Chapter 19.05
FISH AND WILDLIFE HABITAT CONSERVATION AREAS
Sections:
19.05.050 Critical area report requirements.
19.05.010 Applicability.
A. Review under the standards of this chapter shall apply to any proposed development or nondevelopment clearing activities within fish and wildlife habitat conservation areas, defined below, which are not listed as exempt, pursuant to Section 19.01.070, Exemptions.
1. Development activities are those proposals already subject to existing county land division, building, grading or other review processes;
2. Nondevelopment clearing activities are proposals that are not otherwise subject to county review, but involve the alteration or removal of vegetation in designated fish and wildlife habitat conservation areas; or
3. Regulated activities as outlined in Section 19.01.060.
B. Designation. All areas within the county meeting one or more of the following designations, regardless of formal identification, are considered fish and wildlife habitat conservation areas and are subject to the provisions of this chapter:
1. Areas where endangered, threatened, and sensitive species have a primary association, including federal and state species (Washington Department of Fish and Wildlife (WDFW) priority habitats and species, including riparian habitat areas) and state priority habitat and areas associated with state priority species. Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation because of their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by the WDFW.
2. Waters of the State. Waters of the state shall be those defined in WAC 222-16-030:
a. Type S waters are all waters, within their bankfull width, as inventoried as “shorelines of the state” under Chapter 90.58 RCW and the rules promulgated pursuant to Chapter 90.58 RCW, including periodically inundated areas of their associated wetlands. Type S shorelines are regulated under the county shoreline management program (SMP).
b. Type F waters are segments of natural waters which are not classified as Type S waters and have a high fish, wildlife, or human use. These are segments of natural waters and the periodically inundated areas of their associated wetlands.
c. Type Np waters are all segments of natural waters within defined channels that are perennial non-fish-habitat streams. Perennial streams are waters that do not go dry at any time of a year of normal rainfall. However, for the purpose of water typing, Type Np waters include the intermittently dry portions of the perennial channel below the uppermost point of perennial flow.
d. Type Ns waters are all segments of natural waters within defined channels that are not Type S, F, or Np waters. These are seasonal, non-fish-habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np water. Ns waters must be physically connected by an aboveground channel system to a Type S, F, or Np water.
3. Habitats and species of local importance, as determined locally;
4. Forage fish spawning areas;
5. Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to other waters.
This does not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation.
6. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity; and
7. State or federal natural area preserves, natural resource conservation areas, and state wildlife areas. Natural area preserves and natural resource conservation areas are defined, established, and managed by the Washington State Department of Natural Resources (DNR). (Ord. 2020-03, 2-25-20)
19.05.020 Exemptions.
A. Activities exempt from the provisions of this chapter are specified in Section 19.01.070, Exemptions. In addition, the following habitat-specific exemption applies in deer and elk wintering range mapped by WDFW. Deer and elk are sensitive to disturbance from human development including roads and buildings in their wintering habitat. They normally require mature trees and undergrowth for screening in their wintering habitat and can do well in open areas lacking tree coverage provided there is a lack of human disturbance.
1. Single-family residences and accessory uses are exempt from review in WDFW mapped deer and elk wintering range provided all the following criteria are met as demonstrated by the applicant:
a. The subject site is located in an area of tree canopy coverage of less than sixty percent;
b. The subject site is located in an area of existing human disturbance where road density is greater than 1.5 miles of road within one square mile of the proposed development site and where existing density of residences is greater than one residence per five acres.
c. The subject site is located in areas greater than three-quarters of a mile from water sources (streams, lakes, or rivers). (Ord. 2020-03, 2-25-20)
19.05.030 Review process.
A. Critical Area Review Required. All development or nondevelopment clearing activities located within a fish and wildlife habitat conservation area require a critical area review and the submission of a critical area report unless exempted by Section 19.01.070 or 19.05.020 or under the following situations:
B. Confirmation Letter. Although an area may be mapped as a fish and wildlife habitat conservation area, it may not meet the designation criteria of a fish and wildlife habitat conservation area. Compliance with this chapter is not required when the applicant provides a letter from a qualified professional demonstrating that a proposed activity or development is not located within and/or would not impact a fish and wildlife habitat conservation area or buffer as designated in Section 19.05.010(B).
