Chapter 17.30
CRITICAL AREAS REGULATIONS

Sections:

17.30.010    Purpose.

17.30.020    Applicability.

17.30.025    Definitions.

17.30.030    Exemptions.

17.30.040    Public agency and utility exception.

17.30.050    Reasonable use exception.

17.30.060    Reference maps and materials.

17.30.070    Review process.

17.30.080    Critical areas report.

17.30.090    Mitigation requirements.

17.30.100    Agency review.

17.30.110    Surety/bonding.

17.30.120    Permit conditions.

17.30.130    Enforcement.

17.30.140    Aquifer recharge areas.

17.30.150    Fish and wildlife habitat conservation areas.

17.30.160    Wetlands.

17.30.170    Frequently flooded areas.

17.30.180    Geologically hazardous areas.

17.30.010 Purpose.

The purpose of this chapter is to regulate development in critical areas as required by the Growth Management Act as it now exists or hereinafter amended to protect these areas and their functions and values in a manner that also allows reasonable use of private property. This chapter also provides for the reasonable protection of the natural environment, resource lands and the general public health, safety and welfare, and satisfies the requirements of RCW 36.70A.060 by:

A. Implementing the city of Brewster comprehensive plan and the requirements of the Growth Management Act;

B. Protecting critical areas, in accordance with the Growth Management Act and through the application of best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals;

C. Establishing standards to protect critical areas that lie outside the jurisdiction of the Brewster shoreline master program;

D. Protecting the general public, resources and facilities from injury, loss of life, property damage or financial loss due to flooding, erosion, landslides, or steep slopes failure;

E. Protecting unique, fragile and valuable elements of the environment, including ground- and surface waters, wetlands, and fish and wildlife and their habitats;

F. Meeting the requirements of the National Flood Insurance Program and maintaining Brewster as an eligible community for federal flood insurance benefits;

G. Preventing cumulative adverse environmental impacts to water quality and availability, wetlands, and fish and wildlife habitat;

H. Providing appropriate guidance and protection measures for addressing the needs and concerns associated with resource lands and critical areas that help define the quality of life in Brewster;

I. Encouraging the retention of open space and development of recreational opportunities, conserving fish and wildlife habitat, and increasing access to natural resource lands and water;

J. Implementing applicable mandated federal and state regulations; and

K. Providing flexibility and attention to site-specific characteristics, so as to ensure reasonable use of property. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.020 Applicability.

These critical area regulations shall apply as an overlay to zoning and other land use regulations established by the city. Critical areas lying within the jurisdiction of the city of Brewster shoreline master program shall be regulated under the provisions of said SMP.

A. All land uses and/or development permit applications on all lots or parcels within the city that lie within critical areas as identified in the city of Brewster comprehensive plan, Maps VII-1 to VII-6, and the composite critical areas map adopted as part of this chapter, shall comply with the provisions of this chapter. No action shall be taken by any person that results in any alteration of any critical area except as consistent with the purposes, objectives and intent of this chapter.

B. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted under Title 14 Brewster Municipal Code. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.

C. The city shall maintain reference maps that provide information on the general locations of critical areas, alerting the public and city officials of the potential presence of critical areas. Since boundaries are generalized, the application of this chapter and the actual type, extent and boundaries of critical areas shall be determined and governed by the classification section established for each critical area. In the event of any conflict between the critical area location or designation shown on the city’s maps and the criteria and standards established in this chapter, or the site-specific conditions, the criteria, standards and/or site-specific conditions shall prevail.

D. If a permit approval is requested for a development proposal that is located within or within two hundred fifty feet of a critical area designated on the generalized reference maps (see comprehensive plan Maps VII-1 through VII-6), the city shall review said proposal to determine the applicability of this chapter. The city may require additional analysis be provided by the applicant to assist in making this determination. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.025 Definitions.

“Aquifer recharge area” means an area with a critical recharging effect on aquifers used for potable water where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of the water.

“Area of shallow flooding” is designated as AO or AH Zone on the flood insurance rate map (FIRM). AO Zones have base flood depths that range from one to three feet above the natural ground; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. AO is characterized as sheet flow; AH indicates ponding, and is shown with standard base flood elevations.

“Area of special flood hazard” is the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. Designation on maps always includes the letter A or V.

“Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year (also referred to as the “one-hundred-year flood”). Designated on flood insurance rate maps by the letter A or V.

“Best available science” means the current scientific information used in the process to designate, protect, or restore critical areas, derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925, and when used for the protection of shorelines, the most current, accurate, and complete scientific and technical information available WAC 173-26-201(2)(a).

“Breakaway wall” means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

“Buffer, wetland” means the vegetation area adjacent to a wetland that separates and protects the wetland aquatic area from adverse impacts associated with adjacent land uses.

“Channel migration zone (CMZ)” means the area along a river within which the channel(s) can be reasonably predicted to migrate over time as a result of natural and normally occurring hydrological and related processes when considered with the characteristics of the river and its surroundings.

“Critical aquifer recharge areas” means areas with a critical recharging effect on aquifers used for potable water, including areas where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of the water, or is susceptible to reduced recharge.

“Critical facility” means a facility for which even a slight chance of flooding might be too great. Critical facilities include (but are not limited to) schools, nursing homes, hospitals, police, fire and emergency response installations, and installations which produce, use, or store hazardous materials or hazardous waste.

“Cumulative substantial damage” means flood-related damages sustained by a structure on two separate occasions during a ten-year period for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds twenty-five percent of the market value of the structure before the damage occurred.

“Elevated building” means, for insurance purposes, a nonbasement building that has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.

“Elevation certificate” means the official form (FEMA Form 81-31) used to track development, provide elevation information necessary to ensure compliance with community floodplain management ordinances, and determine the proper insurance premium rate with Section B completed by community officials.

“Erosion hazard areas” are those areas containing soils which, according to the United States Department of Agriculture Natural Resources Conservation Service Soil Survey Program, may experience significant erosion. Erosion hazard areas also include channel migration zones.

“Fish and wildlife habitat conservation areas” means habitats of priority species, priority habitats, and habitats of local importance for fish and wildlife that include a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, movement corridors, and areas of limited availability or high vulnerability to alteration, such as cliffs, talus, and wetlands.

“Flood control works” means all development on rivers and streams designed to retard bank erosion, to reduce flooding of adjacent lands, to control or divert stream flow, or to create a reservoir, including but not limited to revetments, dikes, levees, channelization, dams, vegetative stabilization, weirs, flood and tidal gates. Excluded are water pump apparatus.

“Flood insurance rate map (FIRM)” means the official map on which the Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

“Flood insurance study (FIS)” means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood.

“Flood or flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from:

A. The overflow of inland or tidal waters; and/or

B. The unusual and rapid accumulation of runoff of surface waters from any source.

“Floodplain” is synonymous with one-hundred-year floodplain and means that land area susceptible to inundation with a one percent chance of being equaled or exceeded in any given year. The limit of this area shall be based upon the flood ordinance regulation maps of the city of Brewster and/or Okanogan County.

“Floodplain management” means a long-term program to reduce flood damages to life and property and to minimize public expenses due to floods through a comprehensive system of planning, development regulations, building standards, structural works, and monitoring and warning systems.

“Floodway” means the area, as identified in a master program, that either: (A) has been established in federal emergency management agency flood insurance rate maps or floodway maps; or (B) consists of those portions of a river valley lying streamward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition, topography, or other indicators of flooding that occurs with reasonable regularity, although not necessarily annually. Regardless of the method used to identify the floodway, the floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state.

“Frequently flooded area” means the floodplain, the future-flow floodplain, and those lands that provide important flood storage, conveyance and attenuation functions.

“Future flow floodplain” means the channel of the stream and that portion of the adjoining floodplain that is necessary to contain and discharge the base flood flow at build out without any measurable increase in flood heights.

“Geologically hazardous areas” means:

A. Any area designated as a geologically hazardous area by the local government with jurisdiction; or

B. Any other area that is not suited to siting commercial, residential, or industrial development consistent with public health or safety concerns, because of the area’s susceptibility to erosion, sliding, earthquake, or other geological events, including but not limited to:

1. Channel migration zones;

2. Erosion hazard areas: areas that contain soil types, according to Soil Conservation Service’s Soil Classification System, that may experience severe to very severe erosion;

3. Landslide hazard areas: areas that have the potential of risk of mass movement resulting from a combination of geologic, topographic, and hydrologic factors;

4. Seismic hazard areas: areas that are subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, or soil liquefaction;

5. Mine hazard areas: areas that are directly underlain by, adjacent to, or affected by mine workings such as adits, tunnels, drifts, or air shafts;

6. Volcanic hazard areas: areas subject to pyroclastic flows, lava flows, and inundation by debris flows, mud flows, or related flooding resulting from volcanic activity.

“Geotechnical report” or “geotechnical analysis” means a scientific study or evaluation conducted by a qualified expert that includes a description of the ground and surface hydrology and geology, the affected land form and its susceptibility to mass wasting, erosion, and other geologic hazards or processes, conclusions and recommendations regarding the effect of the proposed development on geologic conditions, the adequacy of the site to be developed, the impacts of the proposed development, alternative approaches to the proposed development, and measures to mitigate potential site-specific and cumulative geological and hydrological impacts of the proposed development, including the potential adverse impacts to adjacent and down-current properties. Geotechnical reports shall conform to accepted technical standards and must be prepared by qualified professional engineers or geologists who have professional expertise about the regional and local shoreline geology and processes.

“Habitat” means the specific area or environment in which a particular type of plant or animal lives.

“Increased cost of compliance” means a flood insurance claim payment up to thirty thousand dollars directly to a property owner for the cost to comply with floodplain management regulations after a direct physical loss caused by a flood. Eligibility for an ICC claim can be through a single instance of “substantial damage” or as a result of a “cumulative substantial damage.” (More information can be found in FEMA ICC Manual 301.)

“Lowest floor” means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area, is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of Chapter 18.02 of this code (i.e., provided there are adequate flood ventilation openings).

“Mineral resource lands” means lands designated as mineral resource lands, as required by the Growth Management Act, RCW 36.70A.170.

“Mitigation plan” shall include a written report or authorization (by a state or federal agency) prepared by a qualified professional identifying environmental goals and objectives of the compensation proposed and including:

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

B. A review of the most current, accurate, and complete scientific and technical information supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

C. An analysis of the likelihood of success of the compensation project.

D. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this title and Title 18 Brewster Municipal Code have been met.

