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Chapter 19.05
CRITICAL AREASSections:
19.05.010 Purpose.
19.05.020 Definitions.
19.05.030 General provisions – Interpretations, applicability, SEPA, shoreline management, procedures manual, and maps.
19.05.040 Critical area permit requirements – Exemptions, nonconforming structures, application requirements, special reports, and advance determinations.
19.05.050 Critical area permit administration – Permit processing, public notice, reasonable use exceptions, appeals, fees, and notice to title.
19.05.060 Performance standards for development – Mitigation, on-site and off-site, density, minimum lot size, subdivisions, preferred construction practices, impervious surface standards, stormwater plans, mitigation plans (effective until Department of Ecology approval of Ordinance 2982).
19.05.060 Performance standards for development – Mitigation, on-site and off-site, density, minimum lot size, subdivisions, preferred construction practices, impervious surface standards, stormwater plans, mitigation plans (effective after Department of Ecology approval of Ordinance 2982).
19.05.070 Critical area 1 – Aquifer recharge areas.
19.05.080 Critical area 2 – Fish and wildlife habitat conservation areas.
19.05.090 Critical area 3 – Frequently flooded areas and critical drainage corridors.
19.05.100 Critical area 4 – Geologically hazardous area (effective until Department of Ecology approval of Ordinance 2982).
19.05.100 Critical area 4 – Geologically hazardous area (effective after Department of Ecology approval of Ordinance 2982).
19.05.110 Critical area 5 – Wetlands.
19.05.120 Violations and penalties.
19.05.130 Bonding and security.
19.05.140 Other laws and regulations.
19.05.150 Suspension – Revocation.
19.05.160 Amendments.
19.05.170 Severability.
19.05.180 Assessment relief.
19.05.190 Limitation of actions.
19.05.010 Purpose.
The Washington Growth Management Act (GMA) requires that critical areas within the city are to be protected by establishing protec-
tion standards for minimizing the impact of development of properties within critical areas. The goal of this chapter is to protect and improve the city of Port Townsend’s critical areas for the present and future generations.
Many elements of Port Townsend’s natural environment are fragile resources that are sensitive to the impacts of urban development, or may pose hazards to the community if developed. These include the following areas and ecosystems: wetlands; critical aquifer recharge areas; fish and wildlife habitat conservation areas; frequently flooded areas; and geologically hazardous areas. These are termed “critical areas,” which also include their protective buffers, and are of special concern to the city and the citizens of the state. This document addresses only the city’s critical areas – it has been determined that the city will not designate any natural resource lands as defined by the Growth Management Act. It is the intent of this chapter to protect the public health, safety, and welfare by:
A. Reducing the potential for personal injury, loss of life or property damage due to flooding, erosion, landslides, seismic events or soil subsidence;
B. Using the ARC approach to critical area impacts – Avoid, Reduce, and Compensate:
1. First, if at all possible, avoid adverse impacts;
2. Second, if that is not reasonable or possible, reduce adverse impacts by:
a. Minimizing or limiting the degree or magnitude of the development and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts,
b. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the development activity;
3. Finally compensate for the impact by:
a. Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment,
b. Compensating for unavoidable impacts by replacing, enhancing or providing substitute resources or environments;
C. Protecting against publicly financed expenditures due to the misuse of critical areas which cause on-site or off-site:
1. Unnecessary maintenance and replacement of public facilities;
2. Public funding of mitigation for avoidable impacts;
3. Cost for public emergency rescue and relief operations where the causes are avoidable;
4. Degradation of the natural environment;
D. Protecting unique, fragile and valuable elements of the environment, including fish and wildlife and their habitats;
E. Alerting appraisers, assessors, owners, potential buyers or lessees to the development limitations of critical areas;
F. Providing city officials with sufficient information to adequately protect critical areas when approving, conditioning or denying public or private development proposals;
G. Implementing the policies of the State Environmental Policy Act, the State Growth Management Act, this code, and the city comprehensive plan. (Ord. 2899 § 1, 2005; Ord. 2319 § 1, 1992).
19.05.020 Definitions.
For the purposes of this chapter, the following definitions shall apply:
“Aggregate setback” means a method of prescribing the front, rear and side yard setbacks such that the sum of all four setbacks is at least 40 feet. Aggregate setbacks may only be used if the lot or proposed subdivision and the proposed setbacks meet the criteria set forth in PTMC 19.05.060.
“Agricultural operation” means any bona fide condition, facility or activity for the production or intent of production for commercial or family use purposes of dairy, apiary, livestock, vegetable or animal products, and crop products including, but not limited to, ornamental crops.
“Alteration” means, with respect to critical areas, any human-induced action that impacts the existing condition of the area. Alteration includes, but is not limited to:
1. Grading, filling, dredging, draining, channelizing, cutting, topping;
2. Clearing, relocating or removing vegetation;
3. Paving, construction, modifying for surface water management purposes;
4. Human activity that impacts the existing topography, vegetation, hydrology or wildlife habitat.
Alteration does not include walking, passive recreation or similar activities.
“Applicant” means a person who files an application for a development permit under this code and who is either the owner of the land on which that proposed activity would be located, a contract vendee, a lessee of the land, the person who would actually control and direct the proposed activity, or the authorized agent of such a person.
“Aquifer recharge area” means geological and soil formations with recharging areas having an effect on aquifers used for potable water where a potential source of drinking and ground water is vulnerable to contamination.
“Base flood” means a general and temporary condition of partial or complete inundation of normally dry land areas having a one percent chance of being equaled or exceeded in any given year.
“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.
“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:
1. Avoid or control soil loss and protect water quality from degradation caused by nutrients, animal waste, toxins and sediment; and
2. Avoid or minimize adverse impacts to surface water and ground water flow, and circulation patterns; and
3. Avoid or control the movement of sediment and erosion control caused by land alteration activities; and
4. Avoid or minimize adverse impacts to the chemical, physical, and biological characteristics of critical areas.
BMPs are those practices as defined by the State of Washington Department of Agriculture, Washington State Department of Ecology, Washington State Department of Health, Washington State Department of Fish and Wildlife, Jefferson County conservation district, and other professional organizations. Applicable BMPs may be more fully identified in the procedures manual to be adopted by the director.
“Buffer” means an area on a landscape adjacent to any critical area which:
1. Physically isolates the critical area from surrounding areas using distance, height, visual and/or sound barriers;
2. Acts to minimize risk to the public from loss of life, well-being or property damage resulting from natural disasters associated with the critical area;
3. Protects the functions and values of the critical area from adverse impacts of adjacent activities;
4. Provides shading, input of organic debris and coarse sediments, room for variation and changes in natural critical area characteristics;
5. Provides habitat for wildlife; and/or
6. Provides protection from harmful intrusion.
All of these buffer functions protect the public from losses suffered when the functions and values of critical areas are degraded.
“Building pad” means a portion of a lot which has been altered or designated to provide an acceptable location for a structure on a short plat, subdivision, or lot line revision or other development application. This area is determined by criteria set forth in PTMC 19.05.060. The area must be delineated on all land use approvals or permits.
“Classified species” means endangered, threatened and priority species as defined by the State Department of Fish and Wildlife.
“Compensatory mitigation” means replacing or rectifying a critical area impact or buffer loss. Compensatory mitigation can include, but is not limited to, restoration or creation of lost or impacted functional values. Enhancement of critical areas may be used for partial compensatory mitigation per the requirements of this chapter.
Critical Areas. For the purposes of this chapter, “critical areas” include aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas and critical drainage corridors, geologically hazardous areas, wetlands and streams. Under the GMA, critical areas are to be classified, designated and protected. In designating and protecting critical areas, the city shall use the best available science, consistent with RCW 36.70A.172.
“Critical drainage corridor” or “area” means an area which has been determined (by the Port Townsend department of public works) to require more restrictive regulation than city-wide standards afford, in order to mitigate flooding, drainage, erosion or sedimentation problems which have resulted or will result from the cumulative impacts of development and urbanization. A critical drainage corridor is characterized as a year-round or intermittent naturally flowing watercourse which exhibits but is not limited to one or more of the following characteristics:
1. A stream or watercourse formed by nature or modified by humans;
2. Generally consisting of a defined channel with a bed for a substantial portion of its length on the lot;
3. Watercourses which exhibit the above characteristics and have been channelized or piped; and/or
4. Perched ponds, ravines or other natural drainage features.
“Critical facility” means a facility for which even a slight chance of being located within a hazard area would be too great. Critical facilities include, but are not limited to, schools, hospitals, police, fire and emergency response installations which produce, use or store hazardous materials or hazardous waste.
“Critical habitat” means habitat areas associated with endangered, threatened or priority species as defined by the State Department of Wildlife. These habitats, if altered, could reduce the likelihood that the species will maintain population levels, survive and reproduce over the long term. Such habitat areas are documented with reference to lists, categories, and definitions of species promulgated by the Washington State Department of Wildlife or by and regulations adopted currently or thereafter by the U.S. Fish and Wildlife Service.
“Cumulative adverse impact” is the impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
“Delineation” means a process used to locate and mark a critical area’s edge or boundary in the field. Delineations are valid for a period of three years from the date that the delineation report is accepted by the city.
“Development” means any alteration, grading, filling, building, earth moving, etc., as well as any structure or utility building operations. Preliminary mapping and survey work that is completed using best management practices and results in insignificant disturbance of vegetation and soil is not considered to be development activity. Development shall not include selective pruning of trees and shrubs for safety and view protection and the removal of noxious weeds; provided, that no heavy equipment is utilized and disturbance of vegetation and soil is insignificant.
“Development proposal” means a building permit, clearing and grading permit, shoreline substantial development permit, rezone, conditional use permit, variance, lot line revision, PUD, short and long subdivision, street and utility development permit, or any development subject to stormwater drainage requirements under PTMC Title 16. For the purposes of this chapter, the following alterations shall also be considered a development proposal requiring a critical areas permit pursuant to PTMC 19.05.040: any alteration occurring in such close proximity to a critical area or associated buffer that the director determines may adversely impact the function and value of the critical area. See also “Alteration” in this section.
