Chapter 18.16
CRITICAL AREAS

Sections:

Article I. General Provisions

18.16.010    Purpose.

18.16.020    Authority.

18.16.030    Abrogation and greater restrictions.

18.16.040    Severability.

18.16.050    Applicability.

18.16.060    Fees.

18.16.070    Appeals.

18.16.080    Exemptions.

18.16.090    Partial exemptions.

18.16.100    Single-family residence administrative exception.

18.16.110    Reasonable use permit.

18.16.120    Critical areas review process.

18.16.130    Review criteria.

18.16.140    Critical areas report.

18.16.150    Mitigation sequencing.

18.16.160    Mitigation requirements.

18.16.170    Notice on title.

18.16.180    Native growth protection areas.

18.16.185    Critical areas tracts.

18.16.190    Building setbacks.

18.16.200    Security to ensure mitigation, maintenance, and monitoring.

18.16.210    Unauthorized critical areas alterations and enforcement.

Article II. Wetlands

18.16.310    Wetlands designation and classification.

18.16.320    Performance standards.

18.16.330    Wetland mitigation requirements.

18.16.340    Subdivisions.

Article III. Critical Aquifer Recharge Areas

18.16.410    Critical aquifer recharge areas designation.

18.16.430    Performance standards.

18.16.440    Uses prohibited from critical aquifer recharge areas.

Article IV. Geologically Hazardous Areas

18.16.510    Geologically hazardous areas designation.

18.16.520    Additional critical areas report requirements.

18.16.530    Performance standards.

Article V. Fish and Wildlife Habitat Conservation Areas

18.16.610    Fish and wildlife habitat conservation areas designation.

18.16.620    Water type classification.

18.16.630    Additional critical areas report requirements.

18.16.640    Performance standards.

Article VI. Frequently Flooded Areas

18.16.710    Frequently flooded areas.

Article I. General Provisions

18.16.010 Purpose.

A. The purpose of this chapter is to designate and protect ecologically sensitive and hazardous areas in accordance with the Growth Management Act, while also allowing for reasonable use of private property.

B. By limiting and regulating development and alteration of critical areas, this chapter seeks to:

1. Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, volcanic eruptions, or flooding;

2. Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plants and animal species;

3. Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and

4. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas and habitat conservation areas so that there will be no net loss of wetlands, and our goal is to increase the quality and vitality of wetland acreage.

C. 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 use of the property or to prevent the provision of public facilities and services necessary to support existing development and that planned for by the community. (Ord. 1671 § 5, 2006).

18.16.020 Authority.

A. As provided herein, the land use administrator, or his or her designee, is given the authority to interpret and apply and the responsibility to enforce this chapter to accomplish the stated purpose. The land use administrator or his or her designee is authorized to adopt administrative rules as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration.

B. The city council may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. (Ord. 1671 § 5, 2006).

18.16.030 Abrogation and greater restrictions.

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 is more restrictive shall apply. (Ord. 1671 § 5, 2006).

18.16.040 Severability.

If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. (Ord. 1671 § 5, 2006).

18.16.050 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. 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.

C. The approximate location and extent of critical areas may be shown on city maps and on maps prepared by county, state, federal and other agencies. These maps are to be used as a guide for the city, project applicants and/or property owners, and may be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical areas designation. (Ord. 1671 § 5, 2006).

18.16.060 Fees.

Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 1671 § 5, 2006).

18.16.070 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed to the hearing examiner according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 1671 § 5, 2006).

18.16.080 Exemptions.

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 that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter:

A. Emergencies. Emergency activities are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this chapter.

1. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within 30 days, the land use administrator shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the city determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of MMC 18.16.210 shall apply.

2. After the emergency, the person or agency undertaking the action shall fully restore and/or mitigate any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical areas report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical areas report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner;

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. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species;

C. Maintenance or Repair of Single-Family Residence. Maintenance or repair of existing single-family residences including infrastructure, driveways and landscaping 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 maintenance or repair;

D. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. Trails must be constructed pursuant to MMC 18.16.090(D); and

E. Forest Practices. Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, WAC Title 222, and those that are exempt from city’s jurisdiction; provided, that forest practice conversions are not exempt. (Ord. 1671 § 5, 2006).

18.16.090 Partial exemptions.

Partial exemptions shall be consistent with the purpose and provisions of this chapter, but do not require critical areas review or the submittal of a critical areas report. The city may apply conditions to the underlying permit or approval, such as a building permit, to ensure that the proposal is consistent with the provisions of this chapter to protect critical areas. The following activities and associated uses shall be exempt from the provisions of this chapter, provided they meet the associated conditions:

A. Permit Requests Subsequent to Previous Critical Areas Review. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits) and construction approvals (such as building permits) if all of the following conditions have been met:

1. The provisions of this chapter have been previously addressed as part of another approval;

2. There have been no material changes in the potential impact to the critical area or buffer since the prior review;

3. There is no new information available that is applicable to any critical areas review of the site or particular critical area;

4. The permit or approval has not expired or, if no expiration date, no more than five years has elapsed since the issuance of that permit or approval; and

5. Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

B. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure that does not further alter or increase the impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of structures substantially damaged by fire, flood, or act of nature must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit, and diligently pursued to completion;

C. 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 storm water;

D. Public and Private Nonmotorized Trails. Public and private nonmotorized trails, except in wetlands, fish and wildlife habitat conservation areas, subject to the following:

1. Trails in wetland buffers or fish and wildlife habitat conservation area buffers shall be located in the outer 25 percent of the buffer where feasible;

2. The trail surface shall meet all other requirements including water quality standards set forth in the storm water management regulations (Chapter 13.26 MMC);

3. Critical area and/or buffer widths shall be increased, where possible, equal to the width of the trail corridor, including disturbed areas; and

4. Trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report;

E. 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:

1. The removal of the following vegetation with hand labor and light equipment:

a. Invasive and noxious weeds;

b. English Ivy (Hedera helix);

c. Himalayan blackberry (Rubus discolor, R. procerus);

d. Evergreen blackberry (Rubus laciniatus);

e. Canary grass; and

f. Other commonly found invasive species.

2. The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

a. The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;

b. Where trimming is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

c. All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease or pest transmittal to other healthy vegetation;

d. Coniferous trees shall be replaced by coniferous trees native to Washington and deciduous trees shall be replaced by deciduous trees native to Washington;

e. Replacement coniferous trees shall be at least eight feet in height. Replacement deciduous trees shall be at least one and one-half inches in diameter (DBH);

f. Trees shall be replaced subject to the following replacement ratios:

i. Removed trees with a DBH greater than nine inches up to 12 inches shall be replaced by four trees;

ii. Removed trees with a DBH greater than 12 inches up to 16 inches shall be replaced by six trees; and

iii. Removed trees with a DBH of 16 inches or more shall be replaced by eight trees;

g. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods or removal that will minimize impacts;

h. Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this title; and

i. Financial guarantees for replacement trees may be required consistent with the provisions of MMC 18.16.200.

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.

4. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, or alteration of the critical area by changing existing topography, water conditions, or water sources.

5. Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;

F. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored; and

G. Boundary Markers. Installation or modification of boundary markers. (Ord. 1671 § 5, 2006).

18.16.100 Single-family residence administrative exception.

The land use administrator may approve the construction, addition to or modification of a single-family residence on an existing legal lot, provided:

A. The applicant shall submit any critical areas report and a mitigation plan following a preapplication review meeting as well as such other documents or studies, as requested by the city.

B. The proposal meets the following requirements:

1. The proposal is the minimum necessary to accommodate the building footprint and access. In no case shall the total impervious surface exceed 5,000 square feet;

2. Access is located so as to have the least impact on the critical area and its buffer;

3. The proposal preserves the functions and values of wetlands and streams to the maximum extent possible;

4. Adverse impacts resulting from alterations of steep slopes are minimized;

5. The proposal includes on-site mitigation to the maximum extent possible;

6. The proposal will not significantly affect drainage capabilities, flood potential, and steep slopes and landslide hazards on neighboring properties; and

7. The proposal first develops noncritical area land, then the critical areas buffer before the critical area itself is developed.

