Chapter 11.78
FISH AND WILDLIFE HABITAT CONSERVATION AREAS OVERLAY DISTRICT (FWOD)

Sections:

11.78.005    Purpose.

11.78.010    Applicability.

11.78.015    Mitigation sequencing.

11.78.020    Exemptions.

11.78.030    Protection for fish and wildlife habitat conservation areas.

11.78.040    Relationship to shoreline master program and other critical area regulations.

11.78.050    Retention of county authority.

11.78.060    Fish and wildlife habitat conservation areas classification and designation.

11.78.070    Class I wildlife habitat conservation area standards.

11.78.080    Class II wildlife habitat conservation area standards.

11.78.090    Riparian buffers.

11.78.100    Habitat management and mitigation plan.

11.78.110    Water typing system.

11.78.120    Undesignated shorelines.

11.78.130    Riparian buffer width averaging.

11.78.140    Modification provision for real property with lot depths of three hundred feet or less in depth.

11.78.150    Roadways and water crossings.

11.78.160    Bulkheads and retaining walls.

11.78.170    Wells, tunnels, utilities and on-site septic systems.

11.78.180    Pedestrian/bike/equestrian trails.

11.78.190    Fencing.

11.78.200    Emergency exemption.

11.78.210    Noncompliance.

11.78.220    Reasonable use.

11.78.230    Variance provisions.

11.78.240    Subdivision notation.

11.78.250    Incentives.

11.78.260    Education.

11.78.005 Purpose.

It is the purpose of this chapter to designate and classify fish and wildlife conservation areas and to protect, restore where practical, and enhance fish and wildlife populations and their associated habitats. (Res. 2007-97 (part), 7/2/07).

11.78.010 Applicability.

The provisions of this chapter shall apply to development that is proposed to be located within fish and wildlife habitat conservation areas by definition or within a review area of one thousand feet from a mapped point location (den or nest site) of a priority species.

“Fish and wildlife habitat conservation areas” does not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company.

Fish and wildlife protection is not intended to preclude reasonable use of property, nor is it intended to authorize public use of private property or prevent trespassing laws from being enforced.

This chapter does not require any permit in addition to those otherwise required by county ordinances. This chapter does not exempt uses and activities from any state or federal permits that may be required. Uses and activities in fish and wildlife habitat conservation areas for which no permit or approval is required by any other county ordinance remain subject to the standards and requirements of this chapter. (Res. 2017-119 (Att. B) (part), 12/19/17: Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.015 Mitigation sequencing.

Development proposals affecting fish and wildlife habitat conservation areas shall demonstrate that reasonable efforts have been examined with the intent to avoid and minimize impacts to the functions and values of the critical area. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized or compensated for in the following order of preference:

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

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

(3) Rectifying the impact to fish and wildlife conservation areas by repairing, rehabilitating, or restoring the affected environment to the historic conditions or the conditions at the time of the initiation of the project;

(4) Minimizing the impact by restoring or stabilizing the area through engineered or other methods;

(5) Reducing the impact over time by preservation and maintenance operation during the life of the action;

(6) Compensating for the impact by replacing, enhancing or providing substitute resources or environments; and

(7) Monitoring the required mitigation and taking remedial action when necessary. (Res. 2007-97 (part), 7/2/07).

11.78.020 Exemptions.

The following uses within fish and wildlife habitat conservation areas are exempt from the requirements of this chapter; provided, that said activity is conducted consistent with the standards and requirements of this chapter, and all other applicable laws and regulations. All exempted activities shall use all reasonable methods to avoid potential impacts to critical areas. Any substantial damage to a critical area that is not a necessary outcome of the exempted activity shall be restored. Best management practices regarding clearing and grading may be obtained from Chelan County and the Chelan County Conservation District.

(1) Those activities under the regulation of the Forest Practices Act (Chapter 76.09 RCW, WAC Title 222) on which the county cannot condition a forest practices application;

(2) The maintenance or construction of pumping stations and irrigation facilities;

(3) Education, scientific research, and use of nature trails;

(4) Maintenance, repair, or operation of existing legal structures, facilities or improved areas;

(5) Maintenance, reconstruction, repair or operation of existing streets, highways or roads;

(6) Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, riparian habitat impacts should be avoided and/or minimized and disturbed areas shall be immediately restored;

(7) 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 riparian buffer by changing existing topography, water conditions or water sources;

(8) One access/view corridor per parcel, twenty feet or less in width; provided, that clearing is done in a manner that prevents erosion;

(9) Fire management within fish and wildlife habitat conservation areas where required by a county, state or federal agency in consultation with the Chelan County fire marshal;

