Chapter 19.24 LAND DISTURBING ACTIVITY

G. Promote site planning and construction practices that are consistent with natural topographical, vegetation and hydrological conditions, utilizing low impact development (LID) to the maximum practical extent, while recognizing that certain factors such as condition of plants, proximity to existing and proposed structures and improvements, interference with utility services, and reasonable use of property may require removal of certain trees and ground cover.

H. Ensure that the property’s native vegetation and soils are preserved to the maximum practical extent.

I. Minimize surface water and ground water runoff and diversion.

J. Aid stabilization of soil, and minimize erosion, sedimentation, and landslide risk.

K. Minimize the need for additional storm drainage facilities caused by destabilization of soils.

L. Retain clusters of trees for the abatement of noise and wind protection.

M. Minimize water quality degradation and sedimentation of creeks, streams, wetlands, and other water bodies.

N. Avoid or minimize the impacts of clearing, grading, and filling on adjacent and downstream public or private property.

O. Provide guidance to all who wish to clear, grade, or fill property.

P. Avoid or abate public nuisances. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.020 Jurisdiction.

The city shall have jurisdiction over all land disturbing activities within the city’s boundaries. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.030 Authority.

The director has authority to administer and enforce this chapter, to adopt rules and regulations to carry out this chapter, and to approve, conditionally approve, or deny applications for the activities regulated by this chapter. It is unlawful to violate or fail to comply with any provision of this chapter or any rule or regulation adopted by the director.

No person shall engage in land disturbing activities without the prior written approval of the city. The city shall not permit or approve any land disturbing activities prior to the director’s determination that the requirements of this chapter have been met. Land disturbing activities regulated by this chapter may be conducted only after the applicant has demonstrated compliance with this chapter, obtained the director’s approval, and obtained other permits or approvals as may be required. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.040 Adoption and incorporation by reference.

The city hereby adopts and incorporates the following into this chapter as if set forth in full, to the extent necessary to interpret and implement this chapter:

A. Technical manuals, as existing or as amended:

1. Washington State Department of Ecology Stormwater Management Manual for Western Washington (SWMMWW).

2. Puget Sound Partnership and Washington State University Extension Program’s Low Impact Development Technical Guidance Manual for Puget Sound (LID Manual).

3. American Public Works Association/Washington State Department of Transportation Standard Specifications for Road, Bridge and Municipal Construction (APWA Manual).

If the requirements of this chapter and the adopted manuals are inconsistent, the more stringent requirements shall apply.

B. State regulations and policies, as existing or as amended:

1. Chapter 90.48 RCW, Water Pollution Control.

2. Chapter 90.54 RCW, Ground Water.

3. Chapter 16-750 WAC, State noxious weed list and schedule of monetary penalties.

4. Chapter 173-200 WAC, Water Quality Standards for Ground Waters of the State of Washington.

5. Chapter 173-201A WAC, Water Quality Standards for Surface Waters of the State of Washington.

6. Chapter 173-303 WAC, Dangerous Waste Regulations. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.050 Definitions.

The following definitions shall apply to this chapter except where specified otherwise in this chapter:

A. “A” definitions.

“AKART” is an acronym that means all known, available, and reasonable methods of prevention, control, and treatment.

“Applicant” means the property owner or an individual authorized in writing by a property owner to represent and act for the property owner regarding matters relating to this chapter.

“APWA Manual” means the American Public Works Association/Washington State Department of Transportation Standard Specifications for Road, Bridge and Municipal Construction, as existing or amended.

B. “B” definitions.

“Best management practices (BMPs)” means practices based on research, field-testing, and expert review determined to be the most effective and practicable on-location means, including economic and technological considerations, for improving water quality, conserving water supplies, and protecting natural resources. BMPs include treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.

“BMC” means the Brier Municipal Code.

“Buffer” means a natural undisturbed portion of a lot, except for approved access, which is set aside to achieve a complete visual barrier between the use on the lot and adjacent lots and/or uses. A buffer is achieved with keeping and/or planting appropriate native vegetation in a land area used to visibly separate one use from another through screening and distance, to shield or block noise, light, glare, visual or other conditions, to block physical passage to a nonsimilar area, or to reduce air pollution, stormwater runoff, dust, dirt, and litter.