C. The land use administrator may require on-site or off-site mitigation measures to compensate for the loss of the functions and values of the critical areas and buffers and may impose mitigating conditions to the modification or waiver in order to meet the standards of this chapter.

D. This section shall not apply to the following critical areas:

1. Landslide hazard areas that are unmitigatable;

2. Slopes of greater than 70 percent where either the lot or slope are abutting and above Type S and Type F streams or Category I and Category II wetlands, and associated buffer, or an open storm water conveyance system;

3. Type S and Type F streams; or

4. Category I and Category II wetlands. (Ord. 1671 § 5, 2006).

18.16.110 Reasonable use permit.

A. If the application of this chapter would deny all reasonable use of the subject property, the property owner may apply for an exception pursuant to this section.

B. An application for a reasonable use exception 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 43.21C RCW) (SEPA documents).

C. The hearing examiner shall decide on applications for reasonable use exceptions in accordance with Process Type IV of Chapter 17.71 MMC. In addition to the procedures identified in Chapter 17.71 MMC, a neighborhood meeting shall be held prior to approval. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the reasonable use permit criteria in subsection D of this section.

D. Reasonable Use Permit Criteria. All of the following criteria must be met:

1. The application of this chapter would deny all reasonable use of the property;

2. No other reasonable use of the property has less impact on the critical area or its buffer;

3. The impact to the critical area or its buffer is the minimum necessary to allow for reasonable use of the property;

4. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

5. The proposal protects and mitigates impacts to the critical area functions and values consistent with the best available science.

E. Burden of Proof. The applicant has the burden of proving that the application meets the stated reasonable use permit criteria. (Ord. 1761 § 6, 2010; Ord. 1671 § 5, 2006).

18.16.120 Critical areas review process.

A. Preapplication Consultation. Any person preparing to submit an application for development or use of land where the proposal is located within 300 feet of a critical area or its buffer, or is likely to impact a critical area, shall meet with the land use administrator prior to submitting an application for development or other approval. At this meeting, the land use administrator shall discuss the requirements of this chapter; provide a critical areas checklist, available critical areas maps, scientific information, and other materials; outline the review process; and work with the applicant to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements.

B. Initial Review. Following submittal of an application for development or use of land, the land use administrator or his or her designee shall review the application, site conditions, and other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal.

C. Site Inspection. The property owner shall provide the city with reasonable access to the site for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

D. Critical Areas Report Required. If the information available indicates that the project area is within or adjacent to a critical area or buffer, or that the proposed activity is likely to degrade a critical area or buffer, then the applicant shall be required to submit a critical areas report prior to further review of the project. (Ord. 1671 § 5, 2006).

18.16.130 Review criteria.

A. Any permit or approval that includes an alteration to a critical area or its buffer, unless otherwise provided for in this chapter, may be approved, approved with conditions, or denied based on the proposal’s ability to comply with all of the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with MMC 18.16.150, Mitigation sequencing;

2. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

3. The proposal is consistent with the general purposes of this chapter and the public interest;

4. Any alterations permitted to the critical area are mitigated in accordance with MMC 18.16.160, Mitigation requirements;

5. The proposal is consistent with other applicable regulations and standards. A favorable critical areas review should not be construed as endorsement or approval of any underlying permit or approval.

B. The city may condition the underlying permit or approval as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter. Any conditions of approval shall be attached to the underlying permit or approval.

C. The applicant has the burden of proving that a proposal complies with the standards set forth in this chapter. (Ord. 1671 § 5, 2006).

18.16.140 Critical areas report.

A. The critical areas report shall use scientifically valid methods and studies in the analysis of critical areas 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. The critical areas report shall be prepared by a qualified professional.

B. At a minimum, the report shall contain the following:

1. The name and contact information of the applicant, the project area, a description of the proposal, and identification of the permit requested;

2. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

3. Identification and characterization of all critical areas and water bodies within 300 feet of the proposed project area;

4. A statement specifying the accuracy of the report, and all assumptions made and relied upon;

5. An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

6. An analysis of site development alternatives;

7. A description of reasonable efforts made to avoid, minimize, and mitigate impacts to critical areas consistent with MMC 18.16.150;

8. Plans for adequate mitigation, as needed, to offset any impacts;

9. A discussion of the performance standards applicable to the critical area and proposed activity;

10. Financial guarantees to ensure compliance; and

11. Any additional information required for the critical area as specified in the corresponding chapter.

C. Unless otherwise provided, a critical areas report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the city.

D. The required geographic area of the critical areas report may be limited as appropriate if:

1. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

2. The proposed activity will affect only a limited part of the subject site.

E. The city may require additional information to be included in the critical areas report when determined to be necessary to the review of the proposed activity in accordance with this chapter. (Ord. 1671 § 5, 2006).

18.16.150 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 in the sequential order of preference shown below. Mitigation for individual actions may include a combination of these measures.

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

B. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

C. Rectifying the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

D. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

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

F. Compensating for the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

G. Monitoring the hazard or other required mitigation and taking remedial action when necessary. (Ord. 1671 § 5, 2006).

18.16.160 Mitigation requirements.

A. Unless otherwise provided in this chapter, if alteration to the critical area or buffer 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.

B. Mitigation shall be sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

C. Mitigation shall not be implemented until after city review of a critical areas report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical areas report.

D. Where feasible, mitigation projects shall be completed prior to activities that will disturb wetlands. In all other cases, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development. Construction of mitigation projects shall be timed to reduce impacts to fish, wildlife and flora.

E. The city may authorize a one-time temporary delay, up to 120 days, in completing minor construction and landscaping when environmental conditions could produce a high probability of failure or significant construction difficulties. The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety and general welfare of the public. The request for the temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the mitigation plan. The justification must be verified and approved by the city, and include a financial guarantee.

F. Mitigation Plan. When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical areas report. The mitigation plan shall include:

1. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

a. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation goals; identification of resource functions; and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

b. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

c. An analysis of the likelihood of success of the compensation project.

2. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this chapter have been met.

3. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

a. The proposed construction sequence, timing, and duration;

b. Grading and excavation details;

c. Erosion and sediment control features;

d. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

e. Measures to protect and maintain plants until established.

4. Written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

5. Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project, and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five and seven after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.

6. Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met. (Ord. 1671 § 5, 2006).

18.16.170 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. 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. The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. (Ord. 1671 § 5, 2006).

18.16.180 Native growth protection areas.

A. Unless otherwise required in this chapter, native growth protection areas (NGPA) shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below:

1. All landslide hazard areas and buffers;

2. All wetlands and buffers;

3. All habitat conservation areas; and

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

B. Native growth protection areas shall be recorded on all documents of title of record for all affected lots.

C. Native growth protection areas shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restrictions:

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. (Ord. 1671 § 5, 2006).

18.16.185 Critical areas tracts.

A. Critical areas tracts shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below that total 5,000 or more square feet:

1. All landslide hazard areas and buffers;

2. All wetlands and buffers;

3. All habitat conservation areas; and

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

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

C. Critical areas tracts shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. 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 may require that any critical areas 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 ensures the ownership, maintenance, and protection of the tract). (Ord. 1671 § 5, 2006).

18.16.190 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical areas buffers. The following may be allowed in the building setback area:

A. Landscaping;

B. Uncovered decks;

C. Building overhangs if such overhangs do not extend more than 18 inches into the setback area; and

D. Impervious ground surfaces, such as driveways and patios. (Ord. 1671 § 5, 2006).

18.16.200 Security 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 of the applicant an assignment of funds or 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 mitigation security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

B. The security shall be in the amount of 150 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C. The security shall be in the form of assignment of funds, 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. Security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. 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 security 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 security requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical areas 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. 1671 § 5, 2006).

