Chapter 22E.010
CRITICAL AREAS MANAGEMENT

Sections:

Article I. General Introduction

22E.010.010    General purpose and intent.

22E.010.020    General applicability of these regulations.

22E.010.030    General relationship of regulation of one type of critical area protection to other regulations.

22E.010.040    Best available science.

Article II. Wetlands

22E.010.050    Applicability to wetlands.

22E.010.060    Wetland rating and classification.

22E.010.070    Regulated activities in wetlands.

22E.010.080    Exemptions to wetland regulations.

22E.010.090    Wetland inventory maps.

22E.010.100    Wetland buffer areas.

22E.010.110    Wetland alteration and mitigation.

22E.010.120    Wetland mitigation standards and criteria.

22E.010.130    Wetland mitigation banks.

22E.010.140    Wetland mitigation plan requirements.

22E.010.150    Performance standards for wetland mitigation planning.

22E.010.160    Wetland monitoring program and contingency plan.

Article III. Fish and Wildlife Habitat Areas

22E.010.170    Fish and wildlife habitat conservation areas designated.

22E.010.180    Regulated activities in habitats.

22E.010.190    Exemptions from fish and wildlife regulations.

22E.010.200    Fish and wildlife habitat inventory maps.

22E.010.210    Classification of fish and wildlife habitat areas.

22E.010.220    Fish and wildlife habitat buffer areas.

22E.010.230    Fish and wildlife habitat alteration and mitigation.

22E.010.240    Fish and wildlife mitigation standards, criteria and plan requirements.

22E.010.250    Fish and wildlife habitat performance standards and incentives.

22E.010.260    Fish and wildlife habitat monitoring program and contingency plan.

Article IV. Geologic Hazard Areas

22E.010.270    Applicability to geologic hazards.

22E.010.280    Geologic hazard inventory map.

22E.010.290    Alteration of geologic hazard areas and development limitations.

22E.010.300    Setbacks from geologic hazards.

22E.010.310    Geologic hazard performance standards.

Article V. General Information

22E.010.320    General exemptions.

22E.010.330    Permit process and application requirements.

22E.010.340    Selection of qualified scientific professional and city review of report.

22E.010.350    Land divisions.

22E.010.360    On-site density transfer for critical areas.

22E.010.370    Fencing and signage requirements.

22E.010.380    Building setbacks.

22E.010.390    General procedural provisions.

22E.010.400    Penalties and enforcement.

22E.010.410    General savings provisions – Reasonable use determination.

22E.010.420    No special duty created.

Article I. General Introduction

22E.010.010 General purpose and intent.

(1) The city of Marysville finds that critical areas perform many important biological and physical functions that benefit the city of Marysville and its residents, with the exception of geologic hazard areas which may pose a threat to human safety or to public and private property. Specifically, the functions they perform include but are not limited to the following by type:

(a) Wetlands. Helping to maintain water quality; storing and conveying storm water and flood water; recharging ground water; providing important fish and wildlife habitat; and serving as areas for recreation, education and scientific study and aesthetic appreciation; and

(b) Fish and Wildlife Habitat Areas. Maintaining species diversity and genetic diversity; providing opportunities for food, cover, nesting, breeding and movement for fish and wildlife; serving as areas for recreation, education, and scientific study and aesthetic appreciation; helping to maintain air and water quality; controlling erosion; and providing neighborhood separation and visual diversity within urban areas.

In addition, certain portions of the city of Marysville are characterized by geologic hazards that pose a risk to public and private property, to human life and safety and to the natural systems that make up the environment of the city of Marysville. These lands are affected by natural processes that make them susceptible to landslides, seismic activity and severe erosion. Protection of critical areas and regulation of geologic hazards are, therefore, necessary to protect the public health, safety and general welfare.

(2) These regulations of the city of Marysville critical areas ordinance contain standards, guidelines, criteria and requirements intended to identify, analyze and mitigate potential impacts to the city of Marysville’s critical areas and to enhance and restore them where possible. The intent of these regulations is to avoid impacts where such avoidance is feasible and reasonable. In appropriate circumstances, impacts to critical areas resulting from regulated activities may be minimized, rectified, reduced or compensated for, consistent with the requirements of these regulations. The city of Marysville’s overall goal shall be to protect the functions and values of critical areas and protect the people, public and private property, and natural ecosystems.

(3) It is the further intent of these regulations to:

(a) Implement the goals and policies of the city of Marysville comprehensive plan, including those pertaining to natural features and environmental protection; aesthetics and community character; providing adequate housing and infrastructure; providing opportunities for economic development; creating a balanced transportation system; ensuring adequate public facilities; and achieving a mix of land use types and densities consistent with the city of Marysville’s land use plan;

(b) Serve as a basis for exercise of the city of Marysville’s substantive authority under the State Environmental Policy Act (SEPA) and the city of Marysville’s SEPA rules;

(c) Comply with the requirements of the Growth Management Act (Chapter 36.70A RCW) and its implementing rules, and through the application of the best available science, in accordance with WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals;

(d) Coordinate environmental review and permitting of proposals to avoid duplication and delay.

(4) The city of Marysville further finds that Snohomish County has identified and mapped some portions of the city of Marysville based on topographic, geologic, hydrologic, and habitat characteristics where the conditions indicate that critical areas are believed to exist. There is, however, a need for additional study and mapping to verify that such conditions do, in fact, prevail and to identify other areas that are potentially geologic hazards. Such mapping will enable the city of Marysville to provide notice to the public of the potential presence of critical areas or the risks associated with developing lands subject to geologic hazards. However, the boundaries of the critical areas and geologic hazard areas displayed on these maps are approximate and are not intended to be used for individual site assessment. Where differences occur between what is illustrated on these maps and site conditions, the actual presence or absence of environmentally critical areas or geologic hazard areas on the site shall control. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.020 General applicability of these regulations.

(1) The provisions of these regulations shall apply to any activity that potentially affects critical areas or their established buffers unless otherwise exempt. Any action taken pursuant to this title 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 and as provided in this chapter. All actions and developments shall be designed and constructed in accordance with the priority sequencing outlined in MMC 22E.010.110 and 22E.010.230 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 and values of critical areas unless otherwise permitted by a reasonable use determination under MMC 22E.010.410.

(2) To avoid duplication, the following permits and approvals shall be subject to and coordinated with the requirements of these regulations: clearing and grading; subdivision or short subdivision; building permit; planned unit development; shoreline substantial development; variance; conditional use permit; other permits leading to the development or alteration of land; and rezones and other nonproject actions if not combined with another development permit. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.030 General relationship of regulation of one type of critical area protection to other regulations.

These regulations shall apply as an overlay and in addition to zoning, land use and other regulations, including critical areas regulations, established by the city of Marysville.

(1) Areas characterized as a critical area may also be subject to other regulations established by this chapter due to the overlap or multiple functions of some critical areas. For example, some landslide hazard areas (e.g., steep slopes) adjacent to wetlands may be regulated by buffering requirements according to the wetland management provisions of this chapter. Also, wetlands, for example, may be defined and regulated according to the wetland and habitat management provisions of this chapter. In the event of any conflict between regulations for particular critical areas in this chapter, those regulations which provide greater protection to environmentally critical areas shall apply.

(2) These critical area regulations shall apply as an overlay and in addition to zoning, land use, and other regulations established by the city of Marysville. In the event of any conflict between these regulations and any other regulations of the city of Marysville, the regulations which provide greater protection to environmentally critical areas shall apply.

(3) Compliance with the provisions of this title does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required. The applicant is responsible for complying with these requirements, apart from the process established in this title. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.040 Best available science.

(1) Criteria for Best Available Science. 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 a team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925, as amended.

(2) Protection of Functions and Value and Fish Usage. Critical area studies 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 and their habitat, such as salmon and bull trout.

(3) Lack of Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function or permitting an alteration of or impact to the critical area, the city shall:

(a) Take a “precautionary or no-risk approach” that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and

(b) Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberative scientific approach to taking action and obtaining information in the face of uncertainty. To effectively implement an adaptive management program, the city hereby commits to:

(i) Address funding for the research component of the adaptive management program;

(ii) Change course based on the results and interpretation of new information that resolves uncertainties; and

(iii) Commit to the appropriate timeframe and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. (Ord. 2852 § 10 (Exh. A), 2011).

Article II. Wetlands

22E.010.050 Applicability to wetlands.

(1) See MMC 22E.010.020 for general applicability.

(2) Nonproject actions such as rezones shall be required to perform a wetland determination as defined by these regulations. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.060 Wetland rating and classification.

(1) Classification. Wetlands shall be classified as Category I, II, III, or IV using the Washington State Department of Ecology’s Wetland Rating System for Western Washington, Publication No. 04-06-025, or as amended hereafter. Wetland delineations shall be determined by using the Washington State Wetlands Identification and Delineation Manual, March 1997, or as amended hereafter.

(2) Sources used to identify designated wetlands include, but are not limited to:

(a) United States Department of the Interior, Fish and Wildlife Service, National Wetlands Inventory.

(b) Areas identified as hydric soils, soils with significant soil inclusions and “wet spots” with the United States Department of Agriculture/Soil Conservation Service Soil Survey for Snohomish County.

(c) Washington State Department of Natural Resources, Geographic Information System, Hydrography and Soils Survey Layers.

(d) City of Marysville critical areas inventory maps. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.070 Regulated activities in wetlands.

The following activities within a wetland and its associated buffer, or outside a wetland or buffer but potentially affecting the wetland or buffer, shall be regulated pursuant to the standards of this chapter:

(1) Removing, excavating, disturbing or dredging soil, sand, gravel, minerals, organic matter or materials of any kind;

(2) Dumping, discharging or filling with any material;

(3) Draining, flooding or disturbing the water level or water table;

(4) Driving pilings or placing obstructions;

(5) Constructing, reconstructing, demolishing or altering the size of any structure or infrastructure;

(6) Construction of any on-site sewage disposal system, or other underground facilities, except exempted activities;

(7) Destroying or altering vegetation through clearing, harvesting, shading or planting vegetation that would alter the character of a wetland;

(8) Activities that result in significant changes in water temperature, physical or chemical characteristics of wetland water sources, including water quantity and quality, soil flow, or natural contours, and pollutants;

(9) Any other activity potentially affecting a wetland or wetland buffer not otherwise exempt from the provisions of this chapter; and

(10) Work to maintain wetlands intentionally created from nonwetland areas as mitigation for wetland impacts. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.080 Exemptions to wetland regulations.

(1) See MMC 22E.010.320 for general exemptions to all critical areas.

(2) The following activities shall be exempt from the provisions of this chapter related to wetlands and their buffers, provided they are conducted using best management practices on wetlands:

(a) Activities involving artificially created wetlands intentionally created from nonwetland sites, including but not limited to grass-lined swales, irrigation and drainage ditches, detention facilities, and landscape features, except wetlands created as mitigation.

(b) Work in wetlands created after July 1, 1990, that were unintentionally created as a result of road, street, or highway construction.

