Chapter 23.40
ENVIRONMENTALLY CRITICAL AREAS GENERAL PROVISIONS

Sections:

Part I. Purpose and General Provisions

23.40.000    Purpose.

23.40.005    Definitions pertaining to critical areas.

23.40.010    Authority.

23.40.020    Relationship to other regulations.

23.40.030    Severability.

23.40.040    Jurisdiction – Critical areas.

23.40.050    Protection of critical areas.

23.40.055    City council reports.

Part II. Critical Areas Review Process

23.40.060    General requirements.

23.40.070    Critical areas preapplication consultation.

23.40.080    Notice of initial determination.

23.40.090    Critical areas report – Requirements.

23.40.100    Critical areas report – Modifications to requirements.

23.40.110    Mitigation requirements.

23.40.120    Mitigation sequencing.

23.40.130    Mitigation plan requirements.

23.40.140    Innovative mitigation.

23.40.150    Critical areas decision.

23.40.160    Review criteria.

23.40.170    Favorable critical areas decision.

23.40.180    Unfavorable critical areas decision.

23.40.190    Completion of the critical areas review.

23.40.195    Contingent review procedure for certain types of development.

23.40.200    Appeals.

23.40.210    Variances.

23.40.215    Critical area restoration projects.

Part III. Allowed Activities, Exemptions and Noncompliance Penalties

23.40.220    Allowed activities.

23.40.230    Exemptions.

23.40.240    Unauthorized critical area alterations and enforcement.

Part IV. General Critical Areas Protective Measures

23.40.250    Critical areas markers and signs.

23.40.270    Critical areas tracts and easements.

23.40.280    Building setbacks.

23.40.290    Bonds to ensure mitigation, maintenance, and monitoring.

23.40.300    Critical area inspections.

Part V. Incorporation of Best Available Science

23.40.310    Best available science.

Part I. Purpose and General Provisions

23.40.000 Purpose.

A. The purpose of this title is to designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

B. This title is to implement the goals, policies, guidelines, and requirements of the comprehensive plan and the Washington State Growth Management Act.

C. The city of Edmonds finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit Edmonds and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

D. Goals. By limiting development and alteration of critical areas, this title seeks to:

1. Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, or flooding;

2. Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species;

3. Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and

4. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and fish and wildlife habitat conservation areas.

E. The regulations of this title are intended to protect critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925 and RCW 36.70A.172, and in consultation with state and federal agencies and other qualified professionals.

F. This title is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this title to make a parcel of property unusable by denying its owner reasonable economic use of the property nor to prevent the provision of public facilities and services necessary to support existing development.

G. The city of Edmonds’ enactment or enforcement of this title shall not be construed to benefit any individual person or group of persons other than the general public. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.005 Definitions pertaining to critical areas.

For the purposes of this chapter and the chapters on the five specific critical area types (Chapters 23.50, 23.60, 23.70, 23.80 and 23.90 ECDC) the following definitions shall apply:

“Adjacent” means those activities located on site immediately adjoining a critical area; or distance equal to or less than 225 feet of a development proposal or subject parcel.

“Alteration” means any human-induced action which changes the existing condition of a critical area or its buffer. Alterations include, but are not limited to: grading; filling; dredging; draining; channelizing; cutting, pruning, limbing or topping, clearing, relocating or removing vegetation; applying herbicides or pesticides or any hazardous or toxic substance; discharging pollutants; paving, construction, application of gravel; modifying for surface water management purposes; or any other human activity that changes the existing landforms, vegetation, hydrology, wildlife or wildlife habitat value of critical areas.

Best Available Science. See ECDC 23.40.310.

“Best management practices” means a system of practices and management measures that:

1. Control soil loss and reduce water quality degradation caused by nutrients, animal waste, and toxics;

2. Control the movement of sediment and erosion caused by land alteration activities;

3. Minimize adverse impacts to surface and ground water quality, flow, and circulation patterns; and

4. Minimize adverse impacts to the chemical, physical, and biological characteristics of critical areas.

“Buffer” means the designated area immediately next to and a part of a steep slope or landslide hazard area and which protects slope stability, attenuation of surface water flows and landslide hazards reasonably necessary to minimize risks to persons or property; or a designated area immediately next to and part of a stream or wetland that is an integral part of the stream or wetland ecosystem.

“Chapter” means those sections of this title sharing the same third and fourth digits.

“City” means the city of Edmonds.

City Council or Council. See ECDC 21.15.030.

“Class” or “wetland class” means descriptive categories of wetland vegetation communities within the wetlands taxonomic classification system of the U.S. Fish and Wildlife Service (Cowardin, et al., 1979).

“Clearing” means the act of cutting and/or removing vegetation. This definition shall include grubbing vegetation and the use or application of herbicide.

“Compensation project” means an action(s) specifically designed to replace project-induced critical area or buffer losses. Compensation project design elements may include, but are not limited to: land acquisition procedures and detailed plans including functional value assessments, detailed landscaping designs, construction drawings, and monitoring and contingency plans.

“Compensatory mitigation” means replacing project-induced losses or impacts to a critical area, and includes, but is not limited to, the following:

1. “Creation” means actions performed to intentionally establish a wetland at a site where it did not formerly exist.

2. “Reestablishment” means actions performed to restore processes and functions to an area that was formerly a critical area, where the former critical area was lost by past alterations and activities.

3. “Rehabilitation” means improving or repairing processes and functions to an area that is an existing critical area that is highly degraded because one or more environmental processes supporting the critical area have been disrupted.

4. “Enhancement” means actions performed to improve the condition of existing degraded wetlands so that the functions they provide are of a higher quality.