18.16.210 Unauthorized critical areas alterations and enforcement.

A. Unauthorized Alteration. 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.

1. 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 responsible party’s expense to compensate for violation of provisions of this chapter. At a minimum, the structural and functional values of the critical area shall be restored and any hazard shall be reduced to a level equal to, or less than, the predevelopment conditions.

2. All development work shall remain stopped until a restoration plan has been approved by the city. Such a plan shall be prepared by a qualified professional. The city may, 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.

B. Site Inspections. The land use administrator, or his or her designee, is authorized to make site inspections and take such actions as necessary to enforce this chapter. The land use administrator shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

C. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty shall be assessed at a maximum rate of $1,000 per day per violation. (Ord. 1671 § 5, 2006).

Article II. Wetlands

18.16.310 Wetlands designation and classification.

A. Wetlands Designation. Wetlands are designated in accordance with the approved federal wetlands delineation manual and applicable regional supplement. Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

1. Wetlands do not include those artificial wetlands intentionally created from non-wetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.

2. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.

B. Wetlands Classification. Wetlands shall be rated according to the Washington State Wetland Rating System for Western Washington – 2014 update (Department of Ecology Publication No. 14-06-029, October 2014 – Effective January 2015, or as revised). This document contains the definitions, methods and a rating form for determining the categorization of wetlands described below:

1. Category I wetlands include those that receive a score of 23 through 27 based on functions, or those that are rated Category I based on special characteristics as defined in the rating form.

2. Category II wetlands include those that receive a score of 20 through 22 based on functions, or those that are rated Category II based on special characteristics as defined in the rating form.

3. Category III wetlands include those that receive a score of 16 through 19 based on functions.

4. Category IV wetlands score less than 16 points based on functions. (Ord. 1865 § 6, 2015; Ord. 1671 § 5, 2006).

18.16.320 Performance standards.

A. Activities and uses shall be prohibited from wetlands and wetland buffers, except as provided for in this chapter. 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, or that the impacts to the functions and values will be fully mitigated.

B. Category III and IV wetlands less than 4,000 square feet may be exempted or partially exempted from the provisions of this chapter and may be altered by filling or dredging as outlined below.

1. Category III and IV wetlands less than 1,000 square feet are exempt where:

a. The wetland is isolated;

b. The wetland is not associated with a riparian corridor;

c. The wetland is not part of a wetland mosaic, as defined by the Washington State Department of Ecology;

d. The wetland does not contain Washington State Department of Fish and Wildlife-designated priority species or habitat identified as essential for local populations of priority species.

2. Category III and IV wetlands between 1,000 and 4,000 square feet may be exempted from the mitigation sequencing requirement to first avoid impacts where:

a. A critical areas report is performed in accordance with MMC 18.16.140; and

b. The wetland meets the criteria listed in subsection (B)(1) of this section; and

c. The proposed plan includes full mitigation.

C. Wetland Buffers.

1. Buffer Requirements. The standard buffer widths in Table 1 – “Wetland Buffers” have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State wetland rating system for western Washington.

a. The use of the standard buffer widths requires the implementation of the measures in Table 2, where applicable, to minimize the impacts of the adjacent land uses.

b. If an applicant chooses not to apply the mitigation measures in Table 2 – “Required Measures to Minimize Impacts to Wetlands,” then a 33 percent increase in the width of all buffers is required. For example, a 75-foot buffer with the mitigation measures would be a 100-foot buffer without them.

c. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the ecoregion. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should either be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

d. If the wetland is a Category I or II wetland with a habitat score greater than five points and it is located within 300 feet of a priority habitat area as defined by the Washington State Department of Fish and Wildlife, the applicant shall provide a relatively undisturbed vegetated corridor at least 100 feet wide between the wetland and the priority habitat area. The corridor shall be protected for the entire distance between the wetland and the priority habitat through a conservation easement, native growth protection easement or the equivalent.

Table 1: Wetland Buffers

Wetland Category

Buffer width if wetland scores 3 – 4 habitat points

Additional buffer width if wetland scores 5 habitat points

Additional buffer width if wetland scores 6 – 7 habitat points

Additional buffer width if wetland scores 8 – 9 habitat points

Category I:

Based on total score

75 ft

105 ft

165 ft

225 ft

Category I:

Bogs and wetlands of high conservation value

190 ft

225 ft

Category I:

Forested

75 ft

105 ft

165 ft

225 ft

Category I:

Estuarine

150 ft (habitat scores not applicable)

Category II:

Based on score

75 ft

105 ft

165 ft

225 ft

Category III (all)

60 ft

105 ft

165 ft

225 ft

Category IV (all)

40 ft

 

Table 2: Required Measures to Minimize Impacts to Wetlands

Examples of Disturbance

Examples of Activities That Cause the Disturbance

Examples of Measures to Minimize Impacts

Lights

Parking lots

Warehouses

Manufacturing

Residential

•    

Direct lights away from wetland

Noise

Manufacturing

Residential

•    

Place activity that generates noise away from the wetland

•    

If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source

•    

For activities that generate relatively continuous, potentially disruptive noise, such as heavy industry or mining, establish an additional 10' heavily vegetated buffer strip immediately adjacent to the outer wetland buffer

Toxic runoff

Parking lots

Roads

Manufacturing

Residential areas

Application of agricultural pesticides, herbicides, fungicides, fertilizers

Landscaping

•    

Route all new untreated runoff away from wetland

•    

Utilize and require covenants limiting use of pesticides within 150 feet of wetland

•    

Apply integrated pest management programs

Change in water regime

Any impermeable surface

Lawns

Tilling

•    

Infiltrate or treat, detain and disperse into buffer new runoff from impervious surfaces and new lawns

Pets and human disturbance

Residential areas

•    

Use privacy fence OR plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion

•    

Place wetland and its buffer in a separate tract or protect with a conservation easement

Dust

Tilled fields

•    

Use best management practices to control dust

Disruption of corridors or connections

 

•    

Maintain connections to off-site areas that are undisturbed

•    

Restore corridors or connections to off-site habitats by replanting

Stormwater runoff

Stormwater ponds

Other stormwater facilities

•    

Retrofit stormwater detention and treatment for roads and existing adjacent development

•    

Prevent channelized flow from lawns that directly enters the buffer

•    

Use low density development techniques (per PSAT publication on LID techniques)

2. Measurement of Wetland Buffers. Buffers shall be measured from the wetland boundary as surveyed in the field. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland.

3. Where a legally established and constructed public roadway transects a wetland buffer, the department may approve a modification of the standard buffer width to the edge of the roadway, provided:

a. The isolated part of the buffer does not provide additional protection of the wetland; and

b. The isolated part of the buffer provides insignificant biological, geological or hydrological buffer functions relating to the wetland; and

c. The resulting buffer distance is less than 50 percent of the standard or optional buffer for the applicable wetland category, no further reduction shall be allowed.

4. Where a buffer has been previously established after 1996 through a city development review and is permanently recorded on title or placed within a separate tract, the buffer shall be as previously established.

5. Buffer Width Increasing. The land use administrator may require the standard buffer to be increased by the greater of 50 feet or a distance necessary to protect wetland functions and provide connectivity to other wetland and habitat areas for one of the following:

a. To maintain viable populations of existing species listed by the federal or state government as endangered, threatened or sensitive; or

b. To protect wetlands against severe erosion that standard erosion control measures will not effectively address; or

c. When a Category I, II or III wetland is located within 300 feet of:

i. Another Category I, II, or III wetland;

ii. A fish and wildlife habitat conservation area; or

iii. A Type S or F stream as defined in MMC 18.16.620;

the increased buffer distance may be limited to those areas that provide connectivity or are necessary to protect wetland and habitat functions. If the wetland contains variations in sensitivity, increasing the buffer widths will only be done where necessary to preserve the structure, function and value of the wetland.

