Chapter 14.05 CRITICAL AREAS – ADMINISTRATION, GENERAL PROVISIONS AND DEFINITIONS

A. Critical area regulations (Chapters 14.05 to 14.12 NBMC) is adopted under the authority of the Revised Code of Washington (RCW), Chapter 36.70A RCW (the Growth Management Act).

B. Chapters 14.05 to 14.12 NBMC, commonly referred to as “critical area regulations” shall apply concurrently with review under Chapter 14.04 RCW, State Environmental Policy Act (SEPA), and Chapter 15.44 RCW, Shoreline Management Act (SMA), if applicable.

C. Compliance with the provisions of these chapters does not constitute compliance with other local, state, or federal regulations and permit requirements.

D. Chapter 15.40 NBMC, Floodplain Management, Chapter 14.10 NBMC, Sensitive Areas, and Chapter 14.12 NBMC, Native Growth Protection Easements, are hereby repealed and replaced with Chapters 14.05 through 14.12 NBMC and Figures 1 through 7¹. (Ord. 1243 Exh. B (part), 2006).

14.05.015 Purpose.

The purpose of the critical area (CAO) chapters is to:

A. Protect the public health, safety and welfare by preventing adverse impacts of development;

B. Protect the public and public resources and facilities from injury, loss of life, property damage, or financial loss due to flooding, erosion, landslides, soils subsidence or steep slope failure;

C. Implement the goals, policies, guidelines, and requirements of the city of North Bend comprehensive plan and the Washington State Growth Management Act.

D. Preserve and protect critical areas, with special consideration for the habitat of salmonid fisheries as required by the Washington State Growth Management Act and resident fish habitat as directed by the North Bend comprehensive plan by regulating development within and adjacent to them, while allowing for the reasonable use of private property. (Ord. 1243 Exh. B (part), 2006).

14.05.020 Jurisdiction.

A. The city shall regulate all uses, activities, and development within, adjacent to, or likely to affect one or more critical areas, consistent with the provisions of Chapters 14.05 to 14.12 NBMC.

B. Critical areas regulated include:

1. Wetland areas;

2. Critical aquifer recharge areas;

3. Rivers and streams;

4. Fish and wildlife habitat conservation areas;

5. Geologically hazardous areas;

6. Frequently flooded areas;

C. All areas within the city meeting the definition of one or more critical areas are subject to the provisions of the critical area regulations. (Ord. 1243 Exh. B (part), 2006).

14.05.025 Designation of critical areas.

A. The city has designated critical areas by defining their characteristics. The applicant shall determine and the city shall verify, on a case-by-case basis, in accordance with the definitions in NBMC 14.05.200, whether a critical area exists and is regulated under this chapter, or whether a critical area is on or in close proximity to the subject property that requires a setback or buffer, as required in the applicable critical area buffer.

B. The city has prepared a series of critical area maps, which show approximate boundaries for the following critical areas within the city limits: special flood hazard area map, river channel migration hazard map, critical aquifer recharge area map, wetland area map, erosion/debris flow, rivers and streams, and fish and wildlife habitat areas. Critical areas have been determined by local studies, King County published GIS data, and information provided by other federal or state agencies. These maps provide only approximate boundaries of known features and are not adequate substitutes for more detailed maps and/or studies that could identify alternative locations of known features or additional critical area features not illustrated on the map. Copies of the maps are available for viewing at the North Bend community services department.

C. The city maps and data indicate where some critical areas may exist or do exist based on previous studies completed. These resources may not identify all critical areas and should only be used as a guide. Actual field observations shall supersede information in these resources. (Ord. 1243 Exh. B (part), 2006).

14.05.030 Applicability.

A. The provisions of this title shall apply to all lands, all land uses, 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 has other interest in land within the city of North Bend. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purpose and requirements of this title.

B. The city of North Bend shall not approve any development permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first assuring compliance with the requirements of this title.

C. Approval of a permit or development proposal pursuant to the provisions of this title does not discharge the obligation of the applicant to comply with other provisions of the North Bend Municipal Code. Types of development permits and approvals are defined in NBMC 20.01.004. (Ord. 1243 Exh. B (part), 2006).

14.05.035 Preapplication conference.

When an applicant knows or suspects that critical areas are located on or near the subject property, the applicant is encouraged and may be required as set forth in NBMC 20.02.001 to contact the city prior to finalizing development plans and applying for development permits. Early disclosure of critical areas will reduce delays during the permit review process. (Ord. 1243 Exh. B (part), 2006).

14.05.040 Submittal requirements.

In addition to the information required for a development permit, any entity undertaking development activity that is subject to the provisions of the critical area regulations, may be required to submit a critical area report as described under NBMC 14.05.145, Critical area reports/studies; provided, that these additional requirements shall not apply to actions exempted in NBMC 14.05.085. (Ord. 1243 Exh. B (part), 2006).

14.05.045 Bonds or performance security.

A. Prior to issuance of any permit or approval that authorizes site disturbance under the provisions of this title, the city shall require a performance security to assure that all work or actions required by this title are satisfactorily completed in accordance with the approved plans, specifications, permit or approval conditions, and applicable regulations, and to assure that all work or actions not satisfactorily completed will be corrected to comply with approved plans, specifications, requirements, and regulations to eliminate hazardous conditions, to restore environmental damage or degradation, and to protect the health, safety, and general welfare of the public. Projects outside wetlands, streams, steep slope or erosion soil area and their buffers shall be exempt from a bond or performance security under this title.

B. The city shall require the applicant to post a performance bond or other security, in a form and amount acceptable to the city, for completion of any work required to comply with this code at the time of construction. If the development proposal is subject to mitigation, the applicant shall post a performance bond or other security in a form and amount deemed acceptable by the city to cover long-term monitoring, maintenance, and performance for mitigation projects, to ensure mitigation is fully functional for the duration of the monitoring period.

C. The performance security shall be in the amount of 125 percent of the estimated cost of the completed action or the estimated cost of restoring the functions and values of the critical area at risk, whichever is greater.

D. The performance security shall be in the form of a security 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.

E. Bonds or other security authorized for mitigation by this section shall remain in effect until the city determines, in writing, that the bonded standards have been met. Performance bonds or other security for required mitigation projects shall be held by the city for a minimum of five years to ensure that the mitigation project has been fully implemented and demonstrated to function. Two years after completion of 100 percent of the bonded performance measures, the performance bond may be reduced to the amount of 65 percent of the original amount secured under subsection C of this section, less remaining maintenance and monitoring costs, if the city determines in writing that the bonded standards, less remaining maintenance and monitoring, have been met. For structural projects (e.g., compensatory storage) outside of a wetland or stream buffer, security shall be released upon completion and city acceptance of the work. The bond may be held for longer periods upon written finding by the city that it is necessary to continue to hold the bond to ensure the mitigation project has met all elements of the approved mitigation plan.

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

G. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or to comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or initiate code compliance per Chapter 20.10 NBMC.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 1243 Exh. B (part), 2006).

14.05.055 Notice on title.

A. To inform subsequent purchasers of real property of the existence of critical areas excluding soil liquefaction, Category II critical aquifer recharge areas, and floodplain outside of the floodway or channel migration zone. The owner of any real property containing a critical area or buffer on which a development proposal is submitted and approved shall file a notice on title with the records division of King County.

1. The notice shall run with the property and state the following:

a. The presence of the critical area or buffer on the property;

b. That the use of this property is subject to the provisions of this chapter, or subsequent provisions related thereto; and

c. That limitations on actions in or adjacent to the critical area and buffer may exist.

2. Exceptions to notice on title:

a. Where the work on existing structures or uses is not a substantial improvement to the existing structure or use and does not increase the area of impact to the critical area or its buffer, the notice on title will not be required;

b. Activities within a recorded easement or right-of-way; or

c. Where it has been or will be placed in a critical area tract.

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

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

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

3. Where it has been or will be placed in a critical area tract.

C. The applicant shall submit proof that the notice has been filed for public record prior to issuance of a permit as specified in Chapter 18.38 NBMC. The applicant shall submit proof that the notice will be filed for public record as part of the final plat in the case of subdivisions or lot line adjustments. (Ord. 1243 Exh. B (part), 2006).

14.05.060 Inspection and right of entry.

The director may inspect any development activity to enforce the provisions of this title. The applicant consents to entry upon the site by the director during regular business hours for the purposes of making reasonable inspections to verify information provided by the applicant and to verify that work is being performed in accordance with the approved plans and permits and requirements of this title. (Ord. 1243 Exh. B (part), 2006).