(c) In addition, the director may waive compliance with wetland buffer and compensation requirements for the fill of a Class IV wetland no greater than one-tenth of an acre in size if all the following criteria are met:

(i) The wetland is not contiguous with a freshwater or estuarine system and is not considered part of a mosaic wetland complex;

(ii) Standing water is not present in sufficient amounts to support breeding amphibians;

(iii) Species listed as federal endangered, threatened, and candidate species, or listed by the state as endangered, threatened, and sensitive species, or essential habitat for those species, are not present;

(iv) Some form of mitigation is provided for the hydrologic and water quality functions; for example, storm water treatment or landscaping or other mitigation; and

(v) A wetland assessment prepared by a qualified professional, demonstrating the waiver criteria are met.

(vi) The determination to waive requirements shall be reviewed through the city’s SEPA review process as established in Chapter 22E.030 MMC.

(3) Notwithstanding the exemption provided by MMC 22E.010.320 and by this chapter, any otherwise exempt activities occurring in or near wetlands shall comply with the intent of these standards and shall consider on-site alternatives that avoid or minimize potential wetland impacts. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.090 Wetland inventory maps.

The approximate location and extent of wetlands within the city of Marysville’s planning area are shown on the critical areas maps adopted as part of this chapter. These maps shall be used as a general guide only for the assistance of property owners and the public; boundaries are generalized. The actual category, extent and boundaries of wetlands shall be determined in the field by a qualified scientific professional according to the procedures, definitions and criteria established by this chapter and Chapter 22A.020 MMC. In the event of any conflict between the wetland location or designation shown on the city of Marysville wetland areas maps and the criteria or standards of this chapter, the criteria and standards resulting from the field investigation shall control. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.100 Wetland buffer areas.

(1) The establishment of wetland buffer areas shall be required for all development proposals and activities adjacent to wetlands to protect the integrity, function and value of the wetland. Buffers shall consist of an undisturbed area of native vegetation established to protect the functions and values of the wetland. Buffers shall be determined in conjunction with considerations of wetland category and quality, approved wetland alterations and required mitigation measures. Buffers are not intended to be established or to function independently of the wetland they are established to protect; the establishment of a buffer shall not operate to prevent a use or activity that would otherwise be permitted, as set forth in MMC 22E.010.080, subsections (7) and (8) of this section, and MMC 22E.010.320, in the wetland subject to mitigation.

(2) Buffers shall be measured from the wetland edge as delineated and marked in the field using the wetland delineation methods defined in Chapter 22A.020 MMC. Required buffer widths shall reflect the sensitivity of the wetland and its category and intensity of human activity proposed to be conducted near the wetland.

(3) Where existing buffer area plantings provide minimal vegetative cover and cannot provide the minimum water quality or habitat functions, buffer enhancement shall be required. Where buffer enhancement is required, a plan shall be prepared that includes plant densities not less than five feet on center for shrubs and 10 feet on center for trees. Monitoring and maintenance of plants shall be required in accordance with MMC 22E.010.160, Wetland monitoring program and contingency plan. Existing buffer vegetation is considered “inadequate” and will require enhancement through additional native plantings and removal of nonnative plants when:

(a) Nonnative or invasive plant species provide the dominate cover;

(b) Vegetation is lacking due to disturbance, and wetland resources could be adversely affected; or

(c) Enhancement plantings in the buffer could significantly improve buffer functions.

(4) The following buffer widths are established as minimum targets. All buffer widths shall be measured from the wetland boundary as surveyed in the field. If, according to the buffer mitigation plan, the buffer is not sufficient to protect the wetland, the city shall require larger buffers where it is necessary to protect wetlands functions based on site-specific characteristics. As an alternative to the buffer width being based on wetland category, the buffer width for Category I wetlands may be established according to the “Buffer Alternative 3” methodology contained in the Department of Ecology’s document titled, “Freshwater Wetlands in Washington State, Volume 2: Managing and Protecting Wetlands, Appendix 8C.” Buffer Alterative 3 establishes buffer widths based on wetland category, intensity of impacts, and wetland functions or special characteristics.

Wetland Buffer Widths

Wetland Category

Buffer Width

Category I

Ebey Slough

Except in the following location: north and south shore of Ebey Slough between the western city limits, at approximately I-5, and 47th Ave. NE

125 feet

100 feet

25 feet

Category II

100 feet

Category III

75 feet

Category IV

35 feet

(5) Buffer widths may be modified by averaging buffer widths as set forth herein:

(a) Buffer width averaging shall be allowed only where the applicant demonstrates to the community development department that the averaging will not impair or reduce the habitat, water quality purification and enhancement, storm water detention, ground water recharge, shoreline protection and erosion protection and other functions of the wetland and buffer, that lower-intensity land uses would be located adjacent to areas where buffer width is reduced, and that the total area contained within the buffer after averaging is no less than that contained within the standard buffer prior to averaging;

(b) Buffer reductions may be allowed for Category III and IV wetlands; provided, that the applicant demonstrates the proposal meets criteria in subsections (5)(b)(i) through (iii) and either (iv) or (v) of this section. Buffer width reduction proposals that meet the criteria as determined by the director shall be reduced by no more than 25 percent of the required buffer and shall not be less than 25 feet in width.

(i) The buffer area meets buffer area planting requirements in subsection (3) of this section and MMC 22E.010.150 and has less than 15 percent slopes; and

(ii) A site-specific evaluation and documentation of buffer adequacy is based on consideration of the best available science as described in MMC 22E.010.040; and

(iii) Buffer width averaging as outlined in subsection (5)(a) of this section is not being utilized; and either

(iv) The subject property is separated from the wetland by pre-existing, intervening, and lawfully created structures, public roads, or other substantial pre-existing intervening improvements; and the intervening structures, public roads, or other substantial improvements are found to separate the subject upland property from the wetland due to their height or width, preventing or impairing the delivery of buffer functions to the wetland, in which cases the reduced buffer width shall reflect the buffer functions that can be delivered to the wetland; or

(v) The wetland scores 19 points or less for wildlife habitat in accordance with the rating system applied in MMC 22E.010.060, and mitigation is provided based on MMC 22E.010.150, 22E.010.370, and Table 2 of this section, when determined appropriate based on the evaluation criteria in subsection (5)(b)(ii) of this section.

Table 2. Mitigation Measures

Disturbance

Activities That May Cause Disturbance

Measures to Minimize Impacts

Lights

Parking lots, warehouses, manufacturing, high density residential

Direct lights away from wetland

Noise

Manufacturing, high density residential

Place activity away from wetland

Pets and Humans

Residential areas

Landscaping to delineate buffer edge and to discourage disturbance of wildlife by humans and pets

Dust

Tilled fields

Best management practices for dust control

(c) Notwithstanding the reductions permitted in subsections (5)(a) and (b) of this section, buffer widths shall not be reduced by more than 25 percent of the required buffer.

(6) The buffer width stated in subsection (4) of this section shall be increased by 25 percent:

(a) When the qualified scientific professional determines, based upon a site-specific wetland analysis, that for Category III and IV wetlands the habitat value equals or exceeds 20 points, and for Category II wetlands the habitat value equals or exceeds 29 points; or

(b) When the adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts; or

(c) When the standard buffer has minimal or degraded vegetative cover that cannot be improved through enhancement; or

(d) When the minimum buffer for a wetland extends into an area with a slope of greater than 25 percent, the buffer shall be the greater of:

(i) The minimum buffer for that particular wetland; or

(ii) Twenty-five feet beyond the point where the slope becomes 25 percent or less.

(7) The community development director may authorize the following low impact uses and activities, provided they are consistent with the purpose and function of the wetland buffer and do not detract from its integrity: viewing platforms and interpretive signage; uses permitted within the buffer shall be located in the outer 25 percent of the buffer.

(8) Trails and Open Space. For walkways and trails, and associated open space in critical buffers located on public property, or on private property where easements or agreements have been granted for such purposes, all of the following criteria shall be met:

(a) The trail, walkway, and associated open space shall be consistent with the comprehensive parks, recreation, and open space master plan. The city may allow private trails as part of the approval of a site plan, subdivision or other land use permit approvals.

(b) Trails and walkways shall be located in the outer 25 percent of the buffer, i.e., the portion of the buffer that is farther away from the critical area. Exceptions to this requirement may be made for:

(i) Trail segments connecting to existing trails where an alternate alignment is not practical and where public access points to water bodies are spaced periodically along the trail.

(c) Enhancement of the buffer area is required where trails are located in the buffer. Where enhancement of the buffer area adjacent to a trail is not feasible due to existing high quality vegetation, additional buffer area or other mitigation may be required.

(d) Trail widths shall be a maximum width of 10 feet. Trails shall be constructed of permeable materials; provided, that impervious materials may be allowed if pavement is required for handicapped or emergency access, or safety, or is a designated nonmotorized transportation route or makes a connection to an already dedicated trail, or reduces potential for other environmental impacts.

(9) Utilities may be allowed in wetlands or wetland buffers if limited to the pipelines, cables, wires and support structures of utility facilities within utility corridors when the following standards are met:

(a) There is no alternative location with less adverse impact on the critical area and critical area buffer;

(b) New utility corridors are not located over habitat used for salmonid rearing or spawning or by a species listed in MMC 22E.010.170(1)(a) unless the department determines that there is no other feasible crossing site;

(c) To the maximum extent practical utility corridors are located so that:

(i) The width is minimized;

(ii) The removal of trees is minimized;

(iii) An additional, contiguous and undisturbed wetland buffer, equal in area to the disturbed critical area buffer area including any allowed maintenance roads, is provided to protect the wetland;

(d) To the maximum extent practical, access for maintenance is at limited access points into the critical area buffer rather than by a parallel maintenance road. If a parallel maintenance road is necessary, the following standards are met:

(i) To the maximum extent practical the width of the maintenance road is minimized and in no event greater than 15 feet; and

(ii) The location of the maintenance road is contiguous to the utility corridor on the side of the utility corridor farthest from the critical area;

(e) The utility corridor or facility will not adversely impact the overall wetland hydrology;

(f) The utility corridor serves multiple purposes and properties to the maximum extent practical;

(g) Bridges or other construction techniques that do not disturb the wetlands are used to the maximum extent practical;

(h) Bored, drilled or other trenchless crossing is laterally constructed under a wetland; provided, that the activity does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist shall be conducted to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column could be disturbed.

(10) Storm water management facilities, such as biofiltration swales and dispersion facilities, may be located within the outer 25 percent of wetland buffers only if they will have no negative effect on the functions and purpose the buffers serve for the wetland or on the hydrologic conditions, hydrophytic vegetation, and substrate characteristics necessary to support existing and designated beneficial uses.

(11) For subdivisions and short subdivisions, the applicable wetland and associated buffer requirements for any development or redevelopment of uses specifically identified in, and approved as part of, the original subdivision or short subdivision application shall be those requirements in effect at the time that the complete subdivision or short subdivision application was filed; provided, that for subdivisions this provision shall be limited to final plats reviewed and approved under Ordinance No. 1928, “Sensitive Areas,” adopted December 14, 1992, or as amended at the time of final plat approval. However, at the discretion of the community development director a buffer enhancement plan may be required in accordance with subsection (3) of this section if the wetland or buffer has become degraded or is currently not functioning or if the wetland and/or buffer may be negatively affected by the proposed new development.

