Chapter 14.40
CRITICAL FISH AND WILDLIFE HABITAT AREAS
Sections:
14.40.010 Purpose.
14.40.020 Critical fish and wildlife species and habitat areas.
14.40.030 Critical fish and wildlife habitat area review procedures.
14.40.040 Critical fish and wildlife habitat area standards.
14.40.050 Mitigation requirements.
14.40.060 Buffer requirements.
14.40.070 Appendices.
14.40.080 Figures.
14.40.010 Purpose.
Many land use activities can impact the habitats of fish and wildlife. Special care must be taken in the management of lands that support critical fish and wildlife species to ensure that development occurs in a manner that is sensitive to their habitat needs. The purpose of this chapter is to identify critical fish and wildlife species and habitats and establish habitat protection procedures and mitigation measures that are designed to minimize any negative impacts associated with new development or regulated activities. (Ord. 02-200 § 2).
14.40.020 Critical fish and wildlife species and habitat areas.
A. General. Critical fish and wildlife habitat areas are those areas that support critical fish and wildlife species, typically identified either by known point locations of specific species (such as a nest or den) or by habitat areas or both.
B. Federally and State Listed Species and their Associated Habitats. Areas which have a primary association with federally or state-listed endangered, threatened, or sensitive species of fish or wildlife (specified in 50 CFR 17.11, 50 CFR 17.12, WAC 232-12-011 and 232-12-014) and which if altered may reduce the likelihood that the species will survive and reproduce over the long term. The list of endangered, threatened, or sensitive species is maintained and located at:
http://www.wdfw.wa.gov/wlm/diversty/soc/soc.htm.
C. Species of Local Importance. In addition to federally and state-listed species, the following fish and wildlife species and their associated habitat areas shall be regulated under this chapter:
1. Fish. Coho salmon, pink salmon, chum salmon, sockeye salmon, cutthroat trout, steelhead.
2. Birds. Herons.
D. Habitats of Local Importance.
1. Areas with which state-listed monitor or candidate fish or wildlife species or federally listed candidate fish or wildlife species have a primary association (habitat areas and point locations), as specified in Washington Department of Wildlife Policies 4802 and 4803, and which if altered may reduce the likelihood that the species will survive and reproduce over the long term. The list of endangered, threatened, or sensitive species is maintained and located at:
http://www.wdfw.wa.gov/wlm/diversty/soc/soc.htm.
2. Documented habitat areas or potential habitat areas and point locations for fish and wildlife species. These areas include specific habitat types, which are infrequent in occurrence in Edgewood and may provide specific habitats with which endangered, threatened, sensitive, candidate, or monitor fish and wildlife species have a primary association, such as breeding habitat, winter range, and movement corridors. These areas include the following:
a. Oregon white oak trees and woodlands. Oregon white oak woodlands, stands, and individual trees meeting the following criteria shall be considered priority habitat and shall be subject to protection under the provisions of this chapter:
i. Priority Oregon White Oak Woodlands. Stands of Oregon white oak or oak/conifer associations where the stand is at least one acre in size and the canopy coverage of the oak component of the stand is greater than or equal to 25 percent (see Figure 14.40-1).
ii. Significant Oaks and Stands. Single oaks, or stands of oaks smaller than one acre in size, when any of the following criteria are met:
(A) Individual trees having a diameter at breast height of 20 inches or more; or
(B) Oregon white oak stands in which the oak trees have an average diameter at breast height of 15 inches or more regardless of stand size.
b. Old growth/mature forests.
c. Caves.
d. Cliffs.
e. Snag-rich areas and logs.
f. Waters of the state and/or natural waters and adjacent shoreline areas (200 feet landward measured from the ordinary high water mark) including:
i. All water bodies classified by the Washington Department of Natural Resources (DNR) water typing classification system as detailed in WAC 222-16-030 and 222-16-031.
ii. All waters that support critical fish or wildlife species (i.e., areas that have connectivity to fish bearing waters and may potentially provide habitat given no natural barriers to fish passage).
iii. Ponds and their submerged aquatic beds.
g. Wetlands (refer to Chapter 14.30 EMC).
h. Heron rookeries.
E. Potential Critical Fish and Wildlife Habitat Areas. Potential critical fish and wildlife habitat areas, as depicted on the Critical Areas Atlas – Critical Fish and Wildlife Habitat Area Maps, are those areas where the suspected presence of critical fish or wildlife species is sufficient to require critical fish or wildlife habitat area review (see Figure 14.40-2). Potential critical fish and wildlife habitat areas are determined using the following criteria:
1. A habitat area identified on one of the maps listed in EMC 14.10.140, Appendix A (includes but is not limited to breeding habitat, winter ranges, movement corridors, oak woodlands, streams, ponds, etc., as outlined in subsections (A) through (D) of this section) plus the adjacent 200 feet surrounding the habitat area.
2. A point location identified on one of the maps listed in EMC 14.10.140, Appendix A, (including but not limited to nests, dens, rookeries, etc.) plus the adjacent 800 feet surrounding the point location. (Ord. 02-200 § 2).
14.40.030 Critical fish and wildlife habitat area review procedures.
A. General Requirements.
1. The City's Critical Areas Atlas – Critical Fish and Wildlife Habitat Area Maps provide an indication of where potential critical fish and wildlife habitat areas are located within the city. The presence or location of a potential critical fish or wildlife species, habitat area, or point location that has not been mapped, but that may be present on or adjacent to a site, shall be determined using the procedures and criteria established in this chapter.
2. The department will complete a review of the Critical Areas Atlas – Critical Fish and Wildlife Habitat Area Maps and other source documents for any proposed regulated activity to determine whether the site for the regulated activity is located within a potential critical fish or wildlife habitat. Identification of a potential critical fish or wildlife habitat area may also occur as a result of field investigation conducted by Department or Washington Department of Fish and Wildlife (WDFW) staff.
