Chapter 17.114 CRITICAL AREAS – GENERAL PROVISIONS

(1) The purpose of this chapter is to designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

(2) This chapter is to implement the goals, policies, guidelines, and requirements of the Stanwood Comprehensive Plan and the Growth Management Act.

(3) The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit Stanwood and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, groundwater recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

(4) By limiting development and alteration of critical areas, this chapter seeks to:

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

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

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

(d) Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and habitat conservation areas.

(5) The regulations of this chapter are intended to protect critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.

(6) This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards. (Ord. 1164 § 4, 2004).

17.114.020 Authority.

(1) As provided herein, the director is given the authority to interpret and apply, and the responsibility to enforce, this chapter to accomplish the stated purpose.

(2) The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. (Ord. 1164 § 4, 2004).

17.114.030 Relationship to other regulations.

(1) Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

(2) Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Shoreline Substantial Development Permits, Hydraulic Permit Act (HPA) permits, U.S. Army Corps of Engineers Section 404 permits, National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. (Ord. 1164 § 4, 2004).

17.114.040 Fees.

(1) The city by ordinance or resolution may establish fees for filing of a critical area identification form, critical area review processing, and other services provided by the city as required by this chapter. These fees shall be based on the anticipated sum of direct costs incurred by the city for any individual development or action and may be established as a sliding scale that will recover all of the city costs including the enforcement of these code provisions. The basis for these fees shall include, but not be limited to, the cost of engineering and planning review time, cost of inspection time, costs for administration, and any other special costs attributable to the critical area review process.

(2) Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 1164 § 4, 2004).

17.114.050 Administrative rules.

Applicable departments within the city are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration. (Ord. 1164 § 4, 2004).

17.114.060 Interpretation.

In the interpretation and application of this title, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this title, and shall be deemed to neither limit nor repeal any other provisions under state statute. (Ord. 1164 § 4, 2004).

17.114.070 Jurisdiction – Critical areas.

(1) The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the best available science and the provisions herein.

(2) Critical areas regulated by the city under this and subsequent chapters include:

(a) Geologically hazardous areas as designated in Chapter 17.115 SMC;

(b) Frequently flooded areas as designated in Chapter 17.120 SMC;

(d) Fish and wildlife habitat conservation areas as designated in Chapter 17.130 SMC; and

(e) Critical aquifer recharge areas as designated in Chapter 17.135 SMC.

(3) All areas within the city meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

(4) Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this chapter and ensure protection of the functions and values of critical areas. Adjacent shall mean any activity located:

(a) On a site immediately adjoining a critical area; or

(b) A distance equal to or less than the required critical area buffer width and building setback. (Ord. 1164 § 4, 2004).

17.114.080 Protection of critical areas.

Any action taken pursuant to this chapter and Chapters 17.115 through 17.135 SMC shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with SMC 17.114.180 to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas. (Ord. 1164 § 4, 2004).

17.114.090 Best available science.

(1) Best Available Science To Be Consistent with Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.

(2) Protect Functions and Values of Critical Areas with Special Consideration to Anadromous Fish. Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat. (Ord. 1164 § 4, 2004).

17.114.100 Applicability.

(1) The provisions of this chapter and Chapters 17.115 through 17.135 SMC shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

(2) The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of this chapter and Chapters 17.115 through 17.135 SMC, including, but not limited to, the following:

(a) Building permit;

(b) Clearing and grading permit;

(d) Forest practices permit;

(e) Conditional use permit;

(f) Shoreline conditional use permit;

(g) Shoreline substantial development permit;

(h) Shoreline exemption;

(i) Shoreline variance;

(j) Short subdivision;

(k) Subdivision;

(l) Planned residential development;

(m) Binding site plan;

(n) Any other adopted permit or required approval not expressly exempted by this chapter. (Ord. 1164 § 4, 2004).

17.114.110 Exemptions.

(1) Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the planning director that describes the activity and states the exemption listed in this section that applies.

(2) The planning director shall review the exemption request to verify that it complies with this chapter and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.

(3) Exempt Activities and Impacts to Critical Areas. Exempt activities do not require submittal of a critical areas report. However, all exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.

(4) Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter and Chapters 17.115 through 17.135 SMC; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

(a) Emergencies.

(i) Emergencies are defined as those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this chapter and Chapters 17.115 through 17.135 SMC.

(ii) Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within 30 days, the planning director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the planning director determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of SMC 17.114.210, Unauthorized critical area alterations and enforcement, shall apply.