(12) Minor additions or alterations, such as decks and minor additions less than 120 square feet, interior remodels, or tenant improvements which have no impact on the wetland or wetland buffer, are exempt from the buffer enhancement requirements.

(13) Required buffers shall not deny all reasonable use of property. A variance from buffer width requirements may be granted by the hearing examiner for the city of Marysville upon showing by the applicant that:

(a) There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location or surroundings that do not apply generally to other properties and which support the granting of a variance from buffer width requirements; and

(b) Such buffer width variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question; and

(c) The granting of such buffer width variance will not be materially detrimental to the public welfare or injurious to the property or improvement; and

(d) The granting of the buffer width variance will not materially affect the subject wetland.

(e) Best available science, as set forth in MMC 22E.010.040, shall be taken into consideration in the granting of a buffer width variance. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.110 Wetland alteration and mitigation.

(1) All adverse impacts to wetland functions and values shall be mitigated. Mitigation actions by an applicant or property owner shall occur in the following priority sequence:

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

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

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations;

(e) Compensating for the impact by replacing or providing substitute resources or environments;

(f) Monitoring the impact and taking appropriate corrective measures.

(2) Where impacts cannot be avoided, the applicant or property owner shall seek to implement other appropriate mitigation actions in compliance with the intent, standards and criteria of this section. These shall include consideration of alternative site plans and building layouts or reductions in the density or scope of the proposal.

(3) Alteration of wetlands or their buffers may be permitted by the community development department subject to the following criteria:

(a) Category I Wetlands. Alterations of Category I wetlands shall be avoided, subject to the reasonable use provisions of these regulations.

(b) Category II Wetlands.

(i) Any proposed alteration and mitigation shall comply with requirements of this section, MMC 22E.010.120, and 22E.010.140 through 22E.010.160; and

(ii) No net loss of wetland function and value will occur due to the alteration.

(c) Category III and IV Wetlands.

(i) The proposed mitigation complies with the requirements of this section and MMC 22E.010.140 through 22E.010.160; and

(ii) Where enhancement is proposed, replacement ratios comply with the requirements of MMC 22E.010.120(3). (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.120 Wetland mitigation standards and criteria.

(1) Location and Timing of Mitigation.

(a) Restoration, creation, or enhancement actions should be undertaken on or adjacent to the site, or where restoration or enhancement of a former wetland is proposed, within the same watershed. Replacement in-kind of the impacted wetland is preferred for creation, restoration, or enhancement actions. The city may accept or recommend restoration, creation, or enhancement which is off-site and/or out-of-kind, if the applicant can demonstrate that on-site or in-kind restoration, creation, or enhancement is infeasible due to constraints such as parcel size or wetland type or that a wetland of a different type or location is justified based on regional needs or functions;

(b) Whether occurring on-site or off-site, the mitigation project shall occur near an adequate water supply with a hydrologic connection to the wetland to ensure a successful wetlands development or restoration;

(c) Any agreed-upon proposal shall be completed before initiation of other permitted activities, unless a phased or concurrent schedule has been approved by the community development department;

(d) Wetland acreage replacement ratios shall be as specified in subsection (3) of this section.

(2) Mitigation Performance Standards.

(a) Adverse impacts to wetland functions and values shall be mitigated. Mitigation actions shall be implemented in the preferred sequence identified in MMC 22E.010.110(1). Proposals which include less preferred or compensatory mitigation shall demonstrate that:

(i) All feasible and reasonable measures will be taken to reduce impacts and losses to the original wetland;

(ii) No overall net loss will occur in wetland functions, values and acreage; and

(iii) The restored, created or enhanced wetland will be as persistent and sustainable as the wetland it replaces.

(3) Wetland Replacement Ratios.

(a) Where wetland alterations are permitted by this chapter, the applicant shall restore or create equivalent areas of wetlands in order to compensate for wetland losses. Equivalent areas shall be determined according to acreage, function, category, location, timing factors, and projected success of restoration or creation.

(b) Where wetland creation is proposed, all required buffers for the creation site shall be located on the proposed creation site. Properties adjacent to or abutting wetland creation projects shall not be responsible for providing any additional buffer requirements.

(c) The following acreage replacement ratios shall be used as targets. The community development department may vary these standards if the applicant can demonstrate and the community development department agrees that the variation will provide adequate compensation for lost wetland area, functions and values, or if other circumstances as determined by the community development department justify the variation:

Wetland Mitigation Ratios

Category and Type of Wetland

Re-Establishment
or Creation

Rehabilitation

Re-Establishment or Creation (R/C) and Enhancement (E)

Enhancement Only

Category I

 

 

 

 

Forested

6:1

12:1

1:1 R/C and 10:1 E

24:1

Based on Score for Functions

4:1

8:1

1:1 R/C and 6:1 E

16:1

Estuarine

Case by Case

6:1

Rehabilitation of an Estuarine Wetland

Case by Case

Case by Case

Bog

Irreplaceable – Avoidance Required

6:1

Rehabilitation of a Bog

Case by Case

Case by Case

Natural Heritage

Irreplaceable – Avoidance Required

6:1

Rehabilitation of a Natural Heritage Site

Case by Case

Case by Case

Category II

 

 

 

 

Estuarine

Case by Case

4:1

Case by Case

Case by Case

All Other

3:1

8:1

1:1 R/C and 4:1 E

12:1

Category III

2:1

4:1

1:1 R/C and 2:1 E

8:1

Category IV

1.5:1

3:1

1:1 R/C and 2:1 E

6:1

Creation = The manipulation of the physical, chemical, or biological characteristics present to develop a wetland on an upland or deepwater site, where a wetland did not previously exist. Activities typically involve excavation of upland soils to elevation that will produce a wetland hydroperiod, create hydric soils, and support the growth of hydrophytic plant species. Establishment results in a gain in wetland acres.

Re-Establishment = The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. Activities could include removing fill material, plugging ditches, or breaking drain tiles. Re-establishment results in a gain in wetland acres.

Rehabilitation = The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic function of a degraded wetland. Activities could involve breaching a dike or reconnecting wetland to a floodplain or returning tidal influence to a wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres.

Enhancement = The manipulation of the physical, chemical or biological characteristics of a wetland site to heighten, intensify or improve functions or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, flood water retention or habitat. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying the site elevation or the proportion of open water to influence hydroperiods, or some combination of these. Enhancement results in a change in some wetland functions and can lead to a decline in other wetland function, but does not result in a gain in wetland acres.

(d) The qualified scientific professional in the wetlands report may, where feasible, recommend that restored or created wetlands shall be a higher wetland category than the altered wetland.

(4) The community development director may increase the ratios under the following circumstances:

(a) Uncertainty exists as to the probable success of the proposed restoration or creation;

(b) A significant period of time will elapse between impact and replication of wetland functions;

(c) Proposed mitigation will result in a lower category of wetland or reduced functions relative to the wetland being impacted; or

(d) The impact was an unauthorized impact. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.130 Wetland mitigation banks.

Wetland mitigation banks are a site where wetlands are restored, created, enhanced or, in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources.

(1) Credits from a wetland bank may be approved for use as compensation for unavoidable impacts to wetlands when:

(a) The bank is certified under Chapter 173-700 WAC;

(b) The community development director determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

(c) The proposed use of credits is consistent with the terms and conditions of the bank’s certification.

(2) Replacement ratios for projects using bank credits shall be consistent with the terms and conditions of the bank’s certification.

(3) Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the bank’s certification. In some cases, bank service areas may include portions of more than one adjacent drainage basin for specific wetland functions. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.140 Wetland mitigation plan requirements.

Where it is determined by the city that compensatory wetland mitigation is required or appropriate, a mitigation plan shall be prepared. The purpose of the plan is to prescribe mitigation to compensate for impacts to the wetland functions, values and acreage as a result of the proposed action. This plan shall consider the chemical, physical, and biological impacts on the wetland system using a recognized wetlands assessment methodology and best professional judgment. The mitigation plan shall be prepared in two phases, a preliminary phase and a detailed phase.

(1) Preliminary Plan – Standards and Criteria. The applicant shall prepare a preliminary mitigation plan for submission to the community development department at the time of application filing. The preliminary mitigation plan shall include the following components and shall be consistent with the standards in MMC 22E.010.120:

(a) A clear statement of the objectives of the mitigation. The goals of the mitigation plan should be stated in terms of the new wetland functions and values compared to the functions and values of the original wetland. Objectives should include qualitative and quantitative standards for success of the project, including:

(i) Hydrologic characteristics (water depths, water quality, hydroperiod/hydrocycle characteristics, flood storage capacity);

(ii) Vegetative characteristics (community types, species composition, density, and spacing);

(iii) Faunal characteristics; and

(iv) Final topographic elevations;

(b) An ecological assessment of the wetlands values and wetland buffers that will be lost as a result of the activities, and of the replacement wetlands and buffers, including but not limited to the following:

(i) Acreage of project;

(ii) Existing functions and values;

(iii) Sizes of wetlands, wetland buffers, and areas to be altered;

(iv) Vegetative characteristics, including community type, area coverage, species composition and density;

(v) Habitat type(s) to be enhanced, restored, or created;

(c) A statement of the location, elevation, and hydrology of the new site, including the following:

(i) Relationship of the project to the watershed and existing water bodies;

(ii) Topography of site using one-foot contour intervals;

(iii) Water level data, including depth and duration of seasonally high water table;

(iv) Water flow patterns;

(v) Estimated amounts of grading, filling and excavation, including a description of imported soils;

(vi) Water pollution mitigation measures during construction;

(vii) Aerial coverage of planted areas to open water areas (if any open water is to be present); and

(viii) Appropriate buffers;

(d) A conceptual planting plan.

(2) Prior to final development approval, a final plan consistent with the standards in MMC 22E.010.160 shall be submitted. In addition to information contained within the preliminary plan, the detailed plan will contain:

(a) A detailed planting plan, describing what will be planted, and where and when the planting will occur, as follows:

(i) Soils and substrate characteristics;

(ii) Specify substrate stockpiling techniques;

(iii) Planting instructions, including species, stock type and size, density or spacing of plants, and water and nutrient requirements; and

(iv) Dates for beginning and completion of mitigation project, and sequence of construction activities;

(b) A monitoring and maintenance plan, consistent with MMC 22E.010.160:

(i) Specify procedures for monitoring and site maintenance; and

(ii) Submit monitoring reports to the community development department as outlined in MMC 22E.010.160(2)(d)(i) through (vi);

(c) A contingency plan, consistent with these regulations;

(d) A detailed budget for implementation of the mitigation plan, including monitoring, maintenance and contingency phases;

(e) A guarantee, in the form of a bond or other security device in a form acceptable to the city attorney, assuring that the work will be performed as planned and approved, consistent with MMC 22E.010.160(2). (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.150 Performance standards for wetland mitigation planning.

