nesting trees; or

3. Class 1 wetlands as defined in these regulations; or

4. Type 1 streams as defined in these regulations.

5. Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292).

B. All areas within the City meeting one or more of these criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

C. The City may accept and consider nominations for habitat areas and species to be designated as fish and wildlife habitats of importance. Nominations will be accepted on an annual basis. Guidelines for nomination are available from the city manager. [Ord. 11-0329 § 3 (Exh. 1).]

Article XIV. Fish and Wildlife Habitats of Importance – Report Requirements

18.55.510 Critical areas report.

Requirements for critical areas reports for fish and wildlife habitats of importance are available from the city manager. [Ord. 11-0329 § 3 (Exh. 1).]

Article XV. Fish and Wildlife Habitats of Importance – Performance Standards

18.55.520 Performance standards – General requirements.

A. Habitat Management Plan. A habitat management plan is required when the priority habitats and species maps or natural heritage program maps provided by the City, or other information, indicate the presence of areas with which critical species listed as endangered or threatened under federal or State law have a primary association.

1. All habitat management plans shall be prepared in consultation with the State Department of Fish and Wildlife. Habitat management plans for critical species listed as endangered or threatened shall be approved by the Department of Fish and Wildlife.

2. Habitat Management Plan Content Requirements. Based on the characteristics of the site and information submitted by the applicant, the city manager may require that all or a portion of the following be included in a habitat management plan:

a. A map drawn to scale or survey showing the following information:

(1) All lakes, ponds, streams, and wetlands on, or adjacent to, the subject property, including the name (if named), ordinary high water mark of each, and the stream type or wetland class consistent with this chapter.

(2) The location and description of the fish and wildlife habitats of importance on the subject property, as well as any potential fish and wildlife habitats of importance within 200 feet of the subject property as shown on maps maintained by the City.

(3) The location of any observed evidence of use by a listed species.

b. An analysis of how the proposed development activities will affect the fish and wildlife habitats of importance and listed species.

c. Provisions to reduce or eliminate the impact of the proposed development activities on any fish and wildlife habitats of importance and listed species.

d. The habitat management plan should also address the following issues:

(1) Prohibition or limitation of development activities within the fish and wildlife habitats of importance;

(2) Establishment of a buffer around the fish and wildlife habitat conservation area;

(3) Retention of certain vegetation or areas of vegetation critically important to the listed species;

(4) Limitation of access to the fish and wildlife habitats of importance and buffer;

(5) Seasonal restrictions on construction activities on the subject property;

(6) Clustering of development on the subject property; and

(7) The preservation or creation of a habitat area for the listed species.

B. Alterations shall not degrade the functions and values of habitat. Fish and wildlife habitat areas of importance may be altered only if the proposed alteration of the habitat or the mitigation proposed does not degrade the quantitative and qualitative functions and values of the habitat. All new structures and land alterations shall be prohibited from habitat areas of importance, except in accordance with this chapter.

C. Nonindigenous species shall not be introduced. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a fish and wildlife habitat area of importance unless authorized by a State or federal permit or approval.

D. Mitigation shall result in contiguous habitat. Mitigation sites shall be located to achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical areas report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

E. Mitigation shall achieve equivalent or greater biological functions. Mitigation of alterations to habitat areas of importance shall achieve equivalent or greater biologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

F. Approvals shall be supported by the best available science. Any approval of alterations or impacts to a fish and wildlife habitat of importance shall be supported by the best available science.

G. Buffers.

1. Establishment of Buffers. The city manager shall require the establishment of buffer areas for activities in, or adjacent to, fish and wildlife habitats of importance, when needed to protect fish and wildlife habitats of importance. Buffers shall consist of an undisturbed area of native vegetation, or areas identified for restoration, established to protect the integrity, functions and values of the affected habitat. Buffer enhancement may be required. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby, and shall be consistent with the management recommendations issued by the State Department of Fish and Wildlife.

2. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions, as determined by the Washington State Department of Fish and Wildlife, may apply. Larger buffers may be required and activities may be further restricted during the specified season. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.530 Performance standards – Specific habitats.