The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as: the proposed construction sequence, timing, and duration; grading and excavation details; erosion and sediment control features; a planting plan specifying plant species, quantities, locations, size, spacing, and density; and measures to protect and maintain plants until established. These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

“Natural resource lands” means lands designated as agricultural lands, forest lands, or mineral resource lands, as required by the Growth Management Act, RCW 36.70A.170.

“Priority habitat” means a habitat type with unique or significant value to one or more species. An area classified and mapped as priority habitat must have one or more of the following attributes:

A. Comparatively high fish or wildlife density;

B. Comparatively high fish or wildlife species diversity;

C. Fish spawning habitat;

D. Important wildlife habitat;

E. Important fish or wildlife seasonal range;

F. Important fish or wildlife movement corridor;

G. Rearing and foraging habitat;

H. Important marine mammal haul-out;

I. Refugia habitat;

J. Limited availability;

K. High vulnerability to habitat alteration;

L. Unique or dependent species; or

M. Shellfish bed.

A priority habitat may be described by a unique vegetation type or by a dominant plant species that is of primary importance to fish and wildlife (such as oak woodlands or eelgrass meadows). A priority habitat may also be described by a successional stage (such as old-growth and mature forests). Alternatively, a priority habitat may consist of a specific habitat element (such as a consolidated marine/estuarine shoreline, talus slopes, caves, snags) of key value to fish and wildlife. A priority habitat may contain priority and/or nonpriority fish and wildlife.

“Priority species” means species requiring protective measures and/or management guidelines to ensure their persistence at genetically viable population levels. Priority species are those that meet any of the criteria listed below:

A. Criterion 1—State-Listed or State-Proposed Species. State-listed species are those native fish and wildlife species legally designated as endangered (WAC 232-12-014), threatened (WAC 232-12-011), or sensitive (WAC 232-12-011). State-proposed species are those fish and wildlife species that will be reviewed by the Department of Fish and Wildlife (POL-M-6001) for possible listing as endangered, threatened, or sensitive according to the process and criteria defined in WAC 232-12-297.

B. Criterion 2—Vulnerable Aggregations. Vulnerable aggregations include those species or groups of animals susceptible to significant population declines, within a specific area or statewide, by virtue of their inclination to congregate. Examples include heron colonies, seabird concentrations, and marine mammal congregations.

C. Criterion 3—Species of Recreational, Commercial, and/or Tribal Importance. Native and nonnative fish, shellfish, and wildlife species of recreational or commercial importance and recognized species used for tribal, ceremonial and subsistence purposes that are vulnerable to habitat loss or degradation.

D. Criterion 4. Species listed under the federal Endangered Species Act as either proposed, threatened, or endangered.

Qualified Professional. See Section 17.08.020.

Substantial Improvement. See Section 17.08.020.

“Wetland” or “wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. (Ord. 873 § 2 (Att. B) (part), 2015)

17.30.030 Exemptions.

The activities listed below are exempt from the provisions of this chapter. Exempt activities shall be conducted using all reasonable methods to avoid impacts to critical areas. Exemption from the chapter shall not be considered permission to degrade a critical area or ignore risks from natural hazards. Incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored and/or rehabilitated at the responsible party’s expense.

A. Existing and Ongoing Agricultural Activities. The activities cease to be existing when the area on which they were conducted has been converted to a nonagricultural use or has lain idle for more than five years, unless the idle land is registered in a federal or state soils conservation program. Activities which bring an area into agricultural use are not considered part of an ongoing activity;

B. Maintenance, operation and reconstruction of existing roads, streets, utilities and associated structures;

C. Emergency construction necessary to protect life or property from immediate damage by the elements. An emergency is an unanticipated event or occurrence which poses an imminent threat to public health, safety, or the environment, and which requires immediate action within a time too short to allow full compliance. Once the threat to the public health, safety, or the environment has dissipated, the construction undertaken as a result of the previous emergency shall then be subject to and brought into full compliance with this chapter;

D. Reconstruction, remodeling or maintenance of existing structures, including new accessory structures and additions to structures that do not exceed a cumulative additional five hundred square feet of impervious surface; provided, that any such activities do not further intrude into the critical area or associated buffer;

E. Existing agricultural activities normal or necessary to general farming conducted according to industry-recognized best management practices including the raising of crops or the grazing of livestock;

F. Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, critical area impacts should be minimized and disturbed areas shall be immediately restored;

G. Routine maintenance of existing landscaping, within a resident’s lot boundaries, including pruning, mowing, removal of diseased trees or other diseased vegetation and replacement of individual plants when necessary to maintain a unified landscape theme;

H. Control of noxious weeds that are included on the state noxious weed list (Chapter 16-750 WAC) by the recommended methods of the county agricultural extension agent; and

I. Passive recreational activities, including, but not limited to: fishing, bird watching, hiking, hunting, boating, horseback riding, skiing, swimming, canoeing, and bicycling; provided, the activity does not alter the critical area or its buffer by changing existing topography, water conditions or water sources. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.040 Public agency and utility exception.

A. If application of this title would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section. To qualify for an exception the agency or utility must demonstrate the following:

1. That there is no other practical alternative to the proposed development which has less impact on critical areas;

2. The application of this title would unreasonable restrict the ability to provide utility services to the public;

3. That the proposed use does not pose a threat to the public health, safety or welfare;

4. That the proposal protects critical areas functions and values to the extent possible and provides for mitigation in accord with the provisions of this title; and

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

B. A request for exception shall be submitted to the city with the application materials for the particular development proposal. The application shall be supplemented with an explanation as to how the public agency and utility exception criteria are satisfied. The administrator may require additional information or studies to supplement the exception request.

C. A reasonable use exception shall be processed according to the provisions of Title 19 Brewster Municipal Code, Administration of Development Regulations, governing a Type II permit process. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.050 Reasonable use exception.

A. If the application of this chapter would deny all reasonable use of the subject property, the property owner may apply for an exception pursuant to this section and the city may modify the requirements of this chapter when necessary to allow reasonable use of an applicant’s property. To qualify for an exception the applicant must demonstrate all of the following:

1. That no other reasonable use can be made of the property that will have a lesser adverse impact on the critical area and adjoining and neighboring lands;

2. That the proposed use does not pose a threat to the public health, safety or welfare;

3. Any alteration is the minimum necessary to allow reasonable use of the property;

4. There are no feasible on-site alternatives to the proposed activities or that would allow reasonable economic use with less adverse impacts;

5. The proposed activity or use will be mitigated, under an approved mitigation plan, to the maximum extent possible and result in minimum alteration or damage to the functions and/or quality of the critical area(s);

6. The proposed activity or use will comply with all local, state and federal laws and will not jeopardize the continued existence of the critical area(s); and

7. The inability of the proponent to derive reasonable use of the property is not the result of actions by the applicant after the effective date of this chapter.

B. A request for a reasonable use exception shall be submitted to the city with the application materials for the particular development proposal. The application shall be supplemented with an explanation as to how the reasonable use exception criteria are satisfied. The city may require additional information or studies to supplement the reasonable use exception request.

C. A reasonable use exception shall be processed according to the provisions of Title 19 Brewster Municipal Code, Administration of Development Regulations, governing a Type II permit process. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.060 Reference maps and materials.

The city shall maintain reference maps and materials that provide information on the general locations of critical areas. Since boundaries are generalized, the application of this chapter and the actual type, extent and boundaries of critical areas shall be determined and governed by the classification section established for each critical area. In the event of any conflict between the critical area location or designation shown on the city’s maps and the criteria and standards established in this chapter, or the site-specific conditions, the criteria, standards and/or site-specific conditions shall prevail. Reference maps and inventories shall include, but are not limited to the following:

A. Wetlands map, based upon U.S. Fish and Wildlife Service National Wetlands Inventory;

B. Fish and wildlife habitat area maps and management recommendations, based upon Washington Department of Fish and Wildlife Priority Habitats and Species data;

C. Soils maps, based upon 2009 Okanogan County soils survey;

D. Repealed by Ord. 873.

E. Flood Insurance Rate Map Community Panel No. 530275 0001B, revised August 9, 1999;

F. City of Brewster shoreline master program and maps, as they now exist and hereinafter amended;

G. City of Brewster comprehensive plan and maps, as they now exist and hereinafter amended;

H. Repealed by Ord. 873.

I. Repealed by Ord. 873.

J. Washington State Wetlands Rating System for Eastern Washington (WDOE 04-06-015, as amended);

K. Management Recommendations for Washington’s Priority Habitats and Species, May 1991, as amended;

L. Management Recommendations for Washington’s Priority Habitats—Riparian, December 1997, as amended;

M. Priority Habitats and Species List, July 1999, as amended;

N. US Army Corps of Engineers (2006), Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0), as amended;

O. Wetlands in Washington State, Volume 1: A Synthesis of the Science. Washington State Department of Ecology. Publication No. 05-06-006; and

P. Wetlands in Washington State, Volume 2: Guidance for Protecting and Managing Wetlands. Washington State Department of Ecology. Publication No. 05-06-008; and

Q. Approved special reports previously completed for a subject property that meets the criteria of best available science. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.070 Review process.

All land use and building permits shall require that applicants disclose activities within one hundred feet of a designated critical area shall notify the city. Additionally applications for all development permits ask whether the development is within two hundred fifty feet of a critical area. The provisions of this chapter shall be applied to any such proposals. The review process shall proceed in compliance with Chapter 19.02 of this code. (Amended during January 2016 update; Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.080 Critical areas report.

If the administrator determines that the site of a proposed development potentially includes, or is adjacent to, critical area(s), a critical areas report in compliance with Section 19.02.020(C) may be required. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.090 Mitigation requirements.

Depending on the type, scope and location of the proposed use or development, mitigation may be required consistent with the requirements of Section 19.02.025 except as provided in Section 17.30.160(H). (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.100 Agency review.

In cases where the administrator does not have adequate knowledge or training to determine the sufficiency and accuracy of information contained within a critical areas report or mitigation plan, said reports or plans shall be submitted to appropriate agencies for review and recommendations prior to acceptance by the city. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.110 Surety/bonding.

If a development proposal is subject to mitigation, maintenance or monitoring plans, the city of Brewster, in a form acceptable to the city attorney, may require an assurance device or surety. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.120 Permit conditions.