(1) The following performance standards shall be incorporated into mitigation plans submitted to the city of Marysville:

(a) Use native plants (not introduced or foreign species);

(b) Use plants adaptable to a broad range of water depths;

(c) Plants should be commercially available or available from local sources;

(d) Plant species high in food and cover value for fish and wildlife;

(e) Plant mostly perennial species;

(f) Avoid committing significant areas of site to species that have questionable potential for successful establishment;

(g) Plant selection must be approved by a qualified scientific professional;

(h) Planting densities and placement of plants should be determined by the qualified scientific professional and shown on the design plans;

(i) The wetland (excluding the buffer area) should not contain more than 60 percent open water as measured at the seasonal high water mark;

(j) Minimum buffer widths as outlined in MMC 22E.010.100;

(k) The planting plan must be approved by the city’s community development director or consultant;

(l) Stockpiling should be confined to upland areas and contract specifications should limit stockpile durations to less than four weeks;

(m) Planting instructions which describe proper placement, diversity, and spacing of seeds, tubers, bulbs, rhizomes, sprigs, plugs, and transplanted stock;

(n) Apply controlled-release fertilizer at the time of planting and afterward only as plant conditions warrant (determined during the monitoring process) and with consideration of runoff and a type that will minimize impacts beyond the area intended;

(o) Install an irrigation system, if necessary, for initial establishment period as determined by the planning director or their designated official;

(p) Buffers shall be surveyed, staked, and fenced prior to any construction work, including grading and clearing, that may take place on the site. Permanent fencing is required pursuant to MMC 22E.010.370;

(q) Temporary erosion and sedimentation controls, pursuant to an approved plan, shall be implemented during construction; and

(r) Construction specifications and methods must be approved by a qualified scientific professional and the community development department.

(2) The following additional standards shall apply to wetland creation sites:

(a) Water depth is not to exceed six and one-half feet (two meters);

(b) The grade or slope that water flows through the wetland is not to exceed six percent;

(c) Slopes within the wetland basin and the buffer zone should not be steeper than a three to one ratio (horizontal to vertical).

(3) On completion of construction, the wetland mitigation project must be signed off, to indicate that the construction has been completed as planned, by the applicant’s qualified scientific professional and the community development department. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.160 Wetland monitoring program and contingency plan.

(1) A monitoring program shall be implemented to determine the success of the mitigation project and any necessary corrective actions. This program shall determine if the original goals and objectives are being met.

(2) A contingency plan shall be established for compensation in the event that the mitigation project is inadequate or fails. Security for performance in accordance with Chapter 22G.040 MMC is required for performance, monitoring and maintenance in accordance with the terms of the mitigation agreement. The security for performance shall be for a period of five years, but the community development department may agree to reduce the security in phases in proportion to work successfully completed over the duration of the security.

(a) During monitoring, use scientific procedures for establishing the success or failure of the project;

(b) For vegetation determinations, permanent sampling points shall be established;

(c) Vegetative success equals 80 percent survival of planted trees and shrubs and 80 percent cover of desirable understory or emergent species;

(d) Submit monitoring reports on the current status of the mitigation project to the community development department. The reports are to be prepared by a qualified scientific professional and reviewed by the community development department and should include monitoring information on wildlife, vegetation, water quality, water flow, storm water storage and conveyance, and existing or potential degradation, and shall be produced on the following schedule:

(i) At time of construction;

(ii) Thirty days after planting;

(iii) Early in the growing season of the first year;

(iv) End of the growing season of first year;

(v) Twice the second year; and

(vi) Annually thereafter;

(e) Monitor between three and five growing seasons, depending on the complexity of the wetland system. The time period will be determined and specified in writing prior to the implementation of the site plan;

(f) If necessary, correct for failures in the mitigation project;

(g) Replace dead or undesirable vegetation with appropriate plantings, based on the approved planting plan or MMC 22E.010.150;

(h) Repair damages caused by erosion, settling or other geomorphological processes;

(i) Redesign mitigation project (if necessary) and implement the new design; and

(j) Correction procedures shall be approved by a qualified scientific professional and the community development department. (Ord. 2852 § 10 (Exh. A), 2011).

Article III. Fish and Wildlife Habitat Areas

22E.010.170 Fish and wildlife habitat conservation areas designated.

While not all of the below-listed critical habitat areas exist in the city of Marysville, these regulations provide for the protection of the following fish and wildlife habitat conservation areas:

(1) Primary fish and wildlife habitat conservation areas shall include the following:

(a) Habitats with federally designated endangered, threatened, and candidate species and state designated endangered, threatened, and sensitive species which have a primary association as defined in Chapter 22A.020 MMC. Federally designated endangered, threatened and candidate species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status. State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington State Department of Fish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (State Endangered Species) and 232-12-011 (State Threatened and Sensitive Species). The State Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.

(b) State designated priority habitats and areas that are associated with state designated endangered, threatened, and sensitive species in subsection (1)(a) of this section. Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional state, or a specific structural element. Priority habitats and species are identified by the Department of Fish and Wildlife.

(c) Naturally occurring ponds under 20 acres or not less than 0.50 acres (lakes greater than 20 acres are covered under shoreline regulations).

(d) Lakes, ponds, streams and rivers planted with game fish by a governmental or tribal entity.

(e) State natural area preserves and natural resource conservation areas.

(f) Areas of rare plant species and high quality ecosystems as documented by the State Department of Natural Resources Heritage Program.

(g) Land that provides essential connections between habitat blocks and open space and that is designated by the State Department of Fish and Wildlife as a priority habitat in association with state endangered, threatened, or sensitive species in subsection (1)(a) of this section.

(h) Streams as defined and classified in Chapter 22A.020 MMC.

(2) Habitats and species of local importance are those identified by the city, including but not limited to those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection. Habitats may include a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

(a) Designation Process. The city shall accept and consider nomination for habitat areas and species to be designated as locally important on an annual basis.

(b) Habitats and species to be designated shall exhibit at least one of the criteria in subsections (2)(b)(i) through (iii) of this section and shall meet criteria in subsections (2)(b)(iv) and (v) of this section.

(i) Local populations of native species are in danger of extirpation based on existing trends, including:

(A) Local populations of native species that are likely to become endangered; or

(B) Local populations of native species that are vulnerable or declining; or

(ii) The species or habitat has recreation, commercial, game, tribal, or other special value; or

(iii) Long-term persistence of a species is dependent on the protection, maintenance, and/or restoration of the nominated habitat; and

(iv) Protection by other county, state, or federal policies, laws, regulations, or nonregulatory tools is not adequate to prevent degradation of the species or habitat in the city; and

(v) Without protection, there is a likelihood that the species or habitat will be diminished over the long term.

(c) Areas nominated to protect a particular habitat or species must represent high-quality native habitat or habitat that either has a high potential to recover to a suitable condition and is of limited availability or provides landscape connectivity which contributes to the designated species or habitat’s preservation.

(d) Habitats and species may be nominated for designation by any resident of Marysville.

(e) The petition to nominate an area or a species to this category shall contain all of the following:

(i) A completed SEPA environmental checklist;

(ii) A written statement using best available science to show that nomination criteria in subsections (2)(b) and (c) of this section are met;

(iii) A written proposal including specific and relevant protection regulations that meet the goals of this chapter. Management strategies must be supported by the best available science, and where restoration of habitat is proposed, a specific plan for restoration must be provided;

(iv) Demonstration of relevant, feasible management strategies that are effective and within the scope of this chapter;

(v) Provision of species habitat location(s) on a map that works in concert with other city maps;

(vi) An economic impact (cost/benefit) analysis of proposal;

(vii) Documentation of public notice methods that the petitioner(s) have used. Examples of reasonable methods are:

(A) Posting the property;

(B) Publishing a paid advertisement in a newspaper or newsletter of circulation in the general area of the proposal, where interested persons may review information on the proposal. Information in the notice must contain a description of the proposal, general location of the affected area and where comments on the proposal may be sent;

(C) Notification to public or private groups in the affected area that may have an interest in the petition;

(D) News media articles that have been published concerning the proposal;

(E) Notices placed at public buildings or bulletin boards in the affected area;

(F) Mailing of informational flyers to property owners within the affected area;

(viii) Signatures of all petitioners.

(f) The community development director shall determine whether the nomination proposal is complete and, if complete, shall evaluate it according to the characteristics enumerated in subsection (2)(b) of this section and make a recommendation to the planning commission based on those findings.

(g) The planning commission shall hold a public hearing for proposals found to be complete and make a recommendation to the city council based on the characteristics enumerated in subsection (2)(b) of this section.

(h) Following the recommendation of the planning commission, the city council may hold an additional public hearing and shall determine whether to designate a habitat or species of local importance.

(i) Approved nominations will be subject to the provisions of this title. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.180 Regulated activities in habitats.

The following activities within a habitat and its associated buffer as set forth in MMC 22E.010.220, or outside a habitat or buffer but with the potential of adversely affecting the habitat or buffer, shall be regulated pursuant to the standards of this chapter:

(1) Removing, excavating, disturbing or dredging soil, sand, gravel, minerals, organic matter or materials of any kind.

(2) Dumping, discharging or filling with any material.

(3) Draining, flooding or disturbing the water level or water table.

(4) Driving piling or placing obstructions.

(5) Constructing, reconstructing, demolishing or altering the size of any structure or infrastructure.

(6) Construction of any on-site sewage disposal system, or other underground facilities, except exempted activities.

(7) Destroying or altering habitat vegetation through clearing, harvesting, shading or planting vegetation that would alter the character of a habitat or buffer, the shade and protection for a stream, or that is a source of food or habitat for fish or game.

(8) Activities that result in significant changes in water temperature, physical or chemical characteristics of water sources, including water quantity and quality, soil flow, natural ground contours, or pollutants.

(9) Relocation of the natural course of the stream, or modification of the flow characteristics thereof.

(10) Any other activity potentially affecting a habitat or habitat buffer not otherwise exempt from the provisions of this chapter. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.190 Exemptions from fish and wildlife regulations.

(1) See MMC 22E.010.320 for general exemptions to all critical areas.

(2) The following activities shall be exempt from the provisions of this chapter related to fish and wildlife habitat provided they are conducted using best management practices:

(a) Activities involving artificially created habitat, including but not limited to grass-lined swales, irrigation and drainage ditches, detention facilities such as ponds, and landscape features, except for habitat areas created as mitigation and artificially created habitats used by salmonid fish;

(b) Prior to the effective date of the ordinance codified in this chapter, all commercial and industrial uses, developments, and activities which exist within the stream buffers shall be allowed to continue in existence, and to be repaired, maintained and remodeled as provided in Chapter 22C.100 MMC, Nonconforming Situations.

(3) No private or public entity shall undertake exempt activities as listed in this section prior to providing the city written notification of the entity’s intent to proceed with an exempt activity. The city shall verbally confirm whether or not the activity is exempt and where needed provide written authorization within 30 days of receipt of the written notice.

(4) In case of any questions as to whether a particular activity is exempt under provisions of this section, the community development department’s determination shall prevail and be determinative.

(5) Notwithstanding the exemption provided by this section, any otherwise exempt activities occurring in or near critical habitat areas shall comply with the intent of these standards and shall consider on-site alternatives that avoid or minimize potential habitat impacts. Exempt activities shall use reasonable methods (i.e., best management practices) to avoid potential impacts to fish and wildlife habitat. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.200 Fish and wildlife habitat inventory maps.