“Development services department,” or “DSD,” means the city of Port Townsend development services department.
“Diameter at breast height (d.b.h.)” means a tree’s trunk diameter in inches measured four and one-half feet above the ground.
1. On multistemmed or trunked trees, where the diameter at four and one-half feet above grade is actually greater than at a lower point on the tree, d.b.h. shall be measured at the narrowest diameter below four and one-half feet. In such cases the height of the measurement should be noted.
Illustration 1a – Multitrunked Tree
Illustration 1b – Multitrunked Tree
2. On sloping ground, diameter shall be measured from the uphill side of the tree.
Illustration 2a – Tree on
Sloping Ground3. Leaning trees, diameter shall be measured four and one-half feet up the stem in the direction of the lean.
Illustration 3a – Leaning Tree
Illustration 4a – Multitrunk Tree,
Close to Ground4. On multitrunked trees, where tree splits into several trunks close to ground level, the diameter shall be the diameter equivalent to the sum of each individual trunk measured according to the principals listed above.
“Director” refers to the director of the city development services department and his/her designees.
“Enhancement” means an action approved by the director and taken with the intention and probable effect of improving the condition and function of a critical area, such as improving environmental functions in an existing, viable critical area by means of increasing plant diversity, increasing wildlife habitat, installing environmentally compatible erosion controls, or removing nonindigenous plant and/or animal species. Enhancement of one function should not result in the degradation or other functions.
“Endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range.
“Erosion hazard area” means those areas containing soils which, according to the USDA Soil Conservation Service, may experience severe to very severe erosion.
“Exotic species” means plants or animals that are not native to the Olympic Peninsula region.
“Fish and wildlife habitat conservation areas” include, but are not limited to, a seasonal range or habitat element with which a classified species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain population levels and reproduce over the long term. These may include areas of relative density or species richness, flyways, breeding habitat, winter range, migratory routes and wildlife movement corridors.
“Frequently flooded areas” means lands subject to a one percent or greater chance of flooding in any given year or are mapped as such by the Federal Emergency Management Agency or the National Flood Insurance Program, or areas identified by the public works department as critical drainage corridors, lakes, coastal areas and wetlands.
“Functions” means the beneficial roles served by critical areas including, but not limited to: water quality protection and enhancement of fish and wildlife habitat; food chain support; flood storage, conveyance, and attenuation; ground water recharge and discharge; erosion control; wave attenuation; aesthetic value protection; and recreation.
“Geologically hazardous areas” are susceptible to erosion, sliding or other potentially hazardous geological events. They pose a threat to the health and safety of citizens when used as sites for incompatible development. Geologically hazardous areas include erosion hazard areas, landslide hazard areas, steep slopes and seismic hazard areas.
“Hydric soils” means those soils which are saturated, flooded or ponded long enough during the growing season to reduce oxygen conditions, thereby influencing the growth of plants. The presence of hydric soil shall be determined following the criteria and methods described in the Washington State Wetland Identification and Delineation Manual (Ecology publication No. 96-94, adopted under WAC 173-22-080).
“Hydrophytic vegetation” means plant life growing in water or soil that is at least periodically deficient in oxygen as a result of excessive water content.
“Impervious surfaces” means areas or surfaces that cannot be easily penetrated by rain or surface water runoff. These areas include structures and roof projections, impervious decks, roads, driveways, and surfaces which substantially reduce and alter the natural filtration characteristics of the soil.
“Landslide hazard areas” means those areas potentially subject to risk of mass movement due to a combination of geologic, topographic and hydrologic factors, including historic slope failures. These areas may be identified in the Port Townsend Comprehensive Plan, U.S. Geological Service Maps, the Department of Ecology Coastal Zone Atlas, or through site specific indicators or conditions.
“Low Impact Development Technical Guidance Manual for Puget Sound (2004 LID Manual)” means the manual developed by the Puget Sound Action Team that describes environmentally friendly techniques to develop land and manage stormwater runoff.
“Mitigation” means a process used to reduce the severity of impacts from activities that potentially affect critical areas by the following means:
1. Avoiding the impact altogether by not taking a certain action or parts of an action;
2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
3. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
4. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
5. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or
6. Monitoring the impact and taking appropriate corrective measures.
“Native vegetation” means plant species which are indigenous to the Olympic Peninsula.
“Noxious weed” means any plant which is invasive – for example, blackberries or nettles – and listed on the state noxious weed list in Chapter 16-750 WAC.
“Off-site compensation” means to compensate for lost or degraded critical areas by creating or restoring these areas at or adjacent to the site on which the impacts were located.
“On-site compensation” means to compensate for lost or degraded critical areas by creating or restoring these areas at or adjacent to the site critical areas on which the impacts were located.
“Out-of-kind compensation” means to compensate for lost or degraded critical areas by creating substitute critical areas whose characteristics do not closely approximate those destroyed or degraded by a development activity.
“Peer review” means a review of a submitted critical areas report by a second practicing, licensed professional not associated with the original submittal selected and retained by the city. The second review must verify the adequacy of the information, the adequacy of the analysis, and the completeness of the original checklist. The cost for the peer review will be borne by the applicant.
“Practicable alternative” means an alternative 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 impacts to critical areas. It may include using an area not owned by the applicant which can reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed development.
Pretreatment Facilities. See “Wetlands, constructed.”
“Procedures manual” means a document that may be prepared by the director, which outlines the process for determining whether critical areas are present on a lot as well as specific application and procedural details for permitting, site development and other requirements as described in this chapter.
“Qualified critical area consultant” means a person who has the qualifications specified below to conduct critical areas studies pursuant to this chapter, and to make recommendations for critical area mitigation. For areas of potential geologic instability, the qualified critical areas consultant shall be an engineering geologist with a Washington specialty license in engineering geology as specified in Chapter 18.220 RCW. For wetlands the qualified consultant shall possess, at a minimum, a Bachelor of Science or Bachelor of Arts or equivalent degree in hydrology, soil science, botany, ecology, or related field, and have at least two years of full-time work experience as a wetlands professional including delineating wetlands using state or federal manuals, preparing wetland reports, conducting function assessments, and developing and implementing mitigation plans.
“Repair” means activities that restore the character, size or scope of a project only to the previously authorized condition.
“Reports and surveys” means required documents prepared by a professional to delineate areas and make recommendations for critical area delineations and related regulations. Examples of these reports and surveys include, but are not limited to:
1. Site inventory and/or survey;
2. Application and site construction plan;
3. Special critical area report;
4. Site mitigation plan;
5. Stormwater management plan.
“Restoration” means actions to return a critical area to a state in which its stability, functions and values approach its unaltered state as closely as possible.
“Retention/detention facility” means a drainage facility designed either to:
1. Retain runoff for a considerable length of time and release via evaporation, plant transpiration, and/or infiltration into the ground; or
2. To detain runoff for a short period of time, and release to an associated surface/stormwater system at a rate not exceeding predevelopment (historical) flows.
“Seismic hazard areas” includes areas subject to severe risk of damage as a result of seismic induced ground shaking, slope failure, settlement, soil liquefaction or surface faulting. Ground shaking is a primary risk, followed by slope failure. Soils on slopes greater than 40 percent that are expected to be seasonally or perpetually saturated pose a specific risk of settlement, movement, or liquefaction. When saturated, these soils tend to be cohesionless and are unsuitable for foundations.
“Setback” means the distance specified by these regulations between a structure and a buffer, property line, road, etc.
“Significant vegetation” means any tree with a diameter of six inches or more at breast height, native “understory” vegetation from four to 10 feet in height, and any species listed in the Washington State Department of Wildlife Priority Habitats and Species Program Report.
“Site” means the entire lot, series of lots or parcels on which a development is located or proposed to be located, including all contiguous undeveloped lots or parcels under common ownership of the applicants, or the client(s) represented by the applicant.
“Slope” means an inclined ground surface, the inclination of which is expressed as a ratio (percentage) of vertical distance to horizontal distance by the following formula:
vertical distance
horizontal distance x 100 = % slope
“Species of local significance” means those species that are of local concern due to their population status or their sensitivity to habitat manipulation or that are game species.
“Steep slope” means any area with a combination of slopes greater than 15 percent with impermeable soils, ground water seepage, or potentially unstable slopes; also, critical slopes over 40 percent. Critical slope is determined by measuring the vertical rise over any 40-foot horizontal run for a specific area that results in a percentage of 40 or more. The critical slope hazard area includes the area of land that extends for 10 feet from the top and toe of the slope.
“Stormwater Management Manual” means the 2005 Department of Ecology Stormwater Management Manual for Western Washington (SWMM-WW (2005)).
“Swale” means a shallow drainage conveyance facility with relatively gentle side slopes, and generally flow depths of less than one foot.
“Threatened species” means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.
Top of Slope and Toe of Slope.
1. The “top of slope” is a distinct, topographical break in slope that separates slopes inclined at less than 40 percent from slopes 40 percent or steeper. When no distinct break exists, the top of slope is the uppermost limits of the area where the ground surface drops 10 feet or more vertically within a horizontal distance of 25 feet.
2. The “toe of slope” is a distinct topographical break in slope that separates slopes inclined at less than 40 percent from slopes 40 percent or steeper. When no distinct break exists, the toe of slope of a steep slope is the lowermost limit of the area where the ground surface drops 10 feet or more vertically within a horizontal distance of 25 feet.
Wetland Classification. For the purposes of general inventory, wetlands are defined by the criteria defined in the Washington State Wetland Identification and Delineation Manual (Ecology publication No. 96-94, adopted under WAC 173-22-080).
Wetlands, Constructed. “Constructed wetlands” means intentional construction of a wetland on an area that was previously nonwetland for purposes of wastewater or storm-water treatment, and managed as such. Examples could include pretreatment facilities, such as stormwater retention ponds or grassy swales.
“Wetland or wetlands” means 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 typically adapted for life in saturated soil conditions. Wetlands generally include bogs, swamps, marshes, ponds and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of construction of a road, street or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to compensate for wetland impacts, including conversion of wetlands to mitigate (RCW 36.70A.030(20)).