Through the review process, the city of Brewster shall have the authority to attach such conditions to the granting of any approval under this chapter as deemed necessary to alleviate adverse impacts to critical area(s) and to carry out the provisions of this chapter. Such conditions of approval may include, but are not limited to, the following:

A. Specification of allowable lot sizes;

B. Provisions for additional buffers relative to the intensity of a use or activity;

C. Requirements and/or restrictions on the construction, size, location, bulk and/or height, etc., of structure(s);

D. Dedication of necessary easements for utilities, conservation, open space, etc.;

E. Imposition of easement agreements, sureties, deed restrictions, covenants, etc., on the future use and/or division of land;

F. Limitations on the removal of existing vegetation;

G. Additional measures to address issues such as erosion control, stormwater management, filling, grading, etc.;

H. Development of a mitigation plan to create, enhance, or restore damaged or degraded critical area(s) on and/or off site; and

I. Any monitoring and/or maintenance plans necessary to implement the provisions of this chapter. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.130 Enforcement.

Violation of the provisions of this chapter, or failure to comply with any of its requirements, shall be subject to enforcement actions by the city of Brewster that are authorized in the zoning ordinance, subdivision ordinance, shoreline master program or any other land use regulation of the city of Brewster. The city attorney, when authorized by the mayor and council, shall seek penalties, remedies, injunctions and other legal sanctions necessary for the enforcement of this title. In addition to costs allowed by these regulations, the prevailing party in an enforcement action may, at the court’s discretion, be allowed interest and reasonable attorney’s fees. The city attorney shall seek such costs, interest, and the reasonable attorney’s fees on behalf of the city of Brewster when the city is the party. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.140 Aquifer recharge areas.

A. Development, uses and activities within designated aquifer recharge areas (see Maps VII-1 and VII-2 in the city of Brewster comprehensive plan) shall comply with the regulations contained in this chapter and be subject to best management practices in compliance with the Eastern Washington Storm Water Management Manual. Any discharges that negatively affect aquifer recharge areas’ water quality are prohibited. Potential aquifer recharge areas have been classified and designated in the city of Brewster comprehensive plan using a three-level classification scheme.

B. Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone for aquifer recharge areas found outside shoreline jurisdiction, the following minimum standards shall apply to development activities within and adjacent to aquifer recharge areas:

1. All projects shall comply with best management practices described in the Eastern Washington Storm Water Management Manual.

2. Projects shall be developed which utilize site plans that minimize, to the greatest extent possible, the amount of impervious surfaces associated with the project.

3. Development activities within an aquifer recharge area shall be designed, developed and operated in a manner that will not potentially degrade groundwater resources nor adversely affect the recharging of the aquifer.

4. A hydrogeologic study and/or ongoing monitoring may be required to assess impacts of development activities on groundwater resources.

5. All proposed activities within aquifer recharge areas must comply with the water source protection requirements of the federal Environmental Protection Agency, State Department of Health and the Okanogan County Health District.

6. All development occurring within critical aquifer recharge areas shall be required to connect to city sewer and water and on-site sewage disposal shall be prohibited. Newly annexed areas shall be exempt from this requirement until city water and sewer services are available.

7. Landfills, junkyards/salvage yards, mining, wood treatment facilities, or any other activity that could impair the recharge of critical aquifer recharge areas. Such activities may be permitted in areas with high or moderate recharge potential in accord with applicable zoning regulations, providing the applicant can satisfactorily demonstrate that potential negative impacts to groundwater can be prevented.

8. All storage tanks, whether above- or underground, shall be required to be constructed so as to be protected against corrosion for the operational life of the tank, to prevent any release of hazardous substances to the ground, groundwaters, or surface waters, and to utilize appropriate containment methods.

9. Any agricultural activities conducted within aquifer recharge areas shall incorporate best management practices concerning waste disposal, fertilizer/pesticide/herbicide use, and stream corridor management. If necessary applicants shall seek technical assistance from the Okanogan County Conservation District or the WSU Cooperative Extension Office.

10. Application of pesticides, herbicides and fertilizers within aquifer recharge areas shall comply with timing and rates specified on product packaging.

11. Vehicle repair and servicing activities must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Chemicals used in the process of vehicle repair and servicing must be stored in a manner that protects them from weather and provides containment should leaks occur. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.150 Fish and wildlife habitat conservation areas.

Development, uses and activities within or near identified fish and wildlife conservation areas and their buffer areas as identified on Map VII-3 in the comprehensive plan shall comply with the regulations contained in this chapter. The city may use the information sources in Section 17.30.060 as guidance in identifying the presence of potential fish and wildlife habitat conservation areas and the subsequent need for a habitat boundary survey along with an on-site inspection, if necessary.

A. Fish and wildlife habitat conservation areas have been classified and designated in the city of Brewster comprehensive plan. In addition, the city may designate additional species, habitats of local importance, and/or wildlife corridors as follows:

1. Demonstrate a need for special consideration based on:

a. Declining population;

b. Sensitivity to habitat manipulation;

c. Commercial, recreational, cultural, or other special value; or

d. Maintenance of connectivity between habitat areas;

2. Propose relevant management strategies considered effective and within the scope of this chapter;

3. Identify effects on property ownership and use; and

4. Provide a map;

5. Submitted proposals shall be reviewed by the city and may be forwarded to the State Departments of Fish and Wildlife, Natural Resources, and/or other local, state, federal, and/or tribal agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies;

6. If the proposal is found to be complete, accurate, and consistent with the purposes and intent of this chapter and the various goals and objectives of the city’s comprehensive plan, the Growth Management Act, the Shoreline Management Act and this chapter, the city council will hold a public hearing to solicit comment. Approved nominations will then be processed as amendments to the comprehensive plan and/or the BMC in conformance with Title 19 Brewster Municipal Code, in order to be considered as designated locally important habitats, species, or corridors and if approved will be subject to the provisions of this chapter.

B. Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to fish and wildlife habitat conservation areas outside of shoreline jurisdiction:

1. Except as permitted by this chapter, habitat conservation areas and buffers will be left undisturbed, unless the development proposal demonstrates that impacts to the habitat conservation area and/or buffer are unavoidable, demonstrated by compliance with this chapter. Impacts must be addressed with appropriate mitigation and enhancement measures as determined on a site-specific basis in conformance with this chapter;

2. The Washington State Department of Fish and Wildlife priority habitat and species management recommendations shall be consulted in developing specific measures to protect a specific project site;

3. As determined through the site-specific study, mitigation measures shall be implemented that maintain the baseline populations and reproduction rates for the particular species;

4. As determined through the site-specific study, appropriate habitat conservation, management and monitoring plan(s) shall be developed and implemented, with any necessary surety to ensure compliance with such plan(s) being provided as described in Section 17.30.110;

5. Those areas within any of the established riparian habitat areas and owned by the city of Brewster or Douglas PUD shall be considered for restoration whenever projects are proposed, or as resources may become available for such work;

6. Habitat Assessment. Critical area reports for fish and wildlife habitat conservation areas shall include a habitat assessment to evaluate the presence or absence of a critical species or habitat;

7. All projects shall comply with the applicable federal, state and local regulations regarding the species and habitats identified upon a site;

8. When needed to protect the functions and values of habitat conservation areas, the administrator shall require the establishment of buffer areas for activities in or adjacent to such areas. Buffers shall consist of an undisturbed area of native vegetation, or areas identified for restoration. Buffer widths shall reflect the classification and sensitivity of the habitat and the intensity of activity proposed, and shall be consistent with the management recommendations issued by the State Department of Fish and Wildlife and other management recommendations that meet the criteria of best available science;

9. Any approved alteration or development shall be required to minimize impacts to native vegetation. Where disturbance is unavoidable, the applicant shall restore the area to the extent possible using native plants appropriate to the site. New plantings shall be monitored and maintained in good growing condition and kept free of invasive weeds until well established upon the site;

10. Within riparian habitat conservation areas, vegetation shall not be removed unless no other alternative exists. In such cases clearing shall be limited to those areas necessary and disturbed areas shall be replanted with site-appropriate native riparian vegetation;

11. Access to habitat conservation areas or buffers may be restricted in accord with the findings of a critical areas report, mitigation report, PHS management recommendations or other best available science. Access restrictions may include fencing and signs, as needed, to ensure protection of habitat functions and values. Restrictions may be seasonal in nature; and

12. All activities, uses and alterations proposed to be located in or adjacent to water bodies used by anadromous fish shall give special consideration to the preservation and enhancement of associated habitats.

C. Habitat Conservation Areas.

1. Development occurring within a one-thousand-foot radius of a state or federal threatened, endangered, or sensitive species den, nesting, or breeding site, migration corridors or feeding areas of terrestrial species shall require a habitat management and mitigation plan. Such areas within two hundred feet of the Columbia River shall be regulated under the city’s shoreline master program.

2. Cliff, cave and talus slope habitats shall have at least a fifty-foot buffer for safety and resource protection.

3. Bald Eagles. An approved bald eagle management plan by the Washington Department of Fish and Wildlife meeting the requirement and guidelines of the Bald Eagle Protection Rules, WAC 232-12-292, as amended, satisfies the requirements of a habitat management and/or mitigation plan.

4. Rocky Mountain Mule Deer Habitat. Habitat connectivity and migration corridors for mule deer shall be considered in habitat management and/or mitigation plans.

5. Development in or over all surface waters shall require a habitat mitigation plan.

6. Aquatic and Vegetation Conservation Protection Standards.

a. Applicable Buffers. Except as provided in this chapter, the minimum buffer and setback widths found in Table 17.30.160(1) shall apply.

D. Habitat Boundary Survey.

1. A wildlife habitat boundary survey and evaluation, if required, shall be conducted by a qualified professional biologist, as appropriate, who is knowledgeable of wildlife habitat within North Central Washington. The wildlife habitat boundary shall be field staked by the biologist and surveyed by a land surveyor for disclosure on all final plats, maps, etc.

2. The administrator may waive the requirement for the survey for minor development if:

a. The proposed development is not within the extended proximity of the associated wildlife habitat;

b. There is adequate information available on the area proposed for development to determine the impacts of the proposed development and appropriate mitigating measures; and

c. The applicant provides voluntary deed restrictions that are approved by the administrator.

3. The wildlife habitat boundary and any associated buffer shall be identified on all plats, maps, plans and specifications submitted for the project.

E. Fish/Wildlife Habitat Management and Mitigation Plan.

1. The administrator may waive the requirements for a habitat management and mitigation plan if the requirement for a habitat survey has been waived.

2. A fish/wildlife habitat management and mitigation plan shall be prepared by a qualified professional biologist who is knowledgeable of fish and wildlife habitat within North Central Washington.

3. In determining the extent and type of mitigation appropriate for the development, the plan shall evaluate the ecological processes that affect and influence critical area structure and function within the water shed or sub-basin; the individual and cumulative effects of the action upon the functions of the critical area and associated watershed; and note observed or predicted trends regarding specific wetland types in the watershed, in light of natural and human processes.