6. Wetland Buffer Width Averaging. Buffer width averaging may be allowed by the land use administrator if all of the following criteria are met:

a. It will provide additional protection to wetlands or enhance their functions, as long as the total area contained in the buffer on the development proposal site does not decrease;

b. 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;

c. The buffer width is not reduced to less than 50 percent of the standard buffer width at any location; and

d. Buffer width averaging may be used in conjunction with buffer reduction options in this section, provided the total combined reduction does not reduce the buffer to less than 50 percent of standard buffer width at any location.

7. Reduction of Wetland Buffer Widths. Standard buffer widths may be reduced up to 50 percent when buffer width reduction impacts are mitigated and result in equal or greater protection of the wetland functions. Prior to considering buffer reductions, the applicant shall demonstrate application of mitigation sequencing as required in MMC 18.16.150. A plan for mitigating buffer-reduction impacts must be prepared using selected incentive-based mitigation options from the list below. The following incentive options for reducing standard buffer widths shall be considered cumulative up to a maximum reduction of 50 percent of the standard buffer width. In all circumstances where a substantial portion of the remaining buffer is degraded, the buffer reduction plan shall include replanting with native vegetation in the degraded portions of the remaining buffer area and shall include a five-year monitoring and maintenance plan.

a. Installation of biofiltration/infiltration mechanisms: up to 20 percent reduction in the standard buffer width may be allowed for the installation of bioswales, created and/or enhanced wetlands, or ponds supplemental to existing storm drainage and water quality requirements in accordance with Chapter 13.26 MMC.

b. Removal of existing impervious surfaces:

i. Up to 10 percent reduction in standard buffer width if impervious surfaces within the to-be-remaining buffer area are reduced by at least 50 percent; or

ii. Up to 20 percent reduction in standard buffer width if the to-be-remaining buffer area is presently more than 50 percent impervious and all of it is to be removed.

c. Removal of invasive, nonnative vegetation: up to 10 percent reduction in standard buffer width for the removal and extended (minimum five-year) monitoring and continued-removal maintenance of relatively dense stands of invasive, nonnative vegetation from significant portions of the remaining buffer area.

d. If not already required under an existing development proposal, installation of oil/water separators for storm water quality control: up to 10 percent reduction in standard buffer width.

e. Use of pervious material for driveway/road construction: up to 10 percent reduction in standard buffer width.

f. Restoration of off-site area if no on-site area is possible:

i. Up to 10 percent reduction in standard buffer width if restoration area is at a 2:1 ratio or greater; or

ii. Up to 20 percent reduction in standard buffer width if restoration area is at a 4:1 ratio or greater.

g. Removal of significant refuse or sources of toxic material: up to 10 percent reduction in standard buffer width.

8. The land use administrator may also consider buffer reductions for decreasing impacts to buffers using methods such as low impact development (LID).

9. 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.

D. Signs and Fencing of Wetlands.

1. Temporary Markers. The outer perimeter of the wetland 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 inspected by the land use administrator 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 land use administrator may require the applicant to install permanent signs along the boundary of a wetland or buffer.

a. Permanent signs shall be made of a metal face and attached to a metal post, or another material of equal durability.

b. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner in perpetuity.

c. The sign shall be worded as follows or with alternative language approved by the land use administrator:

Protected Wetland Area

Do Not Disturb

Contact [local contact information]

Regarding Uses and Restriction

3. Fencing.

a. The city shall condition any permit or authorization to require the applicant to install a permanent fence at the edge of the wetland buffer, when fencing will prevent future impacts to the wetland.

b. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat. (Ord. 1865 § 7, 2015; Ord. 1671 § 5, 2006).

18.16.330 Wetland mitigation requirements.

A. Mitigation and mitigation plans shall be developed consistent with the Department of Ecology Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans, 2006, or as revised.

B. Compensatory Mitigation General Provisions.

1. Replace wetland impacts with the same or higher category of wetland.

2. Compensatory mitigation shall be conducted on property which shall be protected and managed to avoid further loss or degradation. The applicant or violator shall provide for long-term preservation of the compensation area.

3. Compensatory mitigation shall follow an approved mitigation plan.

4. Enhancement of existing wetlands, other than Category I and Category II wetlands, may be considered for compensation.

5. Compensation shall be completed prior to, or concurrently with, wetland loss, or, in the case of an enforcement action, prior to further development of the site.

C. Mitigation Ratios.

1. Any person who alters or proposes to alter regulated wetlands shall restore or create areas of wetland in order to compensate for wetland losses. The wetlands to be created or restored shall be in kind (i.e., the same type of wetland) and accomplished prior to or concurrently with loss. The ratio of lost wetlands to newly created or restored shall be determined in accordance with Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance, March 2006, or as revised.

2. Mitigation ratios shall be as follows:

Category of Wetland Impacts

Reestablishment or Creation

Rehabilitation Only

Reestablishment or Creation (R/C) and Rehabilitation (RH)

Reestablishment or Creation (R/C) and Enhancement (E)

Enhancement Only

Category I

6:1

12:1

1:1 (R/C) and 10:1 (RH)

1:1 (R/C) and 20:1 (E)

24:1

Category II

3:1

6:1

1:1 (R/C) and 4:1 (RH)

1:1 (R/C) and 8:1 (E)

12:1

Category III

2:1

4:1

1:1 (R/C) and 2:1 (RH)

1:1 (R/C) and 4:1 (E)

8:1

Category IV

1.5:1

3:1

1:1 (R/C) and 1:1 (RH)

1:1 (R/C) and 2:1 (E)

6:1

3. Decreased Replacement Ratio. The city may decrease these ratios under the following circumstances:

a. Documentation by a qualified professional demonstrates that the proposed mitigation actions have a very high likelihood of success;

b. Documentation by a qualified professional demonstrates that the proposed mitigation actions will provide functions and values that are significantly greater than the wetland being impacted; or

c. The proposed mitigation actions are conducted in advance of the impact and have been shown to be successful.

D. On-site compensation is generally preferred over off-site compensation. Off-site compensation allows replacement of wetlands away from the site on which the wetland has been impacted by a regulated activity. The following conditions apply to off-site compensation:

1. Off-site compensation shall occur within the same drainage basin of the same watershed where the wetland loss occurs; provided, that Category IV wetlands may be replaced outside of the watershed if there is no reasonable alternative. In such instances, the storm water storage function provided by Category IV wetlands must be provided for within the design of the development project.

2. Off-site compensation can be allowed only under one or more of the following circumstances:

a. On-site compensation is not feasible due to hydrology, soils, or other factors;

b. On-site compensation is not practical due to probable adverse impacts from surrounding land uses or would conflict with a federal, state or local public safety directive;

c. Potential functions and value at the site of the proposed restoration are greater than the lost wetland functions and value;

d. When the wetland to be altered is of a limited function and value and is degraded, compensation shall be of the wetland community types needed most in the location of compensation and those most likely to succeed with the highest functional value possible.

E. Out-of-kind compensation can be allowed when out-of-kind replacement will best meet the provisions of this section and the mitigation sequence outlined in MMC 18.16.150.

F. Selecting Compensation Sites.

1. Except in the case of cooperative compensation projects in selecting compensation sites, applicants shall pursue locations in the following order of preference:

a. Filled, drained, or cleared sites which were formerly wetlands and where appropriate hydrology exists;

b. Upland sites, adjacent to wetlands, if the upland is significantly disturbed and does not contain a mature forested or shrub community of native species, and where the appropriate natural hydrology exists.