3. When the department's maps, sources, or field investigation indicates that the site for a proposed regulated activity is located within a potential critical fish or wildlife habitat area, the department shall require the submittal of a critical fish and wildlife application and habitat assessment to determine the presence or absence of critical fish or wildlife species or habitat. The habitat assessment shall be documented as set forth in subsection (B) of this section (see EMC 14.40.080(C), Figure 14.40-3).
4. The requirement to conduct a habitat assessment may be waived by the department when the department determines that no other critical fish and wildlife species and habitats, as set forth in EMC 14.40.020, are present. The applicant shall be required to comply with the standards set forth in EMC 14.40.040(D).
5. Projects undergoing review for critical fish and wildlife habitat areas shall be routed to tribal agencies with jurisdiction for review. Tribes will have an opportunity to provide specific habitat information on proposed development sites. If necessary, the department will seek additional assistance from the Washington Department of Fish and Wildlife and similar appropriate state and federal agencies.
6. Approval of a critical fish and wildlife application shall be granted upon a determination that the habitat assessment and mitigation plan, if applicable, are thorough and accurate and meet all requirements of this title.
7. If application of the standards contained in this chapter would deny all reasonable use of a site, the applicant may pursue a reasonable use exception as set forth in EMC 14.20.050.
8. Unless otherwise stated in this chapter, the critical area protective measure provisions contained in EMC 14.10.080 shall apply.
B. Habitat Assessment. A habitat assessment is a site investigation process to evaluate the presence or absence of a potential critical fish or wildlife species or habitat affecting a subject property.
1. The applicant may select either a fish or wildlife biologist, as applicable, or department staff to conduct a habitat assessment to determine whether or not a critical fish or wildlife habitat area, point location, and any associated buffer are located on the site for a proposed development as outlined below:
a. Applicants for single-family dwellings or agricultural activities may retain department staff to complete the habitat assessment as follows:
i. Requests for department staff to conduct a habitat assessment shall be accompanied with a critical fish and wildlife habitat area application and associated fee(s).
ii. If department staff conducts the habitat assessment and determines that no critical fish or wildlife habitat areas, point locations, or associated buffers are present on the site, then the critical fish and wildlife habitat area review will be considered complete.
iii. If department staff conducts the habitat assessment and determines that critical fish or wildlife habitat areas, point locations, or associated buffers are present on the site, then the applicant shall be required to submit a habitat assessment study or a habitat assessment report as outlined in subsection (B)(1)(b) of this section. This requirement may be waived if the applicant agrees to comply with the standards set forth in EMC 14.40.040 and the critical area protective measures set forth in EMC 14.10.080.
b. If a fish or wildlife biologist conducts the habitat assessment, then the following documentation shall be submitted to the department:
i. The habitat assessment shall be submitted in the form of a habitat assessment letter when the fish or wildlife biologist completes the field investigation and determines that a critical fish or wildlife habitat area, point location, or associated buffer is not located on the site. The habitat assessment letter shall meet the requirements contained in EMC 14.40.070, Appendix A (see EMC 14.40.080(C), Figure 14.40-3).
ii. The habitat assessment shall be submitted in the form of a habitat assessment study when the fish or wildlife biologist completes the field investigation and determines a critical fish or wildlife habitat area, point location, or associated buffer is located on the site and when the proposed regulated activity complies with the standards set forth in EMC 14.40.040 and the buffer requirements as set forth in EMC 14.40.060. The habitat assessment study shall meet the requirements contained in EMC 14.40.070, Appendix B (see EMC 14.40.080(C), Figure 14.40-3).
iii. The habitat assessment shall be submitted in the form of a habitat assessment report when the fish or wildlife biologist completes the field investigation and determines a critical fish or wildlife habitat area, point location, or associated buffer is located on the site and when the proposed development activity does not or cannot comply with the standards set forth in EMC 14.40.040 and the buffer requirements as set forth in EMC 14.40.060. The habitat assessment report shall meet the requirements contained in EMC 14.40.070, Appendix C (see EMC 14.40.080(C), Figure 14.40-3).
iv. Habitat assessments shall be submitted to the department for review and approval together with a critical fish and wildlife habitat area application and associated fee(s).
v. Habitat assessments shall be prepared, signed, and dated by a fisheries or wildlife biologist (as defined in EMC 14.10.060), as applicable to the particular species or habitat type.
vi. Habitat assessment reports shall address the mitigation requirements set forth in EMC 14.40.050.
2. All habitat assessments submitted under the requirements of this chapter shall, at a minimum, include the following:
a. The parcel number of the subject property.
b. The site address of the subject property, if one has been assigned by the city.
c. The date and time when the site evaluation for the habitat assessment was conducted and the date when the habitat assessment was prepared.
d. The credentials of the fish or wildlife biologist who prepared the habitat assessment.
e. The mailing address and phone number of the property owner and the fish or wildlife biologist that prepared the habitat assessment.
f. A detailed description of the vegetation on and adjacent to the site.
g. Identification and a detailed description of any critical fish or wildlife species or habitats, as set forth in EMC 14.40.020, on or adjacent to the site and the distance of such habitats or species in relation to the site. Describe efforts to determine the status of any critical species in the project area, including information on survey methods, timing, and results of surveys for species or suitable habitat identification.
h. Include any information received from biologists with special expertise on the species or habitat type, such as WDFW, Tribal, USFS, or other local, regional, federal, and university fish, wildlife and habitat biologists and plant ecologists. Include any such conversations in the habitat assessment and cite as personal communication.
i. A map showing the location of the site, including written directions.
j. The department may also require that the applicant request a separate evaluation of the site by WDFW staff to confirm the findings of the habitat assessment.
3. Hold harmless clauses, disclaimers, and limitations are not allowed within a habitat assessment letter.
4. The department shall review the habitat assessment and either:
a. Accept the habitat assessment and approve the critical fish and wildlife application; or
b. Reject the habitat assessment and notify the applicant in writing of the reasons why the habitat assessment was rejected. (Ord. 02-200 § 2).