“Wetland edge” means the boundary of a wetland as delineated based on the definitions contained in the Washington State Wetland Identification and Delineation Manual (Ecology publication No. 96-94, adopted under WAC 173-22-080).
“Wetland hydrology” means the characteristics of water movement on, over and through a wetland system; the science dealing with the properties, distribution, and circulation of water through a wetland.
Wetlands, Isolated. “Isolated wetlands” means wetlands that meet the following criteria:
1. Are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream; and
2. Have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water; and
3. Have no surface water connection to lake, stream, estuary or marine water body.
Wetland Rating. The rating for a wetland is as defined in the Washington State Wetlands Rating System For Western Washington (2004).
Wetlands, Regulated. “Regulated wetlands” include:
1. All Category I and II wetlands; and
2. All Category III and IV wetlands that are greater than 1,000 square feet in size. (Ord. 2929 Exh. A § 1, 2006; Ord. 2899 § 1, 2005; Ord. 2892 § 1, 2005; Ord. 2688 § 1, 1999; Ord. 2535 § 1, 1996; Ord. 2483 § 1, 1995; Ord. 2319 § 1, 1992).
19.05.030 General provisions – Interpretations, applicability, SEPA, shoreline management, procedures manual, and maps.
This section contains provisions of this chapter that pertain to all applications thereof.
A. Greater Restrictions. When any provision of any other chapter of this code conflicts with this chapter, that chapter which provides more protection to critical areas shall apply. Any easements, covenants or deed restrictions to which the city is a party, which contain provisions more restrictive than this chapter, shall be enforced by the city unless such easements, covenants or deed restrictions are specifically modified by the city council.
B. Interpretation. The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter. The Washington State Environmental Policy Act and the regulations of other state and federal governmental agencies may supplement these requirements.
C. Applicability.
1. This chapter applies to all development, development proposals and alterations that are located within or adjacent to critical areas or their buffers, or that are likely to significantly impact critical areas (regardless of their location, and regardless of whether or not a critical areas permit is specifically required for the activity under PTMC 19.05.040) whether public or private, unless otherwise exempted by this chapter.
2. Prior to an applicant’s fulfilling the requirements of this chapter, the city shall not grant any approval or permission to conduct development or use in a critical area and its buffer.
D. State Environmental Policy Act (SEPA). This chapter establishes minimum standards which are to be applied to specific land use and platting actions in order to prevent further degradation of critical areas in the city, and is not intended to limit the application of the State Environmental Policy Act (SEPA). Projects subject to SEPA shall be reviewed and may also be conditioned or denied pursuant to Chapter 19.04 PTMC.
E. Shoreline Management Act (SMA). This chapter establishes minimum standards to be applied to specific land uses which may also be within the jurisdiction of the city’s shoreline master program, and is not intended to limit the application of the SMA. The critical area maps delineate critical areas waterward of the OHWM to be used in the application of the shoreline master program permit process, as well as the application of this chapter. The information contained on the critical area maps is intended to be relevant and useful in the administration of the city’s shoreline master program regulations.
F. Procedures Manual. The director is authorized to adopt written rules and procedures, which shall be fully set forth in a procedures manual, for the purpose of carrying out the provisions of this chapter.
G. City Inventory of Critical Areas.
1. The approximate location and extent of critical areas will be displayed on various inventory maps available at the city DSD. These maps will be updated as inventories are completed in compliance with the requirements of the Growth Management Act.
2. Maps and inventory lists are not complete and are to be considered only as guides to the general location and extent of critical areas. Maps will be used for a preliminary determination to suggest the presence or absence of a critical area. However, where additional properties containing features meeting the definitions of critical areas contained in this chapter are identified by the city, properties containing such critical areas shall be subjected to the requirements of this chapter. Where mapped areas are confirmed through an advance determination under this chapter or through site visits and analysis of other available data as part of a permit application to not actually contain critical areas, the provisions of this chapter shall not apply. (Ord. 2899 § 1, 2005; Ord. 2892 § 1, 2005; Ord. 2688 § 2, 1999; Ord. 2535 § 2, 1996; Ord. 2319 § 1, 1992).
19.05.040 Critical area permit requirements – Exemptions, nonconforming structures, application requirements, special reports, and advance determinations.
Pursuant to this chapter, a critical area permit is required for any development proposal whenever any portion of the site is within a critical area or required buffer area or whenever the director makes a finding that a development proposal is likely to significantly impact a critical area (regardless of its location). A single-family residence which requires a critical area permit is exempt from SEPA review.
A. Permit Required. Unless exempt from this chapter, no person, party, firm, corporation or public agency shall undertake any development proposal, as defined in PTMC 19.05.020, within a critical area or its buffer, unless the work is in accordance with a valid permit from the city issued pursuant to the provisions of this chapter.
B. Minor Critical Area Permits.
1. Minor Critical Area Permits. Notwithstanding any other provision of this chapter, the DSD director may, subject to making the findings set forth below, issue a minor critical area permit, with conditions or limitations as determined by the director. Minor critical area permits may be granted only where the director makes the following findings:
a. The proposed activity is minor in nature (such as utility crossings or minimal new landscaping) or creates only temporary impacts, and will have no off-site impacts; and
b. The proposed activity is to be conducted in an isolated, self-contained area where there is no danger to private or public property and minimal impact to the environment; or
c. The proposed activity is a critical areas restoration or enhancement project not otherwise required for mitigation of project impacts; or
d. The proposed activity involves the relocation of electric facilities, lines, equipment or appurtenances, not including substations, with an associated voltage of 55,000 volts or less; or
e. The proposed activity involves the relocation or installation of natural gas, cable communication, gas and telephone facilities, lines, pipes, mains, equipment or appurtenances; provided, the utility involves a conduit of two inches or less, a trench of two feet in width or less, and a construction corridor of five feet or less.
Minor critical area permits shall be conditioned to ensure that impacts to the critical area do not occur, and all activities conducted under the minor critical area permit shall also be carried out in a manner consistent with all laws and ordinances of the city of Port Townsend, including but not limited to Chapter 5, Clearing, Grading and Erosion Control of the Engineering Design Standards Manual which requires implementation of BMPs to control erosion and sedimentation. Minor critical area permits shall be processed as Type I permits and must be accompanied by the fee set forth in Chapter 20.09 PTMC. Minor critical area permits are not subject to the notice requirement of PTMC 19.05.050(C).
C. Exemptions. The following development shall be exempted from the provisions of this chapter and the administrative rules; provided, however, that for subsections (C)(2) through (14) of this section, the activities shall be conducted in a manner consistent with best management practices (BMPs) and the city’s engineering design standards. Further, if the director determines that the activity needs to be limited or conditioned to ensure that impacts do not occur, a minor critical area permit pursuant to subsection (A) of this section shall be required. Exemption from a critical area permit does not grant approval or authorization for any work to be done in any manner which may violate any laws or ordinances of the city of Port Townsend.
1. Actions necessary when the director determines there is an emergency that threatens the public health, safety and welfare. Emergency repairs to water, sewer, stormwater, electric, petroleum gas facilities, communications facilities and telephone utility services will not require permits nor the approval of the director.
2. Remodeling, reconstruction or replacement of structures and improvements that do not meet the requirements of this chapter; provided, that such activity does not increase the potential impact to a critical area or its buffer.
3. An application for a building permit for a lot within a development for which a critical area study meeting the requirements of this chapter has been prepared and accepted by the city; provided, that the previous study evaluated the type and extent of development proposed to occur on the lot; and provided further, that the proposed development adheres to the recommendations contained within the study. Other studies, such as SEPA documents or studies, may also be accepted by the director if found to meet the requirements for critical areas studies.
4. Existing agricultural activities. If a site has remained idle for more than 10 years from the date of the adoption of the ordinance codified in this chapter (Ordinance 2319, October 19, 1992), it is no longer considered agricultural.
5. Maintenance or reconstruction of existing opened roads and associated storm drainage facilities which would be exempt under WAC 197-11-800(2)(a), (b), and (c); provided, that reconstruction does not involve significant expansion of facilities.
6. Maintenance or replacement of existing city utility lines; provided, that replacement occurs within the same right-of-way or easement.
7. Ordinary maintenance and replacement of electric, natural gas, cable communications and telephone lines and facilities. Substantial rebuilding of an entire line segment shall be exempted where plans for the development are submitted to the director along with a schedule for the work and it is verified that the work consists only of replacement of structures already in place with similar facilities.
8. Routine landscape maintenance of existing landscaped areas, including selective pruning of trees and shrubs for safety and view protection, weeding, and planting, provided natural drainage patterns and topography are not altered. This does not include clearing or grading in order to develop or expand such activities in critical areas nor alteration of areas designated for retention as a condition of permit approval. Use of pesticides and herbicides is discouraged.
9. Preliminary mapping, survey work and subsurface exploration that result in insignificant disturbance of vegetation and soil.
10. Land clearing ordered by the city council for abatement of a public nuisance.
11. Removal of noxious weeds as listed by the state in Chapter 16-750 WAC; provided, that no heavy equipment is employed.
12. Removal of invasive species as part of a restoration project designed to improve the quality of a critical area and conducted in a manner accepted by agencies with jurisdiction over the critical area.
13. Removal of dead or diseased trees and vegetation within 50 feet of a permitted structure; provided, that the applicant receives permission from the Department of Fish and Wildlife for removal of vegetation used for nesting and/or roosting by a priority species.
14. Development and construction activities located outside a critical area, and which is proposed to occur at a distance which is substantially greater than the applicable buffers and setbacks required under the provisions of this chapter; provided, that the director finds that no useful purpose would be served by the requirement to obtain a critical areas permit in the case at hand.
D. Nonconforming Structures and Improvements. Structures and improvements in existence on the date the ordinance codified in this chapter becomes effective and that do not meet the setback or buffer requirements of this chapter for any defined critical area shall be considered legal nonconforming uses.