A. Endangered, Threatened, and Sensitive Species.

1. No development shall be allowed within a fish and wildlife habitat of importance or buffer with which State or federally endangered, threatened, or sensitive species have a primary association except as otherwise approved through this chapter. For fish habitat of importance on lands regulated under the Kenmore shoreline master program, development also must meet the use and development requirements of the Kenmore shoreline master program.

2. Whenever activities are proposed adjacent to a fish and wildlife habitat of importance with which State or federally endangered, threatened, or sensitive species have a primary association, such area shall be protected through the application of protection measures in accordance with a critical areas report prepared by a qualified professional and approved by the City. Approval for alteration of land adjacent to the fish and wildlife habitat of importance or its buffer shall not occur prior to consultation with the Department of Fish and Wildlife and the appropriate federal agency.

3. Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292). Whenever activities are proposed adjacent to a verified nest territory or communal roost, a habitat management plan shall be developed by a qualified professional. Activities are adjacent to bald eagle sites when they are within 800 feet of an active nest, or within a quarter mile (2,640 feet) of an active nest and in a shoreline foraging area. The City shall verify the location of eagle management areas for each proposed activity. Approval of the activity shall not occur prior to approval of the habitat management plan by the City and the Washington State Department of Fish and Wildlife.

B. Great Blue Heron Rookery.

1. A buffer equal to the distance of a 900-foot radius measured from the outermost nest tree in the rookery will be established around an active rookery. This area will be maintained in native vegetation. For the Kenmore heron rookery located adjacent to the Kenmore park-and-ride lot, the buffer excludes the area south of the north edge of the State Route 522 right-of-way and west of the east edge of the 73rd Avenue NE right-of-way.

2. Between January 1st and July 31st, no clearing, grading or land disturbing activity shall be allowed within 900 feet of the rookery unless approved by the City and Washington State Department of Fish and Wildlife. For the Kenmore heron rookery located adjacent to the Kenmore park-and-ride lot, the area south of the north edge of the State Route 522 right-of-way and west of the east edge of 73rd Avenue NE right-of-way is excluded.

3. Approval of permits for activities within the heron rookery buffer shall not occur prior to the approval of a habitat management plan by the City and the Washington State Department of Fish and Wildlife.

C. Anadromous Fish.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a. Activities shall be timed to occur only during the allowable work window as designated by the Washington State Department of Fish and Wildlife for the applicable species;

b. An alternative alignment or location for the activity is not feasible;

c. The activity is designed so that it will provide an overall improvement in the functions or values of the fish habitat or other critical areas; and

d. Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical areas report.

2. Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed.

3. Fills, when authorized by the City’s shoreline management master program, shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impacts, and shall only be allowed for a water-dependent use. [Ord. 12-0334 § 17; Ord. 11-0329 § 3 (Exh. 1).]

Article XVI. Geologically Hazardous Areas – Designation

18.55.600 Purpose.

The primary purpose of geologically hazardous area regulations is to avoid and minimize potential impacts to life and property from geologic hazards. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.610 Designation of geologically hazardous areas.

Geologically hazardous areas include areas susceptible to erosion, sliding, earthquake, or other geological events. They pose a threat to the health and safety of citizens when incompatible development is sited in areas of significant hazard. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous area:

A. Erosion hazard;

B. Landslide hazard;

C. Seismic hazard; and

D. Other geological events including mass wasting, debris flows, rock falls, and differential settlement. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.620 Designation of specific hazard areas.

A. Erosion Hazard Areas. Erosion hazard areas are those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service or identified by a special study as having a “moderate to severe,” “severe,” or “very severe” erosion potential.

B. Landslide Hazard Areas. Landslide hazard areas are areas potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following:

1. Areas of historic failures, such as:

a. Those areas delineated by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “severe” limitation for building site development; or

b. Areas designated as Quaternary slumps, earthflows, mudflows, or landslides on maps published by the U.S. Geological Survey or State Department of Natural Resources;

2. Areas with all three of the following characteristics:

a. Slopes steeper than 15 percent; and

b. Hillsides intersecting geologic contacts with a relatively permeable sediment overlying relatively impermeable sediment; and

c. Springs or ground water seepage;

3. Areas that have shown movement during the Holocene epoch (from 10,000 years ago to the present) or that are underlain or covered by mass wastage debris of that epoch;

4. Slopes that are parallel or subparallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;

5. Areas potentially unstable because of rapid stream incision, stream bank erosion, and undercutting by wave action;

6. Areas located in a canyon or on an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding; and

7. Areas with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet. A slope is delineated by establishing its toe and measured by averaging the inclination over at least 10 feet of vertical relief.