14.40.040 Critical fish and wildlife habitat area standards.
A. General.
1. Activities permitted under this section shall comply with the provisions of all other chapters contained in this title.
2. All proposed regulated activities shall comply with the buffer requirements contained in EMC 14.40.060.
3. If the department determines that mitigation is necessary to offset the identified impacts from a proposed development, the applicant shall comply with the mitigation requirements set forth in EMC 14.40.050.
4. Unless otherwise allowed in this chapter, all regulated activities shall be located outside critical fish and wildlife habitat areas and associated buffers.
5. A proposed regulated activity may be allowed within a critical fish or wildlife habitat area or required buffer when located on an existing lot of record that was created prior to the effective date of the ordinance codified in this chapter subject to the following conditions:
a. Applicants shall demonstrate there are no other feasible alternatives that would allow the proposed development to occur completely outside the critical fish or wildlife habitat area or the required associated buffer.
b. The development cannot be located outside the critical fish or wildlife habitat area or required buffer due to topographic constraints of the parcel or size and/or location of the parcel in relation to the limits of the critical fish or wildlife habitat area or required buffer.
c. If applicable, a building setback variance has been reviewed, analyzed, and rejected as a feasible alternative to encroachment into the critical fish or wildlife habitat area or associated buffer.
d. The proposed project complies with the standards set forth in this section and has demonstrated through the submittal of a habitat assessment report that adequate mitigation as outlined in EMC 14.40.050 has been provided.
B. Riparian Areas, Ponds, and Associated Buffers. The following specific regulated activities may occur within a riparian area, pond, or associated buffer subject to the following standards:
1. Clearing and Grading. When clearing and grading is permitted as part of an authorized regulated activity or as otherwise allowed in these standards, 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; the department may extend or shorten the dry season on a case-by-case basis, determined on actual weather conditions.
b. Filling or modification of a wetland or wetland buffer is permitted only if it is conducted as part of an approved wetland permit issued by the department.
c. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the project site.
d. The moisture-holding capacity of the topsoil layer shall be maintained by minimizing soil compaction or reestablishing natural soil structure and infiltrative capacity on all areas of the site that impervious surfaces do not cover.
e. Erosion and sediment control that meets or exceeds the standards set forth in the Edgewood Stormwater Management Manual shall be provided.
2. Vegetation Removal, Disturbance, and Introduction. Limited vegetation removal shall be allowed subject to the following standards:
a. Hazard trees may be cut; provided, that:
i. The applicant submits a report from a certified arborist, licensed architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees and receives written approval from the city authorizing the tree removal;
ii. Tree cutting shall be limited to limbing and crown thinning, unless otherwise justified by the landowner's expert. Where limbing or crown thinning is not sufficient to address the hazard, trees should be topped to remove the hazard rather than cut at or near the base of the tree. All vegetation cuttings (tree stems, branches, tops, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease transmittal to other healthy vegetation;
iii. The landowner shall replace any trees that are felled or topped with new trees at a ratio of two replacement trees for each tree felled or topped. Tree species that are native and indigenous to the site shall be used;
iv. Hazard trees determined to pose an imminent threat or danger to public health or safety, or to public or private property, or serious environmental degradation may be removed or topped by the landowner prior to receiving written approval from the department; provided, that within 14 days following such action, the landowner shall submit the necessary report and replanting schedule demonstrating compliance with subsections (B)(2)(a)(i) through (iii) of this section.
b. Trimming of vegetation for purposes of providing view corridors will be allowed; provided, that trimming shall be limited to view corridors of 20 feet in width or less, that no more than 30 percent of the live crown is removed, and that benefits to fish and wildlife habitat are not reduced. Trimming shall be limited to hand pruning of branches and vegetation. Trimming shall not include felling, topping, or removal of trees.
c. Limited vegetation and tree removal subject to the conditions contained in an approval for a regulated activity.
d. Introduced vegetation shall be limited to species that are native and historically indigenous to the site.
3. Fencing. Fencing shall be placed in such a manner as to maintain wildlife movement corridors and not create any fish passage blockages. The department shall approve the location, type, and height of any proposed fencing.
4. Shoreline Erosion Control Measures. New or replacement shoreline erosion control measures shall be subject to the following standards:
a. The proposal complies with the provisions set forth in Chapter 14.110 EMC.
b. The applicant has submitted a habitat assessment report, as set forth in EMC 14.40.030.
c. The habitat assessment report demonstrates the following:
i. Natural shoreline processes will be maintained. The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-quarter mile of the site.
ii. The shoreline erosion control measure will not adversely impact critical fish or wildlife habitat areas or associated wetlands.
iii. Adequate mitigation measures, as set forth in EMC 14.40.050, are provided that ensure no net loss of intertidal or riparian habitat or function occurs as a result of the proposed shoreline erosion control measure.
iv. No alteration of intertidal migration corridors occurs as a result of the proposed shoreline erosion control measure.
5. Streambank Stabilization. Streambank stabilization to protect new structures from future channel migration is not permitted except when such stabilization is achieved through bioengineering or soft armoring techniques. Streambank stabilization shall comply with the provisions set forth in Chapter 14.70 EMC.
6. Launching Ramps – Public or Private. Launching ramps may be allowed when the applicant has submitted a habitat assessment report as set forth in EMC 14.40.030 that has demonstrated the following:
a. The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-quarter mile of the site.
b. The ramp will not adversely impact critical fish or wildlife habitat areas or associated wetlands.
c. Adequate mitigation measures, as set forth in EMC 14.40.050, are provided that ensure no net loss of intertidal or riparian habitat or function occurs as a result of the ramp.
d. No alteration of intertidal migration corridors as a result of the ramp.
7. Docks. Repair and maintenance of an existing dock or pier shall be permitted subject to the following:
a. There is no increase in the use of materials creating shade for predator species;
b. There is no expansion in overwater coverage;
c. There is no new spanning of waters between three and 13 feet deep;
d. There is no increase in the size and number of pilings; and
e. There is no use of toxic materials (such as creosote) that come in contact with the water.
8. Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, and minor road bridging (less than or equal to 30 feet wide) may be allowed subject to the following standards:
a. There is no other feasible alternative route with less impact on the environment.
b. The crossing allows for uninterrupted downstream movement of wood and gravel.
c. Mitigation, pursuant to EMC 14.40.050, for impacts is provided.
d. Road bridges are designed according to the WDFW Habitat and Lands Environmental Division's Fish Passage Design at Road Culverts, March, 1999, and the NMFS Guidelines for Salmonid Passage at Stream Crossings, 2000.
e. Trails and associated viewing platforms shall be made of pervious materials.
9. Utility Facilities.
a. Installation of a utility is permitted if constructed in an existing, improved roadway, driveable surface or shoulder, subject to compliance with Pierce County road maintenance best management practices (BMPs).
b. New utility lines and facilities are permitted to cross watercourses if they comply with the following standards:
i. Avoid critical fish and wildlife habitat areas to the maximum extent possible.
ii. Cross at an angle greater than 60 degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible.
iii. Crossings are contained within the footprint of an existing road or utility crossing where possible.
iv. Avoid paralleling the stream or following a down-valley course near the channel.
v. Do not increase or decrease the natural rate of shore migration or channel migration.
vi. Bore beneath the scour depth and hyporheic zone of the water body and channel migration zone (CMZ) where feasible.
10. Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be approved, subject to the department's review and approval of a habitat assessment report or the approval of a federal biological assessment.
11. Instream Structures. A new instream structure (e.g., such as, but not limited to, high flow bypass, sediment ponds, instream ponds, retention and detention facilities, tide gates, dams, weirs, etc.) shall be allowed only as part of an approved mitigation or restoration project or watershed basin plan approved by the city and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect critical fish species. Proposals for placement of water quality, water quantity, or other instruments or structures within a stream to gather data, or as a mitigation measure, shall be exempt from the provisions of this title upon review and approval by the department.
12. Stormwater Conveyance Facilities. Conveyance structures whose sole purpose is to convey stormwater already treated for quality, or water bypassed around water quality treatment facilities pursuant to an approved stormwater plan, may be constructed subject to the following standards:
a. No other feasible alternatives with less impact exist;
b. Mitigation for impacts is provided;
c. Stormwater conveyance facilities shall incorporate fish habitat features;
d. Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds in order to retard erosion, filter out sediments, and shade the water.
13. On-Site Sewage Systems and Wells.
a. New on-site sewage systems and individual wells are permitted if accessory to an approved structure.
b. Repairs to failing on-site sewage systems associated with an existing structure shall be accomplished by utilizing one of the following methods that result in the least impact:
i. Connection to an available public sewer system;
ii. Replacement with a new on-site sewage system located in a portion of the site that has already been disturbed by development and is located landward as far as possible, provided the proposed sewage system is in compliance with the provisions in Chapter 14.70 EMC; or
iii. Repair to the existing on-site septic system.
14. New Agricultural Activities. New agricultural activities are permitted subject to the following:
a. Agricultural activities and structures shall comply with the provisions of Chapter 14.70 EMC, Flood Hazard Areas.
b. The agricultural activity is in compliance with the USDA, NRCS Conservation Reserve Program farm management standards.
c. A copy of an approved NRCS or Pierce County conservation district farm management plan that documents compliance with the USDA, NRCS Conservation Reserve Program farm management standards has been submitted to the department for review and approval.
15. Structures and Landscaped Areas. New construction, redevelopment, or additions or expansions of existing structures or reconstruction of damaged structures may be permitted subject to the following:
a. Maximum disturbance (including the principal structure, accessory structures, and related appurtenances such as landscaped areas, wells, on-site septic systems, etc.) within the habitat area and/or associated buffer shall be:
i. Two thousand five hundred square feet if the area of the lot within the buffer is 5,000 square feet or less;
ii. Five thousand square feet if the area of the lot within the buffer is 10,000 square feet or greater;
iii. Fifty percent of the area of the lot if the area within the buffer is between 5,001 and 9,999 square feet; and
iv. Expansions and redevelopment projects shall be limited to the lesser of 1,000 additional square feet of disturbance area or the same area and disturbance criteria that would have been permitted if the site were undeveloped.
b. Development is prohibited within 50 feet of any waterbody, watercourse, as measured landward from the ordinary high water mark.
c. Development is prohibited within any side channel, oxbow, spring, or other type of off-channel habitat including connectable relic channels or oxbows.
d. The area not disturbed by development shall be managed for native or approved vegetation and planted with native or approved vegetation where necessary following adopted guidelines to reestablish natural forested conditions (example: WDFW's Restoring the Watershed, A Citizen's Guide to Riparian Restoration in Western Washington).
e. The proposal complies with the standards set forth in Chapter 14.70 EMC, Flood Hazard Areas.
f. The expansion of existing multifamily structures and the conversion of lots from single-family to multifamily use is prohibited.
16. Alteration of Watercourses. Alteration of watercourses shall comply with the standards set forth in subsection (D) of this section.
C. Oregon White Oak Trees and Woodlands.
1. Habitat Protection. Oak woodlands, stands, and individual trees meeting the criteria set forth in EMC 14.40.020(D) shall be protected as follows:
a. Priority Oregon White Oak Woodlands.
i. Priority Oregon white oak woodlands shall be protected through inclusion within a conservation tract meeting the requirements set forth in EMC 14.40.060. The tract shall extend a minimum of five feet beyond the outermost dripline of the trees within the woodland.
ii. A minimum of 80 percent of the Oregon white oak trees on site having a diameter at breast height of six inches or larger shall be preserved within the conservation tract.
iii. The conservation tract shall be maintained in an undisturbed state except for periodic watering, grass mowing of not more than four times per year, and hand removal of noxious or invasive plants, including conifer seedlings and saplings.
iv. No clearing, grading, filling, or construction of any kind shall occur within the conservation tract.
v. Use of pesticides, herbicides, rodenticides, fungicides, or fertilizers in the conservation tract shall be prohibited.
vi. All oak snags within the conservation tract shall be retained.
vii. Downed or felled oak trees within the conservation tract shall be retained; provided, that such trees may be selectively cut to further enhance habitat value.
b. Significant Oaks and Stands.
i. Significant Oaks. Seventy percent of all Oregon white oaks having a diameter at breast height of 20 inches or greater shall be preserved.
ii. Significant Oak Stands. A minimum of 50 percent of the Oregon white oak trees within the stand shall be preserved.
iii. Downed or felled oak trees and snags within significant oak stands shall be retained when located within a tract of land separate from individually owned lots.
iv. Trees may be located within individually owned lots or a separate tract(s) at the discretion of the developer.