5. “Preservation” means actions taken to ensure the permanent protection of existing high-quality wetlands.

“Creation” means a compensation project performed to intentionally establish a wetland or stream at a site where one did not formerly exist.

“Critical areas” for the city of Edmonds means wetlands, critical aquifer recharge areas, frequently flooded areas, geologically hazardous areas, and fish and wildlife habitat conservation areas as defined in Chapters 23.50, 23.60, 23.70, 23.80 and 23.90 ECDC, respectively.

“Development proposal” means any activity relating to the use and/or development of land requiring a permit or approval from the city, including, but not limited to: commercial or residential building permit; binding site plan; conditional use permit; franchise; right-of-way permit; grading and clearing permit; mixed use approval; planned residential development; shoreline conditional use permit; shoreline substantial development permit; shoreline variance; short subdivision; special use permit; subdivision; flood hazard permit; unclassified use permit; utility and other use permit; variance; rezone; or any required permit or approval not expressly exempted by this title.

“Director” means the city of Edmonds development services director or his/her designee.

“Division” means the planning division of the city of Edmonds development services department.

“Enhancement” means an action taken to improve the condition and function of a critical area. In the case of wetland or stream, the term includes a compensation project performed to improve the conditions of an existing degraded wetland or stream to increase its functional value.

“Erosion” means the process in which soil particles are mobilized and transported by natural agents such as wind, rain, frost action, or stream flow.

Erosion Hazard Areas. See ECDC 23.80.020(A).

Fish and Wildlife Habitat Conservation Areas. See Chapter 23.90 ECDC.

“Floodplain” means the total area subject to inundation by a “100-year flood.” “100-year flood” means a flood having a one percent chance of being equaled or exceeded in any given year.

“Footprint of existing development” or “footprint of development” means the area of a site that contains legally established: buildings; roads, driveways, parking lots, storage areas, walkways or other areas paved with concrete, asphalt or compacted gravel; outdoor swimming pools; patios.

Frequently Flooded Areas. See Chapter 23.70 ECDC.

“Functions” means the roles served by critical areas including, but not limited to: water quality protection and enhancement; fish and wildlife habitat; food chain support; flood storage, conveyance and attenuation; ground water recharge and discharge; erosion control; wave attenuation; aesthetic value protection; and recreation. These roles are not listed in order of priority.

Geologically Hazardous Areas. See Chapter 23.80 ECDC.

“Geologist” means a person licensed as a geologist, engineering geologist, or hydrologist in the state of Washington. For geologically hazardous areas, an applicant may choose a geologist or engineering geologist licensed in the state of Washington to assess the potential hazard.

“Geotechnical engineer” means a practicing geotechnical/civil engineer licensed as a professional civil engineer in the state of Washington who has at least five years of professional employment as a geotechnical engineer in responsible charge including experience with landslide evaluation.

“Grading” means any one or a combination of excavating, filling, or disturbance of that portion of the soil profile which contains decaying organic matter.

“Habitats of local importance” means areas that include a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alterations such as cliffs, talus, and wetlands. In urban areas like the city of Edmonds, habitats of local importance include biodiversity areas and corridors, which are characterized by a framework of ecological components which provides the physical conditions necessary for ecosystems and species populations to survive in a human-dominated landscape.

“In-lieu fee program” means a program which sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or nonprofit natural resource management entity.

Landslide Hazard Areas. See ECDC 23.80.020(B).

“Mitigation” means the use of any or all of the following actions, which are listed in descending 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 wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

4. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

5. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

6. Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

7. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

“Native vegetation” means vegetation comprised of plant species which are indigenous to the Puget Sound region and which reasonably could have been expected to naturally occur on the site. “Native vegetation” does not include noxious weeds as defined by the state of Washington or federal agencies.

“Normal maintenance of vegetation” means removal of shrubs/nonwoody vegetation and trees (less than four-inch diameter at breast height) that occurs at least every other year. Maintenance also may include tree topping that has been previously approved by the city in the past five years.

“Noxious weeds” means any plant that is highly destructive, competitive or difficult to control by cultural or chemical practices, limited to those plants on the state noxious weed list contained in Chapter 16-750 WAC.

“Planning staff” means those employed in the planning division of the city of Edmonds development services department.

“Qualified critical areas consultant” or “qualified professional” means a person who has the qualifications specified below to conduct critical areas studies pursuant to this title, and to make recommendations for critical areas mitigation. For geologically hazardous areas, the qualified critical areas consultant shall be a geologist or engineering geologist licensed in the state of Washington to assess the potential hazard. If development is to take place within a geologically hazardous area, the qualified critical areas consultant developing mitigation plans and design shall be a professional engineer licensed in the state of Washington and familiar with landslide and slope stability mitigation. For wetlands and streams, the qualified critical areas consultant shall be a specialist in botany, fisheries, wetland biology, and/or hydrology with a minimum of five years’ field experience with wetlands and/or streams in the Pacific Northwest. Requirements defining a qualified critical areas consultant or qualified professional are contained within the chapter on each critical area type.

“Reasonable economic use(s)” means the minimum use to which a property owner is entitled under applicable state and federal constitutional provisions in order to avoid a taking and/or violation of substantive due process.

“Redeveloped land(s)” means those lands on which existing structures are demolished in their entirety to allow for new development. The director shall maintain discretion to determine if the demolition of a majority of existing structures or portions thereof constitute the redevelopment of a property or subject parcel.

“Restoration” means the actions necessary to return a stream, wetland or other critical area to a state in which its stability, functions and values approach its unaltered state as closely as possible. For wetlands, restoration as compensatory mitigation may include reestablishment or rehabilitation.