14.05.065 Enforcement.

The provisions of Chapter 20.10 NBMC shall regulate the enforcement of these critical area regulations. (Ord. 1243 Exh. B (part), 2006).

14.05.070 Fees.

A. The applicant is responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review by qualified professionals, and other work prepared in support of, or necessary for, the city of North Bend’s critical areas review processing.

B. The applicant shall also be responsible for the performance, including monitoring and maintenance of critical areas, that may be required as a condition of permit approval. Performance bonds may be withheld until all work is satisfactorily completed, including post-construction mitigation activity.

C. The applicant shall also be responsible for the city review or peer review of performance as constructed and monitoring and maintenance reports.

D. The fees, costs, expenses and deposits as may be required for submittals under subsections A, B and C of this section shall be as set forth in the city’s taxes, rates and fees schedule, as may be amended from time to time. (Ord. 1341 § 1, 2008: Ord. 1243 Exh. B (part), 2006).

14.05.075 Appeals.

Appeals of administrative decisions shall be governed by Chapter 20.06 NBMC. (Ord. 1243 Exh. B (part), 2006).

14.05.080 General exemptions.

The following development, activities, and associated uses shall be exempt from the provisions of this title as provided below, provided they are consistent with the provisions of other local, state, and federal laws and requirements:

A. Emergencies.

1. Emergencies that threaten public health, safety, welfare, or risk of damage to private or public property and that require remedial or preventative action in a time frame too short to allow for review of compliance with the requirements of this title may be exempted by written determination of the director.

2. Emergencies 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 on the critical area and/or its buffer.

3. Within one year 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 area report and mitigation plan prepared in accordance with the procedures outlined in this chapter for a new development permit.

4. Restoration may be waived by resolution of the city council in the case of natural emergencies where a state of emergency has been declared by the mayor pursuant to the city of North Bend’s emergency management plan.

B. Vegetation management, including landscaping and gardening revisions, that is part of ongoing maintenance of buildings and facilities and their associated yard areas in existence prior to the city’s aerial photographs taken April 3, 2004. Vegetation management is also permitted on public rights-of-way, or utility easements, provided the vegetation management activity does not expand further into the critical area or its buffer. Properties within the floodplain, critical aquifer recharge area or seismic liquefaction area and located outside of other critical areas are exempted from the maintenance area expansion restriction of this provision. Vegetation management can take place in native growth protection easements (NGPE) or tracts; provided only state-listed invasive and noxious weeds and additional aggressive nonnative species identified in NBMC 14.05.085(A)(2)(e) shall be removed or cut, hand removal is the only method utilized, no mechanical or chemical activities are employed, and existing overstory provides shade to 50 percent or more of the site.

C. Passive recreation, including, but not limited to, hiking, fishing, river rafting, and wildlife viewing that does not involve the construction of trails.

D. Development or developments that have identified the presence of wetland and stream critical areas, their buffers and habitats associated with these areas, and that have been approved for mitigation of the impact to these critical areas, shall not be subject to additional wetland and stream critical area regulations; provided, that no new development shall occur in the buffers or critical areas established at the time of approval. Developments subject to this exemption specifically include, but are not limited to, the following projects to the extent that they are constructed on the effective date of the ordinance codified in this chapter or vested to construct at a future date under the terms of their specific development approval:

• Mountain Valley Shopping Center Master Site Plan (Ord. 953);

• Nintendo of America Phase I Conditions for Issuance of building permit for distribution center (BP No. 90-180);

• South Fork Interchange Properties Binding Site Plan (No. 85-1);

• Wiley Creek (Factory Stores) Voluntary Standards Agreement (King County Recording No. 8612231692);

• Forster Woods Subdivision (Ord. 797 (rezone and approval of preliminary plat for both single and multifamily);

• R and R Properties Short Plat (No. 96.058110.11);

• Forster Woods Multifamily Master Site Plan (Ord. 887);

• Snoqualm Subdivision (Ord. 1176);

• Laakso/Scott Short Plat approved November 15, 2004;

• Eastside Self Storage Master Site Plan (Ord. 1193);

• Miller Business Park Master Site Plan (Ord. 1129);

• AF Evans Multifamily Master Site Plan (Ord. 1151);

E. Existing and ongoing agriculture as defined in Chapter 18.06 NBMC. Such activities shall not allow critical areas or their buffers that are not currently under agricultural use to be converted to agricultural use. Normal and routine maintenance of existing irrigation and drainage ditches shall be exempt except for those ditches used by salmonids. Agricultural activities shall not be considered ongoing when the use has become nonconforming as defined in NBMC 14.05.090. (Ord. 1243 Exh. B (part), 2006).

14.05.085 Exceptions.

A. Administrative Exceptions.

1. The proponent of the activity shall submit a written request for exception from the director that describes the proposed activity and exception that applies.

2. The director shall review the exception requested to verify that it complies with the title and shall approve or deny the exception. Exceptions that may be requested include:

a. Determination of nonconforming status per NBMC 14.05.090;

b. Operation, maintenance or repair of existing structures, infrastructure improvements, existing utilities, public or private roads, dikes, levees, or drainage systems, if the activity does not increase risk to the critical area functions and values as a result of the proposed operation maintenance or repair;

c. Activities within the Improved Right-of-Way. Replacement, modification, installation or construction of utility facilities, lines, pipes, mains, streets, sidewalks, curbs, gutters, 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 new culverts or bridges, or result in the transport of sediment, subject to the following:

i. The activity shall result in the least possible impact and have no practical alternative with less impact on the critical area and/or its buffer;

ii. An additional, contiguous, and undisturbed critical area buffer shall be provided, equal in area to the disturbed critical area buffer; and

iii. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance.

d. Minor Utility Projects. Utility projects that have minor or short-term impacts to critical areas, as determined by the director in accordance with the criteria below, and that do not significantly impact the functions and values of a critical area(s), such as the placement of a utility pole, anchor, vault, or other small component of a utility facility; provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment. Such exceptions shall meet the following criteria:

i. There is no practical alternative to the proposed activity with less adverse impacts on critical areas and all attempts have been made first to avoid impacts, next to minimize impacts, and lastly to mitigate unavoidable impacts;

ii. The activity will not change or diminish the overall critical area hydrology or flood storage capacity;

iii. The minor utility project shall be designed and constructed to prevent spills and leaks into critical areas;

iv. The activity will not reduce the existing functions and values of the affected critical areas;

v. To the maximum extent practicable, utility corridor access for maintenance is at limited access points into the critical area buffer rather than by a parallel access road; and

vi. The site shall be revegetated to at least its former condition.

e. Nonexempt vegetation removal activities, including enhancement and restoration activities. Removal of state-listed invasive and noxious weeds, and additional aggressive nonnative species including Japanese knotweed, scotch broom, English ivy, Himalayan blackberry, and evergreen blackberry and enhancement and restoration activities for the purpose of restoring functions and values of critical area(s) that do not require construction permits shall be encouraged by individual property owners. These projects shall use approved, limited-spectrum, water-safe herbicides, hand labor, and light equipment that minimizes disturbance to the critical area and buffer. Nonexempt vegetation removal and enhancement and restoration activities in wetlands, streams, and wildlife habitat areas and their buffers shall be coordinated with the director to ensure revegetation of the site with native planting that will preserve or enhance the functions and values of the critical area and/or its buffer.

f. Hazard tree removal; provided, that the hazard is documented by a certified arborist or professional forester.

B. Public Agency or Utility Exception. If the application of this title would prohibit a development proposal by a public agency or public utility that is essential to its ability to provide service, the agency or utility may apply for an exception pursuant to this section. After holding a public hearing pursuant to Chapter 20.03 NBMC (hearing examiner review and approval), the hearing examiner may approve the exception if the hearing examiner finds that:

1. There is no other practical alternative to the proposed development with less impact on the critical areas, based on the demonstration by the applicant of the following factors:

a. The applicant has considered all reasonably possible construction techniques based on available technology that are feasible for the proposed project and eliminated any that would result in unreasonable risk of impact to the critical area; and

b. The applicant has considered all available sites and alignments within the range of potential sites and alignments that meet the project purpose and for which operating rights are available.