4. Where compensatory mitigation is necessary, the plan should seek to implement restoration objectives identified in cooperation with the landowner, WDFW and the Okanogan County Conservation District.

5. The fish/wildlife habitat management and mitigation plan shall demonstrate, when implemented, no net loss of ecological functions of the habitat conservation area and buffer.

6. The fish/wildlife habitat management and mitigation plan shall identify how impacts from the proposed project shall be mitigated, as well as the necessary monitoring and contingency actions for the continued maintenance of the habitat conservation area and any associated buffer.

7. Performance Standards. The following performance standards shall apply to compensatory mitigation projects:

a. Mitigation planting survival will be one hundred percent for the first year, and eighty percent for each of the four years following.

b. Mitigation must be installed no later than the next growing season after completion of site improvements, unless otherwise approved by the administrator.

c. Where necessary, a permanent means of irrigation shall be installed for the mitigation plantings that are designed by a landscape architect or equivalent professional, as approved by the administrator. The design shall meet the specific needs of riparian and shrub steppe vegetation.

d. Monitoring reports by the biologist must include verification that the planting areas have less than twenty percent total nonnative/invasive plant cover consisting of exotic and/or invasive species. Exotic and invasive species may include any species on the state noxious weed list, or considered a noxious or problem weed by the Natural Conservation Services Department or local conservation districts.

e. On-site monitoring and monitoring reports shall be submitted to the administrator one year after mitigation installation; three years after mitigation installation; and five years after mitigation installation. The length of time involved in monitoring and monitoring reports may be increased by the administrator for a development project on a case-by-case basis when longer monitoring time is necessary to establish or reestablish functions and values of the mitigation site. Monitoring reports shall be submitted by a qualified professional biologist. The biologist must verify that the conditions of approval and provisions in the fish and wildlife management and mitigation plan have been satisfied.

f. Mitigation sites shall be maintained to ensure that the mitigation and management plan objectives are successful. Maintenance shall include corrective actions to rectify problems; include rigorous, as-needed elimination of undesirable plants; protection of shrubs and small trees from competition by grasses and herbaceous plants; and repair and replacement of any dead plants.

g. Sequential release of funds associated with the surety agreement shall be reviewed for conformance with the conditions of approval and the mitigation and management plan. Release of funds may occur in increments of one-third for substantial conformance with the plan and conditions of approval. Verification of conformance with the provisions of the mitigation and management plan and conditions of approval after one year of mitigation installation shall also allow for the full release of funds associated with irrigation systems, clearing and grubbing and any soil amendments. If the standards that are not met are only minimally out of compliance and contingency actions are actively being pursued by the property owner to bring the project into compliance, the city may choose to consider a partial release of the scheduled increment. Noncompliance can result in one or more of the following actions: carryover of the surety amount to the next review period; use of funds to remedy the nonconformance; scheduling a hearing with the city council to review conformance with the conditions of approval and to determine what actions may be appropriate.

8. Prior to site development and or building permit issuance, a performance surety agreement must be entered into by the property owner and the city. The surety agreement must include the complete costs for the mitigation and monitoring which may include but not be limited to: the cost of installation, delivery, plant material, soil amendments, permanent irrigation, seed mix, and three monitoring visits and reports by a qualified professional biologist, including Washington State sales tax. The city must approve the quote for said improvements. (Amended during January 2016 update; Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.160 Wetlands.

Development, uses and activities allowed within designated wetlands (see Map VII-4 in comprehensive plan) or associated wetland buffers are those uses authorized by, and subject to, the provisions of this chapter in general and this section specifically.

A. Purpose. The purposes of this section are to:

1. Recognize and protect the beneficial functions performed by many wetlands, which include, but are not limited to, providing food, breeding, nesting and/or rearing habitat for fish and wildlife; recharging and discharging groundwater; contributing to stream flow during low flow periods; stabilizing stream banks and shorelines; storing storm and flood waters to reduce flooding and erosion; and improving water quality through biofiltration, adsorption, and retention and transformation of sediments, nutrients, and toxicants.

2. Regulate land use to avoid adverse effects on wetlands and maintain the functions and values of wetlands throughout the nonshoreline areas of the city of Brewster.

3. Establish review procedures for development proposals in and adjacent to wetlands that lie outside of shoreline jurisdiction.

B. Classification. The city uses the Washington State Wetland Rating System for Eastern Washington—2014 Update (Ecology Publication No. 14-06-030, October 2014) to classify wetlands within the city and its UGA. Wetlands are identified on Map VII-4 in the Brewster comprehensive plan (based on U.S. Fish and Wildlife Service National Wetlands Inventory).

C. Identification and Rating.

1. Wetlands shall be identified and delineated by a qualified wetland professional. Wetland delineations are valid for five years and shall be conducted using the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1987, as amended); and the US Army Corps of Engineers (2006) Regional Supplement to the 1987 Delineation Manual: Arid West Region. The city may use the following information sources as guidance in identifying the presence of wetlands and the subsequent need for a wetland delineation study:

a. Hydric soils, soils with significant soil inclusions, and “wet spots” identified within the local soil survey;

b. National Wetlands Inventory;

c. Previous wetland rating evaluation; and

d. On-site inspection.

2. Wetlands shall be rated according to the Washington Department of Ecology wetland rating system, as set forth in the Washington State Wetland Rating System for Eastern Washington (Ecology Publication No. 04-06-015, or as revised and approved by Ecology). Wetlands in Brewster shall be classified into the following categories in accordance to the above referenced manual:

a. Category I wetlands are:

i. Alkali wetlands;

ii. Wetlands of high conservation value that are identified by scientists of the Washington Natural Heritage Program/DNR;

iii. Bogs and calcareous fens;

iv. Mature and old-growth forested wetlands over one-quarter acre with slow-growing trees;

v. Forests with stands of aspen;

vi. Wetlands that perform many functions very well (scores between twenty-two and twenty-seven).

These wetlands are those that:

i. Represent a unique or rare wetland type;

ii. Are more sensitive to disturbance than most wetlands;

iii. Are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or

iv. Provide a high level of function.

b. Category II wetlands are:

i. Forested wetlands in the floodplains of rivers;

ii. Mature and old-growth forested wetlands over one-quarter acre with fast-growing trees;

iii. Vernal pools;

iv. Wetlands that perform functions well (scores between nineteen and twenty-one points).

These wetlands are difficult, though not impossible to replace, and provide high levels of some functions. These wetlands occur more commonly than Category I wetlands, but still need a relatively high level of protection.

c. Category III wetlands have a moderate level of functions (scores between sixteen and eighteen points). These wetlands can be often adequately replaced with a well-planned mitigation project. Wetlands scoring between sixteen and eighteen points generally have been disturbed in some ways, and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.

d. Category IV wetlands have the lowest level of functions (scores fewer than sixteen points) and are often heavily disturbed. These are wetlands that we should be able to replace, and in some cases be able to improve. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions and also need to be protected.

e. Illegal Modifications. Wetland rating categories shall not change due to illegal modifications made by the applicant or with the applicant’s knowledge.

D. Regulated Activities.

1. For any regulated activity, a critical areas report or wetland critical areas report (see Section 17.30.080) may be required to support the requested activity.

2. The following activities are regulated if they occur in a regulated wetland or its buffer:

a. The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind.

b. The dumping of, discharging of, or filling with any material.

c. The draining, flooding, or disturbing the water level or water table.

d. Pile driving.

e. The placing of obstructions.

f. The construction, reconstruction, demolition, or expansion of any structure.

g. The destruction or alteration of wetland vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland.

h. Class IV—general forest practices under the authority of the “1992 Washington State Forest Practices Act Rules and Regulations,” WAC 222-12-030, or as thereafter amended.

i. Activities that result in:

i. A significant change of water temperature.

ii. A significant change of physical or chemical characteristics of the sources of water to the wetland.

iii. A significant change in the quantity, timing or duration of the water entering the wetland.

iv. The introduction of pollutants.

3. Subdivisions. The subdivision and/or short subdivision of land in wetlands and associated buffers are subject to the following:

a. Land that is located wholly within a wetland or its buffer may not be subdivided;

b. Land that is located partially within a wetland or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is located outside of the wetland and its buffer and meets minimum lot size requirements;

c. Access roads and utilities serving the proposed subdivision may be permitted within the wetland and associated buffers only if the city determines that no other feasible alternative exists.

E. Exemptions and Allowed Uses in Wetlands.

1. The following wetlands are exempt from the buffer provisions and mitigation sequencing process contained in this chapter. They may be filled if impacts are fully mitigated based on provisions in subsection H of this section. In order to verify the following conditions, a critical area report for wetlands meeting the requirements in Section 17.30.080 must be submitted.

a. All isolated Category III and IV wetlands less than one thousand square feet that:

i. Are not associated with riparian areas or buffer.

ii. Are not part of a wetland mosaic.

iii. Do not contain habitat identified as essential for local populations of priority species identified by Washington Department of Fish and Wildlife or species of local importance identified in the maps contained in the Brewster comprehensive plan.

iv. Are not a vernal pool.

v. Are not an alkali wetland.

vi. Do not contain aspen stands.

2. Activities Allowed in Wetlands. The activities listed below are allowed in wetlands. These activities do not require submission of a critical area or wetland critical area report, except where such activities result in a loss of the functions and values of a wetland or wetland buffer. These activities include:

a. Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class IV—general forest practice permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.

b. Conservation or preservation of soil, water, vegetation, fish, shellfish, and/or other wildlife that does not entail changing the structure or functions of the existing wetland.

c. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.

d. Drilling for utilities/utility corridors under a wetland, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column will be disturbed.

e. Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.

f. Educational and scientific research activities.

g. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not expand the footprint or use of the facility or right-of-way.

F. Wetland Buffers.

1. Buffer Requirements. The standard buffer widths in Table 17.30.160(1) have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State Wetland Rating System for Eastern Washington.

2. Wetland buffer zones shall be retained in their natural condition. Where buffer disturbances are unavoidable during adjacent construction, revegetation with native plant materials will be required.

3. The standard buffer widths shall be applied unless the administrator and/or applicant determines through a scientifically supportable method that a greater or lesser buffer width would serve to protect the functions and values of a particular wetland. The standard buffer widths may not be reduced by more than fifty percent. Greater buffer widths or rehabilitation of an inadequate plant community may be required where necessary to ensure development does not result in adverse impacts to wetlands.