2. Where out-of-kind replacement is accepted, greater restoration/creation ratios may be required.

G. Timing. Construction of compensation projects shall be timed to reduce impacts to existing wildlife and plants. Construction shall be timed to assure that grading and soil movement occurs during the dry season and planting of vegetation shall be specifically timed to needs of the target species.

H. Alternative Compensation Projects. The land use administrator may encourage, facilitate and approve innovative wetland mitigation projects. Advance compensation or mitigation banking are examples of alternative compensation projects allowed under the provisions of this section wherein one or more applicant(s), or an organization with demonstrated capability, may undertake a compensation project together if it is demonstrated that all of the following circumstances exist:

1. Creation of one or several larger wetlands may be preferable to many small wetlands;

2. The group demonstrates the organizational and fiscal capability to act cooperatively;

3. The group demonstrates that long-term management of the compensation area will be provided;

4. There is a clear potential for success of the proposed compensation at the identified compensation site;

5. Conducting compensation as part of a cooperative process does not reduce or eliminate the required replacement ratios outlined above. Exception: where a compensatory mitigation plan including a five-year monitoring agreement is included as a condition of approval, such plan shall allow for 1:1 replacement ratios upon successful completion of the monitoring agreement.

I. Wetlands Enhancement as Mitigation. 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. (Ord. 1671 § 5, 2006).

18.16.340 Subdivisions.

The subdivision and short subdivision of land in wetlands and associated buffers is subject to the following:

A. Land that is located wholly within a wetland or its buffer may not be subdivided.

B. Land that is located partially within a wetland or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is:

1. Located outside of the wetland and its buffer; and

2. Meets the minimum lot size requirements.

C. Access roads and utilities serving the proposed subdivision may be permitted within the wetland and associated buffers only if the city determines that no other feasible alternative exists in and when consistent with this chapter. (Ord. 1671 § 5, 2006).

Article III. Critical Aquifer Recharge Areas

18.16.410 Critical aquifer recharge areas designation.

Critical aquifer recharge areas (CARA) are those areas with a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2). CARA include:

A. Those aquifer recharge areas that have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water.

B. Wellhead protection areas defined by the boundaries of the 10-year time of ground water travel, or boundaries established using alternate criteria approved by the Department of Health in those settings where ground water time of travel is not a reasonable delineation criterion, in accordance with WAC 246-290-135.

C. Those critical aquifer recharge areas delineated by a hydrogeologic study prepared in accordance with the State Department of Ecology guidelines.

D. Susceptible ground water management areas as designated pursuant to Chapter 173-100 WAC.

E. Special protection areas as defined by WAC 173-200-090.

F. Those aquifer recharge areas meeting the criteria for susceptibility or vulnerability established by the State Department of Ecology. (Ord. 1671 § 5, 2006).

18.16.430 Performance standards.

Development on or adjacent to a critical aquifer recharge area shall meet the following requirements:

A. For projects where the construction of structures and improvements, including additions, results in more than 30 percent total site impervious surface area, the applicant shall provide surface water infiltration according to the following:

1. Seventy-five percent of on-site storm water volume generated from the proposed development shall be infiltrated; provided, that a lesser standard may apply or on-site infiltration may be waived when:

a. The applicant demonstrates that infiltration is not a reasonable alternative due to site-specific soil and/or geologic conditions;

b. It is determined that increased saturation of soils would result in an increased risk to existing facilities and/or adjacent properties;

c. Infiltration would result in significant unavoidable impacts to other critical areas or result in an excessive loss of native vegetation; or

d. The applicant proposes an addition of no more than 700 square feet of total new impervious surface compared cumulatively to 2005 levels.

2. If infiltration is not feasible or required, then storm water facilities shall be constructed in accordance with city standards.

3. The design and implementation of infiltration facilities shall follow the Ecology infiltration guidelines specified in the Western Washington Stormwater Manual (2005), referenced in Chapter 13.26 MMC or other technical guidance as approved by the city.

4. To prevent ground water contamination, storm water infiltration may be prohibited for all or a portion of a site that includes use of hazardous substances.

B. Critical Aquifer Recharge Areas. Land use and development activities within critical aquifer recharge areas are exempt from the critical areas review requirements related to critical aquifer recharge areas where all of the below criteria apply. This does not exempt activities from critical areas review required due to the presence of other critical areas.

1. The construction of structures and improvements, including additions, that results in less than 30 percent total site impervious surface area;

2. The land use or development does not:

a. Result in an increase in the use of hazardous substances, other than household chemicals used according to the directions specified on the packaging for domestic applications; or

b. Divert, alter, or reduce the flow of surface or ground waters, or otherwise reduce the recharging of the aquifer;

3. On-site septic systems comply with health district requirements;

4. The land use and development is consistent with the critical aquifer recharge area performance standard in MMC 18.16.440; and

5. The land use and development does not include those prohibited activities listed in MMC 18.16.440.

C. For development that includes hazardous substance processing or handling, or significant diversion, alteration or reduction to the flow of surface or ground waters, or otherwise significantly reduces the recharging of the aquifer, the development must be designed and constructed in accordance with a critical areas report that includes a hydrogeologic assessment of ground water vulnerability. In addition to the general critical areas report requirements of MMC 18.16.140, a hydrogeologic assessment shall include the following site- and proposal-related information at a minimum:

1. Available information regarding geologic and hydrogeologic characteristics of the site including the surface location of all critical aquifer recharge areas located on-site or immediately adjacent to the site, and permeability of the unsaturated zone;

2. Ground water depth, flow direction and gradient based on available information;

3. Currently available data on wells and springs within 1,300 feet of the project area;

4. Location of other critical areas, including surface waters, within 1,300 feet of the project area;

5. Best management practices proposed to be utilized;

6. Historic water quality data for the area to be affected by the proposed activity compiled for at least the previous five-year period;

7. Ground water monitoring plan provisions; and

8. Discussion of the effects of the proposed project on the ground water quality and quantity, including:

a. Predictive evaluation of ground water withdrawal effects on nearby wells and surface water features; and

b. Predictive evaluation of contaminant transport based on potential releases to ground water; and

9. A spill plan that identifies equipment and/or structures that could fail, resulting in an impact. Spill plans shall include provisions for regular inspection, repair, and replacement of structures and equipment that could fail.

D. The proposed activity must comply with the water source protection requirements and recommendations of the federal Environmental Protection Agency, State Department of Health, Seattle-King County public health and Pierce County public health.

E. Applications for development that will significantly affect ground water recharge or quality shall be denied, if such impacts cannot be adequately mitigated.

F. Storage Tanks. All storage tanks proposed to be located in a critical aquifer recharge area must comply with local building code requirements and must conform to the following requirements:

1. Underground Tanks. All new underground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

a. Prevent releases due to corrosion or structural failure for the operational life of the tank;

b. Be protected against corrosion, constructed of noncorrosive material, steel-clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substances; and

c. Use material in the construction or lining of the tank that is compatible with the substance to be stored.

2. Aboveground Tanks. All new aboveground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

a. Not allow the release of a hazardous substance to the ground, ground waters, or surface waters;

b. Have a primary containment area enclosing or underlying the tank or part thereof; and

c. A secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks.

G. Vehicle Repair and Servicing.

1. Vehicle repair and servicing must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Chemicals used in the process of vehicle repair and servicing must be stored in a manner that protects them from weather and provides containment should leaks occur.

2. No dry wells shall be allowed in critical aquifer recharge areas on sites used for vehicle repair and servicing. Dry wells existing on the site prior to facility establishment must be abandoned using techniques approved by the State Department of Ecology prior to commencement of the proposed activity.

H. Spreading or Injection of Reclaimed Water. Water reuse projects for reclaimed water must be in accordance with the adopted water or sewer comprehensive plans that have been approved by the Departments of Ecology and Health.