C. “C” definitions.

“Certified erosion and sediment control lead (CESCL)” means an individual who is currently certified through an approved erosion and sediment control training program and who meets the minimum training standards established by the Washington State Department of Ecology; is knowledgeable in the principles and practices of erosion and sediment control.

“City” means the city of Brier, Snohomish County, Washington.

“Clear cutting” means the indiscriminate and broad removal of trees, shrubs, and/or undergrowth with the intention of preparing the property for nonagricultural development purposes. This definition shall not include selective removal of nonnative trees and shrub species when the soil is left relatively undisturbed, removal of dead trees, or normal mowing operations.

“Clearing” means the selective removal of vegetation from a property, whether by cutting or other means.

“Critical area” means those areas designated as critical and regulated under BMC Title 18, including but not limited to wetlands, streams, geologically hazardous areas and critical aquifer recharge areas and their buffers.

D. “D” definitions.

“Damage” means any human act, whether done directly by the human or indirectly by the human through operation or use of tools, machinery or mechanical equipment, which causes a tree, shrub or ground cover to die within two years after completion of the act, including, but not limited to, damage inflicted upon the root system or trunk as a result of:

1. Improper use of tools, machinery or equipment on the plant;

2. Storage of materials in or around the plant;

3. Soil compaction;

4. Alteration of the natural grade to expose the roots or to cover the root system with four or more inches of soil;

5. Pruning judged by a landscape professional or arborist to be excessive;

6. Paving with concrete, asphalt, or other impervious surface within such proximity to be harmful to the plant or its root system; or

7. Application of herbicides or defoliates.

“Department” means the department of public works.

“Development” means construction, reconstruction, conversion, structural alteration, relocation or enlargement of a structure; division of a parcel of land into two or more parcels; mining, excavation, landfill, paving or land disturbance; or use, conversion, or extension of the use of land.

“Development area” means that portion of a property, properties or right-of-way proposed for alteration, which includes but is not limited to clearing, grading, filling, changing of soil cover (both vegetative and nonvegetative) or existing soil topography, or installing new or replaced impervious surfaces.

“DFW PHSL” means the Washington State Department of Fish and Wildlife’s Priority Habitats and Species List, current edition.

“Director” means the city’s mayor or designee.

“Drainage plan” means a plan for receiving, handling and transporting surface water or groundwater runoff within the subject property.

“Drip line” means the ground area beneath a tree that is delineated by a line projected to the ground from the outermost extent of the foliage in all directions.

“Dry season” means May 1st through September 30th of each year.

E. “E” definitions.

“Earth” or “earth materials” means the naturally occurring minerals, rocks, soil and water that make up the surface of the land.

“Erosion” means the wearing away of the land surface by running water, wind, ice or other geological agents, including such processes as gravitational creep, and the detachment and movement of soil or rock fragments by water, wind, ice or gravity.

“Erosion, accelerated” means erosion occurring more rapidly than normal or geologic erosion, primarily as a result of the activities of humans, or, in some instances, animals or natural catastrophes that expose bare surfaces.

“Erosion, geological” means the normal or natural erosion caused by geological processes acting over long geologic periods and resulting in the wearing away of natural rock formations, building up of floodplains, etc. For the purposes of this chapter, geological erosion shall be synonymous with natural erosion.

“Erosion, gully” means an erosion process whereby water accumulates in narrow channels and, over short periods, removes the soil from this narrow area to a depth of one foot or more.

“Erosion, natural” means the wearing away of the earth’s surface by water, ice, or other natural agents under natural environmental conditions of climate, vegetation, etc., undisturbed by humans. For the purposes of this chapter, natural erosion shall be synonymous with geological erosion.

“Erosion, normal” means the gradual erosion of land used by humans, which does not greatly exceed natural erosion.

“Erosion, rill” means an erosion process in which numerous small channels less than twelve inches deep are formed, occurring primarily on recently disturbed and exposed soils.

“Erosion, sheet” means an erosion process in which a fairly uniform layer of soil is removed from the land surface by runoff.

“Erosion, splash” means the spattering of small soil particles caused by the impact of rain on wet soils. The loosened and spattered particles may or may not be subsequently removed by surface runoff.

“Excavation” means the removal of material from a property, including but not limited to soil, sand, gravel, rock, or asphalt.

F. “F” definitions.

“Fill material” means soil, sand, gravel, rock, asphalt, or other solid material used to increase the ground surface elevation or to replace excavated material.