2. The proposal minimizes and mitigates unavoidable impacts to critical areas and/or critical areas buffers.

C. Reasonable Use. If the application of this title would deny all reasonable use of the property, the applicant may apply for an exception pursuant to this section. After holding a public hearing pursuant to Chapter 20.03 NBMC (hearing examiner review and approval), the hearing examiner may approve the exception if the hearing examiner finds that:

1. The critical area regulations would otherwise deny all reasonable use of the property;

2. There is no other reasonable use consistent with the underlying zoning of the property that has less adverse impact on the critical area and/or associated buffer;

3. The proposed development does not pose an unreasonable threat to the public health, safety, or welfare on or off the property;

4. Any alteration is the minimum necessary to allow for reasonable use of the property;

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

6. The applicant has proposed a mitigation plan to ensure no net loss of critical area functions and values either on-site or off-site.

7. The applicant may only apply for a reasonable use exception under this subsection if the requested exception provides relief not otherwise available from a variance approval.

D. Variance. Where avoidance of the impact in wetlands, streams, fish and wildlife habitat, and critical aquifer recharge areas is not possible, and the proposal does not qualify for any other type of exception, a variance shall be obtained to permit the impact, except where filling an isolated Class IV wetland as allowed in NBMC 14.06.080. The applicant for the variance shall provide a site plan and description for city review and written analysis that shows:

1. a. The date the applicant acquired or leased the property and the applicable zoning at that time;

b. All critical areas on or adjacent to the subject property;

c. Zoning setbacks per NBMC;

d. The impact on functions and values of critical areas that will result from the proposal, including removal of large trees;

e. Location of septic drainfield and reserve area, if applicable;

f. The opportunity for mitigation to minimize or eliminate the adverse impacts of the proposed variance;

g. An alternative site plan and written analysis of the proposal demonstrating the practicable alternative with the least impact on the critical area and buffer;

h. An explanation of how the variance request is in compliance with subsections (D)(2)(a) through (g) of this section; and

i. Any other information determined by the city of North Bend to be reasonably necessary to analyze the proposal.

2. Variances will be granted on the basis of a finding of consistency with all the criteria listed below. The hearing examiner shall not consider the fact that the property may be utilized more profitably.

a. That the variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and for the subject property;

b. That such variance is necessary, because of special circumstances and/or conditions relating to the size, shape, topography, critical areas, location, or surroundings of the subject property, to provide it with those relative rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located. The phrase “relative rights and privileges” is to ensure that the property rights and privileges for the subject property are considered primarily in relation to current city land-use regulations;

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

d. That alternative development concepts in compliance with applicable codes have been evaluated, and that undue hardship would result if strict adherence to the applicable codes is required;

e. That special conditions and/or circumstances identified in subsection (D) (2)(b) of this section giving rise to the variance application does not result from the actions of the applicant, property owner, or recent prior owner(s) of the subject property;

f. That the applicant for a variance from critical area buffer requirements shall demonstrate to the city of North Bend that the proposed variance is the minimum necessary to provide relief to the applicant, as provided in the NBMC. The applicant for the variance shall provide to the city of North Bend for its review an analysis acceptable to the city of North Bend that addresses:

g. That the granting of the variance will not adversely affect implementation of the comprehensive plan or policies adopted thereto and the general purpose and intent of the zoning title or other applicable regulations.

E. Farm Plan. A farm plan exception may be used on public open space lands designated for farm use in an adopted master plan or on lands that meet the definition of “agricultural land” in Chapter 18.06 NBMC. Farm plans may deviate from the standard of no net loss of function and value for wetlands, streams and wildlife in order to facilitate agricultural activities but shall not be exempt from flood, CARA, or seismic hazard regulations, where applicable. A qualified professional shall evaluate the impact of proposed agricultural activities, including vegetation management, outlined in a farm plan with the standards established in this title. The King County conservation district and the city must approve a written farm plan.

F. Mitigation Required. Any authorized alteration to a wetland or stream or its associated buffer, or alteration to a fish and wildlife habitat conservation area, as approved under subsections B, C, or D of this section, shall be subject to conditions established by the city and shall require mitigation under an approved mitigation plan per NBMC 14.05.165. (Ord. 1243 Exh. B (part), 2006).

14.05.090 Nonconforming uses and structures.

A. Purpose. This section establishes the terms and conditions for continuing nonconforming uses, structures and lots near or in critical areas, which are lawfully established prior to the effective date of the ordinance codified in this title. For those areas outside critical area regulation, Chapter 18.30 NBMC applies.

B. Establishing Status.

1. A legally established nonconforming lot, use, or structure may be continued, transferred or conveyed and/or used as if conforming.

2. The burden of establishing that any nonconforming lot, use, or structure lawfully existed as of the effective date of the ordinance codified in this chapter shall, in all cases, rest with the owner and not with the city.

3. A nonconforming lot, use, or structure may be deemed legally nonconforming by providing documentation that the use in question occurred prior to the CAO in 1993 or was permitted under the CAO regulations from 1993 to 2005, from one of the following:

a. Local agency permit;

b. Orthophoto, aerial photo or planimetric mapping recognized as legitimate by the agency; or

c. Tax record.

C. Maintenance and Repair of Nonconforming Structures. Normal maintenance and incidental repair of legal nonconforming structures shall be permitted; provided, that:

1. The maintenance shall not increase the degree of nonconformity; and

2. The cumulative cost of such maintenance or repair within any 180-day period shall not exceed 50 percent of the assessed valuation of such building, structure, or land (as applicable) at the time such maintenance is completed.

D. Reconstruction or Replacement. Reconstruction, restoration, or repair (and remodeling) of a legal nonconforming structure damaged by fire, flood, earthquake, falling trees or limbs, or other disasters, shall be permitted except where prohibited or conditioned in NBMC 14.12.020, Performance standards – Flood hazard areas; provided, that such reconstruction shall not result in the expansion of the nonconforming structure into or towards the critical area or its buffer, or in a manner that increases the potential impact to the critical area or risk of harm to public safety. Legal nonconforming status will be lost if a building permit is not secured within one year of the date damage is incurred. See applicable critical area performance standards, such as NBMC 14.12.020 for structures in a floodway.

E. Expansion of Nonconforming Use or Structure. Within a critical area or its buffer, no legal nonconforming use or structure may be expanded, enlarged, extended, or intensified in any way (including extension of hours of operation) unless such modification is in full compliance with this title or the terms and conditions of approved permits pursuant to this title, or is allowed as provided below, or is considered an exception as provided in NBMC 14.05.085. Approved expansions must be consistent with standards of the zoning code in which such building, structure, or land use lies and with limitations set forth in NBMC 14.12.020. In no case shall any prohibited uses as designated under NBMC 18.10.030 be permitted to enlarge or expand. The following legal nonconforming expansions or uses are allowed:

1. Vegetation management, including landscaping or gardening revisions on lawfully established and maintained portions of a critical area or its buffer.

2. Fences, decks, and accessory structures that are exempt from a building permit can be established or expanded on lawfully established and maintained portions of a critical area or its buffer without demonstrating full compliance with this title.

3. Building modification or additions that are not considered substantial improvements.

4. Single-family residential building permits are exempt from the requirements of the critical area regulations when the development proposal involves any of the above activities and:

a. Structural modifications to or replacement of an existing single-family residential structure with a new residential structure where construction and associated disturbance does not increase the footprint of any existing structure; and

b. The structure is not located closer to the critical area; and

c. The existing impervious surface within the critical area or buffer is not expanded.

F. Discontinuance of Nonconforming Use or Structure. All legal nonconforming uses shall be encouraged to convert to a conforming use whenever possible. Conformance shall be required when:

1. A change of use is proposed;

2. The use is terminated or discontinued for more than one year, or the structure(s) that houses the use is vacated for more than one year; or

3. The structure(s) or activity that occur on the land in which the use is conducted is proposed for relocation. (Ord. 1243 Exh. B (part), 2006).

14.05.095 Administrative rules.

The department of community development shall have the authority to adopt administrative rules not inconsistent with this chapter as necessary to implement the provisions of this chapter. (Ord. 1243 Exh. B (part), 2006).

14.05.100 General provisions.

The city of North Bend will use the following general methods and mechanisms to accomplish the purposes of the critical area regulations. This section shall be applied to all approved development applications and alterations when action is taken to implement the proposed action. (Ord. 1243 Exh. B (part), 2006).