1. Surface spreading must meet the ground water recharge criteria given in RCW 90.46.010(10) and 90.46.080.

2. Direct injection must be in accordance with the standards developed by authority of RCW 90.46.042.

I. State and Federal Regulations. The uses listed below shall be conditioned as necessary to protect critical aquifer recharge areas in accordance with the applicable state and federal regulations.

Statutes, Regulations, and Guidance Pertaining to Ground Water Impacting Activities 

Activity

Statute – Regulation – Guidance

Aboveground storage tanks

WAC 173-303-640

Animal feedlots

Chapters 173-216 and 173-220 WAC

Automobile washers

Chapter 173-216 WAC, Best Management Practices for Vehicle and Equipment Discharges (WDOE WQ-R-95-56)

Below ground storage tanks

Chapter 173-360 WAC

Chemical treatment storage and disposal facilities

WAC 173-303-182

Hazardous waste generator (boat repair shops, biological research facility, dry cleaners, furniture stripping, motor vehicle service garages, photographic processing, printing and publishing shops, etc.)

Chapter 173-303 WAC

Injection wells

Federal 40 CFR Parts 144 and 146, Chapter 173-218 WAC

Junk yards and salvage yards

Chapter 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Vehicle Recycler Facilities (WDOE 94-146)

Oil and gas drilling

WAC 332-12-450, Chapter 173-218 WAC

On-site sewage systems (large-scale)

Chapter 173-240 WAC

On-site sewage systems (< 14,500 gal./day)

Chapter 246-272 WAC, Local Health Ordinances

Pesticide storage and use

Chapters 15.54 and 17.21 RCW

Sawmills

Chapters 173-303 and 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Log Yards (WDOE 95-53)

Solid waste handling and recycling facilities

Chapter 173-304 WAC

Surface mining

WAC 332-18-015

Wastewater application to land surface

Chapters 173-216 and 173-200 WAC, WDOE Land Application Guidelines, Best Management Practices for Irrigated Agriculture

(Ord. 1671 § 5, 2006).

18.16.440 Uses prohibited from critical aquifer recharge areas.

The following activities and uses are prohibited in critical aquifer recharge areas:

A. Landfills. Landfills, including hazardous or dangerous waste, municipal solid waste, special waste, wood waste, and inert and demolition waste landfills;

B. Underground Injection Wells. Class I, III, and IV wells and subclasses 5F01, 5D03, 5F04, 5W09, 5W10, 5W11, 5W31, 5X13, 5X14, 5X15, 5W20, 5X28, and 5N24 of Class V wells;

C. Mining.

1. Metals and hard rock mining;

2. Sand and gravel mining is prohibited from critical aquifer recharge areas determined to be highly susceptible or vulnerable;

D. Wood Treatment Facilities. Wood treatment facilities that allow any portion of the treatment process to occur over permeable surfaces (both natural and manmade);

E. Storage, Processing, or Disposal of Radioactive Substances. Facilities that store, process, or dispose of radioactive substances; and

F. Other.

1. Activities that would significantly reduce the recharge to aquifers currently or potentially used as a potable water source;

2. Activities that would significantly reduce the recharge to aquifers that are a source of significant baseflow to a regulated stream;

3. Activities that are not connected to an available sanitary sewer system are prohibited from critical aquifer recharge areas associated with sole source aquifers. (Ord. 1671 § 5, 2006).

Article IV. Geologically Hazardous Areas

18.16.510 Geologically hazardous areas designation.

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 Areas. Erosion hazard areas are at least those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “moderate to severe,” “severe,” or “very severe” rill and inter-rill erosion hazard.

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;

b. Those areas mapped by the Department of Ecology (Coastal Zone Atlas) or the Department of Natural Resources (slope stability mapping) as unstable (“U” or Class 3), unstable old slides (“UOS” or Class 4), or unstable recent slides (“URS” or Class 5); or

c. Areas designated as quaternary slumps, earthflows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or 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 a relatively impermeable sediment or bedrock; 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. Slopes having gradients steeper than 80 percent subject to rock fall during seismic shaking;

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

7. Areas that show evidence of, or are at risk from, snow avalanches;

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

9. Any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of consolidated rock. A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least 10 feet of vertical relief.

C. Seismic Hazard Areas. Seismic hazard areas are areas 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. 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. Mine Hazard. Mine hazard areas are those areas underlain by or affected by mine workings such as adits, gangways, tunnels, drifts, or airshafts, and those areas of probable sink holes, gas releases, or subsidence due to mine workings. Factors that should be considered include: proximity to development, depth from ground surface to the mine working, and geologic material.

E. Volcanic Hazard Areas. Volcanic hazard areas are areas subject to pyroclastic flows, lava flows, debris avalanche, inundation by debris flows, lahars, mudflows, or related flooding resulting from volcanic activity.

F. Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the land use administrator to be susceptible to other geological events including mass wasting, debris flows, rock falls, and differential settlement. (Ord. 1671 § 5, 2006).

18.16.520 Additional critical areas report requirements.

In addition to the general critical areas report requirements of MMC 18.16.140, critical areas reports for geologically hazardous areas must comply with the provisions of this section.

A. General Requirements. All critical areas reports for a geologically hazardous area shall contain the following general requirements:

1. Assessment of Geological Characteristics. The report shall include an assessment of the geologic characteristics of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties, and a review of the site history regarding landslides, erosion, and prior grading. Soils analysis shall be accomplished in accordance with accepted classification systems in use in the region. The assessment shall include, but not be limited to:

a. A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard areas addressed in the report;

b. A detailed overview of the field investigations, published data and references; data and conclusions from past assessments of the site; and site-specific measurements, tests, investigations, or studies that support the identification of geologically hazardous areas; and

c. A description of the vulnerability of the site to geologic events;

2. Analysis of Proposal. The report shall contain a hazards analysis including a detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property and affected adjacent properties;

3. Minimum Buffer and Building Setback. The report shall make a recommendation for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis; and

4. Mitigation of Long-Term Impacts. When hazard mitigation is required, the mitigation plan shall specifically address how the activity maintains or reduces the pre-existing level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the pre-existing conditions following abandonment of the activity.

B. Landslide Hazard Areas. In addition to the basic critical areas report requirements, the technical information for a landslide hazard area shall include the following information at a minimum:

1. Site Plan. The critical areas report shall include a copy of the site plan for the proposal showing:

a. The height of slope, slope gradient, and cross-section of the project area;

b. The location of springs, seeps, or other surface expressions of ground water on or within 200 feet of the project area or that have potential to be affected by the proposal; and

c. The location and description of surface water runoff features.

2. Hazards Analysis. The hazards analysis component of the critical areas report shall specifically include:

a. A description of the extent and type of vegetative cover;

b. A description of subsurface conditions based on data from site-specific explorations;

c. Descriptions of surface and ground water conditions, public and private sewage disposal systems, fills and excavations and all structural improvements;

d. An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure;

e. An estimate of the bluff retreat rate that recognizes and reflects potential catastrophic events such as seismic activity or a 100-year storm event;

f. Consideration of the run-out hazard of landslide debris and/or the impacts of landslide run-out on down-slope properties;

g. A study of slope stability including an analysis of proposed cuts, fills, and other site grading;

h. Recommendations for building siting limitations;

i. An analysis of proposed surface and subsurface drainage, and the vulnerability of the site to erosion.

3. Geotechnical Engineering Report. The technical information for a project within a landslide hazard area shall include a geotechnical engineering report prepared by a qualified professional that presents engineering recommendations for the following:

a. Parameters for design of site improvements including appropriate foundations and retaining structures. These should include allowable load and resistance capacities for bearing and lateral loads, installation considerations and estimates of settlement performance;

b. Recommendations for drainage and subdrainage improvements;

c. Earthwork recommendations including clearing and site preparation criteria, fill placement and compaction criteria, temporary and permanent slope inclinations and protection, and temporary excavation support, if necessary; and

d. Mitigation of adverse site conditions including slope stabilization measures and seismically unstable soils, if appropriate.

4. Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge and/or recycling of water prepared in accordance with Chapter 13.26 MMC. The drainage plan should consider on-site septic system disposal volumes where the additional volume will affect the landslide hazard area.

5. Mitigation Plans. Hazard and environmental mitigation plans for erosion and landslide hazard areas shall include the location and methods of drainage, surface water management, locations and methods of erosion control, a vegetation management and/or replanting plan and/or other means for maintaining long-term soil stability.

6. Monitoring Surface Waters. If the land use administrator determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the city.

C. Erosion Hazard Areas. In addition to the basic report requirements, a critical areas report for an erosion hazard area shall also meet the following requirements:

1. Erosion and Sediment Control Plan. For any development proposal on a site containing an erosion hazard area, an erosion and sediment control plan shall be required. The erosion and sediment control plan shall be prepared in compliance with requirements set forth in the locally adopted storm water management regulations, Chapter 13.26 MMC.

2. Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge and/or recycling of water prepared in accordance with the locally adopted surface water management plan. The drainage plan should consider on-site septic system disposal volumes where the additional volume will affect the erosion hazard area.

3. Monitoring Surface Waters. If the land use administrator determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the city.

D. Seismic Hazard Areas. In addition to the basic report requirements, a critical areas report for a seismic hazard area shall also meet the following requirements:

1. The site map shall show all known and mapped faults within 200 feet of the project area or that have potential to be affected by the proposal.

2. The hazards analysis shall include a complete discussion of the potential impacts of seismic activity on the site (for example, forces generated and fault displacement).

3. A geotechnical engineering report shall evaluate the physical properties of the subsurface soils, especially the thickness of unconsolidated deposits, and their liquefaction potential. If it is determined that the site is subject to liquefaction, mitigation measures appropriate to the scale of the development shall be recommended and implemented.

E. Other Geologically Hazardous Areas. In addition to the basic requirements, the land use administrator may require additional technical information to be submitted when determined to be necessary to the review of the proposed activity and the subject hazard. Additional technical information that may be required includes, but is not limited to:

1. Site Plan. The site plan shall show all hazard areas located within 200 feet of the project area or that have potential to be affected by the proposal; and

2. Hazards Analysis. The hazards analysis shall include a complete discussion of the potential impacts of the hazard on the project area and of the proposal on the hazard. (Ord. 1671 § 5, 2006).

18.16.530 Performance standards.

A. The following apply to all geologically hazardous areas:

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

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

b. Will not adversely impact other critical areas;

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

d. Are certified as safe as designed and under anticipated conditions by a qualified professional, licensed in the state of Washington.

2. Critical Facilities Prohibited. Critical facilities shall not be sited within geologically hazardous areas unless there is no other practical alternative.

B. Erosion and Landslide Hazard Areas. Activities on sites containing erosion or landslide hazards shall meet the standards of subsection A of this section and the specific following requirements:

1. Buffer Required. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer shall be determined by the land use administrator 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 areas report prepared by a qualified professional.

a. Minimum Buffer. The minimum buffer shall be equal to the height of the slope 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’s satisfaction 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 determines a larger buffer is necessary to prevent risk of damage to proposed and existing development;

2. Alterations. Alterations of an erosion or landslide hazard area and/or buffer may only occur for activities for which a hazards analysis is submitted and certifies that:

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

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

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

3. Design Standards. Development within an erosion or 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 building code as specified in Chapter 15.05 MMC;

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;

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

4. 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;

5. 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;

6. 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 aboveground and properly anchored and/or designed so that it will continue to function in the event of an underlying slide. Storm water conveyance shall be allowed only through a high-density polyethylene pipe with fuse-welded joints, or similar product that is technically equal or superior;

7. 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 predevelopment conditions, with adequate energy dissipation, into existing channels that previously conveyed storm water 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 storm water runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope;

8. 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.

b. Access roads and utilities may be permitted within the landslide hazard area and associated buffers if the city determines that no other feasible alternative exists;

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

C. Other Hazard Areas. Activities on sites containing or adjacent to other geologically hazardous areas shall meet the standards of this section. (Ord. 1671 § 5, 2006).

Article V. Fish and Wildlife Habitat Conservation Areas

18.16.610 Fish and wildlife habitat conservation areas designation.

All of the following habitat areas are designated habitat conservation areas:

A. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association.

B. Habitats and Species of Local Importance. Habitats and species of local importance are those designated by the city, including those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection through possible retention or recovery of connectivity of habitat features. The following steps shall be taken to nominate habitats or species of local importance:

1. Demonstrate a need for special consideration based on:

a. Declining population;

b. Sensitivity to habitat manipulation; or

c. Commercial or game value or other special value, such as public appeal;

2. Propose relevant management strategies considered effective and within the scope of this chapter;

3. Provide species habitat location(s) on a map (scale 1:24,000). Submitted proposals will be reviewed by the land use administrator and forwarded to the Departments of Fish and Wildlife, Natural Resources and other local and state agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies. The city will hold a public hearing for proposals found to be complete, accurate, potentially effective and within the scope of this chapter. Approved nominations will become designated “habitats or species of local importance” and will be subject to the provisions of this chapter.

C. Waters of the State. Waters of the state include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-030. (Ord. 1671 § 5, 2006).

18.16.620 Water type classification.

Water types shall be classified according to WAC 222-16-030. Water types are described generally below:

A. Type S waters are all waters inventoried as “shorelines of the state” under Chapter 90.58 RCW.

B. Type F waters means segments of natural waters other than Type S waters, which contain fish habitat.

C. Type Np waters include those which are perennial during a year of normal rainfall and do not have the potential to be used by fish. Type Np waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations then the point of perennial flow should be determined using the best professional judgment of a qualified professional.

D. Type Ns waters which are seasonal or ephemeral during a year of normal rainfall and do not have the potential to be used by fish. (Ord. 1671 § 5, 2006).

18.16.630 Additional critical areas report requirements.

In addition to the general critical areas report requirements of MMC 18.16.140, critical areas reports for habitat conservation areas must meet the requirements of this section. Critical areas reports for two or more types of critical areas must meet the report requirements for each relevant type of critical areas.

A. Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the potential presence or absence of designated critical fish or wildlife species or habitat. A critical areas report for a habitat conservation area shall contain an assessment of habitats including the following site- and proposal-related information at a minimum:

1. Detailed description of vegetation on and adjacent to the project area and its associated buffer;

2. Identification of any species of local importance, priority species, or endangered, threatened, sensitive or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;

3. A discussion of any federal, state, or local special management recommendations, including Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

4. A detailed discussion of the direct and indirect potential impacts on habitat by the project, including potential impacts to water quality;

5. A discussion of measures, including avoidance, minimization and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with MMC 18.16.150, Mitigation sequencing; and

6. A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.

B. Additional Information May Be Required. When appropriate due to the type of habitat or species present or the project area conditions, the city may also require the habitat management plan to include:

1. An evaluation by a qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate;

2. A request for consultation with the Department of Fish and Wildlife or the local Native American Indian Tribe or other appropriate agency; and

3. Detailed surface and subsurface hydrologic features both on and adjacent to the site. (Ord. 1671 § 5, 2006).

18.16.640 Performance standards.

A. Alterations Prohibited. Land development and use shall be prohibited from habitat conservation areas and their buffers, except in accordance with this chapter.

B. Mitigation Shall Result in Contiguous Corridors. When mitigation is required to offset impacts, mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors 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.

C. Approvals of Activities May Be Conditioned. The city shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary, to minimize or mitigate any potential adverse impacts. Conditions may include, but are not limited to, the following:

1. Establishment of buffer zones;

2. Preservation of critically important vegetation;

3. Limitation of access to the habitat area, including fencing to deter unauthorized access;

4. Seasonal restriction of construction activities;

5. Establishment of a duration and timetable for periodic review of mitigation activities; and

6. Requirement of a performance security in accordance with MMC 18.16.200, when necessary, to ensure completion and success of proposed mitigation.