(10) Ponds deliberately designed and created from dry sites such as canals, detention facilities, wastewater treatment facilities, farm ponds, and temporary construction ponds of less than three years’ duration;

(11) Riparian habitat restoration/rehabilitation projects by a public or private agency whose mandate includes such work which is unassociated with the mitigation of a specific development proposal;

(12) The maintenance of drainage ditches;

(13) Legal lots of record within the riparian buffer, which are separated from being adjacent to rivers, streams or lakes, by an intervening legal lot of record; and provided, that such intervening legal lot of record is a buildable lot adequate in size for the purposes of the placement of a single-family home or cabin or other structures of similar size or greater; or the legal lot of record is utilized as a public or private road or railway;

(14) Noxious weed control using best management practices;

(15) Boundary line adjustments;

(16) Restoration/rehabilitation of fish and wildlife habitat which meets the approval of the Washington State Department of Fish and Wildlife;

(17) Modification of a legally constructed single-family residence; provided, that no new construction shall be closer to the critical area and does not increase the square footage of primary residence to be modified by more than twenty-five percent of the existing square footage. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.030 Protection for fish and wildlife habitat conservation areas.

(1) Wetland Habitat Areas. All fish and wildlife habitat located within wetlands or wetland buffers is protected pursuant to Chapter 11.80 (Wetland Areas Overlay District (WOD)) of this title. Additional protection measures are provided for the following:

(A) Mapped point locations (den or nest sites) or polygons of nongame priority species within wetlands or wetland buffers are also protected through the application of Section 11.78.080 of this chapter.

(B) Wetlands or wetland buffers which contain Class I wildlife habitat conservation areas shall also be protected pursuant to Section 11.78.070 of this chapter.

(2) Riparian and Instream Habitat Areas. All fish and wildlife habitat within riparian and instream habitats is protected pursuant to Section 11.78.090. Additional protection measures are provided for the following:

(A) Mapped point locations (den or nest sites) or polygons of nongame priority species within riparian habitat areas are also protected through the application of Section 11.78.080.

(B) When riparian habitat areas contain Class I wildlife habitat conservation areas, they shall also be protected pursuant to Section 11.78.070.

(3) Other Wildlife Habitat. All Class I and II wildlife habitat conservation areas not otherwise protected pursuant to the requirements of subsections (1) and (2) of this section shall be protected pursuant to the requirements of Sections 11.78.070 and 11.78.080. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.040 Relationship to shoreline master program and other critical area regulations.

In the event of any conflict between this title and regulations contained in the Chelan County shoreline master program, as amended, or any other critical area regulations, those regulations which provide greater protection of critical areas shall apply. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.050 Retention of county authority.

The county shall retain authority over administrative actions and development permits issued by the county. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.060 Fish and wildlife habitat conservation areas classification and designation.

(1) Classification. The following classifications shall be used in designating fish and wildlife conservation areas:

(A) Class I Fish and Wildlife Habitat Conservation Areas.

(i) State natural area preserves and natural resource conservation areas; and

(ii) Habitat which have a primary association with species listed by federal agencies as endangered or threatened under the Federal Register for the Endangered Species Act of 1973, or species listed by state agencies as endangered (WAC 232-12-014), threatened (WAC 232-12-011) or sensitive (WAC 232-12-011).

(2) Class II Fish and Wildlife Habitat Conservation Areas.

(A) Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish or wildlife habitat;

(B) Waters of the state;

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

(D) Priority habitats and species as identified by the Washington State Department of Fish and Wildlife Priority Habitats and Species Program;

(E) Mule deer and/or elk winter range and migration corridors.

(3) Designation. All lands and shorelands classified as fish and wildlife habitat conservation areas are designated as fish and wildlife habitat conservation areas. The Chelan County department of building, fire safety and planning will maintain maps to provide information to the public and aid in the administration of this section. Sites that include fish and wildlife habitat conservation areas not mapped shall be subject to the provisions of this section. In the event of a conflict between the information shown on the maps and information shown as a result of field investigations, the latter shall prevail. Maps utilized by Chelan County to identify fish and wildlife habitat conservation areas include the following maps and map databases:

(A) The Washington State Department of Fish and Wildlife Priority Habitats and Species and Wildlife Heritage Maps and Database, as amended;

(B) Washington Rivers Information System Maps and Database, as amended;

(C) National Wetlands Inventory Maps and Database, as amended;

(D) Chelan County shoreline master program, as amended;

(E) DNR Stream Type Maps for Type S, F, Np, and Ns waters per criteria as set forth in WAC 222-16-031, Interim water typing system, as amended;

(F) Mule deer and/or elk winter range and migration corridors in Chelan County identified on the Chelan County mule deer and elk winter range maps in the community development department. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.070 Class I wildlife habitat conservation area standards.