E. Application Requirements and Delineations.
1. All development proposals shall require the applicant to identify whether the site involved contains any of the critical areas defined in this chapter. Where either the applicant indicates a critical area is present, the area is mapped as a critical area, or the director has a reasonable belief that a critical area is located on the site, the below-listed requirements apply to the application. These requirements shall not apply if the applicant conclusively demonstrates to the satisfaction of the director that critical areas or buffers are not actually located on-site. Whenever the director determines that a site is, or is not, within a critical area, that determination shall constitute a final decision appealable to the city council under the provisions of PTMC 19.05.050(F). Notice of a final decision shall be given as provided in PTMC 19.05.050(E). A request for an advance determination regarding the presence or absence of critical areas on any property may be made by a property owner or person with consent of the property owner under the provisions of subsection (E)(2) of this section. These requirements serve to identify and document critical areas on a site. They include technical reports and surveys, temporary field marking, and delineating critical areas on single lots and subdivisions. The following is an outline of the steps required by the applicant in the critical area permit process. These steps supplement and augment the development permit application process set forth in the Land Development Administrative Procedures, Chapter 20.01 PTMC.
a. Staff Site Visit. If there is reason to believe a development project may involve a critical area, a member of the city DSD staff will visit the site to establish the probable existence or absence of a critical area.
b. Preapplication Consultation. Any person intending to apply for a critical areas permit is required to meet with the DSD staff during the earliest possible stages of project planning in order to discuss impact avoidance, minimization or compensation before large commitments have been made to a particular project design.
c. Prepare a site inventory and survey with five-foot contours, showing all existing natural and built features. The site survey is to be used as a base for the site construction plan. The survey requirement may be waived or modified by the director due to a determination that site factors do not require the specificity of a survey.
d. Provide a site construction plan delineating critical areas and significant vegetation (e.g., trees with a six-inch diameter at breast height). Unless the director waives one or more of the following information requirements, a site construction plan shall include:
i. On four lots or less, a plan description and maps at a scale no smaller than one inch equals 20 feet. On more than four lots, plan description and maps shall be no smaller than one inch equals 50 feet. In each case the plan description maps shall show the entire parcel of land owned by the applicant and the certified survey boundary of the critical area on the parcel. The certified survey boundary of wetlands will require delineation before the site survey;
ii. A description of the vegetative cover of the critical area and adjacent area including significant species and native vegetation;
iii. A site plan for the proposed development showing the location, width, depth and length of all existing and proposed disturbed areas, structures, roads, stormwater treatment and installations for the whole site, including those proposed to be located within the critical area and its buffer; utility locations and clearing and trenching locations should be identified along with the location of any existing utilities to be connected to the site;
iv. The exact location and specifications for all development activities including delineation of all disturbed areas, the amounts of filling and grading and methods of construction;
v. Elevations of the site and adjacent lots within the critical area and its buffer at contour intervals of five feet;
vi. Top view and typical cross-section views of the critical area and its buffer to the same scale as required in subsection (E)(1)(d)(i) of this section;
vii. Specific means proposed to mitigate any potential adverse environmental impact of the applicant’s proposal.
e. If a critical area is confirmed to exist on the site, an applicant may be required to provide a critical area special report prepared by a qualified critical area consultant. Special reports shall identify and characterize any critical area as a part of the larger development proposal site, assess any hazards to the proposed development, assess impacts of the development proposal on any critical areas on, or adjacent to, or adversely affected by proposed activities on the development proposal site, and assess the impacts of any alteration proposed for an critical area.
i. Contents of special reports may differ, depending on the type of critical areas a specific parcel may contain.
ii. For all such areas, reports shall be determined to be complete by the director, and (s)he may request more information as needed in order to protect the public and environment, and to ensure that the development is compatible with the land.
iii. The specific requirements of such reports shall be identified at the preapplication consultation and may be required to be supplemented at the discretion of the director.
f. Waivers of Special Reports. The director may waive the requirement for a special report if there is substantial evidence showing that all the following are present:
i. There will be no alteration of the critical areas or required buffer; and
ii. The proposed development will not impact the critical area in a manner contrary to the goals, purposes, objectives and requirements of this chapter; and
iii. The minimum standards required by this chapter are met.
g. Exceptions to Special Reports. No special report is required for the following development proposals:
i. Any development or remodel of a structure or improvements when no alteration of the critical area will occur as a result of the remodel activity; except, any associated construction for additional parking or impervious surface greater than 250 square feet in the aggregate will require a special report.
ii. A residential building permit for a lot which was subject to a previous special report; provided, that the previous special report was completed within three years of the current proposal, and adequately identified the impacts associated with the current development proposal. A new report may be waived if the existing report appears to adequately represent and address current site conditions. The director shall make such field investigations as are necessary to determine if the criteria for an exception are satisfied.
h. Field marking is required for all development proposals.
i. Prior to the preconstruction meeting, the applicant shall mark the following on the site to reflect the proposed site construction plan: the location of the building footprint, critical area(s) boundaries, the outer extent of required critical area buffers, areas to remain undisturbed, and trees and vegetation to be removed;
ii. Obtain the director’s approval on the field markings before beginning any permitted activities. Field markings are intended to prevent disturbance of critical areas and buffers and may include such items as temporary fences. Detailed requirements may be specified in the procedures manual prepared by the DSD;
iii. Maintain the field markings for critical area(s) and areas to remain undisturbed throughout the duration of the permit.
i. A preconstruction meeting at the development site is required for all projects.
i. The meeting is to be attended by the applicant (or applicant’s agent) and city staff, to review specific project details and methods of construction. Subcontractors such as those conducting grading or excavation work may also be required to attend the meeting. Applicants are encouraged, but not required, to allow attendance by interested citizens.
ii. No construction activity, including land clearing or grading, shall be permitted until the information required by the appropriate critical area section is reviewed and approved by the director.
j. For critical areas, development proposals which contain only aquifer recharge areas, frequently flooded areas or seismic hazard areas, the director may waive compliance with the application requirements and delineations requirements of this section and compliance with the performance standards for development contained in PTMC 19.05.060. The director must be satisfied that the performance standards provided for in the individual critical area regulations for a specific environmental category are met and no purpose established under this chapter would be furthered by requiring compliance with application requirements or the performance standards for development.
2. Advance Determination. A property owner or person with consent of the property owners may request an advance determination regarding the presence or absence of critical areas on a particular parcel outside of the normal permitting process. A request may be made upon payment to the development services department of the initial filing fee. The advance determination shall be based upon existing conditions at a particular site and shall be binding only as long as conditions on the property do not change to include features which meet the definition of critical areas. Should the director be unable to make a conclusive determination from a site visit and review of available information, the applicant may be requested to provide, at the applicant’s expense, additional information, reports or studies similar to those identified in subsection (E)(1) of this section to allow a conclusive determination to be made. (Ord. 2929 Exh. A § 4, 2006; Ord. 2899 § 1, 2005; Ord. 2892 § 1, 2005; Ord. 2688 § 3, 1999; Ord. 2535 § 3, 1996; Ord. 2319 § 1, 1992).
19.05.050 Critical area permit administration – Permit processing, public notice, reasonable use exceptions, appeals, fees, and notice to title.
This section contains the procedures that the city will use in processing a critical area permit, as supplemented by Chapter 20.01 PTMC. This process includes a reasonable use section that may be used by an applicant to lessen the development standards due to unique site characteristics which would make strict application of the standards unreasonable. Means to appeal administrative decisions are also included.
A. Review of Critical Areas Permits and Report.
1. The director, as part of the review process, shall verify information submitted by the applicant to:
a. Confirm the nature and type of the critical areas and evaluate the special critical areas report;
b. Determine whether the development proposal is consistent with the performance standards contained in this chapter;
c. Determine whether any proposed alterations to critical areas are necessary;
d. Determine if the mitigation plans and bonding measures proposed by the applicant are sufficient to protect the public health, safety and welfare, and are consistent with the purposes, objectives and requirements of this chapter.
2. The applicant shall submit documents that demonstrate that any development proposal submitted conforms to the purposes, standards and protection mechanisms of this chapter; and, if required, provide additional information with a special critical areas report. The director may request peer review of any documents or reports at the expense of the applicant where the director deems it to be reasonably necessary to ensure the accuracy, effectiveness or objectivity of any of the documents, reports or measures proposed within them. A written determination from the director requiring peer review shall include the following information:
a. A statement giving the reason(s) peer review is requested (e.g., possible errors of fact or law, possible error in judgment, possible lack of objectivity, or the existence of additional or new information);
b. A statement of the specific areas of the report believed to be inadequate or in error, or not sufficiently definite to allow environmental analysis;
c. The specific information sought (such as review of the wetland delineation line, the appropriateness of proposed mitigation procedures, feasibility of the plan or recommended action, conflicting scientific evidence, etc.);
d. The director may also consult with other agencies, requesting information on the proposal’s impacts, and review of a special report’s contents that lie within the other agency’s jurisdiction or expertise.
3. The director may approve with conditions, or deny, any development proposal in order to comply with the requirements and carry out the purposes, objectives and requirements of this chapter.
4. If it is determined that adverse critical area impacts will be authorized to provide for reasonable use of a property, then the applicant shall submit the design of a detailed site mitigation plan per the standards of PTMC 19.05.060(D)(6).
5. The director shall review the proposed site mitigation plan to determine acceptance/denial of the proposed compensation. The director may request peer review of the proposal at the expense of the applicant.
6. Approval of a development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter.
B. Permit Processing.
1. The director shall consolidate the processing of related aspects and permits from other regulatory programs which affect activities in critical areas, such as SEPA, shorelines, subdivision, etc., with the critical area review process established in this chapter to provide a timely and coordinated permit process as set forth in Chapter 20.01 PTMC.
2. Permits shall be valid for a period of one year from the date of issuance and shall expire at the end of that time if they are not acted upon, unless a longer or shorter period is specified by the DSD upon issuance of the permit.
3. An extension of an original permit may be granted upon written request to the director by the original permit holder or the successor in title. An extension shall be granted only where the proposal remains consistent with all land use and development ordinances of the city in force at the time of the extension.