2. Protection of Trees during Construction. Trees conserved pursuant to this chapter shall be protected before and during site development and construction through adherence to the following requirements:
a. A tree protection area shall be designed to protect each tree or tree stand during site development and construction. Tree protection areas may vary widely in shape, but must extend a minimum of five feet beyond the existing tree canopy area along the outer edge of the dripline of the tree(s), unless otherwise approved by the department.
b. Tree protection areas shall be added and clearly labeled on all applicable site development and construction drawings submitted to the department.
c. Temporary construction fencing at least three feet tall shall be erected around the perimeter of the tree protection areas prior to the initiation of any clearing or grading. The fencing shall be posted with signage clearly identifying the tree protection area. The fencing shall remain in place through site development and construction.
d. No clearing, grading, filling, or other development activities shall occur within the tree protection area, except where approved in advance by the department and shown on the approved plans for the proposal.
e. No vehicles, construction materials, fuel, or other materials shall be placed in tree protection areas. Movement of any vehicles within tree protection areas shall be prohibited.
f. No nails, rope, cable, signs, or fencing shall be attached to any tree proposed for retention.
g. The department may approve the use of alternate tree protection techniques if an equal or greater level of protection will be provided.
D. Standards for Other Critical Habitat Areas. Standards for critical habitat areas not listed in EMC 14.40.030(A) and (B) shall be determined on a case-by-case basis, based upon the needs of specific species or habitat area of study. The department will coordinate with the WDFW in these instances to determine appropriate standards and development a habitat management plan. (Ord. 02-200 § 2).
14.40.050 Mitigation requirements.
A. All regulated development activities in critical fish and/or wildlife habitat areas and associated buffers shall be mitigated in the following order:
1. Avoiding the impact altogether by not taking a certain action or parts of actions.
2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to reduce impacts.
3. The following types of mitigation (no order of preference):
a. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
b. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; or
c. Compensating for the impact by replacing or providing substitute resources or environments.
4. Monitoring the impact and compensation and taking appropriate corrective measures. Monitoring reports are to be submitted to the department for a period of time, and upon a schedule, appropriate for the species or habitat of concern.
5. Mitigation for individual actions may include a combination of the above measures.
B. Specific mitigation elements are to be discussed within a habitat assessment report, as defined in EMC 14.40.070, Appendix C. The habitat assessment report is to provide specific recommendations to reduce, eliminate, or mitigate for the adverse effects of the proposed activity. Potential measures include timing restrictions for all or some of the activities; clearing limitations; avoidance of specific areas; special construction techniques; hydraulic project approval (HPA) conditions; planting with native vegetation; habitat enhancement (i.e., fish passage barrier removal); best management practices; etc. If applicable, append a copy of the HPA, specifications for BMPs, or other documentation to support the implementation of the conservation measure.
C. The department may require an enhancement plan that provides mitigation for the impacts associated with any encroachment into the habitat area or associated buffer or a request for buffer averaging/reduction as set forth in EMC 14.40.060(C). The enhancement plan shall use native plant species that are indigenous to the project area and shall substantiate that an enhanced habitat area and/or buffer will improve the functional attributes of the affected area to provide additional protection for critical fish or wildlife habitat, wetlands, landslide hazard areas, or adjacent properties that may be affected by the proposal. At a minimum, the enhancement plan shall include detailed information on the following:
1. Type of species proposed.
2. Exact location of proposed enhancement area.
3. Timing and schedule of planting.
4. Schedule for monitoring and maintenance and any financial guarantees for these as required in EMC 14.10.080.
5. Name, address, and telephone number of the person(s) responsible for the enhancement project.
6. Any additional information required by the department.
D. Mitigation of alterations to habitat areas shall achieve equivalent or greater biological functions and shall include mitigation for adverse impacts upstream and downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.
E. In cases in which it is determined that aquatic habitat mitigation is appropriate, the following shall apply:
1. Mitigation shall be provided on-site, except where the applicant demonstrates that on-site mitigation is not scientifically feasible or practical due to physical features of the site or where it can be demonstrated that greater functional and habitat values can be achieved through off-site mitigation; and
2. When mitigation cannot be provided on-site, it shall be provided in the immediate vicinity of and within the same watershed as the regulated activity. (Ord. 02-200 § 2).
14.40.060 Buffer requirements.
A. Buffer Delineation. Buffers shall be required as set forth for each habitat type. The required buffers shall be delineated, both on a site plan or plat, and on the property prior to approval of any regulated activity.
B. Buffer Widths.
1. Riparian Areas and Ponds.
a. Riparian areas (streams and creeks) and ponds shall be managed through the use of buffers. Buffers shall be based upon the water type classification of the water body as established by the Department of Natural Resources stream typing classification system. Refer to Table 14.40.060 for the water types and the associated buffer requirements.
b. The required riparian buffer width is measured from the edge of the ordinary high water mark.
c. The required pond buffer width is measured from the edge of the ordinary high water mark (OHWM).
d. The required buffer shall be extended to include any adjacent regulated wetland(s), landslide hazard areas and/or erosion hazard areas and required buffers (see EMC 14.40.080(D) and (E), Figures 14.40-4 and 14.40-5).