(1) The approximate location and extent of habitat areas within the city of Marysville’s planning area are shown on the maps adopted as part of this chapter. These maps shall be used as a general guide only for the assistance of property owners and other interested parties; boundaries are generalized. The actual type, extent and boundaries of habitat areas shall be determined by a qualified scientific professional according to the procedures, definitions and criteria established by this chapter. In the event of any conflict between the habitat location or type shown on the city’s fish and wildlife conservation areas maps and the criteria or standards of this chapter, the criteria and standards resulting from the field investigation shall control.

(2) The following maps are hereby adopted for the purpose set forth in subsection (1) of this section:

(a) City of Marysville Fish and Wildlife Conservation Areas Map;

(b) Washington State Department of Fish and Wildlife Priority Habitat and Species Maps;

(c) Washington State Department of Natural Resources, Official Water Type Reference Maps, as amended;

(d) Washington State Department of Natural Resources Natural Heritage Program mapping data;

(e) Washington State Department of Natural Resources State Natural Area Preserves and Natural Resources Conservation Area Maps;

(f) Washington State Department of Health Annual Inventory of Shellfish Harvest Areas;

(g) Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors Reports published by the Washington Conservation Commission;

(h) Washington State Department of Natural Resources Puget Sound Intertidal Habitat Inventory Maps; and

(i) Washington State Department of Natural Resources Shorezone Inventory or Northwest Straits Commission – Snohomish County Marine Resources Committee Inventory. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.210 Classification of fish and wildlife habitat areas.

(1) Streams. Streams shall be classified according to the stream type system as provided in WAC 222-16-030, Stream Classification System, as amended.

(a) Type S Stream. Those streams, within their ordinary high water mark, as inventoried as “shorelines of the state” under Chapter 90.58 RCW and the rules promulgated pursuant thereto.

(b) Type F Stream. Those stream segments within the ordinary high water mark that are not Type S streams, and which are demonstrated or provisionally presumed to be used by salmonid fish. Stream segments which have a width of two feet or greater at the ordinary high water mark and have a gradient of 16 percent or less for basins less than or equal to 50 acres in size, or have a gradient of 20 percent or less for basins greater than 50 acres in size, are provisionally presumed to be used by salmonid fish. A provisional presumption of salmonid fish use may be refuted at the discretion of the community development director where any of the following conditions are met:

(i) It is demonstrated to the satisfaction of the city that the stream segment in question is upstream of a complete, permanent, natural fish passage barrier, above which no stream section exhibits perennial flow;

(ii) It is demonstrated to the satisfaction of the city that the stream segment in question has confirmed, long-term, naturally occurring water quality parameters incapable of supporting salmonid fish;

(iii) Sufficient information about a geomorphic region is available to support a departure from the characteristics described above for the presumption of salmonid fish use, as determined in consultation with the Washington State Department of Fish and Wildlife, the Department of Ecology, affected tribes, or others;

(iv) The Washington State Department of Fish and Wildlife has issued a hydraulic project approval pursuant to RCW 77.55.100, which includes a determination that the stream segment in question is not used by salmonid fish;

(v) No salmonid fish are discovered in the stream segment in question during a stream survey conducted according to the protocol provided in the Washington Forest Practices Board Manual, Section 13, Guidelines for Determining Fish Use for the Purpose of Typing Waters under WAC 222-16-031; provided, that no unnatural fish passage barriers have been present downstream of said stream segment over a period of at least two years.

(c) Type Np Stream. Those stream segments within the ordinary high water mark that are perennial and are not Type S or Type F streams. However, for the purpose of classification, Type Np streams include intermittent dry portions of the channel below the uppermost point of perennial flow. If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations (see Washington Forest Practices Board Manual, Section 23), then said point shall be determined by a qualified professional selected or approved by the city.

(d) Type Ns Stream. Those stream segments within the ordinary high water mark that are not Type S, Type F, or Type Np streams. These include seasonal streams in which surface flow is not present for at least some portion of a year of normal rainfall that are not located downstream from any Type Np stream segment. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.220 Fish and wildlife habitat buffer areas.

(1) The establishment of buffer areas shall be required for regulated activities in or adjacent to habitat areas. Buffers shall consist of an undisturbed area of native vegetation established to protect the integrity, functions and values of the affected habitat. Activities within buffers should not result in any net loss of the functions and values associated with streams and their buffers.

(a) The following buffer widths are established:

Streams

Buffer

Type S

Quilceda Creek

Ebey Slough

Except in the following location: north and south shore of Ebey Slough between the western city limits and 47th Ave. NE

200 feet

100 feet

25 feet

Type F

Gissberg Twin Lakes

150 feet

Lake setbacks correspond to county park boundaries

Type Np

100 feet

Type Ns

50 feet

(b) Federal, State, and Local Habitats and Species.

(i) Except for waters subject to subsection (1)(a) of this section, and bald eagles subject to subsection (1)(b)(ii) of this section, the establishment of buffer areas may be required for regulated activities in or adjacent to federal, state, and local species and habitat areas as designated pursuant to MMC 22E.010.170 and 22E.010.210. Buffers shall consist of an undisturbed area of native vegetation established to protect the integrity, functions and values of the affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby. Buffers shall be determined by the department based on information in the biological/habitat report, a habitat management plan approved by the Department of Fish and Wildlife supplemented by its own investigations, the intensity and design of the proposed use, and adjacent uses and activities. Buffers are not intended to be established or to function independently of the habitat they are established to protect. Buffers shall be measured from the edge of the habitat area.

(ii) Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292).

(2) Where existing buffer area plantings provide minimal vegetative cover and cannot provide the minimum water quality or habitat functions, buffer enhancement shall be required. Where buffer enhancement is required, a plan shall be prepared that includes plant densities that are not less than five feet on center for shrubs and 10 feet on center for trees. Monitoring and maintenance of plants shall be required in accordance with MMC 22E.010.260. Existing buffer vegetation is considered “inadequate” and will require enhancement through additional native plantings and removal of nonnative plants when:

(a) Nonnative or invasive plant species provide the dominate cover;

(b) Vegetation is lacking due to disturbance and stream resources could be adversely affected; or

(c) Enhancement planting in the buffer could significantly improve buffer functions. If, according to the buffer enhancement plan, additional buffer mitigation is not sufficient to protect the habitat, the city shall require larger buffers where it is necessary to protect habitat functions based on site-specific characteristics.

(3) Measurement of Buffers.

(a) Stream Buffers. All buffers shall be measured from the ordinary high water mark as identified in the field or, if that cannot be determined, from the top of the bank. In braided channels and alluvial fans, the ordinary high water mark or top of bank shall be determined so as to include the entire stream feature;

(b) Combination Buffers. Any stream adjoined by a wetland or other adjacent habitat area shall have the buffer which applies to the wetland or other habitat area unless the stream buffer requirements are more expansive.

(4) Buffer widths may be modified by averaging buffer widths as set forth herein:

(a) Buffer width averaging shall be allowed only where the applicant demonstrates to the community development department that the averaging will not impair or reduce habitat, water quality purification and enhancement, storm water detention, ground water recharge, shoreline protection and erosion protection and other functions of the stream and buffer, that lower intensity land uses would be located adjacent to areas where buffer width is reduced, and that the total area contained within the buffer after averaging is no less than that contained within the standard buffer prior to averaging;

(b) Notwithstanding the reductions permitted in subsection (4)(a) of this section, buffer widths shall not be reduced by more than 25 percent of the required buffer.

(5) The buffer width stated in subsection (1) of this section shall be increased in the following circumstances:

(a) When the adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse habitat impacts; or

(b) When the standard buffer has minimal or degraded vegetative cover that cannot be improved through enhancement; or

(c) When the minimum buffer for a habitat extends into an area with a slope of greater than 25 percent, the buffer shall be the greater of:

(i) The minimum buffer for that particular habitat; or

(ii) Twenty-five feet beyond the point where the slope becomes 25 percent or less.

(6) The community development director may authorize the following low impact uses and activities within the buffer depending on the sensitivity of the habitat involved, provided they are consistent with the purpose and function of the habitat buffer and do not detract from its integrity. To the extent reasonably practicable, examples of uses and activities which may be permitted in appropriate cases include pedestrian trails, viewing platforms, interpretive signage, utility easements and the installation of underground utilities pursuant to best management practices. Uses permitted within the buffer shall be located in the outer 25 percent of the buffer.

(7) Trails and Open Space. For walkways and trails, associated open space in critical buffers located on public property, or on private property where easements or agreements have been granted for such purposes all of the following criteria shall be met:

(a) The trail, walkway, and associated open space shall be consistent with the comprehensive parks, recreation, and open space master plan. The city may allow private trails as part of the approval of a site plan, subdivision or other land use permit approvals.

(b) Trails and walkways shall be located in the outer 25 percent of the buffer, i.e., the portion of the buffer that is farther away from the critical area. Exceptions to this requirement may be made for:

(i) Trail segments connecting to existing trails where an alternate alignment is not practical. Public access points to water bodies spaced periodically along the trail.

(c) Enhancement of the buffer area is required where trails are located in the buffer. Where enhancement of the buffer area adjacent to a trail is not feasible due to existing high quality vegetation, additional buffer area or other mitigation may be required.

(d) Trail widths shall be a maximum width of 10 feet. Trails shall be constructed of permeable materials; provided, that impervious materials may be allowed if pavement is required for handicapped or emergency access, or safety, or is a designated nonmotorized transportation route or makes a connection to an already dedicated trail, or reduces potential for other environmental impacts.

(8) Allowed Activity – Utilities in Streams. New utility lines and facilities may be permitted to cross water bodies in accordance with an approved supplemental stream/lake study, if they comply with the following criteria:

(a) Fish and wildlife habitat areas shall be avoided to the maximum extent possible; and

(b) The utility is designed consistent with one or more of the following methods:

(i) Installation shall be accomplished by boring beneath the scour depth and hyporheic zone of the water body and channel migration zone; or

(ii) The utilities shall cross at an angle greater than 60 degrees to the centerline of the channel in streams perpendicular to the channel centerline; or

(iii) Crossings shall be contained within the footprint of an existing road or utility crossing; and

(c) New utility routes shall avoid paralleling the stream or following a down-valley course near the channel; and

(d) The utility installation shall not increase or decrease the natural rate of shore migration or channel migration; and

(e) Seasonal work windows are determined and made a condition of approval; and

(f) Mitigation criteria of MMC 22E.010.240 are met.

(9) Storm water management facilities, such as biofiltration swales and dispersion facilities, may be located within the outer 25 percent of buffers only if they will have no negative effect on the functions and purpose the buffers serve for the fish and wildlife habitat areas. Storm water detention ponds shall not be allowed in fish and wildlife habitat areas or their required buffers.