4. The use of the standard buffer widths requires the implementation of the measures in Table 17.30.160(2), where applicable, to minimize the impacts of the adjacent land uses.

5. If an applicant chooses not to apply the mitigation measures in Table 17.30.160(2) then a thirty-three percent increase in the width of all buffers is required. For example, a seventy-five-foot buffer with the mitigation measures would be a one-hundred-foot buffer without them.

6. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the ecoregion. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should either be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

7. Additional buffer widths are added to the standard buffer widths. For example, a Category I wetland scoring thirty-two points for habitat function would require a buffer of one hundred fifty feet (seventy-five plus seventy-five).

8. Increased Wetland Buffer Area Width. Buffer widths shall be increased on a case-by-case basis as determined by the administrator when a larger buffer is necessary to protect wetland functions and values. This determination shall be supported by appropriate documentation showing that it is reasonably related to protection of the functions and values of the wetland. The documentation must include but not be limited to the following criteria:

a. The wetland is used by a plant or animal species listed by the federal government or the state as endangered, threatened, candidate, sensitive, monitored or documented priority species or habitats, or essential or outstanding habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees; or

b. The adjacent land is susceptible to severe erosion, and erosion-control measures will not effectively prevent adverse wetland impacts; or

c. The adjacent land has minimal vegetative cover or slopes greater than thirty percent.

9. Wetland Buffer Width Averaging. The administrator may allow averaging of wetland buffer widths to improve wetland protection in accordance with an approved critical areas report, when all of the following conditions are met:

a. There will be no reduction in wetland functions and values.

b. The wetland contains variations in sensitivity due to physical characteristics or the character of the buffer varies in slope, soils, or vegetation such that the wetland would benefit from a wider buffer is some areas and a narrower buffer in other places.

c. The wetland has significant differences in characteristics that affect its habitat functions, such as a wetland with a forested component adjacent to a degraded emergent component or a “dual-rated” wetland with a Category I area adjacent to a lower-rated area.

d. The buffer is increased adjacent to the higher-functioning area of habitat or more-sensitive portion of the wetland and decreased adjacent to the lower-functioning or less-sensitive portion as demonstrated by a critical areas report from a qualified wetland professional.

e. The total area of the buffer after averaging is equal to the area required without averaging.

f. The buffer at its narrowest point is never less than either three-quarters of the required width or seventy-five feet for Categories I and II, fifty feet for Category III and twenty-five feet for Category IV, whichever is greater.

10. Averaging to allow reasonable use of a parcel may be permitted when all of the following are met:

a. There are no feasible alternatives to the site design that could be accomplished without buffer averaging.

b. The averaged buffer will not result in degradation of the wetland’s functions and values as demonstrated by a critical areas report from a qualified wetland professional.

c. The total buffer area after averaging is equal to the area required without averaging.

d. The buffer at its narrowest point is never less than either three-quarters of the required width or seventy-five feet for Categories I and II, fifty feet for Category III and twenty-five feet for Category IV, whichever is greater.

11. To facilitate long-range planning using a landscape approach, the administrator may identify and pre-assess wetlands using the rating system and establish appropriate wetland buffer widths for such wetlands. The administrator will prepare maps of wetlands that have been pre-assessed in this manner.

12. Measurement of Wetland Buffers. All buffers shall be measured perpendicular from the wetland boundary as surveyed in the field. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. Only fully vegetated buffers will be considered. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers or included in buffer area calculations.

13. Buffers on Mitigation Sites. All mitigation sites shall have buffers consistent with the buffer requirements of this section. Buffers shall be based on the expected or target category of the proposed wetland mitigation site.

14. Buffer Maintenance. Except as otherwise specified or allowed in accordance with this section, wetland buffers shall be retained in an undisturbed or enhanced condition. In the case of compensatory mitigation sites, removal of invasive nonnative weeds is required for the duration of the mitigation bond.

15. Impacts to Buffers. Requirements for the compensation for impacts to buffers are provided in subsection H of this section.

16. Overlapping Critical Area Buffers. Where other critical areas coincide with wetlands, buffers shall be configured so as to protect aggregate functions and values. Particular consideration shall be given to habitat connectivity and the wider buffer applies.

17. Allowed Buffer Uses. The following uses may be allowed within wetland buffers in accordance with the review procedures of this chapter provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent wetland.

a. Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife.

b. Passive Recreation. Passive recreation facilities designed and approved as part of an overall site development plan and in accordance with an approved critical area report, including:

i. Walkways and trails; provided, that those pathways are limited to minor crossings having no adverse impact on water quality. They should be generally parallel to the perimeter of the wetland, located only in the outer twenty-five percent of the wetland buffer area, and located to avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width for pedestrian use only. Raised boardwalks utilizing nontreated pilings may be acceptable.

ii. Wildlife-viewing structures.

c. Educational and scientific research activities.

d. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not increase the footprint or use of the facility or right-of-way and appropriate measures are undertaken to minimize impacts to the wetland and its buffer and that disturbed areas are restored to a natural condition.

e. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.

Table 17.30.160(1) Wetland Buffer Requirements

 

Buffer Width (in Feet) Based On Habitat Score

Wetland Category

3-4

5

6-7

8-9

Category I: Based on total score

75

90

120

150

Category I: Forested

75

90

120

150

Category I: Bogs and wetlands of high conservation value

190

Category I: Alkali

150

Category II: Based on total score

75

90

120

150

Category II: Vernal pool

150

Category II: Forested

75

90

120

150

Category III (all)

60

90

120

150

Category IV (all)

40

f. Drilling for utilities/utility corridors under a buffer, with entrance/exit portals located completely outside of the wetland buffer boundary; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column is disturbed.

g. Enhancement of a Wetland Buffer Through the Removal of Nonnative Invasive Plant Species. Removal of invasive plant species shall be restricted to hand removal. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.

h. Stormwater Management Facilities. Stormwater management facilities are limited to stormwater dispersion outfalls and bioswales. They may be allowed within the outer twenty-five percent of the buffer of Category III or IV wetlands only; provided, that:

i. No other location is feasible; and

ii. The location of such facilities will not degrade the functions or values of the wetland; and

iii. Stormwater management facilities are not allowed in buffers of Category I or II wetlands.

Table 17.30.160(2) Required Measures to Minimize Impacts to Wetlands

(Measures are required, where applicable to a specific proposal)

Disturbance

Required Measures to Minimize Impacts

Lights

Direct lights away from wetland

Noise

Locate activity that generates noise away from wetland

 

If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source

 

For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10-foot heavily vegetated buffer strip immediately adjacent to the outer wetland buffer

Toxic runoff

Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered

 

Establish covenants limiting use of pesticides within 150 feet of wetland

 

Apply integrated pest management

Stormwater runoff

Retrofit stormwater detention and treatment for roads and existing adjacent development

 

Prevent channelized flow from lawns that directly enters the buffer

 

Use low intensity development techniques (per PSAT publication on LID techniques)

Change in water regime

Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns

Pets and human disturbance

Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion

 

Place wetland and its buffer in a separate tract or protect with a conservation easement

Dust

Use best management practices to control dust

Disruption of corridors or connections

Maintain connections to off-site areas that are undisturbed

 

Restore corridors or connections to off-site habitats by replanting

18. Nonconforming Uses. Repair and maintenance of nonconforming uses or structures, where legally established within the buffer, provided they do not increase the degree of nonconformity.

19. Signs and Fencing of Wetlands and Buffers.

a. Temporary Markers. The outer perimeter of the wetland buffer and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary “clearing limits” fencing in such a way as to ensure that no unauthorized intrusion will occur. The marking is subject to inspection by the administrator prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

b. Permanent Signs. As a condition of any permit or authorization issued pursuant to this section, the administrator may require the applicant to install permanent signs along the boundary of a wetland or buffer.

i. Permanent signs shall be made of an enamel-coated metal face and attached to a metal post or another nontreated material of equal durability. Signs must be posted at an interval of one per lot or every fifty feet, whichever is less, and must be maintained by the property owner in perpetuity. The signs shall be worded as follows or with alternative language approved by the administrator:

Protected Wetland Area Do Not Disturb
Contact City of Brewster Regarding Uses, Restrictions, and Opportunities for Stewardship

ii. The provisions of subsection (F)(1) of this section may be modified as necessary to assure protection of sensitive features or wildlife.

c. Fencing.

i. The applicant shall be required to install a permanent fence around the wetland or buffer when domestic grazing animals are present or may be introduced on site.

ii. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat.

G. Critical area report requirements for wetlands are found in Section 19.02.020(C).

H. Mitigation and Compensatory Mitigation Requirements.

1. Compensatory mitigation for alterations to wetlands shall be used only for impacts that cannot be avoided or minimized and shall achieve equivalent or greater biologic functions as existed in the wetland prior to mitigation. Compensatory mitigation plans shall be consistent with Wetland Mitigation in Washington State—Part 2: Developing Mitigation Plans—Version 1 (Ecology Publication No. 06-06-011b, Olympia, WA, March 2006 or as revised), and Selecting Wetland Mitigation Sites Using a Watershed Approach (Eastern Washington) (Publication No. 10-06-07, November 2010).

2. When possible, mitigation shall be on site and sufficient to maintain the functions and values of the wetland and buffer areas. If on-site mitigation is not feasible, then the applicant shall demonstrate that the site is the nearest that can reasonably achieve the goals of mitigation with a high likelihood of success.

3. Mitigation ratios shall be consistent with Table 17.30.160(3) and subsection K of this section and shall apply to the creation, restoration or preservation of wetlands that is in-kind, on site, the same category, timed prior to or concurrent with alteration, and has a high probability of success.

4. Mitigation requirements may also be determined using the credit/debit tool described in Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Eastern Washington: Final Report (Ecology Publication No. 11-06-015, August 2012), consistent with subsection M of this section.

5. The mitigation ratio may be increased if the administrator identifies that:

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

b. A significant time period 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 due to an unauthorized action.

6. The administrator may decrease the mitigation ratio where:

a. Documentation by a qualified wetlands specialist demonstrates that the proposed mitigation actions have a very high likelihood of success;

b. Documentation by a qualified wetlands specialist demonstrates that the proposed mitigation actions will provide functions and values greater than the wetland being impacted; or

c. The proposed mitigation actions are conducted in advance of the impact and have been shown to be successful.

I. Compensating for Lost or Affected Functions. Compensatory mitigation shall address the functions affected by the proposed project, with an intention to achieve functional equivalency or improvement of functions. The goal shall be for the compensatory mitigation to provide similar wetland functions as those lost, except when either:

1. The lost wetland provides minimal functions, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal Washington State watershed assessment plan or protocol; or

2. Out-of-kind replacement of wetland type or functions will best meet watershed goals formally identified by the city, such as replacement of historically diminished wetland types.