2. Buffers for Other Critical Habitat Areas. Appropriate buffers for critical habitat areas not listed in Table 14.40.060 shall be determined on a case-by-case basis, based upon the needs of specific species or habitat area of study. The department will coordinate with the WDFW in these instances to determine an appropriate buffer width.
|
Water Type1 |
Water Body Criteria |
Buffer Width2 |
|
Type S |
All waters within their ordinary high water marks, inventoried as “shorelines of statewide significance or shorelines of the state” under Chapter 90.58 RCW and related rules (currently Type 1 waters under state DNR rules). |
150 feet landward from the OHWM |
|
Type F1 |
All segments of natural waters (other than Type S waters) within the bankfull widths of defined channels or within lakes, ponds, or impoundments which provide habitat for or support any portion of the lifecycle of a critical fish species. These areas shall include: • Waters that are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by DNR to be a valid appropriation of water and the only practical water source for such users; such waters shall be considered to be Type F waters upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less; • Waters that are within a federal, state, local, or private campground having more than 10 camping units; provided, that the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement; or • Waters that are diverted for use by federal, state, tribal, or private fish hatcheries. Such waters shall be considered to be Type F waters upstream from the point of diversion for 1,500 feet and tributaries if highly significant for protection of downstream water quality. |
150 feet landward from the OHWM |
|
Type F2 |
Type F1 stream adjacent to a landslide hazard area as set forth in Chapter 14.80 EMC. |
150 feet landward from the OHWM or the minimum buffer distance required in Chapter 14.80 EMC, whichever is greatest |
|
Type N1 |
All segments of natural waters within the bankfull widths of defined channels that are not Type S or F1 or F2 waters but are located within one quarter mile of the confluence with a Type S or F1 or F2 or are perennial streams or are physically connected by an above-ground channel system to downstream waters such that water or sediment initially delivered to such waters will eventually be delivered to a Type S or F1 or F2 water. |
115 feet landward from the OHWM |
|
Type N2 |
Seasonal non-fish-bearing natural waters within bankfull width of defined channels that are not Type S or F1 or 2 waters and are located more than one quarter mile upstream from the confluence with a Type S or F1 or F2 water. |
65 feet landward from the OHWM |
|
Type N3 |
Lakes or ponds that do not support any critical fish or wildlife species. |
35 feet landward from the OHWM |
1 Water types are based upon the criteria established in WAC 222-16-030 and 222-16-031. Water types are mapped in the City's Critical Areas Atlas: Fish and Wildlife Habitat Areas – Stream Typing Maps and Fish and Wildlife Habitat Areas – Critical Fish Presence Maps.
2 There may be wetlands associated with ponds or streams that are regulated and which may have a required buffer greater than those listed in Table 14.40.060, e.g., an urban lake with no buffer requirement may have associated wetlands with 50 to 150 foot buffers.
C. Modification to Buffer Width Requirements. The standard buffer widths of subsection (B) of this section may be modified by averaging, reducing, or increasing as follows:
1. Buffer Averaging. Buffer width averaging may be proposed through submittal of a habitat assessment report. Buffer width averaging shall be allowed only when the applicant demonstrates all of the following:
a. Buffer encroachment is unavoidable.
b. The habitat area contains variations in sensitivity (both geological and biological) due to existing site characteristics.
c. Buffer averaging will not adversely impact the structure and function of the habitat area.
d. The buffer averaging is not inconsistent with other buffer requirements set forth under this title (e.g., wetlands, landslide hazard areas, etc.).
e. The buffer averaging will not increase the risk of slope failure or downslope stormwater drainage impacts.
f. The total buffer area after averaging is no less than the buffer area prior to the averaging.
g. The minimum buffer width after averaging will not be less than 50 percent of the widths established in subsection (B) of this section.
h. The averaging is accomplished within the project boundaries.
2. Buffer Width Reductions. A buffer width reduction may be proposed through submittal of a habitat assessment report. Buffer reductions of up to a maximum of 25 percent may be allowed when the applicant demonstrates the following circumstances:
a. Buffer encroachment is unavoidable.
b. The buffer reduction will not result in an adverse impact to the species of study, any associated wetlands, or landslide hazard areas.
c. The buffer reduction will not increase the risk of slope failure or downslope stormwater drainage impacts.
d. The encroachment does not occur within landslide hazard area buffer or into the buffer of any associated wetlands.
e. The proposed buffer area is extensively vegetated, has less than 20 percent slopes, and the reduction will not result in adverse impact to the structure and function of the habitat area.
f. The acreage included in the buffer would substantially exceed the size of the habitat area.
g. The minimum buffer width will not be less than 75 percent of the total required width.
3. Buffer Width Increases. The department may require an increased buffer width when a larger buffer is necessary, based on site conditions, to protect habitat area functions and values. This determination shall be reasonably related to protection of the functions and values of the regulated habitat area. Such determination shall demonstrate any of the following:
a. A larger buffer is necessary to maintain viable populations of existing species or protect the existing functions of the habitat area;
b. The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse habitat impacts;
c. The adjacent land has minimal vegetative cover or slopes greater than 20 percent; or
d. The habitat area is in an area of high tree blow down potential. In these cases the habitat area may be expanded an additional 50 feet on the windward side.
4. Where an application for a development permit, other than a site development permit, has not been submitted in association with a proposed forest practice activity, a deviation from the standard buffer, as set forth in subsections (C)(1) and (2) of this section, shall not be allowed. (Ord. 02-200 § 2).
14.40.070 Appendices.
A. Habitat Assessment Letters.
B. Habitat Assessment Studies.
C. Habitat Assessment Reports.
APPENDIX A
HABITAT ASSESSMENT LETTERS
A. The habitat assessment letter shall, at a minimum, include the following:
1. The information required in EMC 14.40.030(B)(2).
2. Documentation that the potential habitat is not present. Discuss the habitat features or types that are available as compared to the habitat features that define the potential habitat. Describe why potential restoration measures would not be feasible.