C. Seismic Hazard Areas. Seismic hazard areas are locations subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. One indicator of potential for future earthquake damage is a record of earthquake damage in the past. Ground shaking is the primary cause of earthquake damage in Washington. The strength of ground shaking is primarily affected by:

1. The magnitude of an earthquake;

2. The distance from the source of an earthquake;

3. The type or thickness of geologic materials at the surface; and

4. The type of subsurface geologic structure.

Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density, typically in association with a shallow ground water table.

D. Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the city manager to be susceptible to other geological events including mass wasting, debris flows, and differential settlement. [Ord. 11-0329 § 3 (Exh. 1).]

Article XVII. Geologically Hazardous Areas – Report Requirements

18.55.630 Critical areas report.

A critical areas report shall be required for all proposed alterations of properties that are located within 200 feet of any geologically hazardous area. Requirements for critical areas reports for geologically hazardous areas are available from the city manager. [Ord. 11-0329 § 3 (Exh. 1).]

Article XVIII. Geologically Hazardous Areas – Performance Standards

18.55.640 Performance standards – General requirements.

A. Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

1. Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;

2. Will not adversely impact other critical areas;

3. Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and

4. Are certified as safe as designed and under anticipated conditions by a qualified engineer or geologist licensed in the State of Washington.

B. Critical Facilities Prohibited. Critical facilities shall not be sited within geologically hazardous areas unless there is no other practical alternative. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.650 Performance standards – Specific hazards.

A. Erosion and Landslide Hazard Areas. Activities on sites containing erosion or landslide hazards shall meet the following requirements:

1. Buffer Required for Erosion Hazard Areas. No buffer is required from an area categorized as only an erosion hazard area.

2. Buffer Required for Landslide Hazard Areas. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer shall be determined by the city manager to eliminate or minimize the risk of property damage, death or injury resulting from landslides caused in whole or part by the development, based upon review of and concurrence with a critical area report prepared by a qualified professional.

a. Minimum Buffer. The minimum buffer shall be equal to the height of the slope, as measured from the toe to the top, or 50 feet, whichever is greater.

b. Buffer Reduction. The buffer may be reduced to a minimum of 10 feet when a qualified professional demonstrates to the city manager’s satisfaction based upon review of a special study that the reduction will adequately protect the proposed development, adjacent developments and uses and the subject critical area.

c. Increased Buffer. The buffer may be increased where the city manager determines a larger buffer is necessary to prevent risk of damage to proposed and existing development.

d. Building Setback. A building setback is required from the edge of the buffer per KMC 18.55.270.

3. Alterations. Alterations of an erosion hazard area or a landslide hazard area and/or its buffer may only occur for activities for which a special study is submitted and certifies that:

a. The alteration will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions;

b. The alteration will not decrease slope stability on adjacent properties; and

c. Such alterations will not adversely impact other critical areas.

4. Design Standards. Alterations within an erosion hazard area, landslide hazard area and/or buffer shall be designed to meet the following basic requirements unless it can be demonstrated that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this chapter. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development design standards are:

a. The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.2 for dynamic conditions. Analysis of dynamic conditions shall be based on a minimum horizontal acceleration as established by the current version of the International Building Code;

b. Structures and improvements shall be clustered to avoid geologically hazardous areas and other critical areas;

c. Structures and improvements shall minimize alterations to the natural contour of the slope and foundations shall be tiered where possible to conform to existing topography;

d. Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

e. The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;

f. The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes; and

g. Development shall be designed to minimize impervious lot coverage.

5. Vegetation Shall Be Retained. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited.

6. Seasonal Restriction. Clearing shall be allowed only from May 1st to October 1st of each year; provided, that the City may extend or shorten the dry season on a case-by-case basis depending on actual weather conditions, except that timber harvest, not including brush clearing or stump removal, may be allowed pursuant to an approved forest practice permit issued by the City or the Department of Natural Resources.

