Division 5. Critical Areas

Chapter 18.100
ENVIRONMENTAL REVIEW

Sections:

18.100.010    Purpose.

18.100.020    Authority.

18.100.030    Critical area reports.

18.100.040    Mitigating for impacts to critical areas.

18.100.050    Review process.

18.100.060    Reasonable use exception.

Prior legislation: Ords. 548, 575, 576 and 648.

18.100.010 Purpose.

The purpose of an environmental review is to coordinate the application of critical area protection standards and other environmental standards on a site. Environmental review of a project does not result in an application approval; it results in recommended critical area and environmental protections for an application. (Ord. 659 § 14 (part), 2017)

18.100.020 Authority.

The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with the provisions of this division and Division 4, State Environmental Policy Act (SEPA). (Ord. 659 § 14 (part), 2017)

18.100.030 Critical area reports.

A.    Applicability.

1.    If the proposed project is within, adjacent to, or is likely to impact a critical area, an applicant must provide a critical area report unless the city planner grants a waiver.

2.    A required critical area report must be submitted and reviewed as part of an application for a permit or approval.

B.    Waivers. The city planner may waive the requirement for a critical area report when the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area. A waiver may be granted only if there is substantial evidence that all of the following requirements are met:

1.    The critical area and buffer will not be altered;

2.    The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter; and

3.    The proposal is consistent with other applicable regulations and standards.

C.    Professional Preparation Required.

1.    Critical area reports must be prepared by a qualified professional with expertise in the relevant scientific discipline based on education, professional certifications, and experience in the field. A qualified professional must have:

a.    A B.S., B.A., or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology, or related field; and

b.    Two years of related work experience.

2.    The following table identifies who is considered a qualified professional for each critical area:

Critical Area

Qualified Professional

Wetland

Certified professional wetland scientist or a noncertified professional wetland scientist with at least 5 years of experience in the field of wetland science

Critical Aquifer Recharge Area

Hydrogeologist, geologist, or engineer that is licensed in the state of Washington and has experience in preparing hydrogeologic assessments.

Fish and Wildlife Habitat Conservation Area

Biologist with experience preparing reports for the relevant type of habitat

Geologically Hazardous Area

Engineer or geologist that is licensed in the state of Washington and has experience analyzing geologic, hydrologic, and ground water flood systems.

Frequently Flooded Area

Hydrologist or engineer that is licensed in the state of Washington and has experience in preparing flood hazard assessments.

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

E.    Minimum Report Contents. At a minimum, the report must contain the following:

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

2.    The name, qualifications, and contact information for the primary author(s) of the report;

3.    Documentation of any fieldwork performed on the site, including the dates of any site visits;

4.    A site plan of the development proposal that includes:

a.    A map to scale depicting critical areas and buffers within three hundred (300) feet of the project area, the development proposal, and any areas to be cleared. For critical areas and buffers that are not on the property subject to the request, estimate conditions within three hundred (300) feet of the project boundaries using the best available information; and

b.    A description of the proposed stormwater management plan for the development and how impacts to drainage alterations will be accounted for;

5.    Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;

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

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

8.    An analysis of site development alternatives including a no development alternative;

9.    A description of reasonable efforts made to apply mitigation sequencing pursuant to Section 18.100.040, Mitigation for impacts to critical areas;

10.    Proposed mitigation plan, if applicable;

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

12.    Financial guarantees pursuant to Section 18.110.050(B) to ensure compliance; and

13.    Any additional information required for the critical area as specified in Chapter 18.110.

F.    Additional Report Contents.

1.    Supplemental Information. Unless prohibited by another part of this code, a critical area report may be supplemented by or composed of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the city planner.

2.    Habitat Assessment. A critical area report for a habitat conservation area must contain a habitat assessment. A habitat assessment evaluates the potential presence or absence of designated critical fish or wildlife species or habitat in the project area. At a minimum, a habitat assessment must include the following site- and proposal-related information:

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

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

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

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

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

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

3.    Additional Information. The city planner may require additional information be included in the critical area report. The additional information must be necessary for reviewing the proposed activity in accordance with this chapter. Additional information may include, but is not limited to, historical data, grading and drainage plans, and information specific to the type, location, and nature of the critical area.

G.    Hold Harmless Clauses. Hold harmless clauses, disclaimers, and limitations are prohibited in a critical area report.

H.    Requirement Modifications.

1.    Geographic Area. The city planner may limit the required geographic area of the critical area report as appropriate if:

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

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

2.    Required Contents. The required contents of the critical area report may be modified as appropriate if:

a.    The applicant consults with the city planner prior to or during preparation of the critical area report; and

b.    In the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation. (Ord. 659 § 14 (part), 2017)

18.100.040 Mitigating for impacts to critical areas.

A.    Mitigation for Impacts Required. Impacts that degrade the functions and values of a critical area or areas must be avoided if at all possible. If alteration to the critical area is unavoidable, all adverse impacts to critical areas and buffers must be mitigated using the best available science. The proposed mitigation must:

1.    Be in accordance with an approved critical area report and SEPA documents;

2.    Result in no net loss of critical area functions and values;

3.    Be in kind and on site, when possible;

4.    Be sufficient to maintain the functions and values of the critical area;

5.    Prevent risk from a hazard posed by a critical area; and

6.    Not be implemented until after city approval of a critical area report.

B.    Mitigation Sequencing. Applicants must demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, the alteration must be avoided, minimized, or compensated for in the following sequential order of preference:

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, such as project redesign, relocation, or timing, to avoid or reduce impacts.