“Filling” means the act of placing fill material on any soil surface, natural vegetative covering, or other fill material used to increase the ground surface elevation or to replace excavated material.

G. “G” definitions.

“Geologist” means an individual who, by reason of his or her knowledge of the environment, geology, mathematics, and supporting physical and life sciences, which was acquired by education and practical experience, has met the qualifications established under Chapter 18.220 RCW and is currently licensed as a geologist in the state of Washington.

“Geotechnical engineer” means a professional engineer currently licensed in the state of Washington, qualified by reason of experience and education in the practice of geotechnical engineering, and designated by the property owner as the geotechnical engineer of record for the project.

“Grading” means the movement of earth material through mechanical or other means to create the finished surface and contour of a development area.

“Ground cover” means a dense covering of small plants which normally cover the ground.

“Ground water” means water in a saturated zone or stratum beneath the surface of the land or below a surface water body.

“Grubbing” means the act of removing vegetation by the roots.

H. “H” definitions.

“Hazardous materials” means any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or significantly contribute to, a substantial present or potential hazard to human health, safety, property or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.

I. “I” definitions.

“Impervious area” means the hard surface area that prevents or impedes the entry of water into the soil, thus causing water to run off the surface in greater quantities or at an increased rate of flow.

“Impervious surface” means a hard surface area that either prevents or retards the entry of water into the soil mantle under natural conditions prior to development, or a hard surface area which causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled, macadam or other surfaces which similarly impede the natural infiltration of stormwater.

“Infiltration rate” means the rate of water entry into the soil expressed as a depth of water per unit of time (inches per hour).

J. “J” definitions. Reserved.

K. “K” definitions. Reserved.

L. “L” definitions.

“Land disturbing activity” means any activity that results in movement of earth, or a change in the existing soil cover (both vegetative and nonvegetative) and/or the existing soil topography. Land disturbing activities include, but are not limited to, clearing, grading, filling, and excavation. Compaction that is associated with stabilization of structures and road construction shall also be considered a land disturbing activity. Routine landscape maintenance practices are not considered land disturbing activity.

“LID (low impact development)” means a stormwater and land use management strategy that strives to mimic pre-disturbance hydrologic processes of infiltration, filtration, storage, evaporation and transpiration by emphasizing conservation, use of on-site natural features, site planning, and distributed stormwater management practices that are integrated into a project design.

“LID Manual” means the current edition of Puget Sound Partnership and Washington State University Extension Program’s Low Impact Development Technical Guidance Manual for Puget Sound.

M. “M” definitions.

“Mechanical equipment, heavy” means all motorized equipment used for earth moving, trenching, excavation, gardening, landscaping, and general property maintenance exceeding twelve horsepower in size.

“Mechanical equipment, light” means all motorized equipment used for earth moving, trenching, excavation, gardening, landscaping, and general property maintenance twelve horsepower or less in size.

“Municipal separate storm sewer system (MS4)” means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains), owned or operated by the city, that is:

1. Designed or used for collecting or conveying stormwater; and

2. Not part of a publicly owned treatment works (POTW). “POTW” means any device or system used in treatment of municipal sewage or industrial wastes of a liquid nature which is publicly owned.

N. “N” definitions.

“Native growth area” means a restrictive area where all native, predevelopment plants shall not be disturbed or removed except for removal pursuant to this chapter and BMC Title 18. The purpose of this area is to protect steep slopes, slopes with erosion potential, landslide and seismic hazards, creeks, wetlands, riparian corridors, wildlife, and other environmentally sensitive areas. Any native growth area shall be defined during the development review process and shown as a “native growth protection area” in a recorded subdivision or short subdivision, or approved site plan.

“Native vegetation” means a collection of native plants – see “plant, native” and “vegetation.”

O. “O” definitions.

“Open space” means land set aside for public or private use within a development that is not built upon.

P. “P” definitions.

“Permeable” means soil or other material that allows the infiltration or passage of water or other liquids.

“Permit” means the land disturbing activity permit, unless otherwise noted. The permit is the written approval of the city to proceed with the act of clearing, grading, and/or filling property within the city. The permit includes any associated approved plans, technical documents and conditions of approval, as well as the permit itself.