4. Prior to the granting of an extension, the director may require updated reports and/or additional hearings if, in his/her judgment, the original intent or the circumstances relevant to the review and issuance of the original permit have changed substantially, or if the applicant failed to abide by the terms of the original permit.
C. Public Notice of Application and Comment Period. Public notice of an application for a critical area permit shall be provided in the following manner:
1. Notice of an application for critical areas permits is required as set forth in PTMC 20.01.150 and 20.01.160.
D. Modification of Critical Areas Development Standards – Reasonable Use Exceptions.
1. An applicant for a city permit to develop or use real property which is located in a critical area may apply to the director for modification of critical area development standards (i.e., a reasonable use exception). Applications for modification of critical area development standards shall be processed as Type II permits as set forth in Chapter 20.01 PTMC.
2. An applicant requesting modification shall provide the director with the following information:
a. Technical studies and other data that describe the possible injurious effects of the proposed development on occupiers of the land, on other properties, on public resources, and on the environment. Possible injurious effects must be described even when the injurious effect will become significant only in combination with similar effects from other developments; and
b. An explanation with supporting evidence of how and why compliance with the unmodified critical areas development standards would not permit reasonable use of the property.
3. The director may approve a reasonable use exception and modify a critical areas development standard only when all of the following findings can be made:
a. The application of this chapter would deny all reasonable use of the property;
b. No other reasonable use of the property has less impact on the critical area;
c. The proposed impact to the critical area is the minimum necessary to allow for reasonable use of the property;
d. 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;
e. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
f. To the extent feasible while still allowing for reasonable use of the property, the proposal has been mitigated to avoid, reduce, or compensate for loss of critical area functions and values consistent with the best available science; and
g. The proposal is consistent with other applicable regulations and standards.
4. A critical areas development standard may be reduced, waived or otherwise modified only to the extent necessary to make the standard reasonable in light of all the facts and circumstances of a particular case. In modifying a development standard the director may impose reasonable conditions that prevent or mitigate the same harm that the modified regulation was intended to prevent or mitigate.
5. A director’s decision to modify a development standard may be appealed pursuant to the provisions of subsection F of this section and Chapter 20.01 PTMC. The director’s decision as to whether development pursuant to a modified development standard will cause significant injury shall be affirmed unless found to be clearly erroneous. The director’s decision as to whether strict application of a development standard is reasonable shall be accorded substantial weight, and the burden of proof of justifying the critical areas exception shall be on the applicant.
E. Notice of Final Decisions. Notice of a final decision on any critical area development permit or reasonable use exception shall be mailed by the director to the applicant and to any individual who has filed a written comment on the application with a return address identified on the comment. Final decisions shall also include final determinations of the director regarding the presence or absence of critical areas. Notice of final decisions regarding an advance determination, or within the context of a permit application, of a decision regarding the presence or absence of critical areas shall be provided by mail to the permit applicant and by mail to any person filing an individually written comment or requesting notification of such decisions from the director on a specific application.
F. Appeals and Stay During Pendency of Appeals.
1. Any person entitled to receive notice under Chapter 20.01 PTMC of a final decision of the director on a critical area development permit or reasonable use exception, or on an advance determination that a site is, or is not, within a critical area, may appeal such final decision by following the appeal procedure for Type II permits outlined in Chapter 20.01 PTMC. Any appeal of a final decision involving determination of the presence or absence of critical areas must be filed within 14 calendar days after the notice of the decision, or within 21 calendar days if a SEPA determination of nonsignificance is issued concurrently as part of the permit decision, as further set forth in PTMC 20.01.210.
2. Construction under any permit issued by the city shall be stayed until the expiration of any appeal period or the final resolution by the city of any appeal which has been filed under this chapter.
G. Fees. Fees shall be as set forth in Chapter 20.09 PTMC.
H. Hold Harmless Agreement. The owner of a property containing critical areas on which a development proposal is submitted, except a public right-of-way or the site of a permanent public facility, shall file an agreement approved by the director and recorded with the Jefferson County assessor prior to the issuance of any permit or preliminary approval of a short plat or subdivision. Said agreement shall be in a form approved by the city attorney, shall hold harmless and indemnify the city and its employees from and against any liability for damages to persons or property as the result of construction or other action undertaken by the applicant on the subject property, and shall run with the land for a period of at least three years from completion of the work and be binding on the applicant and his/her successors and assigns.
I. Record Notice of Presence of Critical Area.
1. The owner of any property with a field verified presence of critical areas or their associated buffers pursuant to this chapter on which a development proposal is submitted and acted upon shall record a notice of presence of critical areas with the Jefferson County auditor in a form approved by the city attorney. Such notices shall provide notice in the public record of the presence of a critical area or its buffer, the application of this chapter to the property, and that limitations on actions in or affecting such critical areas and their buffers may exist. The notice shall be notarized and shall be recorded prior to approval of any development proposal for such sites.
2. The notice shall run with the land. The applicant shall submit proof that the notice has been filed for record before the city shall approve any development proposal and failure to provide such notice to the city or any purchaser prior to developing or transferring any interest in the property shall be a violation of this chapter. (Ord. 2982 § 17, 2008; Ord. 2899 § 1, 2005; Ord. 2892 § 1, 2005; Ord. 2535 § 4, 1996; Ord. 2319 § 1, 1992).
19.05.060 Performance standards for development – Mitigation, on-site and off-site, density, minimum lot size, subdivisions, preferred construction practices, impervious surface standards, stormwater plans, mitigation plans (effective until Department of Ecology approval of Ordinance 2982).
A. Avoiding Impacts to Critical Areas.
1. An applicant for a development proposal or alteration shall apply the following sequential measures, which appear in order of priority, to avoid impacts to critical areas and critical area buffers:
a. Avoiding the impact or hazard by not taking a certain action;
b. Minimizing the impact or hazard by:
i. Limiting the degree or magnitude of the action with appropriate technology; or
ii. Taking affirmative steps, such as project redesign, relocation or timing;
c. Rectifying the impact to critical areas by repairing, rehabilitating or restoring the affected critical area or its buffer;
d. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;
e. Reducing or eliminating the impact or hazard over time by preservation or maintenance operations during the life of the development proposal or alteration;
f. Compensating for the adverse impact by enhancing critical areas and their buffers or creating substitute critical areas and their buffers; and
g. Monitoring the impact, hazard or success of required mitigation and taking remedial action.
2. The specific mitigation requirements of this chapter for each critical area apply when compensation for adverse impacts is required by the sequence in subsection (A)(1) of this section.
B. Mitigation and Monitoring.
1. If mitigation is required under this chapter to compensate for adverse impacts, unless otherwise provided, an applicant shall:
a. Mitigate adverse impacts to:
i. Critical areas and their buffers; and
ii. The development proposal as a result of the proposed alterations on or near the critical areas; and
b. Monitor the performance of any required mitigation.
2. The department shall not approve a development proposal until mitigation and monitoring plans are in place to mitigate for alterations to critical areas and buffers.
3. Whenever mitigation is required, an applicant shall submit a critical area report that includes:
a. An analysis of potential impacts;
b. A site mitigation plan, as further described under subsection (D)(6) of this section, that meets the specific mitigation requirements in this chapter for each critical area impacted; and
c. A monitoring plan that includes:
i. A demonstration of compliance with this chapter;
ii. A contingency plan in the event of a failure of mitigation or of unforeseen impacts if: (1) the department determines that failure of the mitigation would result in a significant impact on the critical area or buffer; or (2) the mitigation involves the creation of a wetland; and
iii. A monitoring schedule that may extend throughout the impact of the activity or, for hazard areas, for as long as the hazard exists.
4. Mitigation shall not be implemented until after the department approves the site mitigation and monitoring plan. The applicant shall notify the department when mitigation is installed and monitoring is commenced and shall provide the city with reasonable access to the mitigation for the purpose of inspections during any monitoring period.
5. If monitoring reveals a significant deviation from predicted impact or a failure of mitigation requirements, the applicant shall implement an approved contingency plan. The contingency plan constitutes new mitigation and is subject to all mitigation including a monitoring plan and financial guarantee requirements.
C. Off-Site Mitigation.
1. To the maximum extent practical, an applicant shall mitigate adverse impacts to a wetland or fish and wildlife habitat conservation area on or contiguous to the development site. The department may approve mitigation that is off the development site if an applicant demonstrates that:
a. It is not practical to mitigate on or contiguous to the development proposal site; and
b. The off-site mitigation will achieve equivalent or greater hydrological, water quality and wetland or habitat functions.
2. When off-site mitigation is authorized, the department shall give priority to locations within the same drainage sub-basin as the development proposal site that meet the following:
a. Mitigation banking sites and resource mitigation reserves as may be authorized by the city;
b. Private mitigation sites that are established in compliance with the requirements of this chapter and approved by the department; and
c. Public mitigation sites that have been ranked in a process that has been supported by ecological assessments, including wetland and aquatic areas established as priorities for mitigation in city basin plans or other watershed plans.
3. The department may require documentation that the mitigation site has been permanently preserved from future development or alteration that would be inconsistent with the functions of the mitigation. The documentation may include, but is not limited to, a conservation easement or other agreement between the applicant and owner of the mitigation site. The city may enter into agreements or become a party to any easement or other agreement necessary to ensure that the site continues to exist in its mitigated condition.
4. The department shall maintain a list of sites available for use for off-site mitigation projects.
5. The department may develop a program to allow the payment of a fee in lieu of providing mitigation on a development site. The program should address:
a. When the payment of a fee is allowed considering the availability of a site in geographic proximity with comparable hydrologic and biological functions and potential for future habitat fragmentation and degradation; and
b. The use of the fees for mitigation on public or private sites that have been ranked according to ecological criteria through one or more programs that have included a public process.
D. The performance standards below apply to any development and to all short plats, subdivisions and lot line revisions proposed for sites wholly or partially within confirmed critical areas or their buffers in Port Townsend.
These standards are general development practices to minimize problems related to water quality, stormwater and erosion control, and the placement and construction of development in the city’s critical areas. In addition to the following general performance standards, if a site contains a critical area or its buffer, such as a steep slope or a wetland, the applicable set(s) of regulations outlined in the following sections of this chapter shall also apply.