14.05.110 General approach.

Protection of critical areas shall observe the following sequence, unless part of a restoration plan for a significantly degraded wetland or stream buffer, which is described below:

A. Avoid the impact by refraining from certain actions or parts of an action;

B. Where impact to critical areas or their buffers will not be avoided the applicant shall demonstrate that the impact meets the criteria for granting a variance or other applicable exception as set forth in NBMC 14.05.080 and 14.05.085;

C. Minimize the impacts by limiting the degree or magnitude of the action, by using affirmative steps to avoid or reduce impacts, or by using appropriate technology;

D. Rectify the impact by repairing, rehabilitating, or restoring the affected environment;

E. Reduce or eliminate the impact over time by preservation and maintenance operations;

F. Compensate for the impacts by creating, replacing, enhancing, or providing substitute resources or environments. (Ord. 1243 Exh. B (part), 2006).

14.05.115 Buffers.

A. Measurement of Buffers. All buffers shall be measured from the critical area boundary as surveyed in the field. The width of the buffer shall be determined according to the category of the critical area and the proposed land use.

B. Standard Buffers. The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the critical area functions and values at the time of the proposed activity. If a critical area report determines the vegetation or protection area is inadequate, the city may require an increase in the buffer width or additional native plantings within the standard buffer width. Provisions to reduce or average buffer widths to obtain optimal habitat value are provided under the development standards for each critical area.

C. Significantly Degraded Streams, Wetlands, and Associated Buffers. In areas where the functions of the stream or wetland and stream or wetland buffer are already significantly degraded, restoration may be more beneficial than preservation of degraded areas. Certain expanded uses shall be allowed at the discretion of the director where the applicant demonstrates through a critical area report that greater habitat functions can be obtained in the affected subdrainage basin as a result of mitigation.

D. Averaging Buffers. The director will consider the allowance of wetland or stream buffer averaging only when the buffer area width after averaging will not adversely impact the critical area and/or buffer functions and values.

At a minimum, any proposed buffer averaging shall meet the following criteria:

1. The buffer area after averaging is no less than that which would be contained within the standard buffer;

2. The buffer width shall not be reduced by more than 25 percent at any one point as a result of the buffer averaging;

3. The additional buffer area shall be enhanced if necessary, to achieve no net loss of the critical areas functions and values;

4. The additional buffer is contiguous with the standard buffer;

5. Encroachment into the buffer does not occur waterward of the top of an associated steep slope or into a channel migration zone;

6. Encroachment does not occur into the buffer of an associated wetland except as otherwise allowed.

E. Additional Buffers. The director may require increased buffer sizes when a critical area report shows that it is necessary to protect the function and value of the critical areas when either the critical area is particularly critical to disturbance or the development poses unusual impacts. Examples of circumstances that may require buffers beyond minimum requirements include, but are not limited to:

1. Unclassified uses;

2. The critical area is a fish and wildlife habitat area for spawning or rearing as determined by the Washington State Department of Fish and Wildlife;

3. Land located within the development proposal that is adjacent to the critical area and its associated buffer is classified as an erosion hazard area; or

4. A trail or utility corridor in excess of 10 percent of the buffer width is proposed for inclusion in the buffer.

F. Reducing Buffers. The director may reduce up to 25 percent of the critical area buffer requirement only if sufficient information is available showing the following in a critical area study:

1. The applicant has demonstrated that mitigation sequencing efforts have been appropriately utilized: first avoid, second minimize, and lastly mitigate;

2. The proposed buffer reduction shall be accompanied by a mitigation plan per NBMC 14.05.165 that includes enhancement of the reduced buffer area as necessary to maintain function and value;

3. The reduction will not adversely affect water quality;

4. The reduction will not destroy, damage, or disrupt a significant habitat area; and

5. The reduction is necessary for reasonable development of the subject property.

6. Where an existing legally established roadway transects the buffer, the minimum buffer width may be reduced to the prism of the roadway improvement if the part of the buffer sought to be reduced:

a. Does not provide additional protection to the proposed development or the stream; and

b. Is enhanced in another area where buffer averaging is permitted. (Ord. 1243 Exh. B (part), 2006).

14.05.120 Building setback line (BSBL).

A BSBL is established to reduce conflict with hazardous trees and vegetation buffers, to enhance wildfire safety, and to prevent construction intrusions into certain buffer areas as follows. A minimum BSBL of 15 feet is required from the edge of any fish and wildlife buffer, stream or wetland buffer, or erosion and landslide buffer. The setback shall be identified on the site plan, which is filed as an attachment to the notice on title required by NBMC 14.05.055. (Ord. 1243 Exh. B (part), 2006).

14.05.125 Land segregation.

Subdivisions, short subdivisions, boundary line adjustments, and planned residential developments of land in critical areas and associated buffers are subject to the following:

A. Land that is wholly within a wetland or stream critical area or associated buffer may not be subdivided except as approved under a reasonable use exception.

B. Land that is partially within a wetland or stream critical area or associated buffer area may be subdivided or the boundary line adjusted; provided, that an accessible and contiguous portion of each new or adjusted lot is:

1. Located outside the critical area and buffer; and

2. Large enough to accommodate the intended use.

C. Accessory roads and utilities serving the proposed subdivision may be permitted within the wetland or stream critical area and associated buffer only if the city determines that no other feasible alternative exists as determined by securing an exception as provided in NBMC 14.05.085. (Ord. 1243 Exh. B (part), 2006).

14.05.130 Native growth protection easements.

A. As part of the implementation of approved development applications and alterations, critical areas and their buffers (except soil liquefaction seismic hazard areas, floodplains including floodways, and Category II critical aquifer recharge areas) shall remain undeveloped and shall be designated as native growth protection easements (NGPE).

B. The native growth protection easement (NGPE) is an easement granted to the city for the protection of a critical area and/or its associated buffer. NGPEs shall be required as specified in these rules and shall be recorded on final development permits and all documents of title and with the county recorder at the applicant’s expense. The required language is as follows:

Dedication of a Native Growth Protection Easement (NGPE) conveys to the public a beneficial interest in the land within the easement. This interest includes the preservation of existing vegetation for all purposes that benefit the public health, safety, and welfare, including control of surface water and erosion, maintenance of slope stability, visual and aural buffering, and protection of plant and animal habitat. The NGPE imposes upon all present and future owners and occupiers of land subject to the easement the obligation, enforceable on behalf of the public of the city of North Bend, to leave undisturbed all trees and other vegetation within the easement. The vegetation in the easement may not be cut, pruned, covered by fill, removed, or damaged without express written permission from the city of North Bend.

C. When the subject development is a formal subdivision, short subdivision (short plat), binding site plan, contract rezone, master site plan, site plan/design review, or planned residential development (PRD), the critical area and its buffers shall be placed in a critical area tract and designated as an NGPE, as described below. (Ord. 1243 Exh. B (part), 2006).

14.05.135 Critical area tracts.

Critical area tracts are legally created nonbuilding land areas containing critical areas and their buffers that shall remain undeveloped pursuant to the critical area regulations. Separate critical area tracts are not an integral part of the lot in which they are created; are not intended for sale, lease or transfer; and shall be incorporated in the area of the parent lot for purposes of subdivision and method of allocation and minimum lot size. The following development proposals shall identify such areas as separate tracts:

A. Subdivisions;

B. Short subdivisions;

C. Planned residential developments;

D. Contract rezones;

E. Binding site improvement plans;

F. Master site plans.

Responsibility for maintaining tracts shall be held by a homeowners association, adjacent lot owners (in an undivided interest), the permit applicant or designee, or other appropriate entity as approved by the city of North Bend.

The following note shall appear on the face of all plats, PRDs, binding site improvement plans, master site plans, site plan/design review, or contract rezones and shall be recorded on the title for all affected lots:

NOTE: All lots adjoining separate tracts identified as native growth protection easements are jointly and severally responsible for the maintenance and protection of the tracts. Maintenance includes ensuring that no alteration occurs within the separate tract and that vegetation remains undisturbed unless the express written permission of the city of North Bend has been received.

(Ord. 1243 Exh. B (part), 2006).

14.05.140 Marking and/or fencing.

A. Temporary Markers. The outer perimeter of a wetland, stream, fish and wildlife conservation area, steep slope and its associated buffer, and the limits of these areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in a manner approved by the city so no unauthorized intrusion will occur. Markers or fencing are subject to inspection by the director or his designee prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until directed by the director, or until permanent signs and/or fencing, if required, are in place.