“Plant, invasive” means a plant identified as a noxious weed in Chapter 16-750 WAC, and which is described as a plant reproducing outside its native range and outside cultivation that disrupts naturally occurring native plant communities by altering structure, composition, natural processes or habitat quality.

“Plant, native” means those species of plants occurring within the city prior to European contact, according to best scientific and historical documentation. It includes those species understood as indigenous, occurring in natural associations in habitats that existed prior to significant human impacts and alterations of the landscape. Native plants are those recognized by the Washington Native Plant Society’s Native Plants for Western Washington Gardens and Restoration Projects, current edition, or the King County Native Plant Guide, current edition. Native plants include, but are not limited to, ground covers, shrubs, and trees.

“Professional engineer” means an individual who, by reason of his or her special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design, acquired by professional education and practical experience, is qualified to practice engineering as defined in RCW 18.43.020, as attested by his or her legal registration as a professional engineer in Washington state.

Project Site. See “development area.”

Q. “Q” definitions. Reserved.

R. “R” definitions.

“Redevelopment” means the creation or addition of impervious surfaces; the expansion of a building footprint or addition of a structure; and land disturbing activities on a site that is already developed.

“Remove” means to transport a plant from the location on which it has been growing. See also “damage.”

“Replaced impervious surface” means, for structures, the removal and replacement of any exterior impervious surfaces or foundation. For other impervious surfaces, the removal down to bare soil or base course and replacement.

“Retaining wall” means one or more courses of large rocks, bricks, or other materials stacked near vertical in front of an exposed soil face to protect the soil face from erosion and sloughing. A retaining wall may be installed for an existing grade change, in areas with steep slopes, or other areas where soils need to be restrained. Retaining walls may or may not be engineered. Rockeries and rock walls are retaining walls for the purposes of this chapter.

“Routine landscape maintenance” means pruning, weeding, planting annuals, mowing turf grass, replacement of existing turf grass, and managing of ground cover, which is undertaken by an individual in connection with the normal maintenance and repair of property. This definition does not include felling or topping of trees or removal of invasive plants resulting from lack of regular maintenance or maintenance using heavy mechanical equipment.

“Runoff” means water from rain, irrigation or melted snow that flows over the land surface.

S. “S” definitions.

“Sedimentation” means the process of gravity-induced settling and deposition of fragmented rock, soil or organic particles displaced, transported, and deposited by erosive processes.

“SEPA” means the Washington State Environmental Policy Act, as adopted in BMC Title 19.

“Site” means the area defined by the legal boundaries of a parcel or parcels of land that is (are) subject to new development or redevelopment. For road projects, the length of the development area and the right-of-way boundaries define the site.

“Stop work order” means a written notice, signed by the director that is posted on the site of a construction activity, which order states that a violation of a city ordinance or this code has occurred and that all construction-related activity, except for erosion and sedimentation control activities authorized by the director, must cease until further notice.

“Stormwater” means runoff during and following precipitation and snowmelt events, including surface runoff and drainage.

“SWMMWW” means the current version of the Washington State Department of Ecology’s Stormwater Management Manual for Western Washington.

“SWPPP” means a Stormwater Pollution Prevention Plan prepared by a CESCL or professional engineer. The SWPPP is a report containing a narrative and drawings used to explain and justify the pollution prevention decisions made for a particular project. The narrative contains concise information concerning existing site conditions, construction schedules, and other pertinent items that are not contained on the drawings. The drawings and notes describe where and when the various BMPs should be installed, the performance the BMPs are expected to achieve, and actions to be taken if the performance goals are not achieved.

T. “T” definitions.

“Tree” means a self-supporting woody plant having a single trunk or a multi-trunk of lower branches, growing to a mature height of twelve feet or higher.

U. “U” definitions. Reserved.

V. “V” definitions.

“Vegetation” means a collection of plants, composed of ground cover, shrubs, and trees – also see the definitions for plants and trees.

W. “W” definitions.

“Wetpond” means drainage facilities for water quality treatment that contain permanent pools of water that are filled during the initial runoff from a storm event. They are designed to optimize water quality by providing retention time in order to settle out particles of fine sediment to which pollutants such as heavy metals absorb. They also allow biologic activity to occur that metabolizes nutrients and organic pollutants.

“Wet season” means the period between October 1st and April 30th.

