Chapter 15.610
APPLICABILITY, EXEMPTIONS AND EXCEPTIONS

Sections:

15.610.010    Applicability.

15.610.020    Exemptions.

15.610.030    Allowed activities.

15.610.040    Exception – Public agency and utility.

15.610.050    Exception – Reasonable use.

15.610.060    Critical area review requirements.

15.610.070    Preapplication meeting.

15.610.080    Public notice of initial determination.

15.610.090    Critical area report – Requirements.

15.610.100    Critical area report – Modifications to requirements.

15.610.110    Mitigation requirements.

15.610.120    Mitigation sequencing.

15.610.130    Mitigation plan requirements.

15.610.140    Innovative mitigation.

15.610.150    Determination.

15.610.160    Review criteria.

15.610.170    Report acceptance.

15.610.180    Report rejection.

15.610.190    Completion of the critical area review.

15.610.200    Appeals.

15.610.210    Variances.

15.610.220    Unauthorized critical area alterations and enforcement.

15.610.230    Critical area markers and signs.

15.610.240    Notice on title.

15.610.250    Critical area tracts.

15.610.260    Bonds to ensure mitigation, maintenance, and monitoring.

15.610.270    Critical area inspections.

15.610.280    Enforcement and penalties.

15.610.010 Applicability.

A.    The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

B.    The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of this chapter, including, but not limited to, the following (as applicable):

1.    Building permit;

2.    Site development permit;

3.    Conditional use permit;

4.    Short plat;

5.    Subdivision;

6.    Master site plan;

7.    Zoning variance;

8.    Zoning code amendment; or

9.    Any other permit or required approval not expressly exempted by this chapter.

C.    Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.610.020 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 as a Type I permit review process as set forth in Chapters 15.210 and 15.220 ECC. If the exemption is approved, it shall be placed on file with the community development department and the proponent may continue through the review process for any underlying permit. If the exemption is denied, the proponent may continue in the critical area review process and shall be subject to the requirements of this chapter.

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 chapter 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 sole expense.

C.    Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; 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 which pose an immediate risk of damage to private property and which require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter. Emergency actions which 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 city within one business 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 ECC 15.610.220, 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 area 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 city 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; provided, however, the restoration, mitigation, planning and financial requirements set forth in this subsection shall not apply to public safety or volunteer emergency services providers who, in good faith, render emergency response services, and while in the course and scope of such services determine it necessary to damage, destroy or alter property falling under the jurisdiction of this chapter; provided further, this exception from responsibility shall not extend to the landowner or to any persons other than such public safety or volunteer emergency services providers;

2.    Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure, utilities, public or private roads, dikes, ditches, reservoirs, or other structures or facilities for irrigation purposes. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; 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. To qualify as an exemption, operation, maintenance, or repair activities must meet the following criteria:

a.    The activity does not require construction permits;

b.    The activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer; and

c.    There is no increased risk to life or property as a result of the proposed operation, maintenance, or repair;

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 ECC 15.610.030(C)(5), Public and Private Pedestrian Trails;

4.    Flood Control. Operation, maintenance, and repair of ditches, ditches, reservoirs, and other structures or facilities which were created or developed as part of normal flood control activities, except that this exemption does not extend to the permanent draining or permanent alteration of any regulated wetland; and

5.    Other Similar Activity. Such activity that the director may determine is closely allied or similar to any activity on the exemption list. If such an activity does not impact the functions and values of any critical area or its buffers, it may also be determined to be exempt. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.610.030 Allowed activities.

Certain activities as set forth below are allowed activities. The proponent of the allowed activity must submit a critical area review form as required by ECC 15.610.060. In making the decision whether a proposed activity is an allowed activity for purposes of this chapter, the director shall follow the permit review process set forth for Type I permit in Chapters 15.210 and 15.220 ECC.

A.    Activities allowed under this chapter shall have been reviewed and permitted or approved by the city or other agency with jurisdiction, but do not require submittal of a separate critical area report, unless such submittal was previously required 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 chapter to protect critical areas.

B.    Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices pursuant to the city’s public works development standards, 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 shall observe 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 Area 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 chapter 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.    There is no new information available that is applicable to any critical area review of the site or particular critical area;

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

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

2.    Modification to Existing Structures. Structural modification of, addition to, demolition of or replacement of, an existing legally constructed structure (undertaken pursuant to an issued permit, if required) 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; provided, that restoration of structures or demolition pursuant to an approved demolition permit must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit, and diligently pursued to completion;

3.    Activities within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, 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 stormwater; subject to the following:

a.    Critical area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

b.    Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance.

4.    Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the director in accordance with the criteria below:

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

b.    The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility;

c.    The activity does not significantly impact the function or values of a critical area(s);

d.    The activity or project is constructed with best management practices and additional restoration measures are provided; and

e.    The activity shall not result in the transport of sediment or increased stormwater.

5.    Public and Private Pedestrian Trails. Public and private pedestrian trails, except in wetlands, fish and wildlife habitat conservation areas, or their buffers, subject to the following:

a.    The trail surface shall meet all other requirements including applicable standards set forth in the city’s public works development standards;

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

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.