B. Permanent Markers. Following the implementation of an approved development plan or alteration, the outer perimeter of the critical area or buffer that is not disturbed shall be permanently identified. This identification shall include permanent wood or metal signs on treated wood or metal posts. Signs shall be worded as follows:

CRITICAL AREA BOUNDARY

Protection of this natural area is in your care. Alteration or disturbance is prohibited. Please call the city of North Bend for more information. Removal of this sign is prohibited.

The director shall approve sign locations during review of the development proposal. Along residential boundaries, the signs shall be at least four inches by six inches in size and spaced one per centerline of lot or every 75 feet for lots whose boundaries exceed 150 feet. At road endings, crossings, and other areas where public access to the critical area is allowed, the sign shall be a minimum of 18 inches by 24 inches in size and spaced one every 75 feet.

C. Permanent Fencing. The director shall require permanent fencing where the development proposal creates a substantial likelihood of intrusion into the critical area. The director shall also require such fencing when, subsequent to approval of the development proposal; intrusions threaten conservation of critical areas. The director may use any appropriate enforcement actions including, but not limited, to fines, abatement, or permit denial to ensure compliance. The fencing may provide limited access to the stream or wetland for stock watering purposes, but shall minimize bank disturbance consistent with best management practices (BMPs) for livestock watering. (Ord. 1243 Exh. B (part), 2006).

14.05.145 Critical area reports/studies.

A. Timing of Studies. When an applicant submits an application for any development proposal, it shall indicate whether any critical area or buffers are located on or could be adjacent to the site. The presence of critical areas may require additional studies and time for review. However, disclosure of critical areas early will reduce delays during the permit review process. If the applicant should disclose that there are no known critical areas, further studies may be required for verification.

B. Studies Required.

1. When sufficient information to evaluate a proposal is not available, the director shall notify the applicant that a critical area study and report is required.

2. If a critical area report is required, the director may retain independent qualified professionals, at the applicant’s expense, to assist in review of studies that are outside the range of staff expertise.

3. A qualified professional, as defined in NBMC 14.05.200, shall prepare critical area reports. A critical area report shall include all information required pursuant to subsection C of this section. A monitoring and maintenance program shall be required to evaluate the effectiveness of mitigating measures.

4. Studies generated as part of an expanded SEPA environmental checklist or an environmental impact statement may qualify as a critical area report if the project is developed in enough detail to have provided an evaluation of site-specific impacts and mitigation measures.

C. General Critical Area Report Requirements.

1. A critical area report shall have three components: (a) a site analysis, (b) an impact analysis, and (c) proposed mitigation measures. More or less detail may be required for each component depending on the size of the project, severity, and potential impacts. The director may waive the requirement of any component when adequate information is otherwise available.

2. In addition to the specific requirements specified under each critical area, all studies shall contain the following information unless it is already available in the permit application:

a. Site map of the project area at a 1:10 or 1:20 scale, or as directed, including:

i. Reference streets and property lines;

ii. Existing and proposed easements, rights-of-way, trail corridors, and structures;

iii. Contour intervals (two feet); steep slope areas to be highlighted;

iv. The edge of the 100-year floodplain, and edge of the floodway if appropriate;

v. Channel migration zone boundaries if appropriate;

vi. Shoreline management program environmental designation and zone, if appropriate;

vii. Hydrology: Show surface water features both on and adjacent to the site; show any water movement into, through, and off the project area; show stream and wetlands classifications, show seeps, springs, and saturated soil zones;

viii. Identification of all site preparation, grading activities, and dimensioned location of proposed structures, roads, stormwater facilities, impervious surfaces, and landscaping proposed in or near critical area(s);

ix. All drainage plans for discharge of stormwater runoff from developed areas;

x. Location of buffer and building setback lines (if required or proposed);

xi. Location of critical area tract and/or easement.

b. Written report detailing:

i. How, when, and by whom the report was performed (including methodology and techniques);

ii. Weather conditions during and prior to any field studies if relevant to conclusions and recommendations;

iii. Description of the project site and its existing condition, including degraded critical areas;

iv. Description of existing critical area and buffer functions and values;

v. Description of habitat features present and determination of actual use of the critical area by any endangered, threatened, rare, sensitive, or unique species of plants or wildlife as listed by the federal government or state of Washington;

vi. The total acreage of the site in each type of critical area(s) and associated buffers;

vii. The proposed action; including, but not limited to, description of filling, dredging, modification for stormwater detention or discharge, clearing, grading, restoring, enhancing, grazing, or other physical activities that change the existing vegetation, hydrology, soils or habitat;

viii. When alteration to a critical area or its buffer is proposed, an explanation why the impact is unavoidable and how it meets the criteria for a defined exception;

ix. Description of potential environmental impact of the proposed project to the critical area(s), demonstration of mitigation sequencing approach, and description of any proposed mitigation measures;

x. Habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and critical area functions;

xi. The mitigation measures proposed to avoid or lessen the project impacts (during construction and permanently);

xii. When alteration to the critical area or its buffer is proposed, a mitigation plan as specified;

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

xiv. Description of local, state, and federal regulations and permit requirements. (Ord. 1243 Exh. B (part), 2006).

14.05.150 Mitigation timing.

The buffer for a created, restored, or enhanced critical area proposed as compensation for approved alterations shall be the same as the buffer required for the category of the created, restored, or enhanced critical area. For the purposes of restoration, creation, or enhancement, buffers shall be fully vegetated and shall not include lawns, walkways, driveways, and other mowed or paved areas. Mitigation shall be completed immediately following disturbances and prior to use or occupancy of the activity or development, or when seasonally appropriate. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and water quality. (Ord. 1243 Exh. B (part), 2006).

14.05.155 General mitigation requirements.

The following section provides general mitigation requirements applicable to alteration of critical areas. Additional specific mitigation requirements are found under the sections for the particular type of critical area.

A. Restoration/rehabilitation is required when a critical area or its buffers have been altered on a site in violation of city regulations prior to development approval, and as a consequence its functions and values have been degraded. Restoration is also required when the alteration occurs in violation of city regulations during the construction of an approved development proposal. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan.

B. Restoration/rehabilitation is required when the critical area or its buffers will be temporarily altered during the construction of an approved development proposal. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan.

C. Compensation. The goal of compensation is no net loss of critical area and/or buffer functions on a development site. Compensation includes replacement or enhancement of the critical area or its buffer depending on the scope of the approved alteration and what is needed to maintain or improve the critical area and/or buffer functions. Compensation for approved critical area or buffer alterations shall meet the following minimum performance standards and shall occur pursuant to an approved mitigation plan:

1. The buffer for a created, restored, or enhanced critical area proposed as compensation for approved alterations shall be the same as the buffer required for the existing critical area. For the purposes of restoration, creation, or enhancement, buffers shall be fully vegetated and shall not include lawns, walkways, driveways, and other mowed or paved areas.

2. On-Site and In-Kind. Except as noted below or otherwise approved, all critical area impacts shall be compensated for through restoration or creation of replacement areas that are in-kind, on-site, and of similar or better critical area category. The preferred mitigation for impacts to Class IV wetlands and Type Ns streams shall be off-site and in-kind. Mitigation shall be timed prior to or concurrent with the approved alteration and shall have a high probability of success.

3. Off-Site and In-Kind. The director may consider and approve off-site compensation where the applicant demonstrates that greater biological and hydrological functions and values will be achieved. The preferred location for off-site mitigation is areas within or adjoining designated fish and wildlife habitat corridors. The compensation may include restoration, creation, or enhancement of critical areas. The compensation ratios specified under the “on-site” compensation section for each critical area shall apply for off-site compensation as well. The director may request contractual linkage to the off-site parcel to ensure its availability and landowner willingness.

4. Increased Replacement Ratios. The director may increase the ratios under the following circumstances:

a. Uncertainty exists as to the probable success of the proposed restoration or creation due to an unproven methodology or proponent; or

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

c. The impact was unauthorized.

5. Decreased Replacement Ratios. The director may decrease the ratios required in the “on-site” ratios specified under the compensation section of each critical area when all the following criteria are met:

a. A minimum replacement ratio of 1:1 will be maintained;

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

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

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

6. Critical Area Enhancement as Mitigation.

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

b. At a minimum, enhancement acreage shall be double the acreage required for creation acreage under the “on-site” compensation section specified under each critical area. The ratios shall be greater than double the required acreage when the enhancement proposal would result in minimal gain in the performance of critical area functions currently provided in the critical area.

c. Mitigation ratios for enhancement in combination with other forms of mitigation shall range from 6:1 to 3:1. Off-site enhancement as mitigation shall be preferred in Class IV wetlands and Type Ns streams.