X. “X” definitions. Reserved.

Y. “Y” definitions. Reserved.

Z. “Z” definitions. Reserved. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.060 Applicability.

The provisions of this chapter shall be a minimum standard and shall apply to all land disturbing activity not exempt from this chapter. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.070 Permit required.

No individual, firm, or corporation shall conduct land disturbing activities without first obtaining a permit issued by the director. All applicants shall file a written application pursuant to this chapter. A permit is required for the following actions:

A. Actions that require the approval or issuance of a land use or development permit.

B. Actions that are not exempt from this chapter.

C. Projects involving two thousand square feet or more of new impervious surface, replaced impervious surface or new plus replaced impervious surface.

D. Projects involving two thousand square feet or more of land disturbing activity.

E. Projects which contain or are adjacent to a stream, lake, pond, wetland, or other water body, critical aquifer recharge area or other water quality sensitive area, or a receiving water with a documented water quality, drainage or flooding problem as determined by the director, based on a written map, policy, water quality monitoring data or plan in existence or implemented by the director prior to submission of an application, or based on information provided or developed during review of a particular application. These projects include:

1. Clearing associated with conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife;

2. Modification of irrigation and drainage ditches, grass-lined swales, canals, stormwater management facilities, farm ponds, and landscape amenities in existence prior to the adoption of the ordinance codified in this chapter;

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

4. Projects which contain or are adjacent to geologically hazardous areas as defined by BMC Title 18. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.080 Exemptions.

The following activities are exempt from this chapter:

A. Projects involving less than two thousand square feet of land disturbing activity that are categorically exempt from SEPA.

B. Routine maintenance activities, including city maintenance within the public right-of-way and on city-owned property that is categorically exempt from SEPA.

C. Land disturbing activity, sandbagging, diking, ditching or similar work conducted by the city, or land disturbing activity performed by emergency responders or public and/or private utilities and involving immediate danger to life or property, substantial fire hazards, interruption of utility services, toxic releases or flooding.

D. Land disturbing activity conducted by the property owner in emergency situations involving immediate danger to life or property, substantial fire hazards, or interruption of utility services.

E. Clearing and grubbing of invasive species, unless using heavy equipment in a critical area.

F. Landscape maintenance or new improvements, including the addition of topsoil or gravel; provided, that the improvements are otherwise exempt from this chapter, are not located in a critical area, and the activity will not adversely affect neighboring properties by altering, impeding, blocking or diverting existing drainage or by causing silt, soil or sand to be washed on to neighboring properties or into the MS4.

G. Routine maintenance of existing stormwater facilities located outside of a critical area, including, but not limited to, detention/retention ponds, wetponds, sediment ponds, constructed drainage swales, water quality treatment facilities, such as filtration systems, and regional storm facilities that are necessary to preserve the water quality treatment and flow control functions of the facility. This exemption does not apply to any expansion of or modification to already excavated and constructed stormwater drainage facilities.

H. Installation and maintenance of public utilities, after approval of the route by the director, unless located in a critical area or a publicly owned property.

I. Excavation less than four feet in vertical depth, or fill less than three feet in vertical depth using approved fill material, which cumulatively over time does not involve more than fifty cubic yards on a single site and is not located within a critical area or its buffer.

J. Roadway repairs and overlays within public street rights-of-way for the purpose of maintaining the pavement on existing paved roadways. This exemption does not apply to curbs, gutters, sidewalks, utilities, new traffic calming devices, new roadways, or the widening of the paved surface of existing roadways.

K. Maintenance and improvement of existing driveways.

L. Excavation of individual graves in a permitted cemetery.

M. The following uses are allowed without a permit in sensitive areas or sensitive area buffers; provided, that the cleared area and the impacts thereto are minimized, and the disturbed areas are immediately restored:

1. Emergency flood control measures taken to protect property, and as allowed by the U.S. Army Corps of Engineers;

2. Public retention/detention and biofiltration facilities for improving surface water quality;

3. Surveying and placement of boundary markers;

4. Maintenance of irrigation and drainage ditches, grass-lined swales, canals, stormwater management facilities, farm ponds, and landscape amenities in existence prior to the adoption of the ordinance codified in this chapter; and/or

5. Maintenance and repair of public utilities. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.090 Soil disturbance and amendments.

Property owners shall limit disturbance of existing healthy soil to protect and maintain soil structure, existing hydrology, organic matter, and nutrients. Any soil additions shall be similar to the existing soil in pH, texture, permeability and other characteristics. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.100 SWPPP required.