(1) Major Development Within Class I Wildlife Habitat Conservation Areas. A review area of one thousand feet of a mapped point location of a den or nest site or a polygon of a species listed as endangered, threatened, or sensitive by the state of Washington, or registered as endangered or threatened by the federal government, shall be subject to the following standards:

(A) Pertinent agencies including but not limited to the Washington State Department of Fish and Wildlife shall be given written notice of the development proposal. In order for agency comments to be considered, the agencies shall have thirty days from the date of mailing of the notice to submit written comments to the county. The referral is necessary to determine the accuracy of mapping, presence of habitat, and potential impacts of the development.

(B) If the site does contain wildlife habitat regulated by this chapter, the applicant must meet the requirements outlined in this section. A habitat management and mitigation plan, pursuant to Section 11.78.100, shall be required for major developments in Class I wildlife habitat conservation areas. In the case of bald eagles, an approved bald eagle management plan by the Washington State Department of Fish and Wildlife meeting the requirement and guidelines of the bald eagle protection rules (WAC 232-12-292, as amended) will satisfy the requirements for a habitat management and mitigation plan.

(2) Minor Development Within Class I Wildlife Conservation Areas. A review area of one thousand feet of a mapped point location of a den or nest site, or a polygon of a species listed as endangered, threatened, or sensitive by the state of Washington, or registered as endangered or threatened by the federal government, shall be subject to the following standards:

(A) Pertinent agencies, including but not limited to the Washington State Department of Fish and Wildlife, shall be given written notice of the development proposal. In order for agency comments to be considered, the agencies shall have thirty days from the date of mailing of the notice to submit written comments to the county. The referral is necessary to determine the accuracy of mapping, presence of habitat, and potential impacts of the development.

(B) If the site does contain wildlife habitat regulated by this section, the applicant shall meet the requirements outlined in subsections (2)(C) and (D) of this section.

(C) The administrator shall review comments from pertinent agencies and the following criteria to determine if the standards outlined in subsection (2)(D) of this section are adequate to protect wildlife habitat:

(i) Published guidelines regarding the protection and management of the affected species, including but not necessarily limited to those published by the Washington State Department of Fish and Wildlife;

(ii) Physical characteristics of the subject parcel and vicinity, including topography and vegetation;

(iii) Historic, current and proposed uses, proposed density of the development site, and development characteristics in the vicinity of the site;

(iv) Is the site within an urban growth area, rural area or resource land?

(v) What are the potential land uses for the site as identified by the comprehensive plan and zoning code?

(vi) Is the site’s habitat fragmented or is it connected to significant habitat blocks or open spaces?

(vii) Consider the habitat located on the site and in the surrounding area. Would impacts of the development be site-specific or have the potential to be cumulative with existing and potential future developments in the area?

If it is determined by the administrator that the standards outlined in subsection (2)(D) of this section are not adequate to protect the wildlife habitat, a habitat management and mitigation plan, pursuant to Section 11.78.100, shall be required. In the case of bald eagles, an approved bald eagle management plan by the Washington State Department of Fish and Wildlife meeting the requirements and guidelines of the bald eagle protection rules (WAC 232-12-292, as amended) will satisfy the requirements for a habitat management and mitigation plan, pursuant to Section 11.78.100. The administrator shall base his or her decision on written findings of fact and conclusions.

(D) Minor development within Class I wildlife habitat conservation areas shall be subject to the following standards:

(i) Disturbed areas shall be revegetated with native vegetation within one growing season of project completion in accordance with an approved revegetation plan, where appropriate.

(ii) Site planning shall minimize disruption of existing topography and vegetation, and shall incorporate opportunities for phased clearing.

(iii) Any limitations to site disturbance, such as clearing restrictions, imposed as a condition of development approval shall be marked in the field and approved by the county prior to undertaking the project.

(iv) Fencing requirements as outlined in Section 11.78.190.

(v) An erosion and drainage control plan will be required for any clearing, grading and/or excavation of one acre or greater in area.

(vi) Building sites are encouraged to be located away from critical wildlife habitat corridors as feasibly as possible.

(3) Any person aggrieved by the administrator’s decision can file an appeal of the decision in conformance with Chapter 11.95 of this title. (Res. 2008-86 (part), 5/20/08; Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.080 Class II wildlife habitat conservation area standards.

(1) Major development within Class II wildlife habitat conservation areas within a review area of one thousand feet from a mapped point location of a nest or den site or polygon of a priority species shall be subject to the following standards:

(A) Pertinent agencies, including but not limited to the Washington State Department of Fish and Wildlife, shall be given written notice of the development proposal. In order for agency comments to be considered, the agencies shall have fourteen days from the date of mailing of the notice to submit written comments to the county. The referral is necessary to determine the accuracy of mapping, presence of habitat, and potential impacts of the development.

