Division VI. Critical Areas

Chapter 15.600


15.600.010    Purpose.

15.600.020    Authority.

15.600.030    Relationship to other regulations.

15.600.040    Administrative procedures.

15.600.050    Fees.

15.600.060    Severability.

15.600.070    Interpretation.

15.600.080    Jurisdiction – Critical areas.

15.600.090    Protection of critical areas.

15.600.100    Best available science.

15.600.010 Purpose.

A.    The purpose of this chapter 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 chapter is to implement the goals, policies, guidelines, and requirements of the Ellensburg comprehensive plan and the Growth Management Act.

C.    The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city 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 floodwaters, ground water recharge and discharge, erosion control, 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 chapter 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 habitat conservation areas.

E.    The regulations of this chapter 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 in consultation with state and federal agencies and other qualified professionals.

F.    This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards.

G.    The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.020 Authority.

A.    As provided herein, the director is given the authority to interpret and apply, and the responsibility to enforce, this chapter to accomplish the stated purpose.

B.    The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.030 Relationship to other regulations.

A.    These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.

B.    Any individual critical area adjoined 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 chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

C.    Where applicable, these critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.

D.    Compliance with the provisions of this chapter 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, National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. [Ord. 4803 § 4, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.040 Administrative procedures.

The following procedures are intended to provide efficient and accurate review of all permits which include actions or development in the city, or requests made under the provisions of this chapter. The review is intended to determine if the proposed permit application or action is located within or potentially affects a critical area and, if so, the necessary level and scope of the critical area review.

A.    Combined Permit Application. When there is a specific underlying permit application required for the proposed activity, the decision procedures required under this chapter, except for exemption decisions made pursuant to ECC 15.610.020, shall be combined with the decision procedures for that underlying permit. When there is a specific underlying permit application required for the proposed activity the applicant shall:

1.    Submit an application meeting the complete application requirements for the underlying permit;

2.    Submit all information required for critical areas review under this chapter;

3.    Submit a complete SEPA checklist and appropriate SEPA checklist fee if SEPA is required for the underlying permit.

The decision procedure for the combined permits shall be subject to the 120-day time procedures outlined in ECC 15.220.070; however, any required SEPA threshold determination shall be issued and any required SEPA public comment period shall be completed prior to a public hearing on the combined permits.

Except as identified below, the combined permit decision procedures, including any public notice and public hearing requirements, shall follow the permit decision procedures which apply to the underlying permit. In the event that there are multiple underlying permits with conflicting permit decision procedures, the combined permit decision procedures shall follow the underlying permit application and notice procedures which require the most extensive decision process.

In the event that there is no underlying permit application or approval required for the proposed activity, the procedures for critical area application review shall be as set forth in subsections (B), (C), (D), (E) and (F) of this section.

B.    Exemption Decision (a Type I Review Process). The review process for an exemption request made pursuant to ECC 15.610.020 is a Type I review process as set forth in Chapters 15.210 and 15.220 ECC.

C.    Exception Decision (a Type II Permit Review Process). Exception requests made pursuant to ECC 15.610.040 and 15.610.050 are a Type II permit review process as set forth in Chapters 15.210 and 15.220 ECC.

D.    Initial Determination Decision (a Type I Permit Review Process). Initial determinations made pursuant to ECC 15.610.060 are a Type I permit review process as set forth in Chapters 15.210 and 15.220 ECC.

E.    Final Determination Decision (a Type I Permit Review Process). Final determinations made pursuant to ECC 15.610.150, 15.610.160 and 15.610.170 are a Type I permit review process as set forth in Chapters 15.210 and 15.220 ECC.

F.    Variances (a Type III Permit Review Process). Variance requests made pursuant to ECC 15.610.210 shall be reviewed and are Type III permit review processes as set forth in Chapters 15.210 and 15.220 ECC and ECC 15.250.050. [Ord. 4803 § 4, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.050 Fees.

A.    The city council shall establish fees for filing of a critical area information form, critical area review processing, and other services provided by the city as required by this chapter. These fees shall be based on the anticipated sum of direct costs incurred by the city for any individual development or action and may be established as a sliding scale that will recover all of the city costs including the enforcement of these code provisions. The bases for these fees shall include, but not be limited to, the cost of engineering and planning review time, cost of inspection time, costs for administration, and any other special costs attributable to the critical area review process.

B.    Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified professionals, and other work prepared in support of or necessary to review the application. [Ord. 4803 § 4, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.060 Severability.

If any clause, sentence, paragraph, section, or part of this chapter 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 chapter are hereby declared to be severable. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.070 Interpretation.

In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under state statute. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.080 Jurisdiction – Critical areas.

A.    The city 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 chapter include:

1.    Wetlands;

2.    Frequently flooded areas;

3.    Critical aquifer recharge areas;

4.    Geologically hazardous areas; and

5.    Fish and wildlife habitat conservation areas.

C.    All areas within the city 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 chapter. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.090 Protection of critical areas.

A.    Any action taken pursuant to this chapter shall result in at least equivalent 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 ECC 15.610.120, Mitigation sequencing. Applicants must first demonstrate an inability to avoid impacts before restoration and compensation of 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.

B.    This chapter shall be interpreted to ensure, among other things, that no harm shall occur in critical areas as a result of activities and developments, but it shall not require enhancement of critical areas where such critical areas were degraded prior to the proposed land use activity or development, or where previously existing critical areas no longer exist. [Ord. 4803 § 4, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.600.100 Best available science.

A.    Protect Functions and Values of Critical Areas with Special Consideration to Anadromous Fish. Critical area 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.

B.    Best Available Science to Be Consistent with Criteria in WACs. 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 team of qualified scientific professionals, that is consistent with criteria established in WAC 365-195-900 through 365-195-925. [Ord. 4803 § 4, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]