(10) For subdivisions and short subdivisions, the applicable wetland and associated buffer requirements for any development or redevelopment of uses specifically identified in, and approved as part of, the original subdivision or short subdivision application shall be those requirements in effect at the time that the complete subdivision or short subdivision application was filed; provided, that for subdivisions this provision shall be limited to final plats reviewed and approved under Ordinance 1928, “Sensitive Areas,” adopted December 14, 1992, or as amended at the time of final plat approval. However, at the discretion of the community development director a buffer enhancement plan may be required in accordance with subsection (2) of this section if the wetland or buffer has become degraded or is currently not functioning or if the wetland and/or buffer may be negatively affected by the proposed new development.

(11) Minor additions or alterations such as decks and small additions less than 120 square feet, interior remodels, or tenant improvements which have no impact on the habitat or buffer shall be exempt from the buffer enhancement requirements.

(12) Required buffers shall not deny all reasonable use of property. A variance from buffer width requirements may be granted by the city of Marysville upon a showing by the applicant that:

(a) There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location or surroundings that do not apply generally to other properties and which support the granting of a variance from the buffer width requirements; and

(b) Such buffer width variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question; and

(c) The granting of such buffer width variance will not be materially detrimental to the public welfare or injurious to the property or improvement; and

(d) The granting of the buffer width variance will not materially affect the subject habitat area; and

(e) If a variance application for stream buffers is merged with a pending shoreline development permit application, the applicant shall pay the city a single fee equal to the amount of the shoreline permit; and

(f) No variance from stream buffers shall be granted which is inconsistent with the policies of the Shoreline Management Act of the state of Washington and the master program of the city of Marysville.

(g) Best available science, as set forth in MMC 22E.010.040, shall be taken into consideration in the granting of a buffer width variance. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.230 Fish and wildlife habitat alteration and mitigation.

After careful consideration of the potential impacts and a determination that impacts are unavoidable, unavoidable impacts to streams, associated fish buffers and wildlife habitat not exempt under MMC 22E.010.190, granted a variance under MMC 22E.010.220, or meeting the criteria for a reasonable use exception in MMC 22E.010.410 shall be mitigated as follows:

(1) Adverse impacts to habitat functions and values shall be mitigated to the extent feasible and reasonable. Mitigation actions by an applicant or property owner shall occur in the following preferred sequence:

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

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

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations;

(e) Compensating for the impact by replacing or providing substitute resources or environments;

(f) Monitoring the impact and taking appropriate corrective measures in accordance with MMC 22E.010.260.

(2) Where impacts cannot be avoided, the applicant or property owner shall implement other appropriate mitigation actions in compliance with the intent, standards and criteria of this section. In an individual case, these actions may include consideration of alternative site plans and layouts, reductions in the density or scope of the proposal, and implementation of the performance standards listed in MMC 22E.010.250.

(3) Alteration of habitats and their buffers may be permitted by the community development department subject to the following standards:

(a) Type S and F Streams. Alterations of Type S streams shall be avoided, subject to the reasonable use provisions of this chapter and conformance with the city of Marysville shoreline management master program. Access to the shoreline will be permitted for water-dependent and water-oriented uses subject to the mitigation sequence referred to in subsections (1) and (2) of this section;

(b) Type F, Np and Ns Streams. Alterations of Type F, Np and Ns streams may be permitted; provided, that the applicant mitigates adverse impacts consistent with the performance standards and other requirements of this chapter; and provided, that no overall net loss will occur in stream functions and fish habitat;

(c) Relocation of a stream may occur only when it is part of an approved mitigation or rehabilitation plan, and will result in equal or better habitat and water quality, and will not diminish the flow capacity of the stream. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.240 Fish and wildlife mitigation standards, criteria and plan requirements.

(1) Location and Timing of Mitigation.

(a) Mitigation shall be provided on-site, except where on-site mitigation is not scientifically feasible or practical due to physical features of the property. The burden of proof shall be on the applicant to demonstrate that mitigation cannot be provided on-site.

(b) When mitigation cannot be provided on-site, mitigation shall be provided in the immediate vicinity of and within the same watershed as the permitted activity on property owned or controlled by the applicant, where practical and beneficial to the fish and wildlife habitat resources. When possible, this means within the same watershed as the location of the proposed project.

(c) In-kind mitigation, as defined in Chapter 22A.020 MMC, shall be provided, except when the applicant demonstrates and the community development department concurs that greater functional and habitat value can be achieved through out-of-kind mitigation, as defined in Chapter 22A.020 MMC.

(d) Only when it is determined by the community development department that subsections (1)(a), (b), and (c) of this section are inappropriate or impractical shall off-site, out-of-kind mitigation be considered.

(e) Any agreed-upon proposal shall be completed before initiation of other permitted activities, unless a phased or concurrent schedule has been approved by the community development department. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.250 Fish and wildlife habitat performance standards and incentives.

(1) The habitat performance standards and criteria contained in this section shall be incorporated into plans submitted for regulated activities. It is recognized that in specific situations, all the listed standards may not apply or be feasible to implement or individual standards may conflict, in which case the standard(s) most protective of the environment shall apply.

(a) Consider habitat in site planning and design;

(b) Locate buildings and structures in a manner that preserves and minimizes adverse impacts to important habitat areas;

(c) Integrate retained habitat into open space and landscaping;

(d) Where possible, consolidate habitat and vegetated open space in contiguous blocks;

(e) Locate habitat contiguous to other habitat areas, open space or landscaped areas to contribute to a continuous system or corridor that provides connections to adjacent habitat areas and allows movement of wildlife;

(f) Use native species in any landscaping of disturbed or undeveloped areas and in any enhancement of habitat or buffers;

(g) Emphasize heterogeneity and structural diversity of vegetation in landscaping, and food-producing plants beneficial to wildlife and fish;

(h) Remove and control any noxious or undesirable species of plants and animals;

(i) Preserve significant trees and snags, preferably in groups, consistent with achieving the objectives of these standards;

(j) Buffers shall be surveyed, staked, and fenced with erosion control and/or clearing limits fencing prior to any construction work, including grading and clearing, that may take place on the site; and

(k) Temporary erosion and sedimentation controls, pursuant to an approved plan, shall be implemented during construction.

(2) A landscape plan shall be submitted consistent with the requirements, goals, and standards of this chapter. The plan shall reflect the report prepared pursuant to MMC 22E.010.330.

(3) As an incentive to encourage preservation of secondary and tertiary habitat, as those terms are defined in these regulations, the net amount of landscaping required by the city of Marysville may be reduced by 0.25 acres for each one acre of secondary or tertiary habitat and buffer preserved on the site; however, that amount cannot exceed 50 percent of the amount of required landscaping. The reduction shall be calculated on the basis of square feet of habitat preserved or enhanced and square feet of landscaping required. Habitat and habitat buffer that is enhanced by the applicant may also qualify for this reduction. Preservation of secondary or tertiary habitat shall be assured by the execution of an easement or other protective device acceptable to the city of Marysville. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.260 Fish and wildlife habitat monitoring program and contingency plan.

(1) A monitoring program shall be implemented to determine the success of the mitigation project and any necessary corrective actions. This program shall determine if the original goals and objectives are being met.

(2) A contingency plan shall be established for compensation in the event that the mitigation project is inadequate or fails. Security for performance in accordance with Chapter 22G.040 MMC is required for performance, monitoring and maintenance in accordance with the terms of the contingency plan. The security for performance shall be for a period of five years, but the community development director may agree to reduce the security in phases in proportion to work successfully completed over the duration of the security.

(3) The monitoring program shall consist of the following:

(a) During monitoring, best available scientific procedures shall be used as the method of establishing the success or failure of the project;

(b) For vegetation determinations, permanent sampling points shall be established;

(c) For measurement purposes, vegetative success shall equal 80 percent survival of planted trees and shrubs and 80 percent cover of desirable understory or emergent species;

(d) Monitoring reports shall be submitted on the current status of the mitigation project to the community development department. The reports shall be prepared by a qualified scientific professional and reviewed by the city, shall to the extent applicable include monitoring information on wildlife, vegetation, water quality, water flow, storm water storage and conveyance, and existing or potential degradation, and shall be produced on the following schedule:

(i) At time of construction;

(ii) Thirty days after planting;

(iii) Early in the growing season of the first year;

(iv) End of the growing season of first year;

(v) Twice the second year; and

(vi) Annually thereafter;

(e) Monitoring shall occur over three, four, or five growing seasons, depending on the complexity of the fish and wildlife habitat system. The monitoring period will be determined by the community development department and specified in writing prior to the implementation of the site plan;

(f) The applicant shall, if necessary, correct for failures in the mitigation project;

(g) The applicant shall replace dead or undesirable vegetation with appropriate plantings, based on the approved planting plan or MMC 22E.010.150;

(h) The applicant shall repair damage caused by erosion, settling, or other geomorphological processes;

(i) Correction procedures shall be approved by a qualified scientific professional and the community development department; and

(j) In the event of failure of the mitigation project, the applicant shall redesign the project and implement the new design. (Ord. 2852 § 10 (Exh. A), 2011).

Article IV. Geologic Hazard Areas

22E.010.270 Applicability to geologic hazards.

(1) The provisions of this section shall apply to any activity that occurs in, on or within 300 feet of (as indicated on the geologic hazard maps), or potentially affects, a geologic hazard area subject to this chapter unless otherwise exempt. These activities may include, but are not limited to, the following:

(a) Removing, excavating, disturbing or dredging soil, sand, gravel, minerals, organic matter or materials of any kind;

(b) Dumping, discharging or filling with any material;

(c) Driving pilings or placing obstructions;

(d) Constructing, reconstructing, demolishing or altering the size of any structure or infrastructure;

(e) Construction of any on-site sewage disposal system, or other underground facilities, except exempted activities;

(f) Draining, flooding, or disturbing the water level or water table, or changing the flow of water through the site;

(g) Destroying or altering vegetation through clearing or harvesting; and

(h) Any other activity potentially affecting a geologic hazard area or its setback not otherwise exempt from the provisions of this section.

(2) To avoid duplication, the following permits and approvals shall be subject to and coordinated with the requirements of this section: clearing and grading; subdivision or short subdivision; building permit; planned unit development; shoreline substantial development; variance; conditional use permit; other permits leading to the development or alteration of land; and rezones. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.280 Geologic hazard inventory map.

The approximate location and extent of geologic hazard areas within the city of Marysville’s planning area are shown on the critical areas maps adopted as part of this chapter. These maps should be used as a general guide only for the assistance of property owners and as information for the public. They are intended to indicate where potentially hazardous conditions are believed to exist. Boundaries are generalized; field investigation and analysis by a qualified scientific professional is required to confirm the actual presence or absence of a critical area. In the event of any conflict between the location, designation or classification of geologic hazard area shown on the Snohomish County Tomorrow geologic hazard areas maps and criteria or standards of this chapter, the criteria and standards resulting from the field investigation shall prevail. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.290 Alteration of geologic hazard areas and development limitations.

(1) The city of Marysville may approve, condition or deny proposals as appropriate based on the degree to which significant risks posed by critical hazard areas to public and private property and to public health safety can be mitigated. The objective of mitigation measures shall be to render a site containing a critical geologic hazard site as safe as one not containing such hazard or to develop a structure that will tolerate the hazard. Enforceable guarantees shall be required where appropriate. Conditions may include limitations of proposed uses, modification of density, alteration of site layout and other appropriate changes to the proposal. Where potential impacts cannot be effectively mitigated, or where the risk to public health, safety and welfare, public or private property, or important natural resources is significant notwithstanding mitigation, the proposal shall be denied.