C. Review by Department of Fish and Wildlife. Applicants may choose to have their proposal reviewed by the Washington Department of Fish and Wildlife (WDFW) prior to hiring a qualified professional to prepare a critical area report. At the request of the applicant, site plans for uses proposed within fish and wildlife habitat conservation areas will be submitted by the administrator to WDFW for their review within a fourteen-day comment period. The purpose of this review is to allow WDFW to determine if a proposed activity or development is located within or would impact a fish and wildlife habitat conservation area and to provide management recommendations.
1. If WDFW determines that the proposed activity or development is not located within and/or would not impact a fish and wildlife habitat conservation area or buffer as designated in Section 19.05.010(B), then review may terminate and further compliance with this chapter is not required.
2. If WDFW determines that the proposed use would have only minor effects on the wildlife area or site that could be eliminated through mitigation measures recommended by the state wildlife biologist, or by simply modifying the site plan or regulating the timing of new uses, then these measures shall be included as conditions of approval in any required building or development permits.
3. If WDFW provides no response within the fourteen-day comment period or determines that the proposed activity or development is located within or would impact a fish and wildlife habitat conservation area, then the applicant will be required to apply for a critical area review and submit a critical area report, or they may submit a confirmation letter from a qualified professional under subsection (B) of this section. (Ord. 2020-03, 2-25-20)
19.05.040 Regulations.
A. The following requirements apply in addition to those identified in Chapter 19.01. All new structures and land alterations shall be prohibited from fish and wildlife habitat conservation areas and their buffers, except in accordance with this chapter. Additional standards follow:
1. Development and clearing within a fish and wildlife habitat conservation area or an associated buffer shall protect the functions and values of the existing habitat to the extent feasible; activities shall protect critical area functions and values. Protection is to be provided by avoiding (the preferred alternative) or minimizing and mitigating impacts as specified in Section 19.01.090.
2. Any use or development proposed within or adjacent to a fish and wildlife habitat conservation area shall ensure the area is protected as required by this chapter. If the administrator determines that a proposal is likely to impact a fish and wildlife habitat conservation area adversely, additional protective measures (such as a buffer area) may be required.
3. Development or clearing within a priority habitat and/or species area shall follow WDFW management guidelines, management recommendations, or other standards approved by the WDFW. Where no guidelines, recommendations, or other standards exist, development or clearing may occur; provided, that:
a. The development or clearing protects habitat functions and values; and
b. Functionally significant habitat, defined as habitat that cannot be replaced or restored within twenty years, shall be preserved. Forested stands that do not meet the definition of old-growth/mature forests as specified by the WDFW Priority Habitats and Species List may be exempt from this provision (subsection (A)(3)(b)).
4. The county or its qualified professional biologist shall condition the approval of activities located in fish and wildlife habitat conservation areas or their buffers as necessary. Approval conditions shall require the applicant to mitigate any potential adverse impacts according to the approved critical area report and habitat mitigation plan.
5. Proposals for activities, uses, and alterations located below the ordinary high water mark (OHWM) shall identify with specificity how the preservation and enhancement of anadromous fish habitat will be achieved, including, but not limited to, the following:
a. Activities shall not occur outside the allowable work window as designated by the WDFW.
b. An alternative alignment or location for the activity is not feasible.
c. The activity is designed so that it will minimize the degradation of the downstream functions or values of the fish habitat or other critical areas.
d. Any impact to the functions and values of the habitat conservation area are mitigated in accordance with an approved critical areas report.
e. Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided, as necessary, to allow the upstream and downstream migration of all salmonid life stages and shall prevent juveniles migrating downstream from being trapped or harmed. This standard does not apply to existing dams regulated/licensed by the Federal Energy Regulatory Commission.
f. Water intakes shall be screened to prevent fish from being drawn into pipes, pumps, and diversion devices in accordance with WAC 220-660-250.
B. Development Standards.
1. Alterations within Fish and Wildlife Habitat Conservation Areas. A habitat conservation area may be altered; provided, that the proposed alteration of the habitat or the mitigation proposed is unavoidable and does not degrade the quantitative and qualitative functions and values of the habitat; and provided, that the proposed alteration is not otherwise restricted or prohibited by this chapter. Applicants proposing activities subject to this chapter are required to demonstrate that the activity:
a. Substantially maintains the level of habitat functions and values as characterized and documented using best available science.
b. Minimizes habitat disruption or alteration beyond the extent required to undertake the proposal.
