40.440.020    Standards and Nonregulatory Measures

A.    Approval Criteria.

    Approval shall be granted for all proposals demonstrating compliance with the following criteria. Approval shall be required prior to clearing or development.

1.    Intent. Designated habitats are to be protected through avoidance or reduction of the impacts of activities. This section provides standards for the review of proposed nonexempt activities within designated habitat areas.

2.    Basic Criteria. Applicants proposing activities subject to this chapter shall demonstrate that the activity:

a.    Substantially maintains the level of habitat functions and values as characterized and documented using best available science; and

b.    Minimizes habitat disruption or alteration beyond the extent required to undertake the proposal.

3.    Mitigation Measures.

a.    Mitigation measures may be established pursuant to the above basic criteria.

b.    Disrupted functions and values shall be mitigated on site as a first priority, and off site thereafter.

c.    An up-to-date science-based guide such as the “Clark County Guide to Best Management Practices for Permitted Development in Habitat Areas” should be used to guide on-site mitigation. Off-site mitigation should be guided by applicable watershed, fish recovery, sub-basin or other science-based plans. Any science used to guide mitigation actions, whether on site or off site, must meet the criteria and characteristics of best available science listed in WAC 365-195-905 (Criteria for determining which information is the “best available science”), or the state standards in effect at the time of application.

d.    Subject to individual circumstances, potential mitigation measures may include, but are not limited to, the following:

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

(2)    Exploring alternative on-site locations to avoid or reduce impacts of activities;

(3)    Preserving important vegetation and natural habitat features by establishing buffers or by limiting clearing or alteration;

(4)    Replacing invasive exotic plants with native species (refer to the Clark County Native Plant Communities Guide or other relevant publication for guidance);

(5)    Prohibiting introduction of invasive plant species in habitat areas;

(6)    Enhancing, restoring or replacing vegetation or other habitat features and functions. In riparian areas, this may include riparian zone averaging as specified in Section 40.440.020(C)(3);

(7)    Using native plants where appropriate when planting within habitat areas (refer to the Clark County Native Plant Communities Guide or other relevant publication for guidance);

(8)    Managing access to habitat areas, including exclusionary fencing for livestock if needed;

(9)    Stream crossings:

(a)    Using existing stream crossings whenever a review of suitability, capacity, access and location, habitat impacts of alternatives, maintenance, liability and economics indicate the existing crossing is feasible;

(b)    Constructing new stream crossings, when necessary, in conformance to the water crossing structure standards in WAC 220-110-070 (Hydraulic Code Rules), which are incorporated by reference;

(10)    Seasonally restricting construction activities;

(11)    Implementing best management practices and integrated management practices;

(12)    Monitoring or review of impacts and assurance of stabilization of the area;

(13)    Establishing performance measures or bonding;

(14)    Establishing conservation covenants and other mechanisms to ensure long-term preservation or maintenance of mitigation actions;

(15)    Utilizing low impact development techniques;

(16)    Promoting water quality by limiting the use of lawn and garden chemicals in habitat areas; and/or

(17)    Avoiding topsoil removal and minimizing topsoil compaction;

(18)    Providing off-site mitigation, subject to the following conditions:

(a)    When the combination of on-site and off-site mitigation fails to substantially maintain functions and values within the stream system, the application shall be denied;

(b)    All reasonable on-site mitigation alternatives have been exhausted;

(c)    Off-site mitigation is functionally equivalent to the impacts;

(d)    Off-site mitigation is appropriate in size and scale to the impacts that are not fully mitigated on the original site;

(e)    Proposed off-site mitigation is reviewed by the county on a case-by-case basis with input from WDFW;

(f)     Off-site mitigation may be in the form of:

(i)    The purchase of credits from a permitted habitat bank, or

(ii)    A voluntary contribution to the established Cumulative Effects Fund for the watershed within which the project is located, or

(iii)    A specific mitigation project:

[a]    Specific off-site mitigation projects for riparian habitat areas must be located within the same watershed as the original site,

[b]    Specific off-site mitigation projects for all other habitat areas must be in an unincorporated area as close as possible to the original site,

[c]    Public regional development activities that are reviewed and approved by federal and state agencies are exempt from these geographic restrictions;

(g)    Adequate enforcement authority must be delegated to the county, as approved by the Prosecuting Attorney;

4.    The responsible official shall approve, approve with conditions or deny proposals based on compliance with the criteria and the adequacy of proposed mitigation measures to ensure compliance, and applicable reasonable use assurances of Section 40.440.020(B).