(2) Assurances required of the applicant and the qualified scientific professional for geologic hazard areas may at the discretion of the community development director include:

(a) A letter from the geotechnical engineer or geologist who prepared the required studies stating that the risk of damage from the proposal, both on-site and off-site, is minimal subject to the conditions set forth in the report, that the proposal will not increase the risk of occurrence of the geologic hazard, and that measures to eliminate or reduce risks have been incorporated into its recommendations; or

(b) A letter from the applicant, or the owner of the property if not the applicant, stating its understanding and acceptance of any risk of injury or damage associated with development of the site and agreeing to notify any future purchasers of the site, portions of the site, or structures located on the site of the geologic hazard; or

(c) A legally enforceable agreement, which shall be recorded as a covenant and noted on the face of the deed or plat, and executed in a form satisfactory to the city of Marysville, acknowledging that the site is located in a geologic hazard area; the risks associated with development of such site; and a waiver and release of any and all claims of the owner(s), their directors, employees, successors or assigns against the city of Marysville for any loss, damage or injury, whether direct or indirect, arising out of issuance of development permits for the proposal.

(3) When alteration of a geologic hazard area is approved, the city of Marysville at the discretion of the community development director and/or city engineer may require security for performance or security for maintenance in accordance with the standards of Chapter 22G.040 MMC. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.300 Setbacks from geologic hazards.

(1) A setback shall be established from the edge of any geologic hazard area that is not approved for alteration pursuant to these regulations. The setback shall consist of an undisturbed area of natural vegetation; if the site has previously been disturbed, the setback area shall be revegetated pursuant to an approved planting plan.

(2) Required setbacks shall typically vary between 25 and 50 feet; the width of the setback, determined by the community development director and/or city engineer or his or her representative, shall reflect the sensitivity of the geologic hazard area and the types and density of uses and activities proposed on or adjacent to the geologic hazard area. In determining an appropriate setback width, the community development director or his or her representative shall consider the recommendations contained in any technical report prepared by the applicant’s geotechnical engineer. Building and structures shall be set back 10 feet from the edge of the setback.

(a) Setbacks shall be measured as follows:

(i) Critical landslide hazard areas: from the edges of the hazard area as identified in the geologic hazard area report;

(ii) Critical recharge areas: from the edge of the recharge area as identified in the geologic hazard area report;

(b) Setbacks may be reduced to a minimum of 10 feet when the applicant demonstrates through technical studies that the reduction will adequately protect the geologic hazard and the proposed development. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.310 Geologic hazard performance standards.

(1) The following standards shall be implemented in all proposals occurring in or adjacent to geologic hazard areas:

(a) Geotechnical studies shall be prepared to identify and evaluate potential hazards and to formulate mitigation measures;

(b) Construction methods will reduce or not adversely affect geologic hazards;

(c) Site planning should minimize disruption of existing topography and natural vegetation;

(d) Disturbed areas should be replanted as soon as feasible pursuant to a previously approved landscape plan;

(e) Use of retaining walls that allow maintenance of existing natural slope areas is preferred over graded slopes;

(f) Setbacks shall be surveyed, staked, and fenced with erosion control and/or clearing limits fencing prior to any construction work, including grading and clearing, that may take place on the site;

(g) Temporary erosion and sedimentation controls, pursuant to an approved plan, shall be implemented during construction;

(h) A master drainage plan should be prepared for large projects;

(i) Undevelopable geologic hazard areas larger than one-half acre should be placed in a separate tract;

(j) A monitoring program should be prepared for construction activities permitted in geologic hazard areas; and

(k) Development shall not increase instability or create a hazard to the site or adjacent properties, or result in a significant increase in sedimentation or erosion;

(l) The proposal will not adversely impact other critical areas;

(m) At the discretion of the community development director, peer review of geotechnical reports may be required prior to locating a critical facility within a geologic hazard area.

(2) Required setbacks shall not deny all reasonable use of property. A variance from setback width requirements may be granted by the city of Marysville upon a showing:

(a) There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location or surroundings that do not apply generally to other properties and which support the granting of a variance from the setback requirements; and

(b) Such setback with variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question; and

(c) The granting of such setback width variance will not be materially detrimental to the public welfare or injurious to the property or improvement. (Ord. 2852 § 10 (Exh. A), 2011).

Article V. General Information

22E.010.320 General exemptions.

The following activities shall be exempt from the provisions of this chapter provided they are conducted using best management practices:

(1) Existing and ongoing agricultural activities, as defined in Chapter 22A.020 MMC, and any lands designated long-term commercially significant agricultural lands;

(2) Maintenance, operation and reconstruction of existing roads, streets, utilities and associated structures; provided, that reconstruction of any structures may not increase the impervious area;

(3) Normal maintenance, repair and reconstruction of residential or commercial structures; provided, that reconstruction of any structures may not increase the previous floor area;

(4) Site investigative work and studies necessary for preparing land use applications, including soils tests, water quality studies, wildlife studies and similar tests and investigations; provided, that any disturbance of critical areas shall be the minimum necessary to carry out the work or studies;

(5) Educational activities, scientific research, and outdoor recreational activities that will not have a significant effect on the habitat area;

(6) Public agency emergency activities necessary to prevent an immediate threat to public health, safety or property;

(7) Prior to the effective date of the ordinance codified in this chapter, any of the following activities that have met all conditions of approval in a timely manner and are consistent with the reasonable use provisions of this chapter:

(a) Complete applications as defined by the appropriate ordinance or by city policy;

(b) Approved plats; and

(c) Development of legally created lots which have been recorded with Snohomish County, provided they were reviewed and approved under Ordinance No. 1928, “Sensitive Areas,” adopted December 14, 1992, or as amended at the time of final plat approval; and

(8) Minor activities not mentioned above and determined by the community development department to pose minimal risk to the public health, safety, general welfare and critical area functions. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.330 Permit process and application requirements.

(1) Preapplication Conference. All applicants are encouraged to meet with the community development director of the city of Marysville or his or her representative prior to submitting an application subject to these regulations. The purpose of this meeting shall be to discuss the city of Marysville’s critical areas requirements, process and procedures; to review any conceptual site plans prepared by the applicant; to discuss appropriate investigative techniques and methodology; to identify potential impacts and mitigation measures; and to familiarize the applicant with state and federal programs, particularly those pertaining to wetlands. Such conference shall be for the convenience of the applicant and any recommendations shall not be binding on the applicant or the city of Marysville.

(2) Application Requirements. The information required by this section should be coordinated with reporting requirements required by this section for any other critical areas located on the site.

(a) Prior to the issuance of a SEPA threshold determination for a proposal, a wetland determination, wetland delineation report, or fish and wildlife habitat report must be submitted to the city of Marysville for review upon request of the community development director due to inclusion of a portion or all of a site on the habitat or wetland inventory maps prepared by Snohomish County Tomorrow. The purpose of the report is to determine the extent and function of wetlands, and the extent, type, function and value of wildlife habitat on any site where regulated activities are proposed. The report will also be used by the city of Marysville to determine the appropriate wetland, or the sensitivity and appropriate classification of the habitat, appropriate buffering requirements, and potential impacts of proposed activities;

(b) In addition, wetland boundaries must be staked and flagged in the field by a qualified scientific professional employing the Washington State Wetlands Identification and Delineation Manual methodology. Field flagging must be distinguishable from other survey flagging on the site. The field flagging must be accompanied by a wetland delineation report;

(c) Applicants for activities within geologic hazard areas shall conduct technical studies to: evaluate the actual presence of geologic conditions giving rise to geologic hazards; determine the appropriate hazard category, according to the classification of potential hazards in these regulations; evaluate the safety and appropriateness of proposed activities; and recommend appropriate construction practices, monitoring programs and other mitigation measures required to ensure achievement of the purpose and intent of these regulations. The format of any required reports shall be determined by the city of Marysville;

(d) The report of any critical area shall include the following information:

(i) Vicinity map;

(ii) A map showing:

(A) Site boundary, property lines, and roads;

(B) Internal property lines, rights-of-way, easements, etc.;

(C) Existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.;

(D) Contours at the smallest readily available intervals, preferably at five-foot intervals; and

(E) For large (50 acres or larger) or complex projects with wetlands or habitat areas, an aerial photo with overlays displaying the site boundaries and wetland delineation or habitat area(s) may be required. Generally, an orthophotograph at a scale of one inch equals 400 feet or greater (such as one inch equals 200 feet) should be used. If an orthophotograph is not available, the center of a small scale (e.g., one inch equals 2,000 feet) aerial photograph enlarged to one inch equals 400 feet may be used;

(iii) The report for any critical area must describe:

(A) Locational information including legal description and address;

(B) All natural and manmade features within 150 feet of the site boundary;

(C) General site conditions including topography, acreage, and water bodies or wetlands; and

(D) Identification of any areas that have previously been disturbed or degraded by human activity or natural processes;

(e) In addition to the general report requirements, a report on wetlands shall include the following information:

(i) Delineated wetland boundary;

(ii) The wetland boundary must be accurately drawn at an appropriate engineering scale such that information shown is not cramped or illegible. The drawing shall be prepared by a surveyor. Generally, a scale of one foot equals 40 feet or greater (such as one inch equals 20 feet) should be used. Existing features must be distinguished from proposed features;

(iii) Site designated on the wetlands areas maps prepared for Snohomish County Tomorrow, July 1991;

(iv) Hydrologic mapping showing patterns of water movement into, through, and out of the site area;

(v) Location of all test holes and vegetation sample sites, numbered to correspond with flagging in the field and field data sheets;

(vi) Field data sheets from the federal manual, numbered to correspond with sample site locations as staked and flagged in the field; and describing:

(vii) Specific descriptions of plant communities, soils and hydrology;

(viii) A summary of existing wetland function and value; and

(ix) A summary of proposed wetland and buffer alterations, impacts, and the need for the alterations as proposed. Potential impacts may include but are not limited to loss of flood storage potential, loss of wildlife habitat, expected decreases in species diversity or quantity, changes in water quality, increases in human intrusion, and impacts on associated wetland or water resources. If alteration of a Category I, II, III, or VI wetland is proposed, a wetland mitigation plan is required according to the standards of MMC 22E.010.150;

(f) In addition to the general report requirements, a report on fish and wildlife habitats shall include the following information. The level of detail contained in the report shall generally reflect the size and complexity of the proposal and the function and value of the habitat. The community development department may require field studies at the applicant’s expense in appropriate cases:

(i) A map of vegetative cover types, reflecting the general boundaries of different plant communities on the site;

(ii) A description of the species typically associated with the cover types, including an identification of any critical wildlife species that might be expected to be found;

(iii) The results of searches of DNB’s Natural Heritage and WDFW’s Nongame Data System databases, if available; and

(iv) Additional information on species occurrence available from the city of Marysville or Snohomish County; and describing:

(v) The layers, diversity and variety of habitat found on the site;

(vi) Identification of edges between habitat types and any species commonly associated with that habitat;

(vii) The location of any migration or movement corridors;

(viii) A narrative summary of existing habitat functions and values; and

(ix) A summary of proposed habitat and buffer alterations, impacts and mitigation. Potential impacts may include but are not limited to clearing of vegetation, fragmentation of wildlife habitat, expected decreases in species diversity or quantity, changes in water quality, increases in human intrusion, and impacts on wetlands or water resources;

(g) In addition to the general report requirements, a report on geologic hazards shall include the following information:

(i) A characterization of soils, geology and drainage;

(ii) A characterization of ground water conditions including the presence of any public or private wells in the immediate vicinity; and

(iii) An analysis of proposed clearing, grading and construction activities, including construction scheduling; potential direct and indirect, on-site and off-site impacts from the development; and proposed mitigation measures, including any special construction techniques, monitoring or inspection program, erosion or sedimentation programs (during and after construction), and surface water management controls.