1. Maximum Density.
a. For the purpose of this chapter, maximum density in confirmed critical areas shall be one dwelling unit per each 10,000 square feet of site area, with the exception of those lots sites containing only aquifer recharge areas, frequently flooded areas or seismic hazard areas. The maximum density for sites containing only aquifer recharge areas, frequently flooded areas or seismic hazard areas shall be as specified in the zoning ordinance.
b. “Site area” means the total horizontal area within the boundary lines of a site, as that term is defined in PTMC 19.05.020. Where utility or private access easements are located upon a site, site area computation shall include that area contained within the easement. Where public street rights-of-way are located within or bordering a site, site area computation shall not include that area contained within such rights-of-way.
c. The design, shape, size and orientation of lots shall be appropriate to the use for which the lots are intended and the character of the area in which they are located. Densities less than one dwelling unit per 10,000 square feet may be required for reason of steep slopes, slide hazards, poor drainage, flood hazards, wetland buffers, or to reduce habitat impacts, or other unique conditions or features which warrant protection of the public interest.
d. Parcels in single ownership with an area less than 10,000 square feet which are in existence on the date the ordinance originally codified in this chapter (Ordinance 2319, October 19, 1992) became effective shall be considered legal nonconforming lots. Development on these parcels shall conform to the procedures and development standards of this chapter. Development of these parcels may be conditioned to avoid impacts to critical areas. Such parcels in single ownership which contain more than one platted lot shall be considered a single parcel for purposes of this chapter. A parcel is defined as any tax parcel in existence at date of adoption of the ordinance codified in this chapter.
e. Vacant platted lots which are held in the same ownership as a platted lot or lots containing an existing dwelling or commercial structure are excepted from the maximum density requirements of this section as long as no parcel is created which does not meet the lot area or dimensional requirements of the zoning ordinance.
f. Any parcel less than 10,000 square feet in lot area which is subject to a pending purchase and sale agreement at the time of adoption of the ordinance codified in this chapter, which is actually consummated, shall be excepted from the maximum density requirements of this section.
2. Construction – Preferred Practices. The following preferred construction practices shall be incorporated into the design of proposed critical area development where reasonable and feasible:
a. Use common access drives and utility corridors;
b. Design roads, walkways, and parking areas to parallel natural hillside contours while maintaining consolidated areas of natural topography and vegetation; locate access in the least environmentally sensitive location feasible;
c. Use retaining walls that maintain existing natural slopes in place of graded artificial slopes;
d. Provide for necessary emergency vehicle access as approved by the director;
e. Building pads and disturbed areas should be located outside of critical areas and buffer boundaries.
3. New Short Plats, Binding Site Plans, and Subdivisions – Building Pad.
a. The following requirements pertain to short plats, subdivisions, PUDs, binding site plans, and lot line revisions only. The applicant shall provide at least one suitable area outside of critical area and buffer boundaries to place a structure(s) on each lot of a subdivision or short plat. All buildings proposed in a binding site plan shall be designed to be outside of critical areas and their buffer boundaries. These requirements may be waived only by the director.
i. Identify for each lot a building pad equal to 2,160 square feet or 30 percent of the minimum lot size required by the zone in which a subdivision is proposed, whichever is less.
ii. Determine the location of a building pad by considering vegetation, topography, critical areas, and the relationship of the proposed building pad to existing/proposed homes. Building pads should be located outside of critical area and buffer boundaries.
iii. Identify approved building pads and critical areas on final mylars.
iv. If insufficient land area exists outside of critical areas and their buffers for all building sites, the proposed short plat, subdivision, or binding site plan may be required to develop at less than the maximum permissible density in order to avoid negative impacts to critical areas.
4. Site Coverage – Impervious Surface Limits for Lots.
a. The maximum total percentage of a lot area that can be covered by impervious surfaces (including parking areas) is limited by the slope of the lot for all detached single-family developments as follows:
Lot Slope
Lot Coverage
Less than 15%
30%
15 – 30%
25%
Greater than 30%
20%
b. The director may grant a waiver, limited to the maximum lot coverage requirements allowed under PTMC Title 17 if the proposal minimizes impacts to critical areas and meets one of the following criteria:
i. The proposal uses preferred practices, outlined in subsection (D)(2) of this section, which are appropriate for the lot; or
ii. The lot has a unique shape or proportion (i.e., a triangular lot, with a circuitous driveway corridor).
c. Wherever critical areas or impervious surfaces limitation areas overlap, the most stringent impervious surface, vegetation and/or undisturbed area requirements apply.
5. Stormwater and Erosion Control.
a. Stormwater Management Plan. All development subject to the provisions of this chapter shall comply with the 2005 Department of Ecology Stormwater Management Manual for Western Washington (SWMM-WW (2005)), city engineering design standards manual, city stormwater master plan, and adopted drainage basin plans.
i. Stormwater management plans shall be consistent with the standards contained in the city’s EDS manual and the SWMM-WW (2005), and must be developed on a site-specific basis and must contain a technical report that identifies existing or predicted problems and sets forth solutions to each. Off-site measures may be required to correct existing on-site problems or to prevent new problems from occurring. Surface water discharge from the site shall not be greater than historic or predevelopment rates.
ii. If the development does not meet water quality standards established by law or administrative rules, the city may suspend further development work on the site until such standards are met.
b. Erosion control practices must be detailed using best management practices for situation/filtration devices to control surface runoff during construction, and the 2005 Department of Ecology Stormwater Management Manual for Western Washington (SWMM-WW (2005)).
i. Applicants shall indicate erosion control measures on the site construction plan or stormwater control management plan, as appropriate for the project.
ii. These requirements shall be in place following the preconstruction meeting outlined in PTMC 19.05.040(D)(1)(i) and shall be reviewed and approved prior to clearing and grading.
c. Applicants are also encouraged to consult the recommendations set forth in Chapter 5 of the Low Impact Development Technical Guidance Manual for the Puget Sound (2004) for guidance concerning the protection of native soils and vegetation, and retention of hydrologic function, during clearing and grading for development proposals.
6. Alterations and Disturbance.
a. A site mitigation plan shall be required by the director as an additional report submitted prior to final inspection if critical areas or critical slopes are identified on the site. (The requirements of the site mitigation plan may be included in the site construction plan if properly specified.)
b. The intent of the site mitigation plan is to:
i. Detail measures which restore the site to a revegetated condition after substantial foundation work and after project completion;
ii. Specify terrain, vegetation, and trees, in concert with the stormwater management plan, which restore surface and ground water filtration characteristics to predisturbed conditions;
iii. Retain characteristics compatible with the natural neighborhood environment.
c. Protection of Vegetation.
i. Areas of previously undisturbed natural vegetation in a critical area that have been damaged by human activity must be replaced with compatible species in accordance with a city-approved site mitigation plan. Native vegetation shall be given preference.
ii. Areas infested with noxious weeds may be replanted if recommended and documented in the approved site mitigation plan and approved by the director. (Ord. 2929 Exh. A § 2, 2006; Ord. 2899 § 1, 2005; Ord. 2319 § 1, 1992).
19.05.060 Performance standards for development – Mitigation, on-site and off-site, density, minimum lot size, subdivisions, preferred construction practices, impervious surface standards, stormwater plans, mitigation plans (effective after Department of Ecology approval of Ordinance 2982).
A. Avoiding Impacts to Critical Areas.
1. An applicant for a development proposal or alteration shall apply the following sequential measures, which appear in order of priority, to avoid impacts to critical areas and critical area buffers:
a. Avoiding the impact or hazard by not taking a certain action;
b. Minimizing the impact or hazard by:
i. Limiting the degree or magnitude of the action with appropriate technology; or
ii. Taking affirmative steps, such as project redesign, relocation or timing;
c. Rectifying the impact to critical areas by repairing, rehabilitating or restoring the affected critical area or its buffer;
d. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;
e. Reducing or eliminating the impact or hazard over time by preservation or maintenance operations during the life of the development proposal or alteration;
f. Compensating for the adverse impact by enhancing critical areas and their buffers or creating substitute critical areas and their buffers; and
g. Monitoring the impact, hazard or success of required mitigation and taking remedial action.
2. The specific mitigation requirements of this chapter for each critical area apply when compensation for adverse impacts is required by the sequence in subsection (A)(1) of this section.
B. Mitigation and Monitoring.
1. If mitigation is required under this chapter to compensate for adverse impacts, unless otherwise provided, an applicant shall:
a. Mitigate adverse impacts to:
i. Critical areas and their buffers; and
ii. The development proposal as a result of the proposed alterations on or near the critical areas; and
b. Monitor the performance of any required mitigation.
2. The department shall not approve a development proposal until mitigation and monitoring plans are in place to mitigate for alterations to critical areas and buffers.
3. Whenever mitigation is required, an applicant shall submit a critical area report that includes:
a. An analysis of potential impacts;
b. A site mitigation plan, as further described under subsection (D)(6) of this section, that meets the specific mitigation requirements in this chapter for each critical area impacted; and
c. A monitoring plan that includes:
i. A demonstration of compliance with this chapter;
ii. A contingency plan in the event of a failure of mitigation or of unforeseen impacts if: (1) the department determines that failure of the mitigation would result in a significant impact on the critical area or buffer; or (2) the mitigation involves the creation of a wetland; and
iii. A monitoring schedule that may extend throughout the impact of the activity or, for hazard areas, for as long as the hazard exists.
4. Mitigation shall not be implemented until after the department approves the site mitigation and monitoring plan. The applicant shall notify the department when mitigation is installed and monitoring is commenced and shall provide the city with reasonable access to the mitigation for the purpose of inspections during any monitoring period.
5. If monitoring reveals a significant deviation from predicted impact or a failure of mitigation requirements, the applicant shall implement an approved contingency plan. The contingency plan constitutes new mitigation and is subject to all mitigation including a monitoring plan and financial guarantee requirements.