5.    The responsible official shall retain final authority for such determinations, which shall be issued consistent with the review timelines of Chapter 40.510 (Type I, II, III and IV Processes), and shall be based on best scientific information and analysis available within those timelines.

6.    Modifications to conservation covenants established under Section 40.440.020(A)(3)(d)(14) shall be consistent with the standards of this chapter and will be processed subject to the following:

a.    Modification to a covenant approved by a Type I decision shall be subject to a Type I review process.

b.    Modification to a covenant approved by a Type II decision shall be subject to a Type I review process if the responsible official finds the requested change:

(1)    Does not increase the potential adverse impact to habitat; and

(2)    Does not involve an issue of broad public interest, based on the record of the decision; and

(3)    Does not require further SEPA review.

c.    Modification to a covenant approved by a Type II decision shall be subject to a Type II review process if it is not subject to Type I review.

d.    Modification to a covenant approved by a Type III decision shall be subject to a Type I review process if the responsible official finds the modification:

(1)    Provides an increased benefit to habitat; and

(2)    Does not involve an issue of broad public interest, based on the record of the decision; and

(3)    Does not require further SEPA review.

e.    Modification to a covenant approved by a Type III decision shall be subject to a Type II review process if the responsible official finds the requested change in the decision:

(1)    Does not increase the potential adverse impact to habitat allowed by the covenant or SEPA determination; and

(2)    Does not involve an issue of broad public interest, based on the record of the decision.

f.    Modification to a covenant approved by a Type III decision shall be subject to a Type III review process if it is not subject to Type I or II review.

g.    Modification requests submitted with other applications will be processed as specified in Section 40.500.010(D)(2).

7.    Removal of conservation covenants shall be approved by Clark County Council.

8.    The responsible official shall consult with and substantially follow the resulting recommendations of WDFW, unless alternative determinations are supported by scientific analysis.

(Amended: Ord. 2008-06-02; Ord. 2009-12-01; Ord. 2018-10-02; Ord. 2019-05-07)

B.    Reasonable Use Assurances.

    The county assures property owners of the following, as long as impacts are mitigated to the maximum extent practicable, permit conditions limiting locations and requiring mitigations may be imposed, and erosion control measures required:

1.    This chapter shall not be used to prohibit:

a.    Placement of a single-family residence and residential accessory structures on an otherwise legally buildable lot of record;

b.    Expansion of a home existing prior to 1997, not to exceed twenty-five percent (25%) of the 1997 footprint;

c.    Replacement of a single-wide mobile or manufactured home with another dwelling; or

d.    Fire hazard clearing recommended by the fire marshal, or consistent with written fire marshal or fire chief guidelines.

2.    This chapter shall not be used to deny all reasonable economic use of private property. These criteria must be met in order to verify denial of all reasonable economic use:

a.    The application of this chapter would deny all reasonable economic use of the property;

b.    No other reasonable economic use of the property has less impact on the habitat area;

c.    Any habitat alteration is the minimum necessary to allow for reasonable economic use of the property; and

d.    The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after May 30, 1997.

3.    This chapter shall not be used to deny or reduce the number of lots of a proposed rural land division allowed under applicable zoning density.

4.    This chapter shall not be used to deny a development proposal from a public agency or public utility, if:

a.    There is no practical alternative to the proposed project with less impact on the habitat area;

b.    The ability of the public agency or utility to provide services to the public would be unreasonably restricted; and

c.    The application is approved through a Type III process pursuant to Section 40.510.030, (Type III Processes). Fees are subject to the Type III Variance fee schedule in Section 6.110A.010 (Development Fees).

5.    The reasonable use assurances in this chapter do not apply to habitat conservation areas within shoreline jurisdiction. In such cases, reasonable use requests shall be subject to the shoreline variance process pursuant to Section 40.460.260.

(Amended: Ord. 2012-07-16; Ord. 2018-10-02)

C.    The following regulatory alternatives or incentives shall apply in implementing the standards of this chapter:

1.    Proposed land divisions involving critical areas may transfer density as follows:

a.    Rural area land divisions may utilize the cluster provisions of Section 40.210.020(D) (Rural Cluster Development).

b.    Urban area land divisions may utilize density transfer provisions of Section 40.220.010(C)(5) (Density Transfer).