A SWPPP is required for all projects which require a permit under this chapter and:

A. Are located within one hundred feet of a critical area with its associated buffer; and/or

B. Involve seven thousand square feet or more of land disturbing activity; and/or

C. Involve two thousand square feet or more of new impervious surface, replaced impervious surface or new plus replaced impervious surface.

The SWPPP shall include a narrative that addresses each of the items listed in the SWPPP Checklist of the SWMMWW, including a brief explanation for elements that do not apply. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.110 Additional requirements.

A. The director may impose the following additional measures, as appropriate for the project:

1. Performance monitoring to determine compliance with the water quality standards in Chapter 14.04 BMC.

2. Payment for city inspection time, up to an amount equal to city cost for salary and benefits of a full-time employee who performs such inspections.

3. Stopping work if necessary to control erosion and sedimentation.

4. Construction of additional siltation/sedimentation ponds.

5. Use of erosion control blankets, nets, or mats in addition to or in conjunction with straw mulch.

6. If the initially implemented erosion and sedimentation BMPs do not adequately control erosion and sedimentation, require additional BMPs to be installed, including but not limited to the extraordinary BMPs. It is the property owner’s responsibility to ensure sediment does not leave the site in an amount that would violate applicable water quality standards. The city has the authority to enforce state water quality standards, or, if adopted by the city, more stringent water quality standards.

B. The land disturbance activities shall not result in off-site physical damage, or pose a danger or hazard to life or property, and shall not contribute to or create landslides, accelerated soil creep, or settlement of soils.

C. Stabilization of Disturbed Areas.

1. All exposed soil shall be stabilized by application of suitable BMPs and soil stabilization measures, including but not limited to planting of sod or other vegetation, using plastic covering, mulching, or applying base course(s) on areas to be paved. Soil stabilization measures should be appropriate for the time of year, site conditions, estimated duration of use, and potential water quality impacts that stabilization agents may have on downstream waters or ground water.

2. Soils shall be stabilized at the end of the shift if needed based on the weather forecast.

3. All BMPs shall be selected, designed, and maintained according to the SWMMWW.

4. From October 1st through April 30th, unworked soils shall not remain exposed for more than two days.

5. From May 1st through September 30th, unworked soil shall not remain exposed for more than seven days.

6. Soil stockpiles must be stabilized from erosion, protected with sediment trapping measures, and where possible, located away from storm drain inlets, waterways and drainage channels.

7. Linear construction activities, including right-of-way and easement clearing, roadway development, pipelines, and trenching for utilities, shall be conducted to meet the soil stabilization requirement.

D. Maintenance.

1. All temporary and permanent erosion and sediment control devices shall be maintained and repaired as needed.

2. Erosion and sediment control devices that are damaged or not working properly shall be returned to operating condition within twenty-four hours of identifying they are not working properly or receiving notice from the city. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.120 Land disturbing activity permit.

A. All proposals which are not exempt under this chapter shall be reviewed by the director and shall comply with the standards, specifications and requirements of the BMC. Applications shall be submitted with a complete application form and attachments as prescribed by the director and with all required fees in the fee schedule.

B. All applications shall include:

1. A plan prepared by a professional engineer showing the following:

a. Date, scale, north arrow, and vicinity map;

b. Address, parcel number(s), and legal description of the subject property;

c. Name, address and phone number of the property owner and professional engineer;

d. Property dimensions and size;

e. Topographic information;

f. Proposed grades;

g. Areas proposed for clearing and the proposed use for each area, including areas to be revegetated;

h. Location and description of proposed erosion control devices or structures;

i. Description of existing soil type(s);

j. Location and dimensions of all existing and proposed structures, driveways, and utilities;

k. Location and recording number for all easements affecting the proposal;

l. Locations of all trees, including those proposed for removal and any diseased or damaged trees;

m. Any proposed grade changes that may adversely affect or endanger the trees proposed for protection, and specifications to protect them;

n. Location of all critical areas and their buffers as defined by BMC Title 18.

2. An itemized estimate prepared by a professional engineer of the cost of performing all land disturbing activities, including but not limited to clearing, grading, filling, installing of temporary erosion and sedimentation control, and installing of permanent site stabilization measures to bring the construction site into compliance with this chapter.