D. Buffers.

1. Establishment of Buffers. The city shall require the establishment of buffer areas for activities adjacent to habitat conservation areas when needed to protect the habitat conservation areas. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby.

2. Riparian Habitat Buffers. A riparian habitat buffer shall have the following width, unless a lesser width is allowed pursuant to subsection (D)(4) of this section. Widths shall be measured outward in each direction, on the horizontal plane, from the ordinary high water mark or from the outer edge of the floodway, whichever is greater.

Water Type

Riparian Buffer

S

165 feet

F

150 feet

Np

115 feet

Ns

65 feet

3. Increasing Buffer Widths. The land use administrator has the authority to increase the standard buffer widths when such buffers are necessary for one of the following:

a. To protect priority fish or wildlife using the habitat conservation areas. This determination shall be supported by appropriate documentation from the Departments of Ecology and Fish and Wildlife, showing that the increased buffer width is reasonably related to the protection of the fish and/or wildlife using the HCA;

b. To provide connectivity when a Type S or F water body is located within 300 feet of:

i. Another Type S or F water body;

ii. A fish and wildlife habitat conservation area; or

iii. A Category I, II, or III wetland;

c. When the frequently flooded area exceeds the recommended riparian habitat area width, the riparian habitat area shall extend to the outer edge of the frequently flooded area.

The increased buffer distance may be limited to those areas that provide connectivity or are necessary to protect habitat functions. Increasing the buffer widths will only be done where necessary to preserve the structure, function and value of the habitat.

4. Buffer Averaging. Buffer width averaging may be allowed by the city if:

a. It will provide additional natural resource protection, as long as the total area contained in the buffer on the development proposal site does not decrease;

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

c. The buffer width is not reduced to less than 50 percent of the standard buffer.

5. Buffer Reduction. Buffers may be reduced when buffer reduction impacts are mitigated and result in equal or greater protection of the stream functions. Prior to considering buffer reductions, the applicant shall demonstrate application of mitigation sequencing as required in MMC 18.16.150. A plan for mitigating buffer-reduction impacts must be prepared using selected incentive-based mitigation options from the list below, and is subject to approval by the city. The following incentive options for reducing standard buffer widths shall be considered cumulative up to a maximum reduction of 50 percent of the standard buffer width. In all circumstances where a substantial portion of the remaining buffer is degraded, the buffer reduction plan shall include replanting with native vegetation in the degraded portions of the remaining buffer area and shall include a five-year monitoring and maintenance plan.

a. Installation of biofiltration/infiltration mechanisms: up to 20 percent reduction in standard buffer width for the installation of bioswales, created and/or enhanced wetlands, or ponds supplemental to existing storm drainage and water quality requirements.

b. Removal of existing impervious surfaces:

i. Up to 10 percent reduction in standard buffer width if impervious surfaces within the to-be-remaining buffer area are reduced by at least 50 percent; or

ii. Up to 20 percent reduction in standard buffer width if the to-be-remaining buffer area is presently more than 50 percent impervious and all of it is to be removed.

c. Removal of invasive, nonnative vegetation: up to 10 percent reduction in standard buffer width for the removal and extended (minimum five-year) monitoring and continued-removal maintenance of relatively dense stands of invasive, nonnative vegetation from significant portions of the remaining buffer area.

d. In-stream habitat enhancement:

i. Up to 20 percent reduction in standard buffer width for log structure placement, bioengineered bank stabilization, or culvert removal; or

ii. Up to 30 percent reduction in standard buffer width for improving fish passage and/or creation of side channel or backwater areas.

e. If not already required under an existing development proposal, installation of oil/water separators for storm water quality control: up to 10 percent reduction in standard buffer width.

f. Use of pervious material such as pervious interlocking concrete paving blocks, concrete grid pavers, perforated brick pavers, and compacted gravel for driveway/road construction: up to 10 percent reduction in standard buffer width.

g. Restoration of off-site area if no on-site area is possible:

i. Up to 10 percent reduction in standard buffer width if restoration area is at a 2:1 ratio or greater; or

ii. Up to 20 percent reduction in standard buffer width if restoration area is at a 4:1 ratio or greater.

h. Removal of significant refuse or sources of toxic material: up to 10 percent reduction in standard buffer width.

i. Ten percent for preparation of, and agreement to adhere to, a vegetation management plan that includes appropriate limitations on the site use of fertilizer, herbicides, and pesticides as needed to protect water quality.

j. Ten percent for limiting lawn area to no greater than 20 percent of the lot area. Landscaped areas outside of the lawn and buffer areas shall be maintained or planted in noninvasive vegetation.

The land use administrator may also consider buffer reductions for decreasing impacts to buffers using methods such as low impact development (LID).

E. Signs and Fencing of Habitat Conservation Areas. In accordance with MMC 18.16.320(D).

F. Subdivisions. In accordance with MMC 18.16.340.

G. 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 adhere to the following standards:

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

b. Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques according to 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 adopted shoreline 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.

H. Allowed Uses. The following specific activities may be permitted within a riparian habitat area, pond, lake, water of the state, or associated buffer when the activity complies with the following standards and the adopted shoreline master program:

1. Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, and minor road bridging, less than or equal to 30 feet wide, may be permitted in accordance with an approved critical areas report subject to the following standards:

a. There is no other feasible alternative route with less impact on the environment;

b. The crossing minimizes interruption of downstream movement of wood and gravel;

c. Roads in riparian habitat areas or their buffers shall not run parallel to the water body;

d. Trails shall be located on the outer edge of the riparian area or buffer, except for limited viewing platforms and crossings;

e. Crossings, where necessary, shall only occur as near to perpendicular with the water body as possible;

f. Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical areas report;

g. Road bridges are designed according to the currently adopted versions of the Department of Fish and Wildlife Fish Passage Design at Road Culverts, March 1999, and the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000, or as revised; and

h. Trails and associated viewing platforms shall not be made of continuous impervious materials.

2. Utility Facilities. New utility lines and facilities may be permitted to cross watercourses in accordance with an approved critical areas report if they comply with the following standards:

a. Fish and wildlife habitat areas shall be avoided to the maximum extent possible;

b. Installation shall be accomplished by boring below the maximum depth of scour for the base flood predicted by a qualified professional and hyporheic zone of the water body and channel migration zone, where feasible;

c. The utilities shall cross at an angle greater than 60 degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;

d. Crossings shall be contained within the footprint of an existing road or utility crossing where possible;

e. The utility route shall avoid paralleling the stream or following a down-valley course near the channel; and

f. The utility installation shall not increase or decrease the natural rate of shore migration or channel migration.

3. Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to the city’s review and approval of a critical areas report and the approval of a federal biological assessment by the federal agency responsible for reviewing actions related to a federally listed species.

4. In-Stream Structures. In-stream structures, such as, but not limited to, high flow bypasses, sediment ponds, in-stream ponds, retention and detention facilities, tide gates, dams, and weirs, shall be allowed only as part of an approved watershed basin restoration project approved by the city and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect habitat conservation areas.

5. Storm Water Conveyance Facilities. Conveyance structures may be permitted in accordance with an approved critical areas report subject to the following standards:

a. No other feasible alternatives with less impact exist;

b. Mitigation for impacts is provided;

c. Storm water conveyance facilities shall incorporate fish habitat features; and

d. Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds in order to retard erosion, filter out sediments, and shade the water. (Ord. 1671 § 5, 2006).

Article VI. Frequently Flooded Areas

18.16.710 Frequently flooded areas.

Development sites within frequently flooded areas shall be subject to the provisions of Chapter 15.20 MMC, Flood Damage Prevention. (Ord. 1671 § 5, 2006).