Seismic Hazard Areas. See ECDC 23.80.020(C).

“Species of local importance” means those species that are of local concern due to their population status, their sensitivity to habitat manipulation, or that are game (hunted) species. (See ECDC 23.90.010(A)(4).)

“Storm Water Management Manual” means the storm water manual specified in Chapter 18.30 ECDC.

“Streams” means any area where surface waters produce a defined channel or bed which demonstrates clear evidence, such as the sorting of sediments, of the passage of water. The channel or bed need not contain water year-round. This definition is not meant to include irrigation ditches, canals, storm or surface water runoff devices (drainage ditches) or other entirely artificial watercourses unless they are used by salmonids or used to convey streams naturally occurring prior to construction of such watercourse. Streams are further classified into Categories S, F, Np and Ns and fishbearing or nonfishbearing 1, 2 and 3. (See ECDC 23.90.010(A)(1).)

“Title” means all chapters of the city of Edmonds Development Code beginning with the digits 23.

“Undeveloped land(s)” means land(s) on which manmade structures or land modifications (clearing, grading, etc.) do not exist. The director retains discretion to identify undeveloped land(s) in those instances where historical modifications and structures may have existed on a property or subject parcel in the past.

“Wetland functions” means those natural processes performed by wetlands, such as facilitating food chain production; providing habitat for nesting, rearing and resting sites for aquatic, terrestrial or avian species; maintaining the availability and quality of water; acting as recharge and/or discharge areas for ground water aquifers; and moderating surface water and storm water flows.

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

“Wetlands” means those areas that are inundated or saturated by ground or surface water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street or highway. However, wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands if permitted by the city (WAC 365-190-030(22)). Wetlands are further classified into Categories 1, 2, 3 and 4. (See ECDC 23.50.010(B).) [Ord. 4026 § 1 (Att. A), 2016; Ord. 3952 § 1, 2013; Ord. 3931 § 2, 2013; Ord. 3527 § 2, 2004. Formerly 23.40.320].

23.40.010 Authority.

A. As provided herein, the Edmonds development services director or his/her designee (hereafter referred to as “the director”) is given the authority to interpret and apply, and the responsibility to enforce, this title to accomplish the stated purpose.

B. The director may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this title. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.020 Relationship to other regulations.

A. These critical areas regulations shall apply as an overlay and in addition to zoning, site development, storm water management, building and other regulations adopted by the city of Edmonds.

B. Any individual critical area adjoined or overlain by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this title or any existing land use regulation conflicts with this title, that which provides more protection to the critical area shall apply.

C. These critical areas regulations shall be coordinated with review conducted under the State Environmental Policy Act (SEPA), as necessary and locally adopted.

D. Compliance with the provisions of this title does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, shoreline substantial development permits, Hydraulic Permit Act (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 permits, and National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this title. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.030 Severability.

If any clause, sentence, paragraph, section, or part of this title or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.040 Jurisdiction – Critical areas.

A. The director shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the best available science and the provisions herein.

B. Critical areas regulated by this title include:

1. Wetlands as designated in Chapter 23.50 ECDC, Wetlands;

2. Critical aquifer recharge areas as designated in Chapter 23.60 ECDC, Critical Aquifer Recharge Areas;

3. Frequently flooded areas as designated in Chapter 23.70 ECDC, Frequently Flooded Areas;

4. Geologically hazardous areas as designated in Chapter 23.80 ECDC, Geologically Hazardous Areas; and

5. Fish and wildlife habitat conservation areas as designated in Chapter 23.90 ECDC, Fish and Wildlife Habitat Conservation Areas.

C. All areas within the city of Edmonds meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this title.

D. Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this title and ensure protection of the functions and values of critical areas. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.050 Protection of critical areas.

Any action taken pursuant to this title shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with ECDC 23.40.120, Mitigation sequencing, to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts before the use of actions to mitigate potential impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.055 City council reports.

The director will provide a report to the city council during the first and third quarter each year, summarizing critical area decisions that have been made since the previous report. The report will include information such as the number and type of critical area decisions that have been made, including information on buffers and enhancements approved for each applicable decision, a description of each approved restoration project, and other information specifically requested by the council following the previous report. [Ord. 4026 § 1 (Att. A), 2016].

Part II. Critical Areas Review Process

23.40.060 General requirements.

A. As part of this review, the director shall:

1. Verify the information submitted by the applicant;

2. Evaluate the project area and vicinity for critical areas;

3. Determine whether the proposed project is likely to impact the functions or values of critical areas; and

4. Determine if the proposed project adequately assesses all impacts, avoids impacts, and/or mitigates impacts to the critical area associated with the project.

B. If the proposed project is within, adjacent to, or is likely to impact a critical area, the director shall:

1. Require a critical areas report from the applicant that has been prepared by a qualified professional;

2. Review and evaluate the critical areas report;

3. Determine whether the development proposal conforms to the purposes and performance standards of this title, including the criteria in ECDC 23.40.160, Review criteria;

4. Assess the potential impacts to the critical area and determine if they can be avoided or minimized; and

5. Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this title. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.070 Critical areas preapplication consultation.

Any person preparing to submit an application for development or use of land that may be regulated by the provisions of this title may request a preapplication meeting with the director prior to submitting an application for development or other approval. At this meeting, the director shall discuss the requirements of this title; provide critical areas maps, scientific information, and other source materials; outline the review process; and work with the activity proponent to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements. All applicants, regardless of participation in a preapplication meeting, are held fully responsible for knowledge and disclosure of critical areas on, adjacent to, or associated with a subject parcel and full compliance with the specific provisions and goals, purposes, objectives, and requirements of this title. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.080 Notice of initial determination.