(B) If the site does contain wildlife habitat regulated by this section, the applicant shall meet the requirements outlined in subsections (1)(C) and (D) of this section.

(C) The administrator shall review written comments from the agencies and the following criteria to determine if the standards outlined in Section 11.78.070(2)(D) are adequate to protect wildlife habitat:

(i) Published guidelines regarding the protection and management of the affected species, including but not necessarily limited to those published by the Washington State Department of Fish and Wildlife;

(ii) Physical characteristics of the subject parcel and vicinity, including topography and vegetation;

(iii) Historic, current and proposed uses, proposed density of the development site, and development characteristics in the vicinity of the site;

(iv) Is the site within an urban growth area, rural area or resource land?

(v) What are the potential land uses for the site as identified by the comprehensive plan and zoning code?

(vi) Is the site’s habitat fragmented or is it connected to significant habitat blocks or open spaces?

(vii) Consider the habitat located on the site and in the surrounding area. Would impacts of the development be site-specific or have the potential to be cumulative with existing and potential future developments in the area?

The administrator will have up to thirty days after the end of the comment period to determine if the standards outlined in Section 11.78.070(2)(D) provide adequate protection to wildlife habitat. If it is determined that the standards of Section 11.78.070(2)(D) are not adequate to protect wildlife habitat, a habitat management and mitigation plan shall be required pursuant to Section 11.78.100. The administrator shall base his or her decision on written findings of fact and conclusions.

(D) Major development within Class II wildlife habitat conservation areas shall be subject to the standards outlined in Section 11.78.070(2)(D).

(2) Minor development within Class II wildlife habitat conservation areas within a review area of one thousand feet from a mapped point location of a nest or den site or polygon of a priority species shall be subject to the following standards:

(A) Pertinent agencies, including but not limited to the Washington State Department of Fish and Wildlife, shall be given written notice of the development proposal. In order for agency comments to be considered, the agencies shall have fourteen days from the date of mailing of the notice to submit written comments to the county. The referral is necessary to determine the accuracy of mapping, presence of habitat, and potential impacts of the development.

(B) If the site does contain fish and wildlife habitat regulated by this chapter, the applicant must meet the requirements outlined in subsection (2)(C) of this section.

(C) The administrator shall review written comments from the agencies and the following criteria to determine if the standards outlined in Section 11.78.070(2)(D) are adequate to protect wildlife habitat:

(i) Published guidelines regarding the protection and management of the affected species, including but not necessarily limited to those published by the Washington State Department of Fish and Wildlife;

(ii) Physical characteristics of the subject parcel and vicinity, including topography and vegetation;

(iii) Historic, current and proposed uses, proposed density of the development site, and development characteristics in the vicinity of the site;

(iv) Is the site within an urban growth area, rural area or resource land?

(v) What are the potential land uses for the site as identified by the comprehensive plan and zoning code?

(vi) Is the site’s habitat fragmented or is it connected to significant habitat blocks or open spaces?

(vi) Consider the habitat located on the site and in the surrounding area. Would impacts of the development be site-specific or have the potential to be cumulative with existing and potential future developments in the area?

The administrator will have up to thirty days after the end of the comment period to determine if the standards outlined in Section 11.78.070(2)(D) provide adequate protection to wildlife habitat. If it is determined that the standards of Section 11.78.070(2)(D) are not adequate to protect wildlife habitat, a habitat management and mitigation plan shall be required pursuant to Section 11.78.100. The administrator shall base his or her decision on written findings of fact and conclusions.

(3) Minor development within Class II wildlife habitat conservation areas shall have the following standards:

(A) Minor development within Class II wildlife habitat conservation areas may be subject to the minimum standards, all or in part, of Section 11.78.070(2)(D), as determined by the administrator utilizing the following criteria:

(i) Is the site’s habitat fragmented or is it connected to significant habitat blocks or open spaces?

(ii) What is the level of human activity in the area and what are the surrounding land uses?

(iii) Is the site within an urban growth area, rural area or resource land?

(iv) What are the potential land uses for the site as identified by the comprehensive plan and zoning code?

(v) What are the potential impacts of the development to wildlife habitat and species?

(vi) Can a reasonable balance be achieved between wildlife habitat protection and the reasonable use of private property?

(4) Any person aggrieved by the administrator’s decision can file an appeal of the decision in conformance with Chapter 11.95 of this title. (Res. 2008-86 (part), 5/20/08; Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.090 Riparian buffers.