D. Mitigation shall be completed immediately following disturbances and prior to use or occupancy of the activity or development, or as soon as seasonally appropriate. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, water quality, and vegetation. (Ord. 1243 Exh. B (part), 2006).

14.05.160 Best available science.

Any approval of mitigation to compensate for impacts to a critical area or its buffer shall be supported by the best available science. (Ord. 1243 Exh. B (part), 2006).

14.05.165 Mitigation plans.

A. Mitigation or alterations to critical areas shall achieve equivalent or greater biological functions and shall include mitigation for adverse impacts upstream and downstream of the development proposal site. Mitigation sites for wetlands, streams, and fish and wildlife habitat conservation areas shall be located to achieve contiguous habitat corridors in accordance with a mitigation plan that is part of an approved critical area report to minimize the isolating effects of development on habitat areas. Mitigation of aquatic habitat shall be located within the same aquatic ecosystem as the area disturbed. Mitigation for floodplain impacts shall be located in the same drainage subbasin as the area disturbed. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

B. The scope and content of a mitigation plan shall be decided on a case-by-case basis; as the impacts to the critical area increase, the mitigation measures to offset these impacts will increase in number and complexity. The city of North Bend shall determine during the review of the requested studies which of the components listed in subsection C of this section shall be required as part of the mitigation plan. Key factors in this determination shall be the size and nature of the development proposal, the nature of the impacted critical areas, and the degree of cumulative impacts on the critical area from other development proposals.

C. At a minimum, the following components shall be included in a complete mitigation plan:

1. Baseline Information. Provide existing conditions information for both the impacted critical areas and the proposed mitigation site as described in NBMC 14.05.145(C), General Critical Area Report Requirements, and additional report requirements for each critical area (NBMC 14.06.060, 14.09.090, 14.11.090 and 14.12.060).

2. 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, 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 completing site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area; and

b. A review of the best available science supporting the proposed mitigation.

3. 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 title have been met. They may include water quality standards, species richness and diversity targets, habitat diversity indices, or other ecological, geological, or hydrological criteria.

4. Detailed Construction Plan. These are the written specifications and descriptions of mitigation technique. This plan should include the proposed construction sequencing, grading and excavation details, erosion and sedimentation control features, a native planting plan, detailed site diagrams, and any other drawings appropriate to show construction techniques or anticipated final outcome.

5. Monitoring and/or Evaluation Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project, as detailed under NBMC 14.05.170.

6. Contingency Plan. This section identifies potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates projected performance standards have not been met. (Ord. 1243 Exh. B (part), 2006).

14.05.170 Monitoring.

A. The city requires long-term monitoring of development proposals, unless otherwise accepted in NBMC 14.05.045(E), where alteration of critical areas or their buffers are approved. Such monitoring shall be an element of the required mitigation plan and shall document and track impacts of development on the functions and values of critical areas, and the success and failure of mitigation requirements. Monitoring may include, but is not limited to:

1. Establishing vegetation transects or plots to track changes in plant species composition over time;

2. Using aerial or other photography to evaluate vegetation community response;

3. Sampling surface and ground waters to determine pollutant loading;

4. Measuring base flow rates and stormwater runoff to model and evaluate water quantity predictions;

5. Measuring sedimentation rates;

6. Sampling fish and wildlife populations to determine habitat utilization, species abundance, and diversity; and

7. Sampling of water temperatures for wetlands and streams.

B. The city may require that a qualified professional, at the direction of the city and at the applicant’s expense, monitor the development proposal site during construction and for a sufficient period of time after construction to ensure satisfactory mitigation of impacts on the critical area. The qualified professional shall monitor per the provisions outlined in the approved mitigation plan based on the conditions or restrictions imposed by the city and such administrative rules as the planning official shall prescribe.

C. Performance Bond. Prior to issuance of any permit or approval that authorizes site disturbance, the director shall require performance security as specified in NBMC 14.05.045, Bonds or performance security. (Ord. 1243 Exh. B (part), 2006).

14.05.175 Contingencies/adaptive management.

When monitoring reveals a significant deviation from predicted impacts or a failure of mitigation measures, the applicant shall be responsible for appropriate corrective action. Contingency plans developed as part of the original mitigation plan shall apply, but may be modified to address a specific deviation or failure. Contingency plan measures shall be subject to the monitoring requirement to the same extent as the original mitigation measures. (Ord. 1243 Exh. B (part), 2006).

14.05.180 Habitat management plans.

A. A habitat management plan may be required by the director when the critical area review of a development proposal determines that the proposed activity will have an adverse impact on a fish and wildlife habitat conservation area.

B. A habitat management plan, prepared by a qualified biologist in consultation with the Washington State Department of Fish and Wildlife (WDFW), shall address the following mitigation measures:

1. Reduction or limitation of development activities within the critical area and buffers;

2. Use of low impact development techniques or clustering of development on the subject property to locate structures in a manner that preserves and minimizes the adverse effects to habitat areas;

3. Seasonal restrictions on construction activities on the subject property;

4. Preservation and retention of habitat and vegetation on the subject property in contiguous blocks or with connection to other habitats that have a primary association with a listed species;

5. Establishment of expanded buffers around the critical area;

6. Limitation of access to the critical area and buffer; and

7. The creation or restoration of habitat area for listed species. (Ord. 1243 Exh. B (part), 2006).

14.05.185 Limited density transfer (on-site).

A. Density Credit of Critical Areas.

1. An owner of property containing a critical area may be permitted to transfer the unusable density in the critical area to another portion of the same site or property that does not contain a critical area, subject to the limitations of this section.

2. Up to 25 percent of the density that could be achieved on the critical area and buffer portion of the site can be transferred to a portion of the site not containing a critical area, subject to the following:

a. The density limitation of the underlying zoning classification;

b. The minimum lot size of the underlying zoning classification may be reduced approximately 25 percent in order to accommodate the transfer in densities;

c. Applicable bulk and dimensional standards established in Table 18.10.040 of the North Bend Municipal Code shall be reviewed by the director and may be modified and subject to approval of an administrative adjustment to standards (AATs) per Table 18.10.040(1); and

d. The area to which density is transferred shall not be constrained by other critical areas regulation. (Ord. 1243 Exh. B (part), 2006).

14.05.190 Transfer of development rights (off-site).

North Bend has created a transfer of development rights voluntary program (Chapter 18.36 NBMC) to aid in the preservation of lots with critical areas. Development rights may be transferred off-site so that the applicant may realize property rights from critical areas. (Ord. 1243 Exh. B (part), 2006).

14.05.200 Definitions.

“Active fault” means a fault that is considered likely to undergo renewed movement within a period of concern to humans. Faults are commonly considered to be active if the fault has moved one or more times in the last 10,000 years.

“Additions” means improvements to an existing building or structure, the cost of which does not exceed 50 percent of the assessed value of the total structure or result in an increase greater than 25 percent of the building footprint (up to a maximum of 500 square feet) before the addition is started. Additions must share a common wall (one full side) with the original structure.

“Adjacent” means immediately adjoining (in contact with the boundary of the influence area) or within a distance less than that needed to separate activities from critical areas to ensure protection of the functions and values of the critical areas. Adjacent shall mean any activity or development located:

1. On-site immediately adjoining a critical area; or

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

“Alteration” means any human-induced change in an existing condition of a critical area or its buffer. Alterations include, but are not limited to: grading, filling, dredging, channelizing, clearing (vegetation), applying pesticides, discharging waste, construction, compaction, excavation, modifying for stormwater management, relocating, or other activities that change the existing landform, vegetation, hydrology, wildlife, or habitat value, of critical areas.

“Anadromous fish” means fish that spawn in fresh water and mature in the marine environment.

“Appeal” means a request for a review of the city director’s interpretation of any provision of the critical area regulations or a request for a variance.

“Applicant” means a person who files an application for a permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a contract purchaser, or the authorized agent of such a person.

“Aquifer recharge area” means an area that, due to the presence of certain soils, geology, and surface water, acts to recharge ground water by percolation.

“Area of shallow flooding” means a designated AO or AH zone on the flood insurance rate map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident.

“Area of special flood hazard” means the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year.

“Assessed value” means assessed valuation shall be as established by the King County assessor’s office, unless otherwise provided by a market appraisal institute (MAI) appraisal.