2. Nonindigenous Species. Plants, wildlife, or fish species not indigenous to the region shall not be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.
3. Clearing and Grading. When clearing and grading are permitted as part of an approved critical areas report, the following shall apply:
a. Grading is allowed only during the dry season, which is typically regarded as beginning on May 1st and ending on October 1st of each year; provided, that the county may extend or shorten the dry season on a case-by-case basis, as determined by actual weather conditions.
b. Best management practices for erosion and sediment control must be in place prior to, during, and after construction.
4. If it is determined that habitat designated under this chapter will incur a net loss of functions or values as a result of a proposal, disrupted functions and values shall be mitigated on site as a first priority, and off site thereafter.
5. Mitigation should be guided by applicable watershed, fish recovery, sub-basin or other science-based plans. Any science used to guide mitigation actions, whether on site or off site, must meet the criteria and characteristics of best available science listed in WAC 365-195-905, or the state standards in effect at the time of application.
6. Mitigation actions that require compensation shall occur in accordance with Section 19.01.090, General mitigation requirements.
7. The following additional mitigation requirements for fish and wildlife habitat conservation areas shall apply:
a. Mitigation for alterations to fish and wildlife habitat conservation areas shall be consistent with WDFW and other state or federal agencies’ management recommendations and guidance documents for best practices mitigation.
b. Mitigation shall be required to the level or extent necessary to protect fish and wildlife habitat conservation area functions and values.
c. Proposed mitigation for impacts within fish and wildlife habitat conservation areas may be conditioned by the county on a case-by-case basis using recommendations provided by Washington Department of Fish and Wildlife.
C. Habitat-Specific Development Standards.
1. Endangered, Threatened, and Sensitive Species. Where federal or state management recommendations exist to protect a state or federally protected species, development or other activities may be allowed within or adjacent to a habitat conservation area or buffer with which the state or federally endangered, threatened, or sensitive species has a primary association only when the management recommendations are utilized as demonstrated in a critical area assessment prepared by a qualified professional and approved by the administrator.
2. Wetland Habitats. All proposed activities within or adjacent to habitat conservation areas containing wetlands shall conform to the wetland development performance standards set forth in Chapter 19.03, Wetlands. If overlap occurs between these critical areas, the provisions of this section or Chapter 19.03, Wetlands, whichever provides greater protection to the habitat, apply.
3. Riparian Habitat. Riparian habitat areas shall be established for habitats that include aquatic and terrestrial ecosystems that mutually influence each other and that are located adjacent to waters of the state. Unless otherwise allowed in this title, all structures and activities shall be located outside riparian habitat areas.
a. Isolated Riparian Habitat Areas. When impervious surfaces from previous development or flood control structures, such as levees, completely functionally isolate the riparian area from the watercourse, the riparian habitat area shall extend from the OHWM to the impervious surfaces, or toe of the flood control structure.
b. Seasonal Restrictions. When a species is more susceptible to adverse impacts during particular periods of the year, seasonal restrictions may apply. Larger riparian habitat area widths may be required and activities may be further restricted during the specified season.
4. Required Riparian Habitat Area. The required widths are shown in the table below. Widths shall be measured outward in each direction, on the horizontal plane, from the OHWM (or from the top of bank, if the OHWM cannot be identified) to the edge of the one-hundred-year floodplain, or the distances shown in the table below, whichever are greater.
|
Stream Type |
Riparian Habitat Area Width (ft) |
|---|---|
|
DNR Type S Waters |
See County SMP |
|
DNR Type F Waters |
100 |
|
DNR Type Np Waters |
50 |
|
DNR Type Ns Waters |
25 |
5. Alterations to Waters of the State and Associated Riparian Habitat Areas. Activities may be permitted within a pond, lake, water of the state, or associated riparian habitat area when the activity complies with the provisions in this subsection and in accordance with an approved critical areas report and all applicable state or federal permits.
a. All work shall comply with the WDFW in-water work window for the relevant species; and
b. The proposal will not degrade the functions or values of the aquatic habitat or other critical areas.