7. Utility Lines and Pipes. Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available. The line or pipe shall be located above ground and properly anchored and/or designed so that it will continue to function in the event of an underlying slide. Stormwater conveyance shall be allowed only through a high-density polyethylene pipe with fuse-welded joints, or similar product that is technically equal or superior.

8. Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from an erosion or landslide hazard area shall be prohibited except as follows:

a. Conveyed via continuous storm pipe downslope to a point where there are no erosion hazard areas downstream from the discharge;

b. Discharged at flow durations matching predeveloped conditions, with adequate energy dissipation, into existing channels that previously conveyed stormwater runoff in the predeveloped state; or

c. Dispersed discharge upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and stormwater runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope.

9. Subdivisions. The division of land in landslide hazard areas and associated buffers is subject to the following:

a. Land that is located wholly within a landslide hazard area or its buffer may not be subdivided. Land that is located partially within a landslide hazard area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the landslide hazard or its buffer; and

b. Access roads and utilities may be permitted within a landslide hazard area and associated buffer if the City determines that no other feasible alternative exists.

10. Prohibited Development. On-site sewage disposal systems, including drain fields, shall be prohibited within landslide hazard areas and related buffers.

11. Slopes Created by Previous Grading. Artificial slopes meeting the criteria of a landslide hazard area based on slope steepness and height that were created through previous permitted grading may be further altered or graded provided the applicant provides information from a qualified professional demonstrating that the naturally occurring slope, as it existed prior to the permitted grading, did not meet any of the criteria for a landslide hazard area and that a new hazard will not be created.

B. Seismic Hazard Areas. Activities proposed to be located in seismic hazard areas shall meet the standards of KMC 18.55.640, Performance standards – General requirements.

C. Other Hazard Areas. Activities on sites containing or adjacent to other geologically hazardous areas shall meet the standards of KMC 18.55.640, Performance standards – General requirements. [Ord. 11-0329 § 3 (Exh. 1).]

Article XIX. Flood Hazard Areas

18.55.700 Flood hazard areas.

A. Flood hazard areas consist of the following components:

1. Floodplain;

2. Flood fringe;

3. Zero-rise floodway; and

4. Federal Emergency Management Agency (FEMA) floodway.

B. The City shall determine the flood hazard area after obtaining, reviewing and utilizing base flood elevations and available floodway data for a flood having a one percent chance of being equaled or exceeded in any given year, often referred to as the “100-year flood.” The base flood is determined for existing conditions, unless a basin plan including projected flows under future developed conditions has been completed and adopted by the City, in which case these future flow projections shall be used. In areas where the flood insurance study for the City includes detailed base flood calculations, those calculations may be used until projections of future flows are completed and approved by the City. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.710 Flood fringe – Development standards and permitted alterations.

Development proposals on sites within the flood fringe area shall meet the following requirements:

A. Development proposals shall not reduce the effective base flood storage volume of the floodplain. Grading or other activity which would reduce the effective storage volume shall be mitigated by creating compensatory storage on the site or off the site if legal arrangements can be made to assure that the effective compensatory storage volume will be preserved over time. Grading for construction of livestock manure storage facilities to control nonpoint source water pollution designed to the standards of and approved by the City is exempt from this compensatory storage requirement.

B. All elevated construction shall be designed and certified by a professional structural engineer licensed by the State of Washington and shall be approved by the City prior to construction.

C. Subdivisions, short subdivisions and binding site plans shall meet the following requirements:

1. New building lots shall contain 5,000 square feet or more of buildable land outside the zero-rise floodway, and building setback areas shall be shown on the face of the plat to restrict permanent structures to this buildable area;

2. All utilities and facilities such as sewer, gas, electrical and water systems shall be located and constructed consistent with subsections D, E and H of this section;

3. Base flood data and flood hazard notes shall be shown on the face of the recorded subdivision, short subdivision or binding site plan including, but not limited to, the base flood elevation, required flood protection elevations and the boundaries of the floodplain and the zero-rise floodway, if determined; and

4. The following notice shall also be shown on the face of the recorded subdivision, short subdivision or binding site plan for all affected lots:

NOTICE

Lots and structures located within flood hazard areas may be inaccessible by emergency vehicles during flood events. Residents and property owners should take appropriate advance precautions.