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

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

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

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

7.    Monitoring the hazard or other required mitigation and taking remedial action when necessary.

8.    Mitigation for individual actions may include a combination of the above measures.

C.    Mitigation Plan. When mitigation is required, the critical area report must include a mitigation plan that addresses all of the following:

1.    Environmental Goals and Objectives. A written report identifying environmental goals and objectives of the mitigation proposed, which must be related to the functions and values of the impacted critical area.

2.    Anticipated Impacts and Mitigation Measures. A description of the anticipated impacts to the critical areas, the mitigating actions proposed, and the purposes of the mitigation measures. The description of impacts must include:

a.    Site selection criteria;

b.    Compensation goals;

c.    Resource functions; and

d.    Dates for beginning and completion of site compensation construction activities.

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

4.    Success Analysis. An analysis of the likelihood of mitigation success.

5.    Performance Standards. The mitigation plan must include specific, measurable criteria for evaluating whether or not the goals and objectives of the mitigation project and the requirements of this chapter have been met.

6.    Detailed Construction Plans. Written specifications, descriptions, drawings, and maps of the mitigation proposed. Detailed construction plans may include, but are not limited to:

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

b.    Grading and excavation details;

c.    Erosion and sediment control features;

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

e.    Measures to protect and maintain plants until established;

f.    Detailed site diagrams and scaled cross-sectional drawings; or

g.    Topographic maps showing slope percentage and final grade elevations.

7.    Monitoring Program. A program for monitoring construction of the mitigation project and for assessing a completed project. A protocol must be provided that outlines:

a.    The schedule for site monitoring (for example, monitoring will occur in years one, three, five, and seven after site construction);

b.    How the monitoring data will be evaluated to determine if the performance standards are being met.

8.    Contingency Plan. A list of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

D.    Financial Guarantee. A financial guarantee pursuant to Section 18.110.050(B) may be required to ensure that the mitigation plan is fully implemented.

E.    Monitoring Reports. Monitoring reports required by the monitoring program must be submitted as needed to document milestones, successes, problems, and contingency actions of the mitigation project. The mitigation project must be monitored for at least five years but may be monitored for a longer period if necessary to establish that performance standards have been met. (Ord. 659 § 14 (part), 2017)

18.100.050 Review process.

A.    Purpose. The city must determine whether the proposed activity and mitigation, if any, are consistent with the provisions of this chapter.

B.    Findings. A proposed activity and mitigation project may be approved upon finding:

1.    The proposal minimizes the impact on critical areas in accordance with mitigation sequencing;

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

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

4.    Any alterations permitted to the critical area are mitigated in accordance with mitigation requirements;

5.    The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and

6.    The proposal is consistent with other applicable regulations and standards.

C.    Conditions of Approval. The city may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter.

D.    Permit Denials. Except as provided for by this chapter, projects that cannot adequately mitigate their critical area impacts in the sequencing order of preferences must be denied.

E.    Completion of the Critical Area Review. The city’s determination regarding critical areas pursuant to this chapter must be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved.

F.    Appeals. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 659 § 14 (part), 2017)

18.100.060 Reasonable use exception.

A.    Purpose. The intent of the city is that every landowner in the city enjoy reasonable use of their land. The procedures set forth in this section are intended to permit landowners who believe they have been deprived of the reasonable use of their land to apply to the city for relief from the application of this division. Applications for a reasonable use exception automatically constitute an application for a variance to reduce front, side, or rear yard setback requirements. Reductions in setback requirements must be given preference over granting a reasonable use exception.

B.    Applicability. An application may be made for a reasonable use exception for new construction, expansions, additions, replacements, and redevelopment projects.

C.    Findings.

1.    Essential Public Facilities. A reasonable use exception may be approved for an essential public facility upon finding:

a.    There is no other practical alternative to the proposed development with less impact on the critical areas;

b.    The application of this chapter would unreasonably restrict the ability to provide utility services to the public;

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

d.    The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

e.    The proposal is consistent with other applicable regulations and standards.

2.    All Other Exception Requests. A reasonable use exception may be approved for all other requests upon finding:

a.    The application of this division would deny all reasonable economic use of the property;

b.    No other reasonable economic 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 economic use of the property;

d.    The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant;

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

f.    The proposal will result in no net loss of critical area functions and values consistent with the best available science, or the proposal is consistent with other applicable regulations and standards.

D.    Effect. Approval of a reasonable use exception does not permit any physical development, use, development option, or subdivision that has not been approved pursuant to these LDRs and does not ensure approval of any future application.

E.    Permit Issuance. An approved reasonable use exception must not commence or be acted upon until the permit is issued.

1.    Within fourteen (14) days of fulfillment of all conditions of approval that must be met prior to permit issuance, the city planner must issue the permit to the applicant, and make a copy available at the city for review during normal business hours.

2.    The permit must include any outstanding conditions of approval.

F.    Review Process. All steps and deadlines in the following chart are required unless noted otherwise. An applicant must complete each step before moving to the step below.

(Ord. 659 § 14 (part), 2017)