In order to determine the geologic hazard classification project, applicants shall also include in their report to the city of Marysville a description prepared by a qualified scientific professional that reviews the site history and results of a surface reconnaissance. The purpose of these regulations is to require a level of study and analysis commensurate with potential risks associated with geologic hazards on particular sites and for particular proposals.

Depending on the particular geologic hazard, geologic, hydrologic, and topographic studies may be required. The appropriate report(s) and level of analysis shall be determined using the following guidelines:

(A) Moderate Landslide Hazard Areas.

1. Review site history and available information;

2. Conduct a surface reconnaissance of the site and adjacent areas; and

3. Conduct subsurface exploration if indicated by subsections (2)(g)(iii)(A)(1) and (2) of this section as determined by the applicant’s qualified scientific professional and the city;

(B) High Landslide Hazard Areas.

1. Review site history and available information;

2. Conduct a surface reconnaissance of the site and adjacent areas;

3. Conduct subsurface exploration suitable to the site and proposal to assess geohydrologic conditions;

4. Recommend surface water management controls during construction and operation;

5. Proposed construction scheduling; and

6. Recommendations for site monitoring and inspection during construction;

(C) Very High Landslide Hazard Areas.

1. Development is prohibited in these areas;

(D) Moderate and High Erosion Hazard Areas.

1. Review site history and available information;

2. Conduct a surface reconnaissance of the site and adjacent areas; and

3. Identify surface water management, erosion and sediment controls appropriate to the site and proposal;

(E) Seismic Hazard Areas.

1. For one- and two-story single-family structures, conduct an evaluation of site response and liquefaction potential based on the performance of similar structures under similar foundation conditions; and

2. For all other proposals, conduct an evaluation of site response and liquefaction potential including sufficient subsurface exploration to provide a site coefficient (S) for use in the static lateral force procedure described in the International Building Code.

(3) Permit Process. This section is not intended to create a separate permit process for development proposals. To the extent possible, the city of Marysville shall consolidate and integrate the review and processing of critical area-related aspects of proposals with other land use and environmental considerations and approvals. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.340 Selection of qualified scientific professional and city review of report.

For the purposes of this chapter, qualified scientific professionals not licensed by the state of Washington for the activities they are to perform in evaluation of critical areas shall be reviewed by and their names appear on an approved list prepared by the city of Marysville.

(1) Biannually, the city shall advertise requests for qualifications for qualified scientific professionals for each area established by this chapter: wetlands, fish habitat areas/streams, wildlife habitat areas, and geologic hazard areas. The community development director shall establish a panel to review the firm and individual’s qualifications and references. Each qualified scientific professional shall have completed at least a four-year degree program and meet the minimum requirements contained within Chapter 22A.020 MMC, Definitions. The panel shall recommend to the community development director the list of consultants, as selected by the panel, that are qualified to evaluate each type of critical area identified in this chapter. There shall be a minimum of 12 qualified scientific professionals for each of the three categories. The list shall be adopted within 60 days of the adoption of the ordinance codified in this chapter and 60 days of January 1st biannually thereafter.

(2) The adopted lists of qualified scientific professionals shall be available at the community development department.

(3) Reports meeting the criteria as required by this chapter, submitted by a qualified scientific professional included on the adopted list, should be accepted by the city of Marysville. However, the city retains the right to have a separate review of the reports, and at its discretion may retain a qualified scientific professional at the city’s expense to review and confirm the applicant’s reports, studies, and plans. Applicants may choose to use other consultants which they feel meet the definition of qualified scientific professionals given; however, the city retains the right to have a separate review of their reports, and at its discretion may retain a qualified scientific professional at the applicant’s expense to review and confirm the applicant’s reports, studies, and plans. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.350 Land divisions.

All proposed divisions of land which include regulated critical areas shall comply with the following procedures and development standards:

(1) New lots shall contain at least one building site, including access, that is suitable for development and is not within the regulated critical area or its associated buffer or setback.

(2) A regulated critical area and its associated buffer or setback shall be placed in a separate tract on which development is prohibited, protected by execution of an easement given to the city of Marysville, or dedicated to the city of Marysville at the discretion of the city of Marysville. The location and limitations associated with the critical area and its associated buffer or setback shall be shown on the face of the deed or plat applicable to the property and shall be recorded with the Snohomish County auditor. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.360 On-site density transfer for critical areas.

(1) An owner of a residential site or property containing critical areas may be permitted to transfer the density attributable to the critical area and associated buffer area or setback to another noncritical portion of the same site or property, subject to the limitations of this section and other applicable regulations. In the case of streams, only the density attributable to the buffer may be transferred.

(2) Up to 100 percent of the density that could be achieved on the critical area and buffer portion of the site, excluding stream channels, can be transferred to the noncritical area portion, subject to:

(a) The density limitations of the underlying zone must be applied;

(b) The bulk and dimensional standards of the next higher zoning classification may be utilized to accommodate the transfers in density;

(c) The noncritical, nonbuffer portion of the site is not constrained by another environmentally critical area regulated by this code.

(3) An on-site density transfer shall meet the requirements and follow the procedures of Chapter 22G.090 MMC, Subdivisions and Short Subdivisions. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.370 Fencing and signage requirements.

Wetland fencing and signage adjacent to a regulated wetland or stream corridor shall be required. Two-rail fencing shall be constructed with pressure treated posts and rails and cemented into the ground with either cedar or treated rails. Alternative materials may be used subject to approval by the city. Signs designating the presence of an environmentally sensitive area shall be posted along the buffer boundary. The signs shall be posted at a minimum rate of one every 100 lineal feet. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.380 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. The following may be allowed in the building setback area:

(1) Landscaping;

(2) Uncovered decks;

(3) Building overhangs, if such overhangs do not extend more than 18 inches into the setback area; and

(4) Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations as adopted. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.390 General procedural provisions.

(1) Interpretation and Conflicts. Any question regarding interpretation of these regulations shall be resolved pursuant to the procedures set forth in Chapter 22G.060 MMC, relating to the hearing examiner.

(2) Appeals from Permit Decisions. Appeals from permit decisions shall be governed by the procedures set forth in Chapter 22G.060 MMC, relating to the hearing examiner. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.400 Penalties and enforcement.

Penalty and enforcement provided in this section shall not be deemed exclusive, and the city may pursue any remedy or relief it deems appropriate.

(1) Any person, firm, corporation, or association or any agent thereof who violates any of the provisions of this chapter shall be punishable as set forth in MMC 4.02.040(3)(g). It shall be a separate offense for each and every day or portion thereof during which any violation of any provisions of this chapter is committed.

(2) Any person, firm, corporation, or association or any agent thereof who violates any of the provisions of this chapter shall be liable for all damages to public or private property arising from such violation, including the cost of restoring the affected area to an equivalent or improved condition prior to the violation occurring. If an equivalent condition cannot be provided, the violator shall be subject to a fine in an amount equal to the value of the damage to the environmentally critical area, determined using best available methods of calculating the value of vegetation, land, and water resources.

(3) Restoration shall include, but not be limited to, the replacement of all improperly removed groundcover with species similar to those which were removed or other approved species such that the biological and habitat values will be replaced, improper fill removed, and slope stabilized. Studies by the qualified experts shall be submitted to determine the conditions which were likely to exist on the lot prior to the illegal alteration.

(4) Restoration shall also include installation and maintenance of interim and emergency erosion control measures until such time as the restored groundcover and vegetation reach sufficient maturation to function in compliance with the performance standards adopted by the city.

(5) The city shall stop work on any existing permits and halt the issuance of any or all future permits or approvals for any activity which violates the provisions of this chapter until the property is fully restored in compliance with this chapter and all penalties are paid.

(6) Notwithstanding the other provisions provided in this chapter, anything done contrary to the provisions of this chapter or the failure to comply with the provisions of this chapter shall be and the same is hereby declared to be a public nuisance.

The city is authorized to apply to any court of competent jurisdiction, for any such court, upon hearing and for cause shown, may grant a preliminary, temporary or permanent injunction restraining any person, firm, and/or corporation from violating any of the provisions of this chapter and compelling compliance with the provisions thereof. The violator shall comply with the injunction and pay all cost incurred by the city in seeking the injunction. (Ord. 2951 § 13, 2014; Ord. 2852 § 10 (Exh. A), 2011).

22E.010.410 General savings provisions – Reasonable use determination.

(1) The standards and regulations of this section are not intended, and shall not be construed or applied in a manner, to deny all reasonable economic use of private property. If an applicant demonstrates to the satisfaction of the city of Marysville that strict application of these standards and the utilization of cluster techniques, planned unit development, and transfer of development rights would deny all reasonable economic use of its property, development may be permitted subject to appropriate conditions, derived from this chapter, as determined by the community development director.

(2) An applicant for relief from strict application of these standards shall demonstrate the following:

(a) That no reasonable use with less impact on the critical area and buffer or setback is feasible and reasonable; and

(b) That there is no feasible and reasonable on-site alternative to the activities proposed, considering possible changes in site layout, reductions in density and similar factors; and

(c) That the proposed activities, as conditioned, will result in the minimum possible impacts to critical area and buffer or setback; and

(d) That all reasonable mitigation measures have been implemented or assured; and

(e) That all provisions of the city’s regulations allowing density transfer on-site and off-site have been considered; and

(f) That the inability to derive reasonable economic use is not the result of the applicant’s actions. (Ord. 2852 § 10 (Exh. A), 2011).

22E.010.420 No special duty created.

(1) It is the purpose of this chapter to provide for the health, welfare, and safety of the general public, and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter. No provision or term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers, agents, or employees, for whom the implementation or enforcement of this chapter shall be discretionary and not mandatory.

(2) Nothing contained in this chapter is intended to be, nor shall be, construed to create or form the basis for any liability on the part of the city or its officers, agents, and employees for any injury or damage resulting from the failure of any premises to abate a nuisance or to comply with the provisions of this chapter or be a reason or a consequence of any inspection, notice or order, in connection with the implementation or enforcement of this chapter, or by reason of any action of the city related in any manner to enforcement of this chapter by its officers, agents or employees. (Ord. 2852 § 10 (Exh. A), 2011).