C. Off-Site Mitigation.
1. To the maximum extent practical, an applicant shall mitigate adverse impacts to a wetland or fish and wildlife habitat conservation area on or contiguous to the development site. The department may approve mitigation that is off the development site if an applicant demonstrates that:
a. It is not practical to mitigate on or contiguous to the development proposal site; and
b. The off-site mitigation will achieve equivalent or greater hydrological, water quality and wetland or habitat functions.
2. When off-site mitigation is authorized, the department shall give priority to locations within the same drainage sub-basin as the development proposal site that meet the following:
a. Mitigation banking sites and resource mitigation reserves as may be authorized by the city;
b. Private mitigation sites that are established in compliance with the requirements of this chapter and approved by the department; and
c. Public mitigation sites that have been ranked in a process that has been supported by ecological assessments, including wetland and aquatic areas established as priorities for mitigation in city basin plans or other watershed plans.
3. The department may require documentation that the mitigation site has been permanently preserved from future development or alteration that would be inconsistent with the functions of the mitigation. The documentation may include, but is not limited to, a conservation easement or other agreement between the applicant and owner of the mitigation site. The city may enter into agreements or become a party to any easement or other agreement necessary to ensure that the site continues to exist in its mitigated condition.
4. The department shall maintain a list of sites available for use for off-site mitigation projects.
5. The department may develop a program to allow the payment of a fee in lieu of providing mitigation on a development site. The program should address:
a. When the payment of a fee is allowed considering the availability of a site in geographic proximity with comparable hydrologic and biological functions and potential for future habitat fragmentation and degradation; and
b. The use of the fees for mitigation on public or private sites that have been ranked according to ecological criteria through one or more programs that have included a public process.
D. The performance standards below apply to any development and to all short plats, subdivisions and lot line revisions proposed for sites wholly or partially within confirmed critical areas or their buffers in Port Townsend. These standards are general development practices to minimize problems related to water quality, stormwater and erosion control, and the placement and construction of development in the city’s critical areas. In addition to the following general performance standards, if a site contains a critical area or its buffer, such as a steep slope or a wetland, the applicable set(s) of regulations outlined in the following sections of this chapter shall also apply.
1. Maximum Density.
a. For the purpose of this chapter, maximum density in confirmed critical areas or their associated buffers shall be one dwelling unit per each 10,000 square feet of site area, with the exception of those lot sites containing only aquifer recharge areas, frequently flooded areas or seismic hazard areas. The maximum density for sites containing only aquifer recharge areas, frequently flooded areas or seismic hazard areas shall be as specified in the zoning ordinance. Areas waterward of the ordinary high water mark and areas of marine bluffs, steep slopes, and wetlands shall not be included to calculate allowable density. For example, only the buildable area landward of the marine bluff edge shall be used in the calculation.
b. “Site area” means the total horizontal area within the boundary lines of a site, as that term is defined in PTMC 19.05.020. Where utility or private access easements are located upon a site, site area computation shall include that area contained within the easement. Where public street rights-of-way are located within or bordering a site, site area computation shall not include that area contained within such rights-of-way.
c. The design, shape, size and orientation of lots shall be appropriate to the use for which the lots are intended and the character of the area in which they are located. Densities less than one dwelling unit per 10,000 square feet may be required for reason of steep slopes, slide hazards, poor drainage, flood hazards, wetland buffers, or to reduce habitat impacts, or other unique conditions or features which warrant protection of the public interest.
d. Parcels in single ownership with an area less than 10,000 square feet which are in existence on the date the ordinance originally codified in this chapter (Ordinance 2319, October 19, 1992) became effective shall be considered legal nonconforming lots. Development on these parcels shall conform to the procedures and development standards of this chapter. Development of these parcels may be conditioned to avoid impacts to critical areas. Such parcels in single ownership which contain more than one platted lot shall be considered a single parcel for purposes of this chapter. A parcel is defined as any tax parcel in existence at date of adoption of the ordinance codified in this chapter.
e. Vacant platted lots which are held in the same ownership as a platted lot or lots containing an existing dwelling or commercial structure are excepted from the maximum density requirements of this section as long as no parcel is created which does not meet the lot area or dimensional requirements of the zoning ordinance.
f. Any parcel less than 10,000 square feet in lot area which is subject to a pending purchase and sale agreement at the time of adoption of the ordinance codified in this chapter, which is actually consummated, shall be excepted from the maximum density requirements of this section.
2. Construction – Preferred Practices. The following preferred construction practices shall be incorporated into the design of proposed critical area development where reasonable and feasible:
a. Use common access drives and utility corridors;
b. Design roads, walkways, and parking areas to parallel natural hillside contours while maintaining consolidated areas of natural topography and vegetation; locate access in the least environmentally sensitive location feasible;
c. Use retaining walls that maintain existing natural slopes in place of graded artificial slopes;
d. Provide for necessary emergency vehicle access as approved by the director;
e. Building pads and disturbed areas should be located outside of critical areas and buffer boundaries.
3. New Short Plats, Binding Site Plans, and Subdivisions – Building Pad.
a. The following requirements pertain to short plats, subdivisions, PUDs, binding site plans, and lot line revisions only. The applicant shall provide at least one suitable area outside of critical area and buffer boundaries to place a structure(s) on each lot of a subdivision or short plat. All buildings proposed in a binding site plan shall be designed to be outside of critical areas and their buffer boundaries. These requirements may be waived only by the director.
i. Identify for each lot a building pad equal to 2,160 square feet or 30 percent of the minimum lot size required by the zone in which a subdivision is proposed, whichever is less.
ii. Determine the location of a building pad by considering vegetation, topography, critical areas, and the relationship of the proposed building pad to existing/proposed homes. Building pads should be located outside of critical area and buffer boundaries.
iii. Identify approved building pads and critical areas on final mylars.
iv. If insufficient land area exists outside of critical areas and their buffers for all building sites, the proposed short plat, subdivision, or binding site plan may be required to develop at less than the maximum permissible density in order to avoid negative impacts to critical areas.
4. Site Coverage – Impervious Surface Limits for Lots.
a. The maximum total percentage of a lot area that can be covered by impervious surfaces (including parking areas) is limited by the slope of the lot for all detached single-family developments as follows:
Lot Slope
Lot Coverage
Less than 15%
30%
15 – 30%
25%
Greater than 30%
20%
Areas waterward of the ordinary high water mark and areas of marine bluffs, steep slopes, and wetlands shall not be included to calculate land area. For example, only the buildable area landward of the marine bluff edge shall be used in the calculation.
b. The director may grant a waiver, limited to the maximum lot coverage requirements allowed under PTMC Title 17 if the proposal minimizes impacts to critical areas and meets one of the following criteria:
i. The proposal uses preferred practices, outlined in subsection (D)(2) of this section, which are appropriate for the lot; or
ii. The lot has a unique shape or proportion (i.e., a triangular lot, with a circuitous driveway corridor).
c. Wherever critical areas or impervious surfaces limitation areas overlap, the most stringent impervious surface, vegetation and/or undisturbed area requirements apply.
5. Stormwater and Erosion Control.
a. Stormwater Management Plan. All development subject to the provisions of this chapter shall comply with the 2005 Department of Ecology Stormwater Management Manual for Western Washington (SWMM-WW (2005)), city engineering design standards manual, city stormwater master plan, and adopted drainage basin plans.
i. Stormwater management plans shall be consistent with the standards contained in the city’s EDS manual and the SWMM-WW (2005), and must be developed on a site-specific basis and must contain a technical report that identifies existing or predicted problems and sets forth solutions to each. Off-site measures may be required to correct existing on-site problems or to prevent new problems from occurring. Surface water discharge from the site shall not be greater than historic or predevelopment rates.
ii. If the development does not meet water quality standards established by law or administrative rules, the city may suspend further development work on the site until such standards are met.
b. Erosion control practices must be detailed using best management practices for situation/filtration devices to control surface runoff during construction, and the 2005 Department of Ecology Stormwater Management Manual for Western Washington (SWMM-WW (2005)).
i. Applicants shall indicate erosion control measures on the site construction plan or stormwater control management plan, as appropriate for the project.
ii. These requirements shall be in place following the preconstruction meeting outlined in PTMC 19.05.040(D)(1)(i) and shall be reviewed and approved prior to clearing and grading.
c. Applicants are also encouraged to consult the recommendations set forth in Chapter 5 of the Low Impact Development Technical Guidance Manual for the Puget Sound (2004) for guidance concerning the protection of native soils and vegetation, and retention of hydrologic function, during clearing and grading for development proposals.
6. Alterations and Disturbance.
a. A site mitigation plan shall be required by the director as an additional report submitted prior to final inspection if critical areas or critical slopes are identified on the site. (The requirements of the site mitigation plan may be included in the site construction plan if properly specified.)
b. The intent of the site mitigation plan is to:
i. Detail measures which restore the site to a revegetated condition after substantial foundation work and after project completion;
ii. Specify terrain, vegetation, and trees, in concert with the stormwater management plan, which restore surface and ground water filtration characteristics to predisturbed conditions;
iii. Retain characteristics compatible with the natural neighborhood environment.
c. Protection of Vegetation.
i. Areas of previously undisturbed natural vegetation in a critical area that have been damaged by human activity must be replaced with compatible species in accordance with a city-approved site mitigation plan. Native vegetation shall be given preference.
ii. Areas infested with noxious weeds may be replanted if recommended and documented in the approved site mitigation plan and approved by the director. (Ord. 2982 § 14, 2008; Ord. 2929 Exh. A § 2, 2006; Ord. 2899 § 1, 2005; Ord. 2319 § 1, 1992).
19.05.070 Critical area 1 – Aquifer recharge areas.
A. Purpose. Aquifer recharge areas are characterized as porous geologic formations which store surface water that has percolated into the soil (ground water). Currently, aquifers in Port Townsend are not used as a drinking water source. This section provides protection measures to effectively maintain the quality of ground water by prevention of contamination so if needed in the future, ground water may be used for agricultural or landscaping uses or as a potable (drinking) water source. In order to protect the public health and safety, prevent degradation of ground water now, and for potentially usable potable water, and to provide for regulations that prevent and control risks to the degradation of ground water quality and quantity, development in aquifer recharge areas shall be subject to the standards described in this section.