(1) The area adjacent to the shoreline is the riparian buffer. The intent of the riparian buffer is to maintain riparian habitat functions, structure and value. The point of measurement for the riparian buffer begins at the ordinary high water mark on each bank and is measured horizontally from this point or from the top of the bank where the ordinary high water mark cannot be identified. No development, except as outlined in the provisions of this section, is allowed in this area. Riparian buffers apply to the following areas:

(A) Areas adjacent to Type S, F, Np and Ns waters per criteria as set forth in WAC 222-16-031, Interim water typing system, as amended; and

(B) Areas adjacent to shorelines of the state as defined in Chapter 90.58 RCW, the Shoreline Management Act (SMA) and the shoreline master program use regulations of Chelan County.

(2) Vegetation within the riparian buffer shall be maintained as riparian habitat. Noxious weeds in the riparian buffer should be controlled according to best management practices. The Chelan County noxious weed control board should be consulted for recommendations. Where riparian buffer vegetation disturbances have occurred, only revegetation with locally prescribed native vegetation is permitted, except as provided for in this section. Consultation with one of the following agencies is recommended: the WSU Cooperative Extension Service, the Chelan County Conservation District, the Washington State Department of Ecology, the Washington State Department of Fish and Wildlife, or the USDA—Natural Resource Conservation Service.

(3) All riparian buffers shall be temporarily fenced between the construction activity and the riparian buffer with a highly visible and durable protective barrier, such as filter fencing and straw bales, during construction to prevent access and protect the riparian buffer. The administrator may waive this requirement if an alternative to fencing which achieves the same objective is proposed and approved.

(4) Riparian Buffer Widths.

(A) Water bodies designated by the shoreline master program use regulations of Chelan County environment classification, as amended, and water bodies meeting the definition of shorelines of the state per Chapter 90.58 RCW (the Shoreline Management Act), shall have the following required buffer widths:

Shoreline Rivers, Streams, Lakes and Ponds

Environment Classification

Buffer Width

High Intensity (feet)

Low Intensity (feet)

Natural*

250

200

Conservancy*

250

200

Rural*

150

100

Urban*

100

75

*See subsection (5) of this section.

(B) Water bodies not designated as shorelines of the state in the shoreline master program use regulations of Chelan County or the Shoreline Management Act shall utilize the water typing system (WAC 222-16-030) classification maps and listings. For those areas with streams that have not been typed by the Washington State Department of Natural Resources, the department shall utilize U.S.G.S. Quad maps to help identify those streams and drainages.

Nonshoreline Rivers, Streams, Lakes and Ponds

Stream Type

Buffer Width

High Intensity (feet)

Low Intensity (feet)

Type S

250

200

Type F

200

150

Type Np

150

100

Type Ns

50

50

(5) All shoreline environment classifications within the Lower Lake Chelan Basin may be subject to a fifty-foot riparian buffer for high intensity land uses and a twenty-five-foot buffer for low intensity land uses if the following requirements are met:

(A) An enhanced on-site sewage system or public sewer is required, and stormwater must be retained on-site and not directly flow into surface water. A stormwater drainage plan is required with a submittal of a land use or building permit application; and

(B) Supplement the native vegetation with plant materials selected from an approved plant list developed jointly by Chelan County and the Washington State Department of Fish and Wildlife, available at the Chelan County department of building, fire safety and planning.

The Lower Lake Chelan Basin, for the purposes of this section, shall be considered to begin at Box Canyon, extending southeast to the city limits of the city of Chelan and extending northwest from the city limits of the city of Chelan to Deer Point.

(6) In those instances where a shoreline has been classified by both the shoreline master program use regulations of Chelan County and the water type system under WAC 222-16-030, the applicable shoreline master program designation and riparian buffer width requirements in subsection (4)(A) of this section shall apply. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.100 Habitat management and mitigation plan.

(1) If required, this plan shall identify how the impacts from the proposed use or activity will be avoided or mitigated consistent with the purposes of this section. The Washington Priority Habitat and Species data as now or hereafter amended, other priority habitat and species publications, and consultation with a habitat biologist from the Washington State Department of Fish and Wildlife may be used as the basis for the plan.

(2) The habitat management and mitigation plan shall be approved or denied in writing by the administrator and shall contain but not be limited to the following information:

(A) A map(s) prepared at an easily readable scale (at least one inch equals two hundred feet) showing:

(i) The location of the proposed site;

(ii) The relationship of the site to surrounding topographic and built features;

(iii) The nature and density of the proposed use or activity;

(iv) Proposed building locations and arrangements;

(v) A legend which includes:

(a) A complete and accurate legal description. The description shall include the total acreage of the parcel,

(b) Title, scale and north arrow,

(c) Date;

(vi) Existing structures, improvements and landscape features including the name and location of all water bodies;

(vii) Location of priority habitat types and priority species point locations, including nesting, roosting and den sites, winter range areas, riparian zones and migration corridors.