6. Alteration of Natural Watercourses. Alteration of natural watercourses shall be avoided. If unavoidable, the following provisions shall apply to the alteration:
a. Watercourse alteration projects shall not result in blockage of side channels;
b. The applicant shall maintain the altered or relocated portion of the watercourse to ensure that its flood-carrying capacity is not diminished; and
c. Unavoidable impacts shall be mitigated consistent with mitigation requirements found in Section 19.01.090, General mitigation requirements.
7. In-Stream Structures. No structures that prevent the migration of salmonids will be allowed in the portions of water bodies currently used by anadromous fish.
8. Fills shall minimize impacts to anadromous fish or their habitat.
9. New Docks and Launching Ramps – Public or Private. On Type F and Type Np waters, launching ramps and new docks may be permitted in accordance with an approved critical areas report that has demonstrated the following:
a. The development minimizes adverse impacts to fish or wildlife habitat areas;
b. Adequate mitigation measures protect functions and values of aquatic or riparian habitat as a result of the structures; and
c. If applicable, the applicant has obtained a hydraulic project approval (HPA) from the WDFW.
10. Trails and Stream Crossings for Roads and Trails. Construction of trails and of bridges or culverts for trail or roadway stream crossings may be permitted without submission of a buffer averaging or reduction request under Section 19.01.080(D) or critical areas variance and are subject to the following additional standards:
a. There is no other feasible alternative route with less impact on the environment;
b. Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical area assessment;
c. Wherever feasible, trails and associated viewing platforms shall not be made of continuous impervious materials;
d. Trail and roadway stream crossings shall cross at a perpendicular angle to the degree feasible, or, if not feasible, at an angle no less than sixty degrees.
e. Any stream crossing must receive a WDFW-issued HPA prior to the county issuing a permit decision.
11. Roads within fish and wildlife habitat conservation areas or buffers require application for a critical areas variance under Section 19.01.050 or approval of a request for buffer averaging or buffer reduction under Section 19.01.080.
12. Utility Facilities. New utility lines and facilities may be permitted to cross watercourses, if they comply with the following additional standards:
a. There is no other feasible alternative route with less impact on the environment;
b. Installation shall be accomplished by boring beneath the scour depth and the saturated zone beneath the watercourse and channel migration zone, where feasible;
c. The utilities shall cross at an angle greater than sixty degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;
d. Crossings shall be contained within the footprint of an existing road or utility crossing where possible;
e. The utility route shall avoid paralleling the stream or following a down-valley course near the channel;
f. The utility installation shall not increase or decrease the natural rate of shore migration or channel migration; and
g. Utility facilities that carry liquid petroleum products or any other hazardous substance as defined in Chapter 173-303 WAC may be permitted only when demonstrated by a qualified professional that the design, location, and monitoring of the proposed facility will not cause contaminants to enter the protected resource.
h. If applicable, the applicant has obtained an HPA through WDFW.
13. Fences in Deer and Elk Wintering Range. New development permits issued by the county shall include a requirement that, in deer and elk winter range, the construction of new and replacement fences shall be subject to the following:
a. New fences in deer and elk winter range shall be allowed only when necessary to control livestock or pets or to exclude wildlife from specified areas, such as gardens or orchards. Fenced areas shall be the minimum necessary to meet the needs of the project applicant.
b. New and replacement fences in winter range shall comply with the following, unless the applicant demonstrates the need for an alternative design:
i. The top wire shall not be more than forty-two inches high to make it easier for deer to jump over the fence.
ii. The distance between the top two wires shall be at least ten inches to make it easier for deer to free themselves if they become entangled.
iii. The bottom wire shall be at least sixteen inches above the ground to allow fawns to crawl under the fence. It should consist of smooth wire because barbs often injure animals as they crawl under fences.
iv. Stays or braces placed between strands of wire shall be positioned between fence posts where deer are most likely to cross. Stays create a more rigid fence, which allows deer a better chance to wiggle free if their hind legs become caught between the top two wires.
c. Woven wire fences may be authorized only when a project applicant clearly demonstrates that such a fence is required to meet his or her specific needs, such as controlling hogs and sheep. (Ord. 2020-03, 2-25-20)
19.05.050 Critical area report requirements.
A. A critical areas report for fish and wildlife habitat conservation areas shall be prepared by a qualified biologist with experience analyzing aquatic and/or wildlife when a development activity is proposed in a habitat area or buffer. As deemed necessary by the administrator, the county may seek WDFW review and input on the report’s methodology. In the interest of ensuring that the consultant work proposed is in line with agency expectations, notice that a critical areas report has been received by the county will be provided to the WDFW with the CAO review notice per Section 19.01.050 or as soon as the critical areas report has been received. The county will seek WDFW response within fourteen days and will not rely solely on WDFW review.