J. Preference of Mitigation Actions. Mitigation actions for lost or diminished wetland and buffer functions that require compensation by replacing, enhancing or substituting shall occur in the following order of preference:

1. Restoring (Reestablishing), Replacing or Enhancing the Wetland on the Site of the Project.

a. The goal of reestablishment is returning natural or historic functions to a former wetland. Reestablishment results in a gain in wetland acres (and functions). Activities could include removing fill material, plugging ditches, or breaking drain tiles.

b. The goal of rehabilitation is repairing natural or historic functions of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland.

2. Restoring, replacing or enhancing degraded wetlands in the same sub-basin.

3. Creating Wetlands on Upland Sites That Were Former Wetlands or That Are Disturbed Upland Sites Such as Those with Vegetative Cover Consisting Primarily of Nonnative Species. Establishment results in a gain in wetland acres. This should be attempted only when there is an adequate source of water and it can be shown that the surface and subsurface hydrologic regime is conducive to the wetland community that is anticipated in the design.

a. If a site is not available for wetland restoration to compensate for expected wetland and/or buffer impacts, the approval authority may authorize creation of a wetland and buffer upon demonstration by the applicant’s qualified wetland scientist that:

i. The hydrology and soil conditions at the proposed mitigation site are conducive for sustaining the proposed wetland and that creation of a wetland at the site will not likely cause hydrologic problems elsewhere;

ii. The proposed mitigation site does not contain invasive plants or noxious weeds or that such vegetation will be completely eradicated at the site;

iii. Adjacent land uses and site conditions do not jeopardize the viability of the proposed wetland and buffer (e.g., due to the presence of invasive plants or noxious weeds, stormwater runoff, noise, light, or other impacts); and

iv. The proposed wetland and buffer will eventually be self-sustaining with little or no long-term maintenance.

4. Enhancement of Significantly Degraded Wetlands in Combination with Restoration or Creation. Enhancement should be part of a mitigation package that includes replacing the altered area and meeting appropriate ratio requirements. Enhancement is undertaken for specified purposes such as water quality improvement, flood water retention, or wildlife habitat. Enhancement alone will result in a loss of wetland acreage and is less effective at replacing the functions lost. Applicants proposing to enhance wetlands or associated buffers shall demonstrate:

a. How the proposed enhancement will increase the wetland’s/buffer’s functions;

b. How this increase in function will adequately compensate for the impacts; and

c. How all other existing wetland functions at the mitigation site will be protected.

5. Preservation. Preserving high quality wetlands that are under imminent threat as compensation is generally acceptable when done in combination with restoration, creation, or enhancement; provided, that a minimum of one to one acreage replacement is provided by reestablishment or creation. Ratios for preservation in combination with other forms of mitigation generally range from ten to one to twenty to one, as determined on a case-by-case basis, depending on the quality of the wetlands being altered and the quality of the wetlands being preserved. Preservation of high-quality, at-risk wetlands and habitat may be considered as the sole means of compensation for wetland impacts when the following criteria are met:

a. The area proposed for preservation is of high quality. The following features may be indicative of high-quality sites:

i. Category I or II wetland rating (using the Wetland Rating System for Eastern Washington).

ii. Rare wetland type (for example, bogs, mature forested wetlands, estuarine wetlands).

iii. The presence of habitat for priority or locally important wildlife species.

iv. Priority sites in an adopted watershed plan.

b. Wetland impacts will not have a significant adverse impact on habitat for listed fish, or other ESA- listed species.

c. There is no net loss of habitat functions within the watershed or basin.

d. Mitigation ratios for preservation as the sole means of mitigation shall generally start at twenty to one. Specific ratios should depend upon the significance of the preservation project and the quality of the wetland resources lost.

e. Permanent preservation of the wetland and buffer will be provided through a conservation easement or tract held by a land trust.

f. The impact area is small (generally less than one-half acre) and/or impacts are occurring to a low-functioning system (Category III or IV wetland).

All preservation sites shall include buffer areas adequate to protect the habitat and its functions from encroachment and degradation.

K. Location of Compensatory Mitigation. Compensatory mitigation actions shall be conducted within the same sub-drainage basin and on the site of the alteration except when all of subsections (K)(1) through (4) of this section apply. In that case, mitigation may be allowed off-site within the subwatershed of the impact site. When considering off-site mitigation, preference should be given to using alternative mitigation, such as a mitigation bank, an in-lieu fee program, or advanced mitigation.

1. There are no reasonable opportunities on site or within the sub-drainage basin (e.g., on-site options would require elimination of high-functioning upland habitat), or opportunities on site or within the sub-drainage basin do not have a high likelihood of success based on a determination of the capacity of the site to compensate for the impacts. Considerations should include: anticipated replacement ratios for wetland mitigation, buffer conditions and proposed widths, available water to maintain anticipated hydrogeomorphic classes of wetlands when restored, proposed flood storage capacity, and potential to mitigate riparian fish and wildlife impacts (such as connectivity).

2. On-site mitigation would require elimination of high-quality upland habitat.

3. Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the altered wetland.

4. Off-site locations shall be in the same sub-drainage basin unless:

a. Established watershed goals for water quality, flood storage or conveyance, habitat, or other wetland functions have been established by the city and strongly justify location of mitigation at another site; or

b. Credits from a state-certified wetland mitigation bank are used as compensation, and the use of credits is consistent with the terms of the certified bank instrument;

c. Fees are paid to an approved in-lieu fee program to compensate for the impacts.

The design for the compensatory mitigation project needs to be appropriate for its location (i.e., position in the landscape). Therefore, compensatory mitigation should not result in the creation, restoration, or enhancement of an atypical wetland. An atypical wetland refers to a compensation wetland (e.g., created or enhanced) that does not match the type of existing wetland that would be found in the geomorphic setting of the site (i.e., the water source(s) and hydroperiod proposed for the mitigation site are not typical for the geomorphic setting). Likewise, it should not provide exaggerated morphology or require a berm or other engineered structures to hold back water. For example, excavating a permanently inundated pond in an existing seasonally saturated or inundated wetland is one example of an enhancement project that could result in an atypical wetland. Another example would be excavating depressions in an existing wetland on a slope, which would require the construction of berms to hold the water.

L. Timing of Compensatory Mitigation. It is preferred that compensatory mitigation projects be completed prior to activities that will disturb wetlands. At the least, compensatory mitigation shall be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.

1. The administrator may authorize a one-time temporary delay in completing construction or installation of the compensatory mitigation when the applicant provides a written explanation from a qualified wetland professional as to the rationale for the delay. An appropriate rationale would include identification of the environmental conditions that could produce a high probability of failure or significant construction difficulties (e.g., project delay lapses past a fisheries window, or installing plants should be delayed until the dormant season to ensure greater survival of installed materials). The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety, or general welfare of the public. The request for the temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the compensatory mitigation plan. The justification must be verified and approved by the city.

 Table 17.30.160(3) Wetland Mitigation Ratios1

Category and Type of Wetland

Creation or
Reestablishment

Rehabilitation

Enhancement

Category I: Bog, Natural Heritage Site

Not considered possible

Case-by-case

Case-by-case

Category I: Mature Forested

6:1

12:1

24:1

Category I: Based on Functions

4:1

8:1

16:1

Category II

3:1

6:1

12:1

Category III

2:1

4:1

8:1

Category IV

1.5:1

3:1

6:1

1    Ratios for rehabilitation and enhancement may be reduced when combined with one to one replacement through creation or reestablishment. See Table 1b, Wetland Mitigation in Washington State—Part 1: Agency Policies and Guidance—Version 1 (Ecology Publication No. 06-06-011a, Olympia, WA, March 2006 or as revised).

M. Credit/Debit Method. To more fully protect functions and values, and as an alternative to the mitigation ratios found in the joint guidance “Wetland Mitigation in Washington State Parts I and II” (Ecology Publication No. 06-06-011a-b, Olympia, WA, March 2006), the administrator may allow mitigation based on the “credit/debit” method developed by the Department of Ecology in “Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Eastern Washington: Final Report” (Ecology Publication No. 11-06-015, August 2012, or as revised).

N. Compensatory Mitigation Plan. When a project involves wetland and/or buffer impacts, a compensatory mitigation plan prepared by a qualified professional shall be required, meeting the following minimum standards:

1. Wetland Critical Area Report. A critical area report for wetlands must accompany or be included in the compensatory mitigation plan and include the minimum parameters described in minimum standards for wetland reports (Section 17.30.080) of this chapter.

O. Compensatory Mitigation Report. The report must include a written report and plan sheets that must contain, at a minimum, the following elements. Full guidance can be found in Wetland Mitigation in Washington State—Part 2: Developing Mitigation Plans (Version 1) (Ecology Publication No. 06-06-011b, Olympia, WA, March 2006 or as revised).

1. The written report must contain, at a minimum:

a. The name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the compensatory mitigation report; a description of the proposal; a summary of the impacts and proposed compensation concept; identification of all the local, state, and/or federal wetland-related permit(s) required for the project; and a vicinity map for the project.

b. Description of how the project design has been modified to avoid, minimize, or reduce adverse impacts to wetlands.

c. Description of the existing wetland and buffer areas proposed to be impacted. Include acreage (or square footage), water regime, vegetation, soils, landscape position, surrounding land uses, and functions. Also describe impacts in terms of acreage by Cowardin classification, hydrogeomorphic classification, and wetland rating, based on wetland ratings (subsection C of this section) of this chapter.

d. Description of the compensatory mitigation site, including location and rationale for selection. Include an assessment of existing conditions: acreage (or square footage) of wetlands and uplands, water regime, sources of water, vegetation, soils, landscape position, surrounding land uses, and functions. Estimate future conditions in this location if the compensation actions are not undertaken (i.e., how would this site progress through natural succession?).

e. A description of the proposed actions for compensation of wetland and upland areas affected by the project. Include overall goals of the proposed mitigation, including a description of the targeted functions, hydrogeomorphic classification, and categories of wetlands.

f. A description of the proposed mitigation construction activities and timing of activities.

g. A discussion of ongoing management practices that will protect wetlands after the project site has been developed, including proposed monitoring and maintenance programs (for remaining wetlands and compensatory mitigation wetlands).

h. A bond estimate for the entire compensatory mitigation project, including the following elements: site preparation, plant materials, construction materials, installation oversight, maintenance twice per year for up to five years, annual monitoring, field work and reporting, and contingency actions for a maximum of the total required number of years for monitoring.

i. Proof of establishment of notice on title for the wetlands and buffers on the project site, including the compensatory mitigation areas.