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

(b) Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species;

(c) Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. Trails must be constructed pursuant to SMC 17.114.140(4)(e);

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

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

(f) Existing Structures. Existing structures may be maintained, repaired and remodeled provided there is no further intrusion into a critical area or its buffer. New construction or reconstruction must conform to the requirements of this chapter and Chapters 17.115 through 17.135 SMC; and

(g) Single-Family Infill Development in Floodplain. Construction of single-family units, additions, and accessory structures that meet the city’s floodplain regulations in Chapters 17.120 SMC, but do not impact streams, wetlands, or their buffers, are exempt. The city shall require recording of a covenant on the title of the property, stating as follows:

Persons with interest in this property are advised that this property is potentially subject to flooding, geologic (seismic), and volcanic lahars (mudflow) hazards.

(Ord. 1164 § 4, 2004).

17.114.120 Exception – Public agency and utility.

(1) If the application of this chapter or Chapters 17.115 through 17.135 SMC would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

(2) Exception Request and Review Process. An application for a public agency and utility exception shall be made to the city planning department and shall include a critical area identification form; critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The planning director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with the public agency and utility exception review criteria in subsection (4) of this section.

(3) Hearing Examiner Review. The hearing examiner shall review the application and planning director’s recommendation, and conduct a public hearing pursuant to the provisions of Chapter 17.85 SMC. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the public agency and utility exception criteria in subsection (4) of this section.

(4) Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions are as follows:

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

(b) The application of this chapter or Chapters 17.115 through 17.135 SMC 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.

(5) Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 1164 § 4, 2004).

17.114.130 Exception – Reasonable use.

(1) If the application of this chapter or Chapters 17.115 through 17.135 SMC would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.

(2) Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include a critical area identification form; critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW) (SEPA documents). The planning director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with the reasonable use exception criteria in subsection (4) of this section.

(3) Hearing Examiner Review. The hearing examiner shall review the application and conduct a public hearing pursuant to the provisions of Chapter 17.85 SMC. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the reasonable use exception review criteria in subsection (4) of this section.

(4) Reasonable Use Review Criteria. One or more of the following criteria for review and approval of reasonable use exceptions may apply:

(a) The application of this chapter or Chapters 17.115 through 17.135 SMC 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 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) The proposal will result in no net loss of critical area functions and values consistent with the best available science; or

(g) The proposal is consistent with other applicable regulations and standards.

17.114.140 Allowed permitted activities.

(1) Allowed Permitted Activities Defined. Allowed activities are similar to exemptions in that they do not require critical area review. However, unlike exemptions, allowed activities must follow the critical areas standards. Conditions may be applied to the underlying permit, such as the building permit, to ensure critical area protection.

(2) Critical Area Report. Activities allowed under this section and corresponding sections in Chapters 17.115 through 17.135 SMC shall be reviewed and permitted or approved by the city or other agency with jurisdiction, but do not require submittal of a separate critical area identification form or critical area report, unless such submittal was required previously for the underlying permit. The planning director may apply conditions to the underlying permit or approval to ensure that the allowed activity is consistent with the provisions of this chapter and Chapters 17.115 through 17.135 SMC to protect critical areas.

(3) Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense.

(4) Allowed Activities. The following activities are allowed, and do not require submittal of a critical area report:

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

(i) The provisions of this chapter have been previously addressed as part of another approval;

(ii) There have been no material changes in the potential impact to the critical area or buffer since the prior review;

(iii) There is no new information available that is applicable to any critical area review of the site or particular critical area;

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

(v) Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

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

(c) Activities Within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a city-authorized private roadway except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater;

(d) Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the planning director in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased stormwater. Such allowed minor utility projects shall meet the following criteria:

(i) There is no practical alternative to the proposed activity with less impact on critical areas;

(ii) The activity involves the placement of a utility pole, street sign, anchor, or vault or other small component of a utility facility; and

(iii) The activity involves disturbance of an area less than 75 square feet;

(e) Public and Private Pedestrian Trails. Public and private pedestrian trails, except in wetlands, fish and wildlife habitat conservation areas, subject to the following:

(i) The trail surface shall meet all other requirements including water quality standards set forth in the city’s adopted stormwater manual; and

(ii) Buffer widths, if applicable, shall be increased, where possible, equal to the width of the trail corridor, including disturbed areas;

(f) Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the director:

(i) The removal of the following vegetation with hand labor and light equipment:

(A) Invasive and noxious weeds;

(B) Ivy (Hedera sp.);

(D) Evergreen blackberry (Rubus laciniatus);

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

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

(B) Tree cutting shall be limited to limbing and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be cut to remove the hazard (first choice) or removed or converted to wildlife snags (second choice);

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

(D) The landowner shall replace any trees that are removed with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year in accordance with an approved restoration plan. Replacement trees may be planted at a different, nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum caliper of two inches in diameter at breast height (dbh) shall be used;

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

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

(iii) Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW, and local forest practices regulations if adopted; provided, that the removed vegetation shall be replaced inkind or with similar native species within one year in accordance with an approved restoration plan;

(g) Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the city; provided, that their use shall be restricted in accordance with State Department of Fish and Wildlife Management Recommendations and the regulations of the State Department of Agriculture and the U.S. Environmental Protection Agency;

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

(i) Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. (Ord. 1164 § 4, 2004).