(B) A report which contains:

(i) A description of the nature, density and intensity of the proposed use or activity in sufficient detail to allow analysis of such a land use change upon identified wildlife habitat including the proposed amounts of excavation, grading, and vegetation disturbance.

(ii) An analysis of the effect of the proposed use or activity upon fish and wildlife species and their habitats, identified within the priority habitat and species program.

(iii) A plan which explains how the applicant will avoid, minimize or mitigate adverse impacts to fish and/or wildlife habitats created by the proposed use or activity. Mitigation measures within the plan may include, but are not limited to:

(a) Establishment of buffer areas;

(b) Preservation of critically important plants and trees, preferably in consolidated areas;

(c) Limitation of access to habitat area;

(d) Seasonal restriction of construction activities;

(e) Clustering of development and preservation of open space, if permitted by the underlying zoning district;

(f) Signs marking habitats or habitat buffer areas;

(g) Title notice or plat dedication warning statements;

(h) Conservation easements;

(i) Preserve and introduce native plant species which serve as food and shelter from climatic extremes and predators and structure and cover for reproduction and rearing of young for critical wildlife;

(j) The use of native species or species recommended by the Washington State Department of Fish and Wildlife in the revegetation or landscaping of disturbed or developed areas and in any enhancement of habitat or buffers.

(iv) Review comments by a habitat biologist from the Washington State Department of Fish and Wildlife will be required.

The Washington State Department of Fish and Wildlife shall respond in writing to the administrator with review comments or a request for additional time for review within fourteen days from the date of mailing of a draft habitat management and mitigation plan. The administrator may grant an additional seven days for an agency to provide review comments. If review comments or a request for additional time to provide review comments is not received in the prescribed time frame, the state review comments on the habitat management and mitigation plan shall not be considered.

The administrator shall have the authority to approve or deny habitat management and mitigation plans or require additional information based upon criteria within this section and review comments from relevant agencies. The administrator shall base his or her decision on written findings of fact and conclusions. The administrator’s written decision shall be forwarded to the Washington State Department of Fish and Wildlife, other agencies or tribal entities which provided comments to the department and to any other agency/individual(s) who request a copy of the written decision.

(C) Mitigation shall be completed prior to granting of final occupancy, or the completion of final approval of any development activity for which mitigation measures have been required. Bonding at one hundred fifty percent of the cost of uncompleted activities is an acceptable alternative to completion where a contract to complete the work is in force. Bonding shall be in effect for a maximum of two years.

(3) Any person aggrieved by the administrator’s decision can file an appeal of the decision in conformance with Chapter 11.95 of this title. (Res. 2014-38 (Atts. A, B) (part), 4/15/14; Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.110 Water typing system.

See WAC 222-16-031. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.120 Undesignated shorelines.

Streams and drainages identified on U.S.G.S. Quad maps which are not designated by the shoreline environment classification in the Chelan County shoreline master program use regulations or the Chelan County DNR typed waters map for Chelan County shall be designated according to WAC 222-16-030. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.130 Riparian buffer width averaging.

Riparian buffer widths may be modified by averaging the buffer widths, pursuant to an administrative modification. Riparian buffer width averaging shall be allowed only where the applicant demonstrates all of the following:

(1) That width averaging will not degrade the riparian habitat structure, functions and values; and

(2) The total area contained within the riparian buffer after averaging is no less than that contained within the riparian buffer width, outlined by the requirements of this chapter, prior to averaging. The revised riparian buffer width shall not be less than seventy-five percent of the riparian buffer widths outlined within this chapter or be less than twenty-five feet, whichever is greater; and

(3) The newly incorporated area contained within the revised riparian buffer provides habitat with at least equal or superior habitat structure, functions and values to that area that it is replacing; and

(4) Failure to adjust the buffer would result in a hardship to the property owner; and

(5) The need for buffer width averaging is not due to the landowner’s own actions; and

(6) That low intensity land uses would be located adjacent to areas where buffer width is reduced, and that such low intensity land uses are guaranteed in perpetuity by covenant, deed restriction, easement or other legally binding mechanism; and

(7) Submission of a habitat management and mitigation plan, if required by the administrative authority, pursuant to Section 11.78.100, in support of the requested buffer width averaging. (Res. 2014-38 (Atts. A, B) (part), 4/15/14: Res. 2008-86 (part), 5/20/08; Res. 2007-97 (part), 7/2/07: Res. 2003-08 (part), 1/21/03: Res. 2000-129 (part), 10/17/00).