2.    Existing abutting nonconforming lots under common ownership may be reconfigured under the standards of Section 40.210.010(D) (Nonconforming Lots – Lot Reconfiguration Standards).

3.    Required riparian zone widths on clearing proposals on existing lots may be varied through the use of internal riparian zone averaging. Subject to review under this chapter, for clearing proposals on existing lots, portions of the riparian zone can be reduced up to fifty percent (50%) from the normal standards of this chapter if riparian zone widths are correspondingly increased elsewhere within the applicant parcel, such that the overall size and function and values of the riparian zone are maintained in the parcel. Riparian zone averaging proposals must clearly identify the existing riparian functions and values on the parcel and any impacts that the proposed averaging may have upon them.

4.    In evaluating forest practice conversion applications under this chapter, the county may allow for modest levels of short-term degradation of habitat function if it is offset by long-term benefits provided by a conservation covenant or other permanent protective measure. Such allowances shall only be made following the recommendation of WDFW.

(Amended: Ord. 2018-10-02)

D.    Individual Stewardship Plans.

1.    To encourage educational and voluntary conservation measures, the county shall notify property owners potentially impacted by wildlife habitat area regulations, and shall assist any owners interested in developing individual stewardship plans which will establish parameters and guidelines for future on-site activities in designated habitat areas. In addition, property owners may consult with WDFW and other agencies or private groups or individuals to develop the scientific information for their stewardship plans.

2.    The county shall provide information on best management practices and other educational and explanatory materials to property owners. The county shall coordinate with WDFW and other agencies or private groups with expertise in wildlife or land management in the development and distribution of these materials.

3.    The county shall work cooperatively with interested property owners to establish and record a notice of stewardship plan. Stewardship plans should at a minimum include the following:

a.    Mapping of existing structures, roads, driveways and known utilities, and property lines;

b.    Mapping of existing designated habitat areas, water bodies, known wetlands, vegetation and wildlife types, and yards or cultivated areas;

c.    Identification of functions and values associated with the habitat areas, water bodies, wetlands and vegetation and wildlife;

d.    Mapping and written description of future activities on the site including time frame; and

e.    Mapping and description of the protective and mitigative measures for the identified functions and values to be undertaken as part of plan.

4.    Notice of stewardship plans shall be recorded and shall run with the land unless and until a request for revocation or modification has been submitted by the property owner and approved by the county. The county shall approve all such requests unless there are any uncompleted mitigation measures which were agreed to in the stewardship plan as necessary to compensate for clearing of habitat areas undertaken pursuant to the plan. Revocation may trigger the tax penalties associated with withdrawal from an open space taxation program, if applicable.

5.    Property owners with approved stewardship plans are exempt from regulation under this chapter for non-development proposals which are consistent with the stewardship plan and do not otherwise require county building, grading, or other review.

6.    Stewardship plans shall be approved under criteria in Section 40.440.020(A).

7.    Appeals may be filed under the provisions of Chapter 40.510 (Type I, II, III and IV Processes).

(Amended: Ord. 2018-10-02)

E.    Nonregulatory Implementation Measures.

    As part of the implementation of this chapter and related efforts towards wildlife conservation, the county will undertake the following additional nonregulatory measures:

1.    Education and Outreach Measures.

a.    Notify property owners within critical areas;

b.    Develop clear and understandable manuals explaining recommended best management practices for typical rural and urban land owner activities;

c.    Provide seminars and presentations for interested owners and groups;

d.    Coordinate efforts with existing conservation, stewardship or small resource user groups with expertise in wildlife or habitat area land management issues;

e.    Expand local wildlife inventory information through baseline survey of local habitats and species;

f.    Provide cooperative outreach to individual property owners in critical areas who wish to develop stewardship plans to establish parameters for future activities involving clearing on their property.

2.    Incentive Measures.

a.    Create and/or expand incentives through the current use taxation program;

b.    Develop and/or expand land acquisition programs;

c.    Develop nonmonetary incentives for project proponents to exceed mitigation requirements.

(Amended: Ord. 2018-10-02)

F.    Specific Activities.

    Special procedures and standards apply to certain specific activities as provided for in Section 40.440.040.

(Amended: Ord. 2018-10-02)

G.    Habitat Banking. (Reserved).

(Amended: Ord. 2005-04-15; Ord. 2005-05-20; Ord. 2006-06-09; Ord. 2006-07-09; Ord. 2006-08-03; Ord. 2018-10-02)