A. If the director determines that no critical areas report is necessary, the director shall state this in the notice of application issued for the proposal.

B. If the director determines that there are critical areas on the site that the proposed project is unlikely to impact and the project meets the requirements for and has been granted a waiver from the requirement to complete a critical areas report, this shall be stated in the notice of application for the proposal. A waiver may be granted if the director determines that all of the following requirements will be met:

1. There will be no alteration of the critical area or buffer;

2. The development proposal will not affect the critical area in a manner contrary to the purpose, intent, and requirements of this title.

C. If the director determines that critical areas may be affected by the proposal and a critical areas report is required, public notice of the application shall include a description of the critical area that might be affected and state that a critical areas report(s) is required.

D. Critical areas determinations shall be considered valid for five years from the date in which the determination was made; after such date the city shall require a new determination, or at minimum documentation of a new assessment verifying the accuracy of the previous determination. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.090 Critical areas report – Requirements.

A. Preparation by Qualified Professional. The applicant shall submit a critical areas report prepared by a qualified professional as defined herein. For wetlands, frequently flooded areas and fish and wildlife habitat conservation areas, an applicant may choose one of the qualified technical consultants on the city’s approved list to prepare critical areas reports per the requirements of this title or may apply to utilize an alternative consultant. Critical areas studies and reports developed by an alternative consultant may be subject to independent review pursuant to subsection (B) of this section. All costs associated with the critical areas study shall be borne by the applicant.

B. Independent Review of Critical Areas Reports. Critical areas studies and reports on geologically hazardous areas and those developed by an applicant representative or consultant not as part of a three-party contract may, at the discretion of the director, be subject to independent review. This independent review shall be performed by a qualified technical consultant selected by the city with all costs borne by the applicant. The purpose of such independent review is to provide the city with objective technical assistance in evaluating the accuracy of submitted reports and/or the effects on critical areas which may be caused by a development proposal and to facilitate the decision-making process. The director may also have technical assistance provided by appropriate resource agency staff if such assistance is available in a timely manner.

C. Best Available Science. The critical areas report shall use scientifically valid methods and studies in the analysis of critical areas data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this title.

D. Minimum Report Contents. At a minimum, the report shall contain the following:

1. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

2. A copy of the site plan for the development proposal including:

a. A map to scale depicting critical areas, buffers, the development proposal, and any areas to be cleared; and

b. A description of the proposed storm water management plan for the development and consideration of impacts to drainage alterations;

c. The site plan shall identify the location of all native and nonnative vegetation of six inches dbh or larger;

3. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

4. Identification and characterization of all critical areas, wetlands, water bodies, shorelines, and buffers adjacent to the proposed project area;

5. A description of reasonable efforts made to apply mitigation sequencing pursuant to ECDC 23.40.120, Mitigation sequencing, to avoid, minimize, and mitigate impacts to critical areas;

6. Report requirements specific to each critical area type as indicated in the corresponding chapters of this title;

7. A statement specifying the accuracy of the report and all assumptions made and relied upon;

8. A description of the methodologies used to conduct the critical areas study, including references; and

9. Plans for adequate mitigation, as needed to offset any critical areas impacts, in accordance with the mitigation plan requirements in ECDC 23.40.130.

E. Unless otherwise provided, a critical areas report may incorporate, be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the director. At the discretion of the director, reports previously compiled or submitted as part of a proposal for development may be used as a critical areas report to the extent that the requirements of this section and the report requirements for each specific critical area type are met.

F. Critical areas reports shall be considered valid for five years; after such date the city shall determine whether a revision or additional assessment is necessary. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.100 Critical areas report – Modifications to requirements.

A. Limitations to Study Area. The director may limit the required geographic area of the critical areas report as appropriate if:

1. The applicant, with assistance from the city of Edmonds, cannot obtain permission to access properties adjacent to the project area; or

2. The proposed activity will affect only a limited part of the subject site.

B. Modifications to Required Contents. The applicant may consult with the director prior to or during preparation of the critical areas report to obtain approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

C. Additional Information Requirements. The director may require additional information to be included in the critical areas report when determined to be necessary to the review of the proposed activity in accordance with this title. Additional information that may be required includes, but is not limited to:

1. Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

2. Grading and drainage plans; and

3. Information specific to the type, location, and nature of the critical area. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.110 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of critical areas. Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated using the best available science in accordance with an approved critical areas report and SEPA documents, so as to result in no net loss of critical area functions and values.

B. Mitigation shall be sufficient to maintain or compensate for the functions and values of the impacted critical area and to prevent risk from a hazard posed by a critical area.

C. Mitigation shall not be implemented until after the director has provided approval of a critical areas report that includes a mitigation plan. Mitigation shall be implemented in accordance with the provisions of the approved critical areas report. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.120 Mitigation sequencing.

A. Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas.

B. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential 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 wetlands, frequently flooded areas, and fish and wildlife habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

4. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineering or other methods;

5. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

6. Compensating for the impact to wetlands, frequently flooded areas, and fish and wildlife habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and/or

7. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

C. Mitigation for individual actions may include a combination of the above measures. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.130 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the director a mitigation plan as part of the critical areas report. The mitigation plan shall include:

A. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

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

2. A review of the best available science supporting the proposed mitigation;

3. An analysis of the likelihood of success of the compensation project; and

4. Specific mitigation plan and report requirements for each critical area type as indicated in this title.

B. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this title have been met.

C. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

1. The proposed construction sequence, timing, and duration;

2. Areas of proposed impacts on critical areas or buffers;

3. Grading and excavation details;

4. Erosion and sediment control features;

5. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

6. Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

D. Monitoring Program. The mitigation plan shall include a program for monitoring construction and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, and five after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years without approval from the director.

E. Contingency Plan. The mitigation plan shall include identification of potential courses of action and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

F. Financial Guarantees. The mitigation plan shall include financial guarantees, as necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with ECDC 23.40.290, Bonds to ensure mitigation, maintenance, and monitoring. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.140 Innovative mitigation.

A. The city of Edmonds may encourage, facilitate, and approve innovative mitigation projects that are based on the best available science. Advance mitigation, in-lieu fee programs, or mitigation banking are examples of alternative mitigation approaches allowed under the provisions of this section if it is demonstrated that all of the following circumstances exist:

1. There are no reasonable opportunities on site or within the same subdrainage basin, or opportunities on site or within the subdrainage basin do not have a high likelihood of success based on a determination of the capacity of the site to compensate for the impacts. Considerations should include: anticipated replacement ratios for wetland mitigation, buffer conditions and proposed widths, available water to maintain anticipated hydrogeomorphic classes of wetlands when restored, proposed flood storage capacity, and potential to mitigate fish and wildlife impacts (such as connectivity);

2. The off-site mitigation has a greater likelihood of providing equal or improved critical areas functions than the altered critical area, and there is a clear potential for success of the proposed mitigation at the identified mitigation site;

3. Off-site locations shall be in the same basin and within the city unless:

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

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

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

B. Development proposals impacting critical areas and/or associated buffers may contribute payment towards an identified city of Edmonds mitigation project with approval from the director; provided, that the mitigation approach meets all state and federal permit requirements, where required. Such mitigation actions shall be consistent with subsections (A)(1) and (A)(2) of this section, and with all other applicable provisions of Chapters 23.50 and 23.90 ECDC.

C. Conducting mitigation as part of a cooperative process provides for retention or an increase in the beneficial functions and values of critical areas within the Edmonds jurisdiction. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.150 Critical areas decision.

The city of Edmonds development services director shall make a decision as to whether the proposed activity and mitigation, if any, is consistent with the provisions of this title. The decision shall be based on the criteria of ECDC 23.40.160, Review criteria, and shall affect and be incorporated within the larger project decision. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.160 Review criteria.

A. Any alteration to a critical area, unless otherwise provided for in this title, shall be reviewed and approved, approved with conditions, or denied based on the proposal’s ability to comply with all of the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with ECDC 23.40.120, Mitigation sequencing;

2. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

3. The proposal is consistent with the general purposes of this title and the public interest;

4. Any alterations permitted to the critical area are mitigated in accordance with ECDC 23.40.110, Mitigation requirements;

5. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and

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

B. The director may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this title. Except as provided for by this title, any project that cannot adequately mitigate its impacts to critical areas in the sequencing order of preferences in ECDC 23.40.120 shall be denied. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.170 Favorable critical areas decision.

If the director determines that the proposed activity meets or is exempt from the criteria in ECDC 23.40.160, Review criteria, and complies with the applicable provisions of this title, the development services director shall prepare a written notice of decision for the applicant and identify any required conditions of approval as part of the larger project decision. The notice of decision and conditions of approval shall be included in the project file and be considered in the next phase of the city’s review of the proposed activity in accordance with any other applicable codes or regulations.

Any conditions of approval included in a notice of decision shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous decision pending re-review of the proposal and conditions of approval previously set by the director.

A favorable decision should not be construed as endorsement or approval of any underlying permit or approval. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.180 Unfavorable critical areas decision.

If the director determines that a proposed activity is not exempt or does not adequately mitigate its impacts on critical areas and/or does not comply with the criteria in ECDC 23.40.160, Review criteria, and the provisions of this title, the director shall prepare a written decision for the applicant that includes findings of noncompliance.

No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the provisions of this title.

Following notice of decision that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this title, the applicant may request consideration of a revised critical area report. If the revision is found to be substantial and relevant to the critical area review, the director may reopen the critical area review and make a new decision based on the revised report. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.190 Completion of the critical areas review.

The director’s decision regarding critical areas pursuant to this title shall be final concurrent with the final project decision to approve, condition, or deny the development proposal or other activity involved. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.195 Contingent review procedure for certain types of development.

A. Scope. The procedures set forth in this section shall apply to the following types of critical area restoration projects as allowed by ECDC 23.40.215:

1. Restoration projects involving anadromous fish streams;

2. Restoration projects involving Category I or Category II wetlands;

3. Restoration projects involving Category I or Category II estuarine wetlands.

B. Notice of Application. Development activity within the scope of subsection (A) of this section shall be processed as a Type II application, unless the process is altered according to subsection (D) of this section. In addition to the notice provided pursuant to ECDC Title 20, notice of application for all such development shall also be sent to the city council by email.

C. Contingent Review Process. Development activity within the scope of subsection (A) of this section shall be escalated to a Type III-A process when:

1. The city receives a request from any person for a public hearing within 14 days of the date of the notice of application; and

2. The public hearing request is accompanied by a hearing fee in the amount of 50 percent of the difference between the Type II and Type III-A application fee.

D. Effect of Contingent Review. When the contingent review process is triggered pursuant to subsection (C) of this section, the project applicant shall pay the other 50 percent of the difference between the Type II and Type III-A application fee, on top of the previously paid Type II application fee. The applicant shall pay this fee within 30 days of notice from the city that the fee is due. If the applicant fails to pay the additional fee within the required 30-day period, the application for the project shall be deemed withdrawn. The city shall not schedule the public hearing until the additional fee has been paid. For these public hearings, the cost of the hearing examiner shall be borne by the city.