17.114.150 Critical area report – Review process.

(1) Submittal. Prior to the city’s consideration of any proposed activity not found to be exempt under SMC 17.114.110 or allowed pursuant to SMC 17.114.140, the applicant shall submit to the planning department a complete critical area identification form provided by the city.

(2) Site Inspection. Upon receipt of a project application and a critical area identification form, the director or his/her designee shall conduct a site inspection to review critical area conditions on-site. The director or his/her designee shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

(3) Determination. The director or his/her designee shall gather other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal and if a more detailed critical area report shall be submitted.

(a) Determination Criteria. The director or his/her designee shall use the following indicators to assist in determining the need for a critical area report:

(i) Indication of a critical area on the city critical areas maps that may be impacted by the proposed activity;

(ii) Information and scientific opinions from appropriate agencies, including but not limited to the Departments of Fish and Wildlife, Natural Resources, and Ecology;

(iii) Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

(iv) A finding by a qualified professional or a reasonable belief by the planning director that a critical area may exist on or adjacent to the site of the proposed activity.

(b) Decision on Identification Form.

(i) No critical areas present. If, after a site visit, the director’s analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the planning director shall rule that the critical area review is complete and note on the identification form the reasons that no further review is required.

(ii) Critical areas present, but no impact waiver. If the director determines that there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the planning director may waive the requirement for a critical area report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

(A) There will be no alteration of the critical area or buffer;

(B) The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter and Chapters 17.115 through 17.135 SMC; and

(iii) Critical areas may be affected by proposal. If the director determines that a critical area or areas may be affected by the proposal, then the director shall notify the applicant that a critical area report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report.

(4) Determination Subject to Reconsideration. A determination regarding the apparent absence of one or more critical areas by the director is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received.

(5) If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances. (Ord. 1164 § 4, 2004).

17.114.160 Critical area report – Requirements.

(1) Preparation by Qualified Professional. If required by the director in accordance with SMC 17.114.150(3)(b)(iii), the applicant shall submit a critical area report prepared by a qualified professional as defined in this title.

(2) Incorporating Best Available Science. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical area report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

(3) Minimum Report Contents. At a minimum, the report shall contain the following:

(a) The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

(b) A copy of the site plan for the development proposal including:

(i) A map to scale depicting critical areas, buffers, the development proposal, and any areas to be cleared; and

(ii) A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;

(c) The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

(d) Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;

(e) A statement specifying the accuracy of the report, and all assumptions made and relied upon;

(f) An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

(g) An analysis of site development alternatives including a no development alternative;

(h) A description of reasonable efforts made to apply mitigation sequencing pursuant to SMC 17.114.180(4), Mitigation Sequencing, to avoid, minimize, and mitigate impacts to critical areas;

(i) Plans for adequate mitigation, as needed, to offset any impacts, in accordance with SMC 17.114.190, Mitigation plan requirements, including, but not limited to:

(i) The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

(ii) The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

(j) A discussion of the performance standards applicable to the critical area and proposed activity;

(k) Any additional information required for the critical area as specified in Chapters 17.115 through 17.135 SMC.

(4) Unless otherwise provided, a critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the director. (Ord. 1164 § 4, 2004).

17.114.170 Critical area report – Modifications to requirements.

(1) Limitations to Study Area. The director 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) Modifications to Required Contents. The applicant may consult with the planning director or his/her designee prior to or during preparation of the critical area report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

(3) Additional Information. The planning director may require additional information to be included in the critical area report when determined to be necessary to the review of the proposed activity in accordance with this chapter. Additional information that may be required includes, but is not limited to:

(a) Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

(b) Grading and drainage plans; and

17.114.180 Mitigation requirements.

(1) The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to critical areas and buffers resulting from a development proposal or alteration shall be mitigated using the best available science in accordance with an approved critical area report and SEPA documents, so as to result in no net loss of critical area functions and values.

(2) Mitigation shall be inkind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

(3) Mitigation shall not be implemented until after city approval of a critical area report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical area report.

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

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

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

(c) Rectifying the impact to wetlands, critical aquifer recharge areas, 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;

(d) Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

(e) Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

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

(g) Monitoring the hazard or other required mitigation and taking remedial action when necessary; and

(h) Mitigation for individual actions may include a combination of the above measures.