2. The scaled plan sheets for the compensatory mitigation must contain, at a minimum:

a. Surveyed edges of the existing wetland and buffers, proposed areas of wetland and/or buffer impacts, location of proposed wetland and/or buffer compensation actions.

b. Existing topography, ground-proofed, at two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed to create the compensation area(s). Also existing cross-sections of on-site wetland areas that are proposed to be impacted, and cross-section(s) (estimated one-foot intervals) for the proposed areas of wetland or buffer compensation.

c. Surface and subsurface hydrologic conditions, including an analysis of existing and proposed hydrologic regimes for enhanced, created, or restored compensatory mitigation areas. Also, illustrations of how data for existing hydrologic conditions were used to determine the estimates of future hydrologic conditions.

d. Conditions expected from the proposed actions on site, including future hydrogeomorphic types, vegetation community types by dominant species (wetland and upland), and future water regimes.

e. Required wetland buffers for existing wetlands and proposed compensation areas. Also, identify any zones where buffers are proposed to be reduced or enlarged outside of the standards identified in this chapter.

f. A plant schedule for the compensation area, including all species by proposed community type and water regime, size and type of plant material to be installed, spacing of plants, typical clustering patterns, total number of each species by community type, timing of installation.

g. Performance standards (measurable standards reflective of years post-installation) for upland and wetland communities, monitoring schedule, and maintenance schedule and actions by each biennium.

P. Buffer Mitigation Ratios. Impacts to buffers shall be mitigated at a one to one ratio. Compensatory buffer mitigation shall replace those buffer functions lost from development.

Q. Monitoring. Mitigation monitoring shall be required for a period necessary to establish that performance standards have been met, but not for a period less than five years. If a scrub-shrub or forested vegetation community is proposed, monitoring may be required for ten years or more. The project mitigation plan shall include monitoring elements that ensure certainty of success for the project’s natural resource values and functions. If the mitigation goals are not obtained within the initial five-year period, the applicant remains responsible for restoration of the natural resource values and functions until the mitigation goals agreed to in the mitigation plan are achieved.

R. Wetland Mitigation Banks.

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

a. The bank is certified under state rules;

b. The administrator 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 certified bank instrument.

2. Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.

3. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.

S. In-Lieu Fee. To aid in the implementation of off-site mitigation, the city may develop an in-lieu fee program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in-lieu fee mitigation, and state water quality regulations. An approved in-lieu-fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in-lieu-fee program may be used when subsections (S)(1) through (6) of this section apply:

1. The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.

2. The mitigation will occur on a site identified using the site selection and prioritization process in the approved in-lieu-fee program instrument.

3. The proposed use of credits is consistent with the terms and conditions of the approved in-lieu-fee program instrument.

4. Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three years of the credit sale.

5. Projects using in-lieu-fee credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified wetland scientist using the method consistent with the credit assessment method specified in the approved instrument for the in-lieu-fee program.

6. Credits from an approved in-lieu-fee program may be used to compensate for impacts located within the service area specified in the approved in-lieu-fee instrument.

T. Advance Mitigation. Mitigation for projects with pre-identified impacts to wetlands may be constructed in advance of the impacts if the mitigation is implemented according to federal rules, state policy on advance mitigation and state water quality regulations.

U. Alternative Mitigation Plans. The administrator may approve alternative critical areas mitigation plans that are based on best available science, such as priority restoration plans that achieve restoration goals identified in the SMP. Alternative mitigation proposals must provide an equivalent or better level of protection of critical area functions and values than would be provided by the strict application of this chapter.

The administrator shall consider the following for approval of an alternative mitigation proposal:

1. The proposal uses a watershed approach consistent with Selecting Wetland Mitigation Sites Using a Watershed Approach (Eastern Washington) (Publication No. 10-06-07, Olympia, WA, November 2010).

Creation or enhancement of a larger system of natural areas and open space is preferable to the preservation of many individual habitat areas.

2. Mitigation according to subsection H of this section is not feasible due to site constraints such as parcel size, stream type, wetland category, or geologic hazards.

3. There is clear potential for success of the proposed mitigation at the proposed mitigation site.

4. The plan shall contain clear and measurable standards for achieving compliance with the specific provisions of the plan. A monitoring plan shall, at a minimum, meet the provisions in subsection Q of this section.

5. The plan shall be reviewed and approved as part of overall approval of the proposed use.

6. A wetland of a different type is justified based on regional needs or functions and values; the replacement ratios may not be reduced or eliminated unless the reduction results in a preferred environmental alternative.

7. Mitigation guarantees shall meet the minimum requirements as outlined in subsection N of this section.

8. Qualified professionals in each of the critical areas addressed shall prepare the plan.

9. The city may consult with agencies with expertise and jurisdiction over the resources during the review to assist with analysis and identification of appropriate performance measures that adequately safeguard critical areas.

V. Performance Standards. The following performance standards shall apply to compensatory mitigation projects:

1. Specific criteria shall be provided in the mitigation plan for evaluating whether or not the goals and objectives of the mitigation project are being met. Such criteria may include percent aerial cover and survival rates of planted vegetation, species abundance and diversity targets, habitat diversity indices, water quality improvement, flood retention, or other ecological, geological or hydrological criteria. Unless the site specific criteria dictate otherwise, default performance standards for the site shall meet mitigation planting survival of one hundred percent for the first year and eighty percent plant survival for each of the four years following initial planting.

2. Mitigation must be installed no later than the next growing season after completion of site improvements, unless otherwise approved by the administrator.

3. Success of a mitigation site is dependent upon site selection which supports the establishment of an appropriate wetland hydroperiod that permanently maintains the mitigation site, rather than on continued irrigation. To help ensure successful wetland mitigation, where necessary, a temporary means of irrigation shall be installed for the mitigation plantings within the wetland, that are designed by a landscape architect or equivalent professional, as approved by the administrator. Where necessary, the administrator may require a permanent means of irrigation be installed for mitigation plantings within the wetland buffer, given the arid conditions of the region. The design shall meet the specific needs of the wetland, riparian and shrub steppe vegetation, as may be applicable.

4. Monitoring reports by the biologist must include verification that the planting areas have less than twenty percent total nonnative/invasive plant cover consisting of exotic and/or invasive species. Exotic and invasive species may include any species on the state noxious weed list, or considered a noxious or problem weed by the Natural Resource Conservation Service or local conservation district.

5. On-site monitoring and monitoring reports shall be submitted to the administrator one year after mitigation installation; three years after mitigation installation; and five years after mitigation installation. Monitoring reports shall be submitted by a qualified professional biologist. The biologist must verify that the conditions of approval and provisions in the wetland management and mitigation plan have been satisfied.

6. Mitigation sites shall be maintained to ensure that the mitigation and management plan objectives are successful. Maintenance shall include corrective actions to rectify problems, include rigorous, as-needed elimination of undesirable plants; protection of shrubs and small trees from competition by grasses and herbaceous plants, and repair and replacement of any dead plants.

7. Prior to site development and or building permit issuance, a performance surety agreement in conformance with Section 17.30.110 must be entered into by the property owner and the city. The surety agreement must include the complete costs for the mitigation and monitoring which may include but not be limited to: the cost of installation, delivery, plant material, soil amendments, permanent irrigation, seed mix, and three monitoring visits and reports by a qualified professional biologist, including Washington State sales tax. The administrator must approve the quote for said improvements.

8. Sequential release of funds associated with the surety agreement shall be reviewed for conformance with the conditions of approval and the mitigation and management plan. Release of funds may occur in increments of one-third for substantial conformance with the plan and conditions of approval. Verification of conformance with the provisions of the mitigation and management plan and conditions of approval after one year of mitigation installation shall also allow for the full release of funds associated with irrigation systems, clearing and grubbing and any soil amendments. If the standards that are not met are only minimally out of compliance and contingency actions are actively being pursued by the property owner to bring the project into compliance, the city may choose to consider a partial release of the scheduled increment. Noncompliance can result in one or more of the following actions: carryover of the surety amount to the next review period; use of funds to remedy the nonconformance; scheduling a hearing with the city’s planning agency to review conformance with the conditions of approval and to determine what actions may be appropriate.

W. General Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within designated wetland and/or their buffers:

1. Except where permitted by this chapter, wetlands and wetland buffers will be left undisturbed, unless the development proposal demonstrates that impacts to the wetland and/or buffer are unavoidable, demonstrated by compliance with this section. Impacts must be addressed with appropriate mitigation and enhancement measures as determined on a site-specific basis in conformance with this chapter.

2. Wetland Buffers. Appropriate buffer areas shall be maintained between all permitted uses and activities and the designated wetland. Provisions to identify the type of wetland and delineate its boundary are established in this section and must be conducted by a qualified professional biologist.

a. The width of a wetland buffer, as measured from the wetland edge established in the approved wetland boundary survey, shall be as found in Table 17.30.160(1).

b. Where a wetland is located within a riparian buffer, the buffer width, riparian or wetland, which provides the greatest degree of protection shall apply.

c. All buffers shall be measured from the wetland edge, as established by the approved wetland boundary survey.

d. All buffer areas shall be temporarily fenced between the construction activity and the buffer with a highly visible and durable protective barrier during construction to prevent access and protect the designated wetland and associated buffer. The administrator may waive this requirement if an alternative to fencing which achieves the same objective is proposed and approved.

e. Except as otherwise allowed, buffers shall be retained in their natural condition. Any habitat created, restored or enhanced as compensation for approved wetland alterations shall have the standard buffer required for the category of the created, restored or enhanced wetland.

f. Land divisions within designated wetland areas shall require a minimum lot frontage along the protective buffer as outlined in this program.

g. The width of the buffer shall be increased by the administrator for a development project on a case-by-case basis when a larger buffer is necessary to protect the designated wetland function and value. The determination shall be based on site-specific and project-related conditions which include, without limitation:

i. The designated wetland is used for feeding, nesting and resting by species proposed or listed by the federal or state government as endangered, threatened, sensitive, candidate, monitor or critical; or if it is outstanding potential habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees;

ii. The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts.

3. Stormwater management facilities shall be allowed within the outer twenty-five percent of a wetland buffer; provided, there is no other feasible location and that the location of such facilities will not adversely impact the functions and values of the wetland.