3. Documentation that potential species are not present. Note: a determination that a species is lacking based upon limited field investigation, occurring at an inappropriate time of the year for the species of study will not be acceptable. In such cases, the city will require separate confirmation of absence provided by the Washington Department of Fish and Wildlife.
B. Hold harmless clauses, disclaimers, and limitations are not allowed within a habitat assessment letter.
APPENDIX B
HABITAT ASSESSMENT STUDIES
A. The habitat assessment study shall, at a minimum, include the following:
1. The information required in EMC 14.40.030(B)(2).
2. Identify the presence of the habitat area or species on the site.
3. Identify and discuss how the project complies with the standards set forth in EMC 14.40.040.
4. Provide a detailed description of the proposed project. At a minimum, the following items should be included:
a. A legal description (section, township, range) and vicinity map that clearly show the site and project area in relation to nearby waterbodies, sensitive habitats, etc.
b. A site plan of the habitat area and associated buffer in relation to the proposed project area.
c. Photographs, especially color copies, are useful to orient the reviewer to the project area. A combination of aerial or orthophotos and snapshots are ideal.
5. Describe the environmental baseline (current or pre-project) condition of the habitat and the project area. The baseline description should address all pertinent habitat parameters for the species.
6. Describe in detail the type and scope of development activity proposed:
a. Describe the overall purpose of the project and a brief summary of project objectives.
b. List all proposed project related construction activities and types of equipment. Provide a chronology of activities, timing of construction, hours of operation, phasing.
c. Provide to-scale plans that show where work is proposed relative to habitat areas and buffers.
d. Quantify areas of vegetation removal, include clearing and grubbing, vegetation type.
e. Describe proposed grading and filling or other earthwork, include specific BMPs for erosion, sedimentation, stormwater, and spill control. If appropriate, append the temporary erosion sediment control (TESC) plan, spill control plan, BMP specifications, etc.
f. Provide stormwater treatment information including:
i. Amount of new impervious surface;
ii. Percent of surface and type of treatment for new and existing impervious surface;
iii. Specify BMPs to treat for quality and quantity; and
iv. Identify the receiving area/waterbody for each BMP, including overflow channels.
B. Hold harmless clauses, disclaimers, and limitations are not allowed within a habitat assessment study.
APPENDIX C
HABITAT ASSESSMENT REPORTS
A. The applicant is advised to refer to the following guidance documents during the course of the habitat assessment report (HAR) preparation:
1. Washington Department of Fish and Wildlife Priority Habitat and Species Management Recommendations, May 1991 (or as hereafter amended), and supplemental documents including but not limited to:
a. Priority Habitats and Species List;
b. Management Recommendations for Washington's Priority Habitats: Oregon White Oak Woodlands;
c. Management Recommendations for Washington's Priority Habitats: Volume I Invertebrates; and
d. Management Recommendations for Washington's Priority Habitats: Volume III Amphibians and Reptiles.
2. Making Endangered Species Act Determinations of Effect for Individual or Grouped Actions at the Watershed Scale (NMFS 1996).
3. A Guide to Biological Assessments (NMFS revised March 23, 1999).
4. Biological Assessment Preparation and Review (USFWS March 1999).
5. NMFS Checklist for Documenting Environmental Baseline and Effects of Proposed Action(s) on Relevant Indicators.
6. Stream Survey Report Criteria, King County Department of Development and Environmental Services.
B. The following information must be included in every habitat assessment report:
1. Project Description. Describe in detail the type and scope of action proposed.
a. Describe the overall purpose of the project and a brief summary of project objectives.
b. List all proposed project related construction activities and types of equipment.
c. Provide to-scale plans that show where work is proposed relative to sensitive areas and/or habitat.
d. Quantify areas of vegetation removal, include clearing and grubbing, vegetation type, replanting plans.
e. Provide a chronology of activities, timing of construction, phasing.
f. Describe proposed grading and filling or other earthwork, include specific BMPs for erosion, sedimentation, stormwater, and spill control. If appropriate, append the spill control plan, BMP specifications, etc.
g. Provide stormwater treatment information including:
i. Amount of new impervious surface;
ii. Percent of surface and type of treatment for new and existing impervious surface;
iii. Specify BMPs to treat for quality and quantity;
iv. Identify the receiving area/waterbody for each BMP, including overflow channels.
h. Describe proposed in-water work (below OHWM or extreme high tide) and work over waterbodies, and potential for impacts to riparian or aquatic vegetation. Include conditions and work windows as described in the WDFW HPA. State clearly if the project does not include any in-water or over-water work.
2. Description of the Project Area. The following items should be addressed as appropriate:
a. Provide a legal description (section, township, range) and vicinity map that clearly shows the project in relation to nearby waterbodies, sensitive habitats, etc.
b. Date of field review(s) of project, credentials of personnel involved, and results of visit(s).
c. Describe the environmental baseline (current or pre-project) condition of the habitat and the project area. The baseline description should address all pertinent habitat parameters for the species.
d. Describe the project setting in terms of physiographic region, general topography, dominant habitat and vegetation type(s), aquatic resources, land use patterns, and existing disturbance levels from human activities, roadways, etc.
e. Include information about past and present activities in the area that relate to the species or its habitat and/or the proposed action. This could include information on adjacent development projects, past consultations with state or federal agencies, previously established conservation measures, or species management plans.
3. Critical Fish and Wildlife Species and Habitat Occurrence. The HAR must be based on current site-specific information about the species and its life history. Cite any relevant scientific literature or research findings. At a minimum, the following items should be addressed:
a. Cite species listings provided by NMFS, WDFW, and/or USFWS. Append a copy of the listing to the report. Species listings should be updated every six months.
i. Identify any state listed, federal or state proposed species (and candidate or species of concern if appropriate), and designated or proposed critical habitat that are known or have the potential to occur on-site or in the vicinity of the project area.
ii. Identify fish by ecologically significant unit (ESU).
b. Describe the species, its habitat requirements and ecology in general, and relate that to the local populations. A lengthy life history is not required, but enough information should be provided to adequately explain the potential impacts.
c. Describe the potential suitable habitat for the species found on-site or in the project vicinity and how local populations use it. Discuss the local status of the species as appropriate. Determine the likely level and type of use of the area by each species.