(5) The city may encourage, facilitate, and approve innovative mitigation projects that are based on the best available science. Conducting mitigation as part of a cooperative process does not reduce or eliminate the required replacement ratios. Advance mitigation or mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

(a) Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

(b) The group demonstrates the organizational and fiscal capability to act cooperatively;

(d) There is a clear potential for success of the proposed mitigation at the identified mitigation site.

(6) Timing. Any approved mitigation shall be completed concurrently with project impacts. The community development department may choose to accept a performance bond when seasonal restrictions occur, when availability of the mitigation site is limited, or when on-site construction will impact the critical area.

(7) Mitigation shall be required for all unauthorized impacts. (Ord. 1164 § 4, 2004).

17.114.190 Mitigation plan requirements.

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

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

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

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

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

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

(a) The proposed construction sequence, timing, and duration;

(b) Grading and excavation details;

(d) A planting plan specifying native plant species, quantities, locations, size, spacing, and density; and

(e) Measures to protect and maintain plants until established;

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

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

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

(6) Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with SMC 17.114.250. (Ord. 1164 § 4, 2004).

17.114.200 Variances.

(1) Variances from the standards of this chapter or Chapters 17.115 through 17.135 SMC may be authorized by the city in accordance with the procedures set forth in SMC 17.80.155 and 17.80.160. The director or hearing examiner shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

(2) Variance Criteria. For deviations from critical areas regulations, a variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

(a) Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;

(b) The special conditions and circumstances do not result from the actions of the applicant;

(c) A literal interpretation of the provisions of this chapter or Chapters 17.115 through 17.135 SMC would deprive the applicant of privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;

(d) Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter or Chapters 17.115 through 17.135 SMC to other lands, structures, or buildings under similar circumstances;

(e) The granting of the variance is consistent with the general purpose and intent of this chapter and Chapters 17.115 through 17.135 SMC, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

(f) The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

(g) The granting of the variance is consistent with the general purpose and intent of the Stanwood Comprehensive Plan and adopted development regulations.

(3) Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

(4) Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

(5) Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 1164 § 4, 2004).

17.114.210 Unauthorized critical area alterations and enforcement.

(1) When a critical area or its buffer has been altered in violation of this chapter or Chapters 17.115 through 17.135 SMC all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of the provisions of this chapter.

(2) Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is approved by the city. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection (3) of this section. The planning director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

(3) Minimum Performance Standards for Restoration.

(a) For alterations to critical aquifer recharge areas, frequently flooded areas, wetlands, and habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

(i) The historic structural and functional values shall be restored, including water quality and habitat functions;

(ii) The historic soil types and configuration shall be replicated;

(iii) The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

(iv) Information demonstrating compliance with the requirements in SMC 17.114.180 shall be submitted to the director.

(b) For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

(i) The hazard shall be reduced to a level equal to, or less than, the pre-development hazard;

(ii) Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

(iii) The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

(4) Site Investigations. The planning director or his/her designee is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The planning director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

(5) Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter or Chapters 17.115 through 17.135 SMC shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter as provided under SMC Title 13. (Ord. 1164 § 4, 2004).

17.114.220 Critical area markers and signs.

(1) The boundary at the outer edge of critical area tracts and easements shall be delineated with permanent survey stakes, using iron or concrete markers as established by local survey standards.

(2) The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

(3) These provisions may be modified by the planning director as necessary to ensure protection of sensitive features or wildlife needs. (Ord. 1164 § 4, 2004).

17.114.230 Notice on title.

(1) In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county records and elections division according to the direction of the city. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall “run with the land.”

(2) This notice on title shall not be required for a development proposal by a public agency or public or private utility.

(3) The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned residential developments, and binding site plans, at or before recording. (Ord. 1164 § 4, 2004).

17.114.240 Native growth protection areas or tracts.

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

(a) All landslide hazard areas and buffers;

(b) All wetlands and buffers;

(d) All other lands to be protected from alterations as conditioned by project approval.

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

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

(a) An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

(b) The right of the city to enforce the terms of the restriction.

(4) Larger areas that are accepted by the city for dedication may be placed in a critical area tract. (Ord. 1164 § 4, 2004).

17.114.250 Bonds to ensure mitigation construction, maintenance, and monitoring.

(1) When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

(2) The bond shall be in the amount of 150 percent of the estimated cost of the uncompleted actions.

(3) The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

(4) Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

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

(6) Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

(7) Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or require other action authorized by the city code or any other law.

(8) Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 1164 § 4, 2004).

17.114.260 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. (Ord. 1164 § 4, 2004).