D. New residential structures and substantial improvements of existing residential structures shall meet the following requirements:

1. The lowest floor shall be elevated to the flood protection elevation;

2. Portions of a structure which are below the lowest floor area shall not be fully enclosed. The areas and rooms below the lowest floor shall be designed to automatically equalize hydrostatic and hydrodynamic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for satisfying this requirement shall meet or exceed the following requirements:

a. A minimum of two openings on opposite walls having a total open area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided;

b. The bottom of all openings shall be no higher than one foot above grade; and

c. Openings may be equipped with screens, louvers or other coverings or devices if they permit the unrestricted entry and exit of floodwaters;

3. Materials and methods which are resistant to and minimize flood damage shall be used; and

4. All electrical, heating, ventilation, plumbing, air conditioning equipment and other utility and service facilities shall be floodproofed to or elevated above the flood protection elevation.

E. New nonresidential structures and substantial improvements of existing nonresidential structures shall meet the following requirements:

1. The elevation requirement for residential structures contained in subsection (D)(1) of this section shall be met; or

2. The structure shall be floodproofed to the flood protection elevation and shall meet the following requirements:

a. The applicant shall provide certification by a professional civil or structural engineer licensed by the State of Washington that the floodproofing methods are adequate to withstand the flood depths, pressures, velocities, impacts, uplift forces and other factors associated with the base flood. After construction, the engineer shall certify that the permitted work conforms with the approved plans and specifications; and

b. Approved building permits for floodproofed nonresidential structures shall contain a statement notifying applicants that flood insurance premiums shall be based upon rates for structures which are one foot below the floodproofed level;

3. Materials and methods which are resistant to and minimize flood damage shall be used; and

4. All electrical, heating, ventilation, plumbing, air conditioning equipment and other utility and service facilities shall be floodproofed to or elevated above the flood protection elevation.

F. All new construction shall be anchored to prevent flotation, collapse or lateral movement of the structure.

G. Mobile homes and mobile home parks shall meet the following requirements:

1. Mobile homes shall meet all requirements for flood hazard protection for residential structures, shall be anchored and shall be installed using methods and practices which minimize flood damage; and

2. No permit or approval for the following shall be granted unless all mobile homes within the mobile home park meet the requirements for flood hazard protection for residential structures:

a. A new mobile home park;

b. An expansion of an existing mobile home park; or

c. Any repair or reconstruction of streets, utilities or pads in an existing mobile home park which equals or exceeds 50 percent of the value of such streets, utilities or pads.

H. Utilities shall meet the following requirements:

1. New and replacement utilities including, but not limited to, sewage treatment facilities shall be floodproofed to or elevated above the flood protection elevation;

2. New on-site sewage disposal systems shall be, to the extent possible, located outside the limits of the base flood elevation. The installation of new on-site sewage disposal systems in the flood fringe may be allowed if no feasible alternative site is available;

3. Sewage and agricultural waste storage facilities shall be floodproofed to the flood protection elevation;

4. Above-ground utility transmission lines, other than electric transmission lines, shall only be allowed for the transport of nonhazardous substances; and

5. Buried utility transmission lines transporting hazardous substances shall be buried at a minimum depth of four feet below the maximum depth of scour for the base flood, as predicted by a professional civil engineer licensed by the State of Washington, and shall achieve sufficient negative buoyancy so that any potential for flotation or upward migration is eliminated.

I. Critical facilities may be allowed within the flood fringe of the floodplain, but only when no feasible alternative site is available. Critical facilities shall be evaluated through the conditional or special use permit process. Critical facilities constructed within the flood fringe shall have the lowest floor elevated to three or more feet above the base flood elevation. Floodproofing and sealing measures shall be taken to ensure that hazardous substances will not be displaced by or released into floodwaters. Access routes elevated to or above the base flood elevation shall be provided to all critical facilities from the nearest maintained public street or roadway.

J. Prior to approving any permit for alterations in the flood fringe, the City shall determine that all permits required by State or federal law have been obtained. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.720 Zero-rise floodway – Development standards and permitted alterations.