In addition to the general critical areas report requirements of Section 19.01.100, a critical area report for fish and wildlife habitat conservation areas shall provide an assessment of existing habitats. The administrator has the authority to determine the applicability of individual critical areas report requirements and may waive report requirements determined to be unnecessary on a case-by-case basis. Critical areas reports for fish and wildlife habitat conservation areas must include the following information as determined necessary by the administrator:
1. Identification of any species of local importance, priority species, or endangered, threatened, sensitive or candidate species that have a primary association with habitat in or adjacent to the project area, and an assessment of potential project impacts to the use of the site by the species.
2. A discussion of any federal, state, or local species/habitat management recommendations, including the WDFW habitat management recommendations, that have been developed for the identified species or habitat.
3. Any buffers necessary for the protection of the identified species.
4. Developments that propose alterations to streams or their associated riparian habitat shall include the following within the critical areas report:
a. Characterization of riparian (streamside) vegetation species, composition, and habitat function;
b. Descriptions of the soil types adjacent to and underlying the stream, using the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) soil classification system;
c. Characterization of flow regime (i.e., perennial, intermittent, or ephemeral);
d. Determination of the presence or absence of fish, and reference sources; and
e. When stream alteration is proposed, include stream width and flow rate, stability of the channel including erosion or aggradation potential, type of substratum, discussions of infiltration capacity and biofiltration before and after alteration, presence of hydrologically associated wetlands, analysis of fish and wildlife habitat, and any proposed floodplain limits.
5. On the site map: (a) the location of the identified habitat; (b) the location of the OHWM; (c) the toe of any slope twenty-five percent or greater within twenty-five feet of the OHWM; and (d) the location of any proposed or existing stream crossing.
6. Habitat Mitigation Plans. Development proposals or alterations within a fish and wildlife habitat conservation area or buffer as determined by the administrator in consultation with the WDFW shall have prepared, and submitted, as part of its critical areas report, a habitat mitigation plan.
a. In addition to the general mitigation requirements of Section 19.01.090, the habitat mitigation plan for fish and wildlife habitat conservation areas shall include a habitat mitigation plan in the critical areas report that identifies the existing habitat and the qualities that are essential to maintain feeding, breeding, and nesting of listed species using the fish and wildlife habitat conservation area, and that identifies measures to minimize the impact on these ecological structures, functions, and processes from the proposed activities. The applicant shall be guided by, but not limited to:
i. Management Recommendations for Washington’s Priority Habitats and Species (1991), issued by WDFW, as amended;
ii. Management Recommendations for Washington’s Priority Habitats and Species: Oregon White Oak Woodlands (1998), issued by WDFW, as amended;
iii. Management Recommendations for Washington’s Priority Habitats: Riparian (1997), issued by WDFW, as amended;
iv. Management Recommendations for Washington’s Priority Species Volume III: Amphibians and Reptiles (1997), issued by WDFW, as amended;
v. Management Recommendations for Washington’s Priority Species Volume IV: Birds (2012), issued by WDFW, as amended;
vi. Any recovery and management plans prepared or adopted by the WDFW for the listed species pursuant to WAC 232-12-297, National Marine Fisheries Service (NMFS), and the U.S. Fish and Wildlife Service (USFWS) pursuant to the federal Endangered Species Act (ESA);
vii. The Washington Lower Columbia Salmon Recovery and Fish and Wildlife Subbasin Plan by the Lower Columbia Fish Recovery Board; and
viii. The watershed management plans for Water Resource Inventory Areas 26, 27, 28, and 29A and the associated detailed implementation plans.
b. Conditions shall be imposed, as necessary, based on the measures identified in the habitat mitigation plan.
c. Approval of land alteration within or adjacent to the fish and wildlife habitat conservation area or its buffer shall not occur prior to consultation with WDFW and the appropriate federal agency. (Ord. 2020-03, 2-25-20)