“Base flood” means a flood having a one percent chance of being equaled or exceeded in any given year. Also referred to as the “100-year flood.” Designated on flood insurance rate maps with the letters A or V.

“Base flood elevation” means the water surface elevation of the base flood. It shall be referenced to the North American Vertical Datum of 1988 (NAVD).

“Basement” means any area of a building having its floor subgrade (below ground level) on all sides.

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925.

“Best management practices” means conservation practices or systems of practice and management measures that:

1. Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, and sediment;

2. Minimize adverse impacts to surface water and ground water flow, circulation patterns, and the chemical, physical, and biological characteristics of wetlands;

3. Protect trees and vegetation designated to be retained during and following site construction; and

4. Provides standards for proper use of chemical herbicides within critical areas.

“Buffer” means the zone contiguous with a critical area that is required for the continued maintenance, function, and structural stability of the critical area.

“Building setback line (BSBL)” means a line beyond which the foundation of a structure shall not extend.

“Channel migration zone (CMZ)” means the lateral extent of likely movement along a stream or river during the next 100 years as determined by evidence of active stream channel migration movement over the past 100 years.

“City” means the city of North Bend.

“Clearing” means the cutting, killing, grubbing, or removing of vegetation or other organic material by physical, mechanical, chemical, or any other similar means.

“Compensation project” means actions specifically designed to replace project-induced critical area and buffer losses. Compensation project design elements may include, but are not limited to, land acquisition, planning, construction plans, monitoring, and contingency actions.

“Compensatory mitigation” means types of mitigation used to replace project-induced critical area and buffer losses or impacts.

“Concentrated animal feeding operation (CAFO)” means the Department of Ecology regulates and permits CAFO’s areas where animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period. The CAFO permit does not automatically kick in until a facility has a certain number of nonaquatic animals (i.e., 1,000 cattle or 700 dairy cows). Smaller facilities may also be regulated if they are discharging to a waterbody.

“Critical aquifer recharge area (CARA)” means areas designated by WAC 365-190-080(2) that are determined to have critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2).

“Critical facility” means a facility for which even a slight chance of flooding, inundation, or impact from a hazard event might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency installations, and installations that produce, use, or store hazardous materials or hazardous waste.

“Designated floodway” means the regulatory floodway that has been delineated on the city’s flood insurance rate map (FIRM).

“Developable area” means a site or portion of a site that may be utilized as the location of development, in accordance with the rules of this chapter.

“Development” means any manmade change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation, drilling operations (that require a permanent aboveground structure), or ongoing storage of equipment or materials located within the area of special flood hazard.

“Development permit” means any permit issued by the city of North Bend, or other authorized agency, for construction, land use, or the alteration of land.

“Director” refers to the community services director for the city of North Bend.

“Erosion” means the process by which soil particles are mobilized and transported by natural agents such as wind, rain, frost action, or stream flow.

“Erosion hazard area” means those areas that, because of natural characteristics including vegetative cover, soil texture, slope gradient, and rainfall patterns, or human-induced changes to such characteristics, are vulnerable to erosion.

“FEMA – Federal Emergency Management Agency” means the agency that oversees the administration of the National Flood Insurance Program (44 CFR).

“Fish and wildlife habitat conservation areas” means areas necessary for maintaining species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created as designated by WAC 365-190-080(5). These areas include:

1. Areas with which state or federally designated endangered, threatened, and critical species have a primary association;

2. Habitats of local importance, including, but not limited to, areas designated as priority habitat by the Department of Fish and Wildlife;

3. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish and wildlife habitat;

4. Waters of the state, including lakes, rivers, ponds, streams (and their associated wetlands), inland waters, underground waters, salt waters and all other surface water and watercourses within the jurisdiction of the state of Washington;

5. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;

6. State natural area preserves and natural resource conservation areas; and

7. Land essential for preserving connections between habitat blocks and open spaces.

“Flood” or “flooding” mean a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland waters and/or the unusual and rapid accumulation of runoff or surface waters from any source.

“Flood hazard area” means any area subject to inundation by the base flood or risk from channel migration including, but not limited to, an aquatic area, wetland, or closed depression.

“Flood insurance rate map (FIRM)” means the official map on which the Federal Insurance Administration has delineated both the areas of special flood hazard and the risk premium zones (44 CFR Part 59).

“Flood insurance study” means the official report provided by the Federal Insurance Administration that includes the flood profiles, the FIRM, and the water surface elevation of the base flood (44 CFR Part 59).

“Flood protection elevation” means an elevation that is one foot or more above the base flood elevation.

“Floodplain” means any land area susceptible to being inundated by floodwaters from any source.

“Floodproofing” means adaptations that ensure a structure is substantially resistant to the passage of water below the flood protection elevation and resists hydrostatic and hydrodynamic loads and effects of buoyancy.

“Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.

Floodway Dependent Structure. Structures that are floodway dependent include, but are not limited to, dams, levees and pump stations, stream bank stabilization, boat launches and related recreational structures, bridge piers and abutments, and fisheries enhancement or stream restoration projects.

“Formation” means an assemblage of earth materials grouped together into a unit that is convenient for description or mapping.

“Formation, confining” means the relatively impermeable formation immediately overlaying a confined aquifer.

“Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance, and attenuation functions, as determined by the director, in accordance with WAC 365-190-080(3). Classifications of frequently flooded areas include, at a minimum, the 100-year floodplain designations of the Federal Emergency Management Agency (FEMA) and National Flood Insurance Protection (NFIP).

“Functions” and “values” mean the beneficial roles served by critical areas, including, but not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, ground water recharge and discharge, erosion control, and recreation. “Functions” and “values” may be considered independently, with functions being measured indicators such as water quality, hydrologic functions, and habitat functions and values being nonmeasured indicators such as local importance, potential qualities, or recreational benefits.

“Geologically hazardous areas” means areas that may not be suited to development consistent with public health, safety or environmental standards, because of their susceptibility to erosion, sliding, earthquake, or other geological events as designated by WAC 365-190-080(4). Types of geologically hazardous areas include erosion, landslide, seismic, volcanic hazards, and mine.

“Grading” means any excavation, clearing, filling, leveling, or contouring of the ground surface by human or mechanical means.

“Hazard areas” means areas designated as frequently flooded or geologically hazardous areas due to potential for erosion, landslide, seismic activity, mine collapse, or other geologically hazardous conditions, including steep slopes.

“Hazardous substance(s)” means:

1. A hazardous substance as defined by Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); any substance designated pursuant to Section 311(b)(2)(A) of the Clean Water Act (CWA); any hazardous waste having the characteristics identified under or listed pursuant to Section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress); any toxic pollutant listed under Section 307(a) of the CWA; or any imminently hazardous chemical substance or mixture with respect to which the United States Environmental Protection Agency has taken action pursuant to Section 7 of the Toxic Substances Control Act;

2. Hazardous substances that include any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical, or biological properties described in WAC 173-303-090, 173-303-102, or 173-303-103.

“High-intensity land use” means land uses consisting of commercial, urban, industrial, institutional, retail, residential with more than one unit per acre, agricultural (dairies, nurseries, raising and harvesting crops, requiring annual tilling, raising and maintaining animals), high-intensity recreation (golf courses, ball fields), and hobby farms.

“Heavy equipment” means such construction machinery as backhoes, treaded tractors, dump trucks, and front-end loaders.

“Hydraulic project approval (HPA)” means a permit issued by the state of Washington’s Department of Fish and Wildlife for modification to waters of the state in accordance with Chapter 75.20 RCW.

“Impervious surface area” means any nonvertical surface artificially covered or hardened so as to prevent or impede the percolation of water into the soil mantle including, but not limited to, roof tops, swimming pools, paved or graveled roads and walkways or parking areas, and excluding landscaping and surface water retention/detention facilities.

“Isolated wetland” means those wetlands and their buffers that are outside of the following critical areas and their buffers, where applicable: 100-year floodplain, lake, river, stream, or wetland. Isolated wetlands have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water.

“Lake” means an area permanently inundated by water in excess of two meters deep and greater than 20 acres in size measured at the ordinary high water mark.

“Landslide” means episodic down slope movement of a mass of soil or rock that includes, but is not limited to, rock falls, slumps, mudflows, and earth flows.

“Landslide hazard areas” means areas that are potentially subject to risk of mass movement due to a combination of geologic, topographic, and hydrologic factors.

“Low-intensity land use” includes, but is not limited to, forestry and open space (such as passive recreation and natural resources preservation).