B. Classification.
1. Aquifer recharge areas are those lands in Port Townsend which have an aquifer of potential future or current use for drinking water, or which are a part of a system which maintains or affects the water quality of a wetland or other significant surface body of water and which allows water to enter the soil and geologic materials in ways and in quantities that replenish natural ground water systems and aquifers.
2. Aquifers are highly susceptible to damage when the overlying soils and geologic formations that filter surface waters feeding the aquifer are very coarse textured, allowing rapid translocation of surface pollutants to the aquifer. Aquifers under fine textured soils and geologic formation are less susceptible to surface influences and pollution.
3. Aquifers underlying areas that are currently developed or industrialized are more vulnerable to pollution than aquifers in undeveloped areas. Combining aquifer susceptibility indexes with vulnerability indexes allows identification of those areas most at risk. Aquifers with relatively high susceptibility indexes located in industrial areas have the highest potential to become a significant public health hazard. High vulnerability is characterized by land uses which produce contaminants that may degrade ground water quality or reduce ground water quantity. Low vulnerability is characterized by land uses which will not affect ground water quality or quantity.
4. Vulnerability to pollution is a function of depth of ground water, permeability of soils and geologic formations (susceptibility), presence of potential source of contamination, and any other relevant factors.
C. Regulated Development. The following types of development shall be regulated under this chapter:
1. Any development not connected to sanitary sewers which is located in a critical aquifer recharge area. On-site sewage treatment shall be prohibited in critical aquifer recharge areas unless a site cannot be connected to the city sewer system. In cases where connection to the city sewer system is not possible, additional requirements to condition on-site sewage treatment to prevent pollution of ground water may be required. In instances where on-site sewage treatment cannot be mitigated to prevent groundwater contamination, the development permit application shall be denied.
2. The following land uses shall require a hydrogeologic assessment of the proposed site:
a. Hazardous substance processing or handling;
b. Hazardous waste treatment and storage facilities;
c. Underground storage of petroleum products;
d. Landfills, junkyards, auto wrecking yards;
e. Golf courses;
f. Agricultural activities; and
g. Other uses or activities determined by the health department that may be likely to pose a threat to the aquifer.
D. Performance Standards for Development. All regulated development, as identified in this section, shall be designed and constructed subject to the following standards:
1. Underground hazardous substance and/or petroleum storage facilities shall:
a. Be designed to prevent releases due to corrosion or structural failure for the operational life of the tank;
b. Be protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substance; and
c. Use material in the construction or lining of the tank that is compatible with the substance to be stored.
2. Above ground hazardous substance and/or petroleum storage tanks shall:
a. Not be fabricated, constructed, installed, used or maintained in any manner which may allow the release of a hazardous substance to the ground, ground water, or surface waters of Port Townsend within an aquifer recharge area;
b. Not be fabricated, constructed, installed, used or maintained without having constructed around and under it an impervious containment area enclosing or underlying the tank;
c. Require a secondary containment system either built into the tank structure or dike system built outside the tank for all tanks located within an aquifer recharge area. Propane and heating oil tanks are exempt from secondary containment system requirements;
d. Be consistent with the Department of Ecology’s standards for construction and installation.
3. Stormwater runoff will be controlled and treated using BMPs and facility design standards as defined in PTMC Title 16.
4. Agricultural and landscaping activities, specifically use of fertilizers, herbicides and pesticides in highly susceptible areas, shall be controlled through state water quality standards.
5. Applicants shall also consider the guidance set forth in Chapter 5 of the Low Impact Development Technical Guidance Manual for the Puget Sound (2004) for recommendations concerning the protection of native soils and vegetation, and retention of hydrologic function, during clearing and grading for development proposals.
E. Mitigation or Compensation.
1. Any regulated development listed in subsection C of this section which results in degradation of aquifer recharge areas or aquifer water quality will require restoration of on-site disturbance in full to predisturbance con-
ditions. Additional compensation shall be required in the form of fines, provision of drinking water for areas dependent on the degraded aquifer, or alternative environmental restoration.
F. Special Report Required. A geohydrological report may be required in those areas identified as highly susceptible or vulnerable. (Ord. 2899 § 1, 2005; Ord. 2319 § 1, 1992).
19.05.080 Critical area 2 – Fish and wildlife habitat conservation areas.
A. Purpose. The Washington State Department of Wildlife defines, identifies and maps priority habitat and species and prepares management recommendations for them. Priority habitat types found in urban growth areas like Port Townsend include wetlands, critical drainage corridors, marine bluffs and urban natural open space. Some of these areas, especially wetlands and critical drainage corridors, provide excellent animal and bird habitat areas. This section outlines techniques for the city to use in evaluating land uses and protecting habitat areas which may be adversely impacted by these uses. These regulations are intended to provide reasonable measures to protect and conserve the habitat of fish and wildlife species and thereby maintain or increase their populations within Port Townsend. Habitat conservation will be accomplished by actively managing to maintain these species in their preferred habitats. However, habitat conservation does not require that all individuals of all species be protected.
B. Classification. The following areas are defined as fish and wildlife habitat conservation areas and are identified under this chapter:
1. Lands and waters containing documented habitats for plant and animal species listed in the Washington Department of Fish and Wildlife’s Priority Habitats and Species Program Report. Habitats and species of local significance may be added by action of the city council where the value and significance of such species locally can be established and sound scientific evidence can be presented to establish that the species’ existence is determined to be locally significant;
2. All public and private tidelands or bedlands suitable for shellfish harvest as designated by the Washington Department of Health’s classification system. Shellfish protection districts may be established pursuant to Chapter 90.72 RCW;
3. Areas with kelp and eelgrass beds. Kelp and eelgrass beds may be classified and identified by the Department of Natural Resources Aquatic Lands Program and the Department of Ecology. Many locations are compiled in the Puget Sound Environmental Atlas or the Port Townsend urban waterfront EIS maps;
4. Herring, smelt, sand lance and forage fish beach spawning areas. Times and locations are outlined in WAC 232-14-010, Hydraulic Code Guidelines, Technical Report No. 79, the Puget Sound Environmental Atlas and the City of Port Townsend Shoreline Inventory (2004);
5. Naturally occurring ponds (or created wetland ponds that are not stormwater detention/retention facilities) less than 20 acres and their submerged aquatic beds that provide significant fish or wildlife habitat;
6. Streams and waters of the state (see WAC 190-080(5)(a)(vi)) that provide habitat to endangered or threatened species, or certain species that have been identified as being sensitive to habitat manipulation, as defined in WAC 222-16-030, Forest Practices Rules and Regulations;
7. Lakes, ponds and streams planted with game fish, including those planted under the auspices of a federal, state, local or tribal program, and waters which support priority fish species as identified by the Department of Wildlife;
8. Feeder bluffs along marine shorelines; and
9. Marine nearshore habitat areas (i.e., the area encompassing the extreme low tide limit to the ordinary high water mark) and associated vegetated marine riparian areas.
C. Regulated Development.
1. Development occurring on lands and waters containing documented habitats for plant and animal species listed in the Washington Department of Fish and Wildlife’s Priority Habitats and Species Program Report. At this time, the only priority habitats and species known to be identified and mapped by the Department of Wildlife in Port Townsend are the following:
a. Bald eagles;
b. Great blue herons;
c. Brant and harlequin feeding areas;
d. Waterfowl concentrations at Kah Tai Lagoon;
e. Waterfowl wintering area at golf course pond.
2. Development occurring on lands and waters containing public and private tidelands or bedlands suitable for shellfish harvest.
3. Development occurring on lands and waters containing kelp and eelgrass beds.
4. Development occurring on lands and waters containing herring, smelt, sand lance and forage fish beach spawning areas.
5. If other priority species are identified by the applicant, the city or the state of Washington:
a. These species will be added to the list of Port Townsend’s priority species; and
b. The applicant must then provide a habitat management plan recommending appropriate protections based on the state Department of Wildlife priority habitat species management recommendations, as well as any other proposed mitigation measures that are considered necessary and appropriate by the director for the protection of the species identified.
6. Species of local significance may be added for protection by action of the city council where the value and significance and sound scientific evidence can be presented to establish that the species’ existence is threatened or endangered locally.
D. Performance Standards Applicable to All Development.
1. Development activities allowed in fish and wildlife habitat conservation areas shall be consistent with the species located there, and shall be regulated additionally by restrictions defined in applicable federal, state and local regulations regarding the species.
2. Habitat conservation areas identified in required habitat management plans are to be conserved for the management and maintenance of fish and wildlife habitat. Habitat conservation areas may overlap with other identified critical areas. Likely areas of overlap include critical drainage corridors, geologically hazardous areas and wetlands.
3. When habitat areas overlap with other critical areas, all the performance standards established for the overlaying critical area(s) shall apply. If multiple critical areas overlap in an area, the most restrictive conditions shall apply.
4. All habitat management plans required under this section shall incorporate mitigation recommendations developed in consideration of the Washington State Department of Fish and Wildlife’s Aquatic Habitat Guidelines, the Department of Ecology’s Stormwater Management Manual for the Puget Sound (2001), and Chapter 5 of the Low Impact Development Technical Guidance Manual for the Puget Sound (2004).
E. Performance Standards for Terrestrial Habitats and Species.
1. A habitat management plan shall be required for any development in or adjacent to areas identified as habitat for endangered, threatened or priority species. The plan shall incorporate mitigation recommendations developed in consideration of Washington Department of Fish and Wildlife habitat recommendations.
2. The habitat management plan shall show the exact location and extent of habitat conservation areas and any alteration of any habitat areas that may reduce the likelihood that the above listed species will survive or reproduce.
3. Development in or adjacent to areas used by state priority species shall be designed, located and constructed in consideration of Washington Department of Fish and Wildlife habitat recommendations, and consistent with best management practices (BMPs), including measures to avoid impacts due to construction noise, light and timing.
4. Developments occurring within the shorelin