C. The city may request additional information as needed to allow adequate review of the proposal.

D. The director shall approve, approve with conditions and/or modifications, or deny the permit application. Appropriate safeguards may be prescribed to assure compliance with the BMC and the land disturbing activity permit as approved, including but not limited to reasonable performance or maintenance assurance devices.

E. Land disturbing activity permits shall expire one hundred eighty days from the date of issuance, or with the associated land use or construction permit, whichever is later. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.130 Land disturbing activity permit review criteria.

A. A land disturbing activity permit may be granted only if it is consistent with the intent and purposes of this chapter and it:

1. Avoids adverse impacts on the environment and neighboring properties or takes affirmative and appropriate measures to minimize and compensate for unavoidable impacts.

2. Includes mitigations to minimize impacts, including but not limited to:

a. Limiting the degree or magnitude of the regulated activity;

b. Limiting the implementation of the regulated activity;

c. Using appropriate and best available technology.

B. The following development standards shall be met:

1. The proposed plan shall not allow the unnecessary removal of vegetation. Removal is unnecessary if it is not required for the proposed use(s).

2. The permit must meet the provisions of this chapter.

3. Clearing, grading or filling in a sensitive area or its buffer shall not be allowed, except as provided for in this chapter and BMC Title 18.

4. Fill using other than natural earth material shall not be allowed. Material containing tree stumps or solid waste, as defined in RCW 70.95.030 and WAC 173-304-100, shall not be used as fill material. The term “solid waste” shall include, but not be limited to, demolition and construction waste.

5. Grading a cut of undisturbed soils to create a slope steeper than two-to-one, or grading an approved fill to create a slope steeper than three-to-one, shall not be allowed.

6. The city may restrict the date or season in which land may be cleared when such restrictions are necessary for the public health, safety and welfare, or for the protection of the environment.

7. The city may require the applicant to replace vegetation, provide erosion control methods, hydroseed exposed slopes or protect the site as needed.

8. Protection measures shall be imposed for all vegetation which is to be retained on site during the clearing process.

C. The following are conditions for land disturbing activity permit approval:

1. The plan must be in compliance with this chapter.

2. The city may revoke or suspend the permit upon discovery that the applicant submitted incorrect information or upon violation of the provisions of this chapter.

3. Approved plans cannot be amended without written authorization from the city.

4. The city may restrict the timing of work to specific dates, times or seasons to protect the environment. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.140 Assurances.

A. The applicant shall submit a separate bond, letter of credit or other means of assurance acceptable to the director for each required assurance.

B. A performance assurance may be required to ensure the installation of temporary and/or permanent site stabilization measures as approved.

1. The assurance shall be provided prior to issuance of a permit.

2. The amount of the assurance shall be equal to three hundred percent multiplied by the applicant engineer’s estimate for all work encompassed by the permit.

3. The assurance period shall be until the date of successful completion of the final inspection on permanent site stabilization measures. The assurance shall not be fully released until the city has inspected and approved the completed work.

C. A maintenance assurance may be required to ensure the long-term performance of permanent site stabilization measures.

1. The assurance shall be provided prior to issuance of a permit, or prior to issuance of a certificate of occupancy when there is an associated building permit, whichever is later.

2. The amount of the assurance shall be equal to one hundred fifty percent multiplied by the applicant engineer’s estimate for all work encompassed by the permit.

3. The assurance period shall be two years from the date of successful completion of the final inspection of permanent site stabilization measures.

4. Upon reaching two years, the city shall re-inspect the permanent site stabilization measures prior to authorizing release of the assurance.

D. Assurances provided in accordance with this section may be redeemed in whole and in part by the city upon determination by the director that the applicant has failed to comply with approved plans and/or conditions. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.150 Appeal of administrative decision.

Any person aggrieved by the granting or denying of a permit pursuant to this chapter shall have the right to appeal to the city council as follows:

A. The appeal shall be in writing and filed with the city clerk within ten business days of the date of the decision;

B. The appeal shall describe the error of law or fact, and may identify new evidence which was not reasonably available at the time of the decision;

C. Upon receipt of a timely appeal, the city clerk shall forward the appeal to the city council, which may either consider the appeal itself or appoint a hearing examiner to consider the appeal. On appeal, the director’s decision shall be accorded substantial weight.