E. Notice of Decision. Whether development activity within the scope of subsection (A) of this section is processed as a Type II application or escalated to a Type III-A application, notice of decision shall be sent by email to the city council in addition to any other notice that may be required by ECDC Title 20. [Ord. 4026 § 1 (Att. A), 2016].

23.40.200 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this title may be appealed according to, and as part of, the appeal procedure, if any, for the permit or approval involved. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3736 § 71, 2009; Ord. 3527 § 2, 2004].

23.40.210 Variances.

A. Variances from the standards of this title may be authorized through the process of hearing examiner review in accordance with the procedures set forth in Chapter 20.85 ECDC only if an applicant demonstrates that one or more of the following two conditions exist:

1. The application of this title would prohibit a development proposal by a public agency or public utility. A public agency and utility exception may be granted as a variance if:

a. There is no other practical alternative to the proposed development with less impact on the critical areas;

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

c. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

d. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

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

2. The application of this title would deny all reasonable economic use (see the definition of “reasonable economic use(s)” in ECDC 23.40.005) of the subject property. A reasonable use exception may be authorized as a variance only if an applicant demonstrates that:

a. The application of this title would deny all reasonable economic use of a property or subject parcel;

b. No other reasonable economic use of the property consistent with the underlying zoning and the city comprehensive plan has less impact on the critical area;

c. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;

d. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this title or its predecessor;

e. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

f. The proposal minimizes net loss of critical area functions and values consistent with the best available science; and

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

B. Specific Variance Criteria. A variance may be granted if the applicant demonstrates that the requested action conforms to all of the following specific criteria:

1. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;

2. The special conditions and circumstances do not result from the actions of the applicant;

3. A literal interpretation of the provisions of this title would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this title, and the variance requested is the minimum necessary to provide the applicant with such rights;

4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings under similar circumstances;

5. The granting of the variance is consistent with the general purpose and intent of this title, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property; and

6. The decision to grant the variance is based upon the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat.

C. Hearing Examiner Review. The city hearing examiner shall, as a Type III-A decision (see Chapter 20.01 ECDC), review variance applications and conduct a public hearing. The hearing examiner shall approve, approve with conditions, or deny variance applications based on a proposal’s ability to comply with general and specific variance criteria provided in subsections (A) and (B) of this section.

D. Conditions May Be Required. The director retains the right to prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this title for variances granted through hearing examiner review.

E. Time Limit. The director shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance, unless the applicant files an application for an extension of time before the expiration. An application for an extension of time shall be reviewed by the director as a Type II decision (see Chapter 20.01 ECDC).

F. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of a variance application and upon which any decision has to be made on the application. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3783 § 15, 2010; Ord. 3775 § 15, 2010; Ord. 3736 §§ 72, 73, 2009; Ord. 3527 § 2, 2004].

23.40.215 Critical area restoration projects.

A. When a critical area restoration project is proposed that is not required as mitigation for a development proposal, the director or hearing examiner (as applicable) may grant relief from standard critical area buffer requirements if the restoration project involves:

1. The daylighting of a stream or tidal channel; or

2. Expansion of a wetland that would cause a landward expansion of the wetland buffer.

B. The restoration project proposal will include a proposed buffer width for the project that is developed from an assessment by a qualified critical area consultant on the buffer width necessary to ensure that the restoration project is successful and the ecological functions of the areas adjacent to the stream or wetland will be enhanced.

C. The director or hearing examiner (as applicable) will consider the proposed buffer width along with hydrologic, geologic, and other habitat data for the site to determine if the project warrants a buffer width that deviates from the standard critical area buffer widths.

D. If the director or hearing examiner (as applicable) determines that a reduced buffer width is appropriate for the proposed restoration project, the director may approve the reduced buffer width for the proposed restoration site. [Ord. 4026 § 1 (Att. A), 2016].

Part III. Allowed Activities, Exemptions and Noncompliance Penalties

23.40.220 Allowed activities.

A. Critical Area Report. Activities allowed under this title shall have been reviewed and permitted or approved by the city of Edmonds or other agency with jurisdiction, but do not require submittal of a critical area report, unless such submittal was required previously for the underlying permit. The director may apply conditions to the underlying permit or approval to ensure that the allowed activity is consistent with the provisions of this title to protect critical areas.

B. Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city may observe or require independent inspection of the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Allowed Activities. The following activities are allowed:

1. Permit Requests Subsequent to Previous Critical Areas Review. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits) and construction approvals (such as building permits) if all of the following conditions have been met:

a. The provisions of this title have been previously addressed as part of another approval;

b. There have been no material changes in the potential impact to the critical area or buffer since the prior review;

c. The permit or approval has not expired or, if no expiration date, no more than five years have elapsed since the issuance of that permit or approval;

d. There is no new information available that is applicable to any critical area review of the site or particular critical area; and

e. Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

2. Modification to Structures Existing Outside of Critical Areas and/or Buffers. Structural modification of, addition to, or replacement of a legally constructed structure existing outside of a critical area or its buffer that does not further alter or increase the impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement;

3. Modifications to Existing Structures within Critical Areas and/or Buffers. Modification to a legally constructed structure existing within a critical area or buffer shall be allowed when the modification:

a. Does not increase the footprint of the structure; and

b. Does not increase the impact to the critical area or buffer; and

c. Does not increase risk to life or property as a result of the proposed modification or replacement.