11.78.140 Modification provision for real property with lot depths of three hundred feet or less in depth.

For real properties with lot depths of three hundred feet or less, existing prior to the date of adoption of the resolution codified in this chapter (June 6, 1999), the following riparian buffer width reduction is permitted; provided, that the administrator may require a habitat management and mitigation plan pursuant to Section 11.78.100, adequate to avoid degradation of the riparian habitat functions, structure and value, utilizing the criteria in Section 11.78.080(1)(C)(i) through (vii) in reaching a conclusion:

(1) The riparian buffer may be reduced to a maximum of twenty-five percent of the lot depth; provided, said riparian buffer is not less than twenty-five feet in width or less than the common line setback pursuant to the Chelan County shoreline master program, whichever is greater. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.150 Roadways and water crossings.

(1) Proposed roads within riparian buffers shall be kept to a minimum and should not run parallel to the water body. Crossings, where necessary, shall cross riparian buffers at as near right angles as possible. If no alternative exists to placing a roadway in the buffer, the administrator may require a habitat management and mitigation plan pursuant to Section 11.78.100, adequate to avoid degradation of the riparian habitat functions, structure and value, utilizing the criteria in Section 11.78.080(1)(C)(i) through (vii) in reaching a conclusion.

(2) Water crossings must be approved by the Washington State Department of Fish and Wildlife in accordance with RCW 75.20.100. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.160 Bulkheads and retaining walls.

(1) Where no other practical alternative exists to placing bulkheads or retaining walls in a riparian buffer, necessary for the placement and/or protection of a single-family home, the administrator may require a habitat management and mitigation plan pursuant to Section 11.78.110, adequate to avoid degradation of the riparian habitat functions, structure and value, utilizing the criteria in Section 11.78.080(1)(C)(i) through (vii) in reaching a conclusion.

(2) Beach nourishment and bio-engineered erosion control projects are considered a normal protective bulkhead. Construction of bulkheads necessary for the placement of a single-family home shall be in conformance with the shoreline master program use regulations of Chelan County, Chapter 173-27 WAC, Shoreline Management Permit and Enforcement Procedures, Chapter 90.58 RCW, the Shoreline Management Act, and Chapter 220-110 WAC, Hydraulic Code Rules.

(3) Riparian vegetation disturbances within the riparian buffer shall be revegetated within one growing season with native vegetation. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.170 Wells, tunnels, utilities and on-site septic systems.

(1) Where no other practical alternative exists to the excavation for and placement of wells, tunnels, utilities, or on-site septic systems in a riparian buffer, the administrator may require a habitat management and mitigation plan pursuant to Section 11.78.100, adequate to avoid degradation of the riparian habitat functions, structure and value, utilizing the criteria in Section 11.78.080(1)(C)(i) through (vii) in reaching a conclusion. Wells and on-site septic systems shall be in conformance with the Chelan-Douglas health district requirements. On-site septic systems located within one hundred feet of the ordinary high water mark require a health district waiver which will provide for additional health district and reclamation conditions for approval.

(2) Riparian vegetation disturbances within the riparian buffer shall be revegetated within one growing season with native vegetation. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.180 Pedestrian/bike/equestrian trails.

Equestrian/pedestrian/bike trails and associated facilities may be permitted in riparian buffers after review of a site plan by the administrator but should be set back fifty feet from the ordinary high water mark if possible and shall be a maximum of fourteen feet in width. The planning department may require a habitat management and mitigation plan, pursuant to Section 11.78.100, to address riparian habitat impacts in consultation with the Washington State Department of Fish and Wildlife, the Washington State Department of Ecology, the Army Corps of Engineers or other agencies as appropriate. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.190 Fencing.

The intent of this section is to identify the type of fencing that is necessary and appropriate to protect the deer migration in the county while providing for the operation and protection of livestock or other agriculturally related land uses. Fencing in mule deer migration corridors, identified by Section 11.78.060(2)(E), shall conform to the following types:

(1) Type A Fence. Where fencing is proposed for development in mule deer migration corridors, Type A fencing, or other fencing type approved by Washington State Department of Fish and Wildlife, shall be required. Type A fence shall consist of no more than four horizontal, well-stretched, evenly spaced wires, placed so that the top wire is no more than forty-two inches above the ground and the bottom wire is at least seventeen inches from the ground and all other wires at intervals evenly spaced no less than eight inches, sixteen inches and twenty-four inches below the top wire. If posts are set more than sixteen feet apart, the wires shall be supported by stays, placed not more than eight feet from each other or from the posts. All other fences as strong and as well calculated as the fence described above shall be allowed.