D. An appeal of the city’s final decision shall be by petition to the Snohomish County superior court, in accordance with state law. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.160 Inspection.

A. The director shall have access to any site during the review and consideration of an application for a permit or thereafter to ensure compliance with the terms of the permit. The city must complete any inspections that the city desires to perform prior to the applicant’s removal of any plant material. Upon completion of planting, the city shall complete a final landscaping inspection to ensure proper installation.

B. Whenever the city has cause to believe that a violation of this chapter has been or is being committed for which no active permit has been issued, the director is authorized to inspect the site pursuant to BMC 19.24.180. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.170 Liability insurance.

A. Any applicant required to obtain a land disturbing activity permit shall obtain and maintain liability insurance against claims for injuries to persons or damage to property arising out of or in connection with the land disturbing activity.

1. The policy shall be written by an insurance company authorized to do business in the state of Washington and having an A.M. Best rating of A-VII or better.

2. The minimum limits of coverage shall be as required by the Construction Projects section of the Washington Cities Insurance Authority Manual (WCIA Manual), current edition, titled ADM.21 Insurance and Indemnity Requirements for Contracts. A copy is on file with the city clerk.

a. The city reserves the right to require additional types of coverage or greater minimum limits based on the extent of the work and the type of permit.

3. Providing coverage in the required amounts shall not relieve the applicant from liability in excess of those amounts.

4. The policy shall waive the right of subrogation against the city.

5. The policy shall defend, indemnify and hold the city, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the land disturbing activity, except for injuries and damages caused by the sole negligence of the city.

6. The coverage shall be primary insurance as respects the city. Any insurance, self-insurance, or insurance pool coverage maintained by the city shall be excess of the applicant’s insurance and shall not contribute with it.

7. The director may modify the minimum policy or coverage requirements upon consultation with the city attorney.

8. The applicant shall provide proof of such policy, including all endorsements, to the director prior to commencing any land disturbing activity.

9. The policy will remain in force with annual policy periods until final inspection or final occupancy, whichever is later. The policy will be endorsed to state that the city shall be given at least thirty days’ written notice of cancellation, nonrenewal, material reduction or modification of coverage.

B. The insurance requirements may be waived or modified by the director for projects which do not present a risk to surrounding properties.

C. Additional liability insurance shall not be required for city projects. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.180 Inspection – Procedures.

Prior to making any inspections, the director shall present identification credentials, state the reason for the inspection and request entry.

A. If the property or any building or structure on the property is unoccupied, the director shall first make a reasonable effort to locate the owner or other individual(s) having charge or control of the property or portions of the property and request entry.

B. If, after reasonable effort, the director is unable to locate the owner or other individual(s) having charge or control of the property, and has reason to believe the condition of the trees and/or vegetation creates an imminent hazard to individuals or property, the director or designee may enter the property. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.190 Maintenance.

The property owner is responsible for ensuring that sites are maintained in compliance with the BMC, the SWPPP and the SWMMWW. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.200 Enforcement.

Violations of this chapter shall be enforced pursuant to Chapter 1.32 BMC, subject to the following:

A. The first offense for violation of this chapter shall be a Class A nontraffic civil infraction as designated in BMC 1.28.030. The first violation shall not require a notice of violation and order of correction before the issuance of a nontraffic civil infraction.

B. Repeat offenses as defined in BMC 1.32.010 shall be a misdemeanor punished in accordance with the provisions of Chapter 1.28 BMC. Repeat violations shall not require a notice of violation and order of correction before the issuance of a misdemeanor citation.

C. In an emergency as defined in BMC 1.32.010(E), a violation of this chapter shall be a misdemeanor as designated in BMC 1.28.030(A), when a responsible party as defined in BMC 1.32.010(I) fails to take immediate action to correct the violation. (Ord. 442 § 11 (Exh. K) (part), 2016)

19.24.210 Stop work orders.

A stop work order may be issued by the director for failure to comply with any of the terms of a land disturbing activity permit, or any activity conducted in violation of this chapter or in a dangerous or otherwise unsafe manner, as determined by the director. The stop work order shall be in writing and served on the person(s) engaged in the activity or cause of the activity. The effect of such a stop work order shall be for the persons issued to immediately terminate such work or activity, until authorization is given by the director to proceed. (Ord. 442 § 11 (Exh. K) (part), 2016)