Additions to legally constructed structures existing within a critical area or buffer that do increase the existing footprint of development shall be subject to and permitted in accordance with the development standards of the associated critical area type (see ECDC 23.50.040 and 23.90.040). This provision shall be interpreted to supplement the provisions of the Edmonds Community Development Code relating to nonconforming structures in order to permit the full reconstruction of a legal nonconforming building within its footprint;

4. Development Proposals within Interrupted Stream or Wetland Buffers. Adjacent areas that may be physically separated from a stream or wetland due to existing, legally established structures or paved areas may be exempted from the prescribed buffer widths if proven scientifically to be functionally isolated from the stream or wetland. The director will require the applicant to provide a site assessment and functional analysis documentation report by a qualified critical area consultant that demonstrates the interrupted buffer area is functionally isolated. The director shall consider the hydrologic, geologic, and/or biological habitat connection potential and the extent and permanence of the physical separation;

5. Activities within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, when such facilities are located within the improved portion of the public right-of-way or a city-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased storm water;

6. Minor Utility Projects. Utility projects that have minor or short-duration impacts to critical areas, as determined by the director in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water. Such allowed minor utility projects shall meet the following criteria:

a. There is no practical alternative to the proposed activity with less impact on critical areas;

b. The activity involves the placement of utility pole(s), street sign(s), anchor(s), or vault(s) or other small component(s) of a utility facility; and

c. The activity involves disturbance of an area less than 75 square feet;

7. Public and Private Pedestrian Trails. New public and private pedestrian trails subject to the following:

a. The trail surface shall be limited to pervious surfaces and meet all other requirements, including water quality standards set forth in the current editions of the International Residential Code and International Building Code, as adopted in ECDC Title 19;

b. Critical area and/or buffer widths shall be increased, where possible, equal to the width of the trail corridor, including disturbed areas;

c. Trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report; and

d. Trails located only in the outer 25 percent of critical areas buffers, and located to avoid removal of significant trees. Where existing legally established development has reduced the width of the critical areas buffer, trails may be placed in the outer 25 percent of the remaining critical area buffer. The trail shall be no more than five feet in width and for pedestrian use only. Raised boardwalks utilizing nontreated pilings may be acceptable.

Allowances for trails within the inner 75 percent of critical areas buffers are provided within applicable sections of Chapters 23.50 through 23.90 ECDC;

8. Select Vegetation Removal Activities. The following vegetation removal activities:

a. The removal of the following vegetation with hand labor and hand tools for the purpose of habitat restoration when the area of work is under 1,500 square feet in area per year:

i. Invasive and noxious weeds;

ii. English ivy (Hedera helix);

iii. Himalayan blackberry (Rubus discolor, R. procerus);

iv. Evergreen blackberry (Rubus laciniatus);

v. Scot’s broom (Cytisus scoparius); and

vi. Hedge and field bindweed (Convolvulus sepium and C. arvensis);

Removal of these invasive and noxious plant species shall be restricted to hand removal unless permits or approval from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments or other removal techniques. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species.

For activities intended to protect or restore habitat in wetlands or fish and wildlife habitat conservation areas, vegetation removal under this section may exceed the 1,500 square foot limitation if:

i. The activity is proposed and managed by a nonprofit or other organization, approved by the city, that has demonstrated expertise and experience in the restoration or invasive removal activity; and

ii. The project sponsor provides a specific proposal identifying the scope and location of the project, provides for project supervision, and includes a monitoring and inspection schedule acceptable to the city and approved by the appropriate city department;

b. The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

i. The applicant submits a report from an ISA- or ASCA-certified arborist or registered landscape architect that documents the hazard and provides a replanting schedule for the replacement trees;

ii. Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

iii. All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease or pest transmittal to other healthy vegetation or unless removal is warranted to improve slope stability;

iv. The land owner shall replace any trees that are removed with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year in accordance with an approved restoration plan. Replacement trees may be planted at a different, nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum of one to two inches in diameter at breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball;

v. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods of removal that will minimize impacts; and

vi. Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the land owner prior to receiving written approval from the city; provided, that within 14 days following such action, the land owner shall submit a restoration plan that demonstrates compliance with the provisions of this title;

c. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed vegetation shall be replaced in kind or with similar native species within one year in accordance with an approved restoration plan;

d. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the city; provided, that their use shall be restricted in accordance with State Department of Fish and Wildlife Management Recommendations and the regulations of the State Department of Agriculture, the U.S. Environmental Protection Agency, and Department of Ecology; and

e. Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a fish and wildlife habitat conservation area or wetland shall be prohibited;

9. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored; and

10. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. [Ord. 4106 § 1, 2018; Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.230 Exemptions.

A. Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the director that describes the activity and states the exemption listed in this section that applies.

The director shall review the exemption request to verify that it complies with this title and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the city of Edmonds. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this title.

B. Exempt Activities and Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this title does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this title; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

1. Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this title.

Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the director within one working day following commencement of the emergency activity. Within 30 days, the director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the director determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of ECDC 23.40.240, Unauthorized critical area alterations and enforcement, shall apply.

After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical areas report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical area report, and mitigation plan shall be reviewed by the director in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency and completed in a timely manner;

2. Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance also includes normal maintenance of vegetation performed in accordance with best management practices; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species; and

3. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching.

Trails must be constructed pursuant to ECDC 23.40.220(C)(7), Public and Private Pedestrian Trails. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.240 Unauthorized critical area alterations and enforcement.

A. When a critical area or its buffer has been altered in violation of this title or the provisions of Chapter 7.200 ECC, all ongoing development work shall stop and the critical area shall be restored. The director shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of the provisions of this title. The director may also require an applicant or property owner to take immediate action to ensure site stabilization and/or erosion control as needed.

B. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by the director. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection (C) of this section. The director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum Performance Standards for Restoration.

1. For alterations to frequently flooded areas, wetlands, and fish and wildlife habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The historic structural and functional values shall be restored, including water quality and habitat functions;

b. The historic soil types and configuration shall be replicated;

c. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

d. Information demonstrating compliance with the requirements in ECDC 23.40.130, Mitigation plan requirements, shall be submitted to the city planning division.

2. For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

D. Site Investigations. The director is authorized to make site inspections and take such actions as are necessary to enforce this title. The director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this title shall be guilty of a misdemeanor and subject to penalties not to exceed a square footage cost of $3.00 per square foot of impacted critical area and critical area buffer and/or a per tree penalty consistent with ECDC 18.45.070(B) and (C). Any development carried out contrary to the provisions of this title shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city of Edmonds may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this title. The civil penalty shall be assessed as prescribed in ECDC 18.45.070 and 18.45.075. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3828 § 2, 2010; Ord. 3527 § 2, 2004].

Part IV. General Critical Areas Protective Measures

23.40.250 Critical areas markers and signs.

A. The boundary at the outer edge of a critical area, critical area buffer or critical area tract may, at the discretion of the director, be required to be delineated with wood fencing.

B. The boundary at the outer edge of the critical area or buffer may be identified with temporary signs prior to any site alteration. Such temporary signs may be replaced with permanent signs prior to occupancy or use of the site.

C. These provisions may be modified by the director as necessary to ensure protection of sensitive features or wildlife needs. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.270 Critical areas tracts and easements.

A. At the discretion of the director, critical areas tracts and/or easements may be required in development proposals for developments that include critical areas. These critical areas tracts and/or easements shall delineate and protect those contiguous critical areas and buffers greater than 5,000 square feet including:

1. Landslide hazard areas and buffers;

2. Wetlands and buffers;

3. Fish and wildlife habitat conservation areas; and

4. Other lands to be protected from alterations as conditioned by project approval.

B. Notice on Title. The owner of any property with field-verified presence of critical areas and/or critical areas buffers, except critical aquifer recharge areas, for which a permit application is submitted shall, as a condition of permit issuance, record a notice of the existence of such critical area and/or critical area buffer against the property with the Snohomish County auditor’s office. The notice shall be approved by the director and the city attorney for compliance with this provision. The titleholder will have the right to challenge this notice and to have it released if the critical area designation no longer applies; however, the titleholder shall be responsible for completing a critical areas report, subject to approval by the director, before the notice on title can be released.

C. Critical areas tracts or easements shall be designated on the face of the plat or recorded drawing in a format approved by the director. The designation shall include the following restrictions:

1. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

2. The right of the director to enforce the terms of the restriction.

D. The director may require that critical areas tracts be dedicated to the city, to be held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity (such as a land trust), which ensures the ownership, maintenance, and protection of the tract and contains a process to assess costs associated therewith.

E. The use of herbicides within critical areas tracts or easements is prohibited except use of aquatic approved herbicides where recommended by the Noxious Weed Control Board and where otherwise consistent with the provisions of this title. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.280 Building setbacks.

Except for geologically hazardous areas where setbacks are determined by a geotechnical report, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. In addition to other allowances provided by this title, the following may be allowed in the building setback area:

A. Landscaping;

B. Uncovered decks;

C. Building overhangs, if such overhangs do not extend more than 30 inches into the setback area; and

D. Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations as adopted in the current editions of the International Residential Code and International Building Code, as adopted in ECDC Title 19. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.290 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to final permit approval, such as final plat approval or final building inspection, the applicant shall be required to post a performance bond or other security in a form and amount deemed acceptable by the director. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

B. The bond shall be in the amount of 120 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater. The amount of the performance bond shall include a reasonable allocation for inflation based on the length of anticipated delay and the provisions of subsection (D) of this section.

C. The bond shall be in the form of a surety bond, performance bond, and/or maintenance bond from an acceptable financial institution, with terms and conditions acceptable to the city of Edmonds’ attorney.

D. Bonds or other security authorized by this section shall remain in effect until the director determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary to achieve these goals.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or require other action authorized under this title or any other law.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

23.40.300 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and/or federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. Failure to provide access shall constitute grounds for issuance of a stop work order. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].

Part V. Incorporation of Best Available Science

23.40.310 Best available science.

A. Protect Functions and Values of Critical Areas with Special Consideration to Anadromous Fish. Critical areas reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat, where applicable.

B. Best Available Science to Be Consistent with Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or a team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925 and RCW 36.70A.172.

C. Characteristics of a Valid Scientific Process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government’s regulatory decisions, and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the director shall determine whether the source of the information displays the characteristics of a valid scientific process. Such characteristics are as follows:

1. Peer Review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The proponents of the information have addressed the criticism of the peer reviewers. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed;

2. Methods. The methods used to obtain the information are clearly stated and reproducible. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to ensure their reliability and validity;

3. Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained;

4. Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods;

5. Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge; and

6. References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

D. Nonscientific Information. Nonscientific information, such as anecdotal observations, nonexpert opinion, and hearsay, may supplement scientific information, but it is not an adequate substitute for valid and available scientific information.

E. Absence of Valid Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the director shall:

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

2. Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:

a. Address funding for the research component of the adaptive management program;

b. Change course based on the results and interpretation of new information that resolves uncertainties; and

c. Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. [Ord. 4026 § 1 (Att. A), 2016; Ord. 3527 § 2, 2004].