4. Analysis of Effects on Listed and Proposed Species and Designated and Proposed Critical Habitat. The HAR should provide a thorough analysis of, and a separate section addressing the potential direct, indirect, interrelated and interdependent, and cumulative effects of the action on the species and its habitat within the project area. The following items should be addressed:
a. Define the project area (area of potential impacts, both indirect and direct). The area of impact is usually larger than the project area or project vicinity (i.e., the river upstream and downstream from a bridge project, waterbodies receiving stormwater).
b. Describe how the environmental baseline (current or pre-project condition of the habitat in the project area) will be degraded, maintained or improved (restored). If appropriate, append the completed NMFS Checklist for Documenting Environmental Baseline and Effects of Proposed Action(s) on Relevant Indicators.
c. Direct Effects. Describe and analyze the effects of the action that would directly affect the species. Include actions that would potentially remove or destroy habitat, displace or otherwise influence the species, either positively (beneficial effects) or negatively (adverse effects).
d. Describe potential for impacts from disturbance (i.e., noise above ambient levels, sudden loud noises, increased human activity), from construction and continuing operation. Construction impacts would be considered a direct effect whereas operation noise impacts could be considered indirect effects as they occur later in time.
e. Indirect Effects. Describe any potential indirect impacts (those that occur later in time) such as impacts to future food resources or foraging areas, and impacts from increased long-term human access.
f. Interrelated/Interdependent Effects. Describe and analyze any potential effects from interdependent actions (actions that have no independent utility apart from the primary action) and interrelated actions (actions associated with the primary action and dependent upon that action for their justification) on the species or habitat that would not occur if not for the proposed action. Examples of these two effects include site clearing activities associated with new home construction (an interdependent effect), and increases in light, noise, and glare that occur as a result of land division (an interrelated effect).
g. Cumulative Effects. Identify to the extent possible those cumulative effects within the project area that are reasonably certain to occur.
h. If species-specific recovery plans or management plans have been established by the U.S. Fish and Wildlife Service, WDFW, or National Marine Fisheries Service, address the project in terms of compliance and recommendations.
i. For proposed species, analyze the potential for the project to jeopardize the continued existence of the species.
j. The HAR must contain a distinct statement of the overall effect of the project on each species. It must also provide supporting evidence to justify the effect determination (for listed species) or jeopardy call (for proposed species). The determination must be consistent throughout and worded correctly. See NMFS or USFWS guidance for specific wording for each status.
5. Recommended Conservation Measures. The HAR should describe components of the project that may benefit or promote the recovery of listed species and are included as an integral part of the proposed project. These conservation (or mitigation) measures serve to minimize or compensate for project effects on the species under review. The following items should be addressed:
a. Provide specific recommendations, as appropriate, to reduce or eliminate the adverse effects of the proposed activity. Potential measures include: timing restrictions for all or some of the activities; clearing limitations; avoidance of specific areas; special construction techniques; HPA conditions; replanting with native vegetation; potential of habitat enhancement (i.e., fish passage barrier removal); best management practices, etc.
b. If applicable, append a copy of the HPA, specifications for BMPs, or other documentation to support the implementation of the conservation measure.
c. Include a description of proposed monitoring of the species, its habitat, and mitigation effectiveness.
6. Conclusions and Effect Determinations.
a. Summarize the proposed project and objectives, and restate the listed species that may occur near the project and the expected level of use.
b. State what conclusions regarding potential impacts to the species discussed can be supported from the information presented in the report. The following items should be addressed:
i. A determination of effect must be made for each identified critical fish and wildlife species or habitat area. For each, only one of the following determinations of effect is acceptable:
(A) No Effect. The appropriate finding to make when the direct or indirect impacts of a project will have no effect of any kind, negative or beneficial, upon a species or habitat area;
(B) May Affect, Not Likely to Adversely Affect. The appropriate finding to make when the direct or indirect effects of a project are insignificant, discountable, or beneficial; or
(C) Likely to Adversely Affect. The appropriate finding to make when the direct or indirect effects of a project may adversely impact a species or habitat area and the effects are not insignificant.
ii. Determinations of “no effect” or “may affect, not likely to adversely affect” may not be based upon the argument that species will be displaced to other suitable habitat or that (based upon a limited number of surveys) species are not known to occur. The failure to provide site-specific surveys at the appropriate time of the year for the species of study will result in the department assuming a worst-case scenario in regards to project-related impacts.
c. For any proposed species or proposed critical habitat discussed, the conclusions should indicate whether the proposed project is likely to jeopardize the continued existence of the species (as in the entire species, not individual(s)), or adversely modify the proposed critical habitat.
7. References and Appendices. Refer to all appropriate project documents, particularly if the assessment depends upon information located elsewhere (e.g., in an EIS). Applicants may consider providing the department with copies of pertinent documents along with the HAR. At a minimum, the following items should be addressed:
a. Provide citations for other information referred to in the HAR, such as current literature and personal contacts used in the assessment. Include name, affiliation, and date.
b. Include as appropriate any photographs, survey methods, protocols, and results. Do not provide specific information regarding the exact location of state- or federally listed species within the HAR document. Federal and state restrictions exist regarding the release of such information.
C. Hold harmless clauses, disclaimers, and limitations are not allowed within a habitat assessment report. (Ord. 02-200 § 2).
14.40.080 Figures.
A. Figure 14.40-1, Local Importance Priority Oregon White Oak Woodlands.
B. Figure 14.40-2, Examples of Potential Critical Fish and Wildlife Habitat Areas.
C. Figure 14.40-3, Critical Fish and Wildlife Habitat Area Review Procedures.
D. Figure 14.40-4, Riparian Buffer Extension Adjacent to Wetland.
E. Figure 14.40-5, Riparian Buffer Extension Landslide Hazard Buffer Area.
(Ord. 02-200 § 2).