(2) Type B Fence. Type B fence may be permitted for swimming pools, dog kennels, garden fences, corrals, horse pastures, sheep pastures, agricultural crops, and similar uses. Type B fence shall consist of braid mesh fabric or any other combination of materials that may create a continuous solid enclosure. Fence material shall be securely fastened to substantial posts. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.200 Emergency exemption.

(1) Notwithstanding the provisions of this section or any other laws to the contrary, the administrator may issue an emergency exemption if:

(A) The administrator determines that an unacceptable threat to life or severe loss of property will occur if an emergency exemption is not granted; and

(B) The anticipated threat or loss may occur before an exemption can be issued or modified under the procedures otherwise required by this section and other applicable laws.

(2) Any emergency exemption granted shall incorporate, to the greatest extent practical and feasible but not inconsistent with the emergency situation, the standards and criteria required for nonemergency activities under this act and shall be limited in duration to the time required to complete the authorized emergency activity.

(3) Issuance of an emergency exemption by the administrator does not preclude the necessity to obtain necessary approvals from appropriate federal and state authorities.

(4) In extreme emergency, threat of life or property, the landowner may do work prior to an exemption being granted.

(5) The emergency exemption may be terminated at any time without process upon a determination by the administrator that the action was not or is no longer necessary to protect human health or the environment.

(6) Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the administrator to be the appropriate means to address the emergency situation, upon abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, shall be obtained. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.210 Noncompliance.

This chapter shall be in conformance with the provisions of Chapter 11.98 of the Chelan County comprehensive zoning resolution, as amended. In addition to the requirements stated above, the administrator may also require the following:

In addition to the requirements of Chapter 11.88 of this title as amended, the administrator may require the following:

(1) Bonding at one hundred fifty percent of the cost of uncompleted restoration/rehabilitation work or other uncompleted activities necessary to resolve a noncompliant project or issue where a contract to complete the work is in force. Bonding shall be in effect for a maximum of two years.

(2) The development of a restoration/rehabilitation plan by the noncompliant party or parties. Restoration/rehabilitation that involves vegetation shall require that an eighty percent survival rate for each category of planting be achieved for a period of two years, utilizing native vegetation. The administrator shall have the authority to approve or deny the plan. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.220 Reasonable use.

Nothing in this chapter is intended to preclude reasonable use of property, or to effect a taking in violation of the U.S. Constitution, the State of Washington Constitution and substantive due process. Variances may be granted by the hearing examiner as set forth in Section 11.78.230 of this chapter. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.230 Variance provisions.

(1) This section shall be in conformance with Chapter 11.95 of this title. In addition to the requirements of Chapter 11.95 of the zoning resolution, the following conditions and requirements must be met in order to grant a variance from the provisions contained in this chapter.

(2) In addition to the requirements of Chapter 11.95 of this title as amended, a variance shall not be granted unless it can be shown that all of the following conditions exist:

(A) Significant impacts to the fish and wildlife habitat functions as stated in Section 11.06.020 would be mitigated by the applicant by addressing with conditions of approval where practical; and

(B) No other reasonable use with less impact is possible; and

(C) Impacts to fish and wildlife habitat cannot be lessened through location or design changes to the proposed use. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.240 Subdivision notation.

In the event the applicant is dividing property through the short subdivision, major subdivision, binding site plan, plat alteration or amendment process, a notation shall appear on the face of the final plat mylar referencing the requirements of this chapter, as amended. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.250 Incentives.

(1) The county encourages such mechanisms as the open space tax program, conservation easements and donations to land trusts, in order to provide taxation relief upon compliance with these regulations.

(2) Chelan County has adopted a public benefit rating system, which is a voluntary tax incentive program that allows landowners a reduced tax assessment of their land in return for a defined public benefit. There are federal income tax advantages that can be realized by an individual or estate, for gifts of real property for conservation purposes to local governments or nonprofit organizations such as land trusts. The specific rules on federal income tax deductions can be found in Section 170 of the Internal Revenue Code.

(3) Chelan County encourages citizens to work with the Chelan County natural resource department to develop and implement voluntary habitat restoration projects and practices on their property. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).

11.78.260 Education.

(1) A variety of educational materials are available through the Chelan County natural resource department for private landowners. Chelan County recognizes and supports community-based educational and service organizations to participate in programs which rehabilitate and/or maintain the quality of streams and other environmentally sensitive areas.

(2) Applicants have the opportunity of scheduling a preapplication conference through the Chelan County community development department to discuss pending development proposals with applicable reviewing agencies.

(3) Chelan County supports and encourages training and educational opportunities for staff to facilitate the implementation of this section. (Res. 2007-97 (part), 7/2/07: Res. 2000-129 (part), 10/17/00).