4. As a condition of any permit or authorization pursuant to this chapter, the administrator may require temporary or permanent signs and/or fencing along the perimeter of a wetland or buffer in order to protect the functions and values of the wetland, or to minimize future impacts or encroachment upon the wetland or buffer.

5. Wetland alteration proposals shall be approved only if no alternative is available. If alteration is unavoidable, all adverse impacts shall be mitigated as set forth in an approved critical areas report and mitigation plan.

6. The administrator may allow greater density of development outside of wetland areas and associated buffers as an incentive; provided, the ability to ensure a high level of protection for on-site resources is demonstrated in an approved critical areas report and mitigation plan.

X. Specific Standards. The following standards shall apply to the activity identified below, in addition to the general standards outlined in this chapter.

1. Developments which contain a wetland or wetland buffer on site shall comply with the following minimum standards:

a. All plats shall disclose the presence on each residential lot one building site, including access, that is suitable for development and which is not within the designated wetland or its associated buffer.

b. Designated wetlands and their associated wetland buffers shall be designated and disclosed on the final plats, maps, documents, etc., as critical area tracts, nonbuildable lots and buffer areas or common areas. Ownership and control may be transferred to a homeowner’s association or designated as an easement or covenant encumbering the property.

c. All lots within a major subdivision, short plat or binding site plan shall have the outer edge of all required buffers clearly marked on site with permanent buffer edge markers. Buffer markers may be either buffer signs or steel posts painted with a standard color and label, as approved by the administrator. The markers shall be field verified by the surveyor or biologist of record prior to final plat approval. Each lot shall contain a minimum of three buffer area markers located at the landward edge of the buffer perimeter for each habitat type: one located at each side property line and one midway between side property lines. Covenants for the subdivision shall incorporate a requirement stating that buffer area markers shall not be removed, or relocated, except as may be approved by the administrator.

d. Residential developments with the potential for two or more dwelling units shall disclose on the face of the plat whether the development will be served by joint use or community dock facilities or a combination thereof. Access easements and dock locations shall be identified by a qualified professional biologist who will address the standards of this master program. The identification of access easements and dock locations is not a substitute for permitting required in order to develop moorage facilities and in no way guarantees such an approval.

2. Stream Crossings. Expansion or construction of stream crossings may be authorized within a designated wetland or wetland buffer, subject to the following minimum standards:

a. Bridges are required for streams which support salmonids;

b. All crossings using culverts shall use superspan or oversize culverts;

c. Crossings shall not occur in salmonid spawning areas unless no other feasible crossing site exists;

d. Bridge piers or abutments shall not be placed in either the floodway or between the ordinary high water marks unless no other feasible alternative placement exists;

e. Crossings shall not diminish flood carrying capacity; and

f. Crossings shall serve multiple properties whenever possible.

3. Trails and Trail-Related Facilities. Construction of public and private trails and trail-related facilities, such as picnic tables, benches, interpretive centers and signs, viewing platforms and campsites may be authorized within designated wetlands, subject to the standards contained in Tables 17.30.160(1) and (2).

4. A use or structure established prior to the effective date of this chapter which does not conform to standards set forth herein is allowed to continue and be reasonably maintained; provided, that such activity or structure shall not be expanded or enlarged in any manner that increases the extent of its nonconformity. (Amended during January 2016 update; Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.170 Frequently flooded areas.

Development, uses and activities within identified frequently flooded areas (see Map VII-5 in the Brewster comprehensive plan) shall comply with the regulations contained in Chapter 18.02 of this code. When a project location includes one or more other designated critical areas the following regulations apply in addition to Chapter 18.02 of this code.

A. Purpose. It is the purpose of this section to provide regulations intended to protect the functions and values of designated critical areas resulting from development in flood hazard areas.

B. General Standards. In all areas of special flood hazards, the following standards are required:

1. Development in floodplains should not significantly or cumulatively increase flood hazards or be inconsistent with comprehensive flood hazard management plans adopted pursuant to Chapter 86.12 RCW.

2. New development or new uses in critical areas, including the subdivision of land, should not be permitted when it would be reasonably foreseeable that the development or use would require structural flood hazard reduction measures within the channel migration zone or floodway. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)

17.30.180 Geologically hazardous areas.

Development, uses and activities within identified geologically hazardous areas (see Map VII-6 in the Brewster comprehensive plan) shall comply with the regulations contained in this chapter.

A. Determination Process—Geologically Hazardous Area. The city shall review each land use permit application to determine if the provisions of this section shall be initiated. In making the determination, the city may use any resources identified in this chapter, as well as any previously completed special reports conducted in the vicinity of the subject proposal. The following progressive steps shall occur upon a determination by the city that a geologically hazardous area may exist on a site proposed for a development permit:

1. Step One. City staff shall determine if there is any possible geologically hazardous area on site designated by the comprehensive plan. This determination shall be made following a review of information available and a site inspection if appropriate. If no hazard area is determined to be present, this chapter shall not apply to the review of the proposed development.

2. Step Two. If it is determined that a geologically hazardous area may be present, the applicant shall submit a geologic hazard area risk assessment prepared by an engineer or a geologist. The risk assessment (geotechnical report) shall include a description of the geology of the site and the proposed development; an assessment of the potential impact the project may have on the geologic hazard; an assessment of what potential impact the geologic hazard may have on the project; appropriate mitigation measures, if any; and a conclusion as to whether further analysis is necessary. The assessment shall be signed by and bear the seal of the engineer or geologist that prepared it. No further analysis shall be required if the geologic hazard area risk assessment concludes that there is no geologic hazard present on the site, nor will the project affect or be affected by any potential geologic hazards that may be nearby.

3. Step Three. If the professional preparing the risk assessment in Step Two concludes that further analysis is necessary, the applicant shall submit a geotechnical report.

4. The geotechnical report shall include a certification from the engineering geologist or geotechnical engineer preparing the report, including the professional’s stamp and signature. The geotechnical report shall include the following:

a. A description of the geology of the site;

b. Conclusions and recommendations regarding the effect of geologic conditions on the proposed development;

c. Conclusions and recommendations on the suitability of the site to be developed;

d. An evaluation of the actual presence of geologic conditions giving rise to the geologic hazard;

e. An evaluation of the safety of the proposed project;

f. Identification of construction practices, monitoring programs and other mitigation measures necessary;

g. A bibliography of scientific citations shall be included as necessary;

h. A statement regarding:

i. The risk of damage from the project, both on and off site;

ii. Whether or not the project will materially increase the risk of occurrence of the hazard;

i. The specific measures incorporated into the design and operational plan of the project to eliminate or reduce the risk of damage due to the hazard.

B. Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to geologic hazard areas:

1. All projects shall be evaluated through a geotechnical report to determine whether the project is proposed to be located in a geologically hazardous area, and if so, what is the project’s potential impact on the geologically hazardous area and the potential impact of the geologic hazard on the proposed project;

2. All mitigation measures, construction techniques, recommendations and technical specifications provided in the geotechnical report shall be applied during the implementation of the proposal. The engineer of record shall submit sealed verification at the conclusion of construction that development occurred in conformance with the approved plans;

3. A proposed development cannot be approved if it is determined by the geotechnical report that either the proposed development or adjacent properties will be at risk of damage from the geologic hazard, or that the project will increase the risk of occurrence of the hazard, and there are no adequate mitigation measures to alleviate the risks;

4. New development or the creation of new lots that would cause foreseeable risk from geological conditions to people or improvements during the life of the development shall be prohibited;

5. New development that would require structural stabilization over the life of the development shall be prohibited. Exceptions may be made for the limited instances where stabilization is necessary to protect allowed uses where no alternative locations are available and no net loss of ecological functions will result. The stabilization measures shall conform to WAC 173-26-231;

6. Where no alternatives, including relocation or reconstruction of existing structures, are found to be feasible and less expensive than the proposed stabilization measure, stabilization structures or measures to protect existing primary residential structures may be allowed in strict conformance with WAC 173-26-231 requirements and then only if no net loss of ecological functions will result;

7. Critical areas reports for geologically hazardous areas shall include a geotechnical analysis completed by a qualified professional with expertise in the particular hazard(s) present in a given critical area;

8. Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

a. Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;

b. Will not adversely impact other critical areas;

c. Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and

d. Are certified as safe as designed and under anticipated conditions by a qualified engineer or geologist licensed in the state of Washington;

9. Critical areas reports and mitigation plans for geologically hazardous areas shall establish buffer widths as needed to eliminate or minimize risks of property damage, death, or injury resulting from development of the hazard area. Where established, buffers shall be maintained between all permitted uses and activities and the designated geologically hazardous area(s);

10. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited;

11. Structures and improvements shall be clustered to avoid geologically hazardous areas and other critical areas;

12. Development and activities located within landslide or erosion hazard areas shall provide for long-term slope stability, and design shall incorporate the following standards:

a. Structures and improvements shall minimize alterations to the natural contour of the slope and foundations shall be tiered where possible to conform to existing topography;

b. Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

c. The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;

d. The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes; and

e. Development shall be designed to minimize impervious lot coverage;

13. Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available;

14. Subdivision of lands in erosion, landslide, and mine hazard areas is subject to the following:

a. Land that is located wholly within an erosion, landslide or mine hazard area or its buffer may not be subdivided. Land that is located partially within an erosion, landslide or mine hazard area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the geologic hazard area.

b. Access roads and utilities may be permitted within the erosion, landslide or mine hazard area and associated buffers only if no other feasible alternative exists;

15. All projects shall comply with the applicable federal, state and local regulations, including the International Building Code;

16. As determined through the site-specific study, appropriate buffers shall be maintained between all permitted uses and activities and the designated geologically hazardous area(s);

17. The existing native vegetation within the buffer area(s) shall be maintained, except that normal, nondestructive pruning and trimming of vegetation for maintenance purposes is allowed;

18. As determined through the site-specific study, appropriate drainage, grading, excavation and erosion control measures shall be implemented in the geologically hazardous area(s);

19. As determined through the site-specific study, mitigation measures shall be implemented that maintain the integrity of the geologically hazardous area(s);

20. As determined through the site-specific study, appropriate management and monitoring plan(s) shall be developed and implemented to preserve and protect both the geologically hazardous area(s) and the project, with any necessary surety to ensure compliance with such plan(s) being provided as described in Section 17.30.110; and

21. A use or structure established prior to the effective date of this chapter, which does not conform to standards set forth herein, is allowed to continue and be reasonably maintained; provided, that such activity or structure shall not be expanded or enlarged in any manner that increases the extent of its nonconformity. (Ord. 873 § 2 (Att. B) (part), 2015: Ord. 761 § 1 (part), 2004)