A. The requirements which apply to the flood fringe shall also apply to the zero-rise floodway. The more restrictive requirements shall apply where there is a conflict.

B. A development proposal including, but not limited to, new or reconstructed structures shall not cause any increase in the base flood elevation unless the following requirements are met:

1. Amendments to the flood insurance rate map are adopted by FEMA, in accordance with 44 CFR 70, to incorporate the increase in the base flood elevation; and

2. Appropriate legal documents are prepared in which all property owners affected by the increased flood elevations consent to the impacts on their property. These documents shall be filed with the title of record for the affected properties.

C. The following are presumed to produce no increase in base flood elevation and shall not require a special study to establish this fact:

1. New residential structures outside the FEMA floodway on lots in existence before November 27, 1990, which contain less than 5,000 square feet of buildable land outside the zero-rise floodway and which have a total building footprint of all proposed structures on the lot of less than 2,000 square feet;

2. Substantial improvements of existing residential structures in the zero-rise floodway, but outside the FEMA floodway, where the footprint is not increased; or

3. Substantial improvements of existing residential structures meeting the requirements for new residential structures in KMC 18.55.710.

D. Post or piling construction techniques which permit water flow beneath a structure shall be used.

E. All temporary structures or substances hazardous to public health, safety and welfare, except for hazardous household substances or consumer products containing hazardous substances, shall be removed from the zero-rise floodway during the flood season from September 30th to May 1st.

F. New residential structures or any structure accessory to a residential use shall meet the following requirements:

1. The structures shall be outside the FEMA floodway; and

2. The structures shall be on lots in existence before November 27, 1990, which contain less than 5,000 square feet of buildable land outside the zero-rise floodway.

G. Utilities may be allowed within the zero-rise floodway if the City determines that no feasible alternative site is available, subject to the following requirements:

1. Installation of new on-site sewage disposal systems shall be prohibited unless a waiver is granted by Seattle/King County public health; and

2. Construction of sewage treatment facilities shall be prohibited.

H. Critical facilities shall not be allowed within the zero-rise floodway except as provided in subsection J of this section.

I. Livestock manure storage facilities and associated nonpoint source water pollution facilities designed, constructed and maintained to the standards of and approved in a conservation plan by the City may be allowed if the City reviews and approves the location and design of the facilities.

J. Structures and installations which are dependent upon the floodway may be located in the floodway if the development proposal is approved by all agencies with jurisdiction. Such structures include, but are not limited to:

1. Dams or diversions for water supply, flood control, hydroelectric production, irrigation or fisheries enhancement;

2. Flood damage reduction facilities, such as levees and pumping stations;

3. Stream bank stabilization structures where no feasible alternative exists for protecting public or private property;

4. Stormwater conveyance facilities subject to the development standards for streams and wetlands and the surface water design manual;

5. Boat launches and related recreation structures;

6. Bridge piers and abutments; and

7. Other fisheries enhancement or stream restoration projects. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.730 FEMA floodway – Development standards and permitted alterations.

A. The requirements which apply to the zero-rise floodway shall also apply to the FEMA floodway. The more restrictive requirements shall apply where there is a conflict.

B. A development proposal including, but not limited to, new or reconstructed structures shall not cause any increase in the base flood elevation.

C. New residential or nonresidential structures are prohibited within the FEMA floodway.

D. Substantial improvements of existing residential structures in the FEMA floodway, meeting the requirements of WAC 173-158-070, as amended, are presumed to produce no increase in base flood elevation and shall not require a special study to establish this fact. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.740 Flood hazard areas – Certification by engineer or surveyor.

A. For all new structures or substantial improvements in a flood hazard area, the applicant shall provide certification by a professional civil engineer or land surveyor licensed by the State of Washington of:

1. The actual as-built elevation of the lowest floor, including basement; and

2. The actual as-built elevation to which the structure is floodproofed, if applicable.

B. The engineer or surveyor shall indicate if the structure has a basement.

C. The City shall maintain the certifications required by this section for public inspection. [Ord. 11-0329 § 3 (Exh. 1).]

18.55.750 Channel relocation and stream meander areas.

No structure shall be allowed which would be at risk due to channel relocation or stream meander until the promulgation of a public rule. [Ord. 11-0329 § 3 (Exh. 1).]