“Lowest floor” means the lowest enclosed area (including basement) of a structure. An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area, is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of these critical areas regulations found in NBMC 14.12.030 and 14.12.040 (i.e., provided there are adequate flood ventilation openings).

“Manufactured home” means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term “manufactured home” does not include a “recreational vehicle.”

“Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more parcels intended for the sale or rent of manufactured homes. A manufactured home park or subdivision shall include the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

“Minor utility project” means the placement of a utility pole, street sign, anchor, vault, or other small component of a utility facility, where the disturbance of an area is less than 75 square feet.

“Mitigation” means the process of minimizing or compensating for adverse environmental impact(s) of a proposal on a critical area.

“Mobile home” means a structure that is transportable in one or more sections, built on a permanent chassis, and designed to be used with or without a permanent foundation when connected to the required utilities. A mobile home is also included within the definition of manufactured homes, however, the standards relating to mobile homes shall take precedence over the standards relating to manufactured homes where such standards are more stringent.

“Moderate-intensity land use” includes, but is not limited to, residential at a density of one unit per acre or less, moderate intensity open space (parks), agriculture (moderate intensity land uses such as orchards and hay fields).

“Monitoring” means the collection of data by various methods for the purpose of understanding natural systems and features, evaluating the impact of development proposals on such systems, and/or assessing the performance of mitigation measures imposed as conditions of development.

“Native growth protection easement (NGPE)” means an easement granted to the city of North Bend for the protection of native vegetation within a critical area or its associated buffer.

“Native vegetation” means plant species that are indigenous to the region.

“New construction” means structures for which the start of construction commenced on or after the effective date of the ordinance codified in this chapter.

“Ordinary high water mark” means, on all lakes, streams, and tidal waters, the biological vegetation mark that indicates the “ordinary” high water level (WAC 173-22-030(11)).

“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and having less impact to critical areas.

“Priority habitat” means habitat types or elements with unique or significant value to one or more species as classified by the State Department of Fish and Wildlife.

“Public agency” means every city, county, state, or federal office, every officer, every institution, whether educational, correctional, or other, and every department, division, board, and commission that provides services or recommendations to the public or other such agencies.

“Public utility” means a public service corporation performing some public service subject to special governmental regulations, or a governmental agency performing similar public services, either of which are paid for directly by the recipients thereof. Such services shall include, but are not limited to, water supply, electric power, gas, and transportation for persons and freight.

“Qualified professional” means a person with experience and training in the pertinent scientific discipline, and who is a qualified expert with expertise appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental sciences, fisheries, geomorphology, or related field, and two years of related work experience.

1. A qualified professional for habitats or wetlands must have a degree in wildlife or wetland biology or a related environmental science and professional experience in Washington State related to the subject.

2. A qualified professional for a geological hazard must be a professional engineer or geologist, licensed in the state of Washington.

3. A qualified professional for critical aquifer recharge areas must be a hydrologist, geologist, engineer, or other scientist with experience in preparing hydrological assessments, with recent experience in Washington State.

4. A qualified professional with flood and CMZ expertise must be a hydrologist.

“Reasonable use” means a legal concept articulated by federal and state courts in regulatory taking cases.

“Recreational vehicle” means a vehicle designed primarily for recreational camping, travel, or seasonal use that has its own mode of power or is mounted on or towed by another vehicle, including, but not limited, to travel trailers, folding camping trailer, truck camper, motor home, motorized boats, and multi-use vehicles.

“Riparian habitat” means areas adjacent to aquatic systems with flowing water that contains elements of both aquatic and terrestrial ecosystems that mutually influence each other.

“Salmonid” means a member of the fish family Salmonidae. In King County, chinook, coho, chum, sockeye, and pink salmon; cutthroat, brook, brown, rainbow, and steelhead trout; kokanee; and native char (bull trout and Dolly Varden).

“Section 404 Permit” means a permit issued by the Army Corp of Engineers for the placement of dredge or fill material waterward of the ordinary high water mark or clearing in waters of the United States, including wetlands, in accordance with 33 United States Code (USC) Section 1344.

“Seismic hazard areas” means areas that are subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, or soil liquefaction.

“Critical areas” means any of the following areas or ecosystems: wetlands, critical aquifer recharge areas, streams, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas as defined by the Growth Management Act (RCW 36.70A.170).

“Special flood hazard area (SFHA)” means an area subject to a base or 100-year flood; areas of special flood hazard are shown on a flood hazard boundary map or flood insurance rate map as Zone A, AO, A1-30, AE, A99, AH.

“Species and habitats of local importance” means those species that may not be endangered, threatened, or critical from a state-wide perspective, but are of local concern due to their population status, sensitivity to habitat manipulation, or other educational, cultural, or historic attributes. These species may be priority habits, priority species, and those habitats and species identified in the critical areas code as having local importance (e.g., elk).

“Species, threatened and endangered” means those native species that are listed by the State Department of Fish and Wildlife pursuant to RCW 77.12.070 as threatened (WAC 232-12-011) or endangered (WAC 232-12-014), or that are listed as threatened or endangered under the federal Endangered Species Act (16 U.S.C. 1533).

“Start of construction” means and includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the permit issuance date. For cumulative tracking, the permit may extend beyond the specified time frame to the time of permit completion. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation, or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling, nor does it include the installation of streets and/or walkways, nor does it include excavation for a basement, footings, piers, or foundation or the erection of temporary forms, nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

“Steep slopes” means those slopes (excluding city-approved geotechnical engineered slopes) 40 percent or steeper within a vertical elevation change of at least 10 feet. A slope is defined by establishing its toe and top and is measured by averaging the inclination over at least 10 feet of vertical relief.

“Structure” means a walled and roofed building including a gas or liquid storage tank that is principally above ground, as well as a manufactured home.

“Stream” means any portion of a watercourse, either perennial or intermittent, where the surface water flow is sufficient to produce a defined channel or bed. Streams also include natural watercourses modified by humans. Streams do not include irrigation ditches, canals, stormwater run-off facilities, or other entirely artificial watercourses.

“Substantial damage” means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the assessed value of the structure before the damage occurred.

“Substantial improvement” means any repair, reconstruction, rehabilitation, addition, or improvement of a building or structure, the cost of which exceeds 50 percent of the assessed value of the structure before the improvement or repair is started. This term includes structures that have incurred “substantial damage,” regardless of the actual repair work performed. The term can exclude:

1. Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications that have been identified by the local code enforcement or building official and are the minimum necessary to assure safe living conditions; or

2. Any alteration of a historic structure; provided, that the alteration will not preclude the structure’s continued designation as a historic structure.

“Topping” means the severing of main trunks or stems of vegetation at any place above 25 percent of the vegetation height.

“Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.

“Understory” means the vegetation layer of a forest that includes shrubs, herbs, grasses, and grass-like plants, but excludes trees.

“Utility” means a service and/or facility that produces, transmits, carries, stores, processes, or disposes of electrical power, gas, potable water, stormwater, communications (including, but not limited to, telephone and cable), sewage, oil, and the like.

“Variance” means a grant of relief from the requirements of this chapter that permits construction in a manner that would otherwise be prohibited by this chapter.

“Vegetation” means plant life growing below, at, and above the soil surface.

“Vegetation alteration” means any clearing, grading, cutting, topping, limbing, or pruning of vegetation.

“Water dependent activities” means a use or portion of a use that cannot exist in a location that is not adjacent to the water, but is dependent on the water by reason of the intrinsic nature of its operations. A use that can be carried out only on, in, or adjacent to water. Examples of water dependent uses include fishing, marinas, moorage, and boat launching facilities; aquaculture; surface water intake; and sanitary sewer and storm drain outfalls.

“Water resources inventory area (WRIA)” means one of 62 watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in Chapter 173-500 WAC as it existed on January 1, 1997.

“Water typing system” means the system used to classify freshwater surface water systems. Current regulations establish “interim” water typing (1 through 5) until fish habitat water type maps are available for permanent water typing (S, F, Np, Ns) (WAC 222-16-031).

“Wetland” means as defined by Chapter 36.70 RCW or as hereafter amended, those areas that are inundated or saturated by ground or surface water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation 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 nonwetland sites, including, but not limited to, 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 conversion of wetlands.

Wetlands Rating System. Wetlands shall be rated according to the Washington State Wetland Rating System for Western Washington, Department of Ecology, Publication No. 04-06-025, or as revised. (Ord. 1243 Exh. B (part), 2006).

See city website for current version.