6.     Select Vegetation Removal Activities. The following vegetation removal activities; provided, that except for these activities no vegetation shall be removed from a critical area or its buffer without approval from the director:

a.    The removal of invasive and noxious weeds and vegetation with hand labor and light equipment;

b.    The removal of trees 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 a certified arborist, registered landscape architect, or professional forester 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.) may 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 safety and health hazards;

iv.    The landowner 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 inch 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.    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 landowner prior to receiving written approval from the city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this chapter;

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; and

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

7.    Vegetation Enhancement. Voluntary enhancement of a critical area or buffer by planting vegetation that will improve the health and function of the critical area;

8.    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 Washington State Department of Fish and Wildlife Management Recommendations and the regulations of the Washington State Department of Agriculture, Washington State Department of Ecology, and the U.S. Environmental Protection Agency;

9.    Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, archaeological shovel 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. 4803 § 5, 2018.]

15.610.040 Exception – Public agency and utility.

A.    If the application of this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

B.    Exception Request and Review Process (a Type II Permit Review Process). An application for a public agency and utility exception shall be made to the city and shall include a critical area information form; and if necessary a critical area report (ECC 15.610.090 and 15.610.100), including mitigation plan (ECC 15.610.130); and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The director shall process the exception request as a Type II permit review process as set forth in Chapters 15.210 and 15.220 ECC. As part of that review process the director shall prepare a decision based on review of the submitted information, a site inspection, and the proposal’s ability to comply with public agency and utility exception review criteria in subsection (D) of this section.

C.    Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions are as follows:

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

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

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

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

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

D.    Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.030.]

15.610.050 Exception – Reasonable use.

A.    If the application of this chapter would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.

B.    Exception Request and Review Process (a Type II Permit Review Process). An application for a reasonable use exception shall be made to the city and shall include a critical area review form; and if necessary a critical area report (ECC 15.610.090 and 15.610.100), including mitigation plan (ECC 15.610.130); and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW and WAC 197-11-158). The director shall process the exception request as a Type II permit review process as set forth in Chapters 15.210 and 15.220 ECC. As part of that review process the director shall prepare a decision based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection (C) of this section.

C.    Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions follow; one or more may apply:

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

2.    No other reasonable economic use of the property has less impact on the critical area;

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

4.    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 chapter, or its predecessor;

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

6.    The proposal will result in no net loss of critical area functions and values consistent with the best available science; and

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

D.    Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.040.]

15.610.060 Critical area review requirements.

A.    Submittal. Prior to the city’s consideration of any proposed activity not found to be exempt under ECC 15.610.020 or allowed pursuant to ECC 15.610.030, the applicant shall submit to the department complete information regarding the critical area on the application for the underlying development, on forms provided by the city.

B.    As part of a critical area review, the city shall:

1.    Verify the information submitted by the applicant;

2.    Conduct a site inspection to evaluate the project area and vicinity for critical areas. The director shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period;

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

4.    Review other information available pertaining to the site and the proposal;

5.    Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project; and

6.    Make a determination on the critical area.

a.    No Critical Areas Present. If after a site visit the director’s analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the director shall rule that the critical area review is complete and note on the underlying application the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

b.    Critical Areas Present, but No Impact – Waiver. If the director determines there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the director may waive the requirement for a critical area report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

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

ii.    The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter; and

iii.    The proposal is consistent with other applicable regulations and standards. A summary of this analysis and the findings shall be included in any staff report or decision on the underlying permit.

c.    Critical areas may be affected by proposal. If the director determines that a critical area or areas may be affected by the proposal, then the director shall notify the applicant that a critical area report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report. The director may use the following indicators to assist in determining the need for a critical area report:

i.    Indication of a critical area on the city critical areas maps that may be impacted by the proposed activity;

ii.    Information and scientific opinions from appropriate agencies, including but not limited to the Washington State Departments of Fish and Wildlife and Ecology;

iii.    Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

iv.    A finding by a qualified professional, or a reasonable belief by the director, that a critical area may exist on or adjacent to the site of the proposed activity.

C.    Effect of Director’s Determination. A determination regarding the apparent absence of one or more critical areas by the director is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received. If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.610.070 Preapplication meeting.

Any person preparing to submit an application for development or use of land that may be regulated by the provisions of this chapter shall comply with the preapplication process for the underlying permit as set forth in ECC 15.220.010. At this meeting and as applicable, the director shall discuss the requirements of this chapter; provide critical area 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. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.610.080 Public notice of initial determination.

The city shall notify the public of proposals in accordance with the procedure set forth in ECC 15.220.040 for the underlying permit type.

A.    If the director determines that no critical area report is necessary, the city shall state the reasons for this determination in the notice of application issued by the city 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 area report, a summary of the analysis and findings for this decision shall be stated in the notice of application for the proposal.

C.    If the director determines that critical areas may be affected by the proposal and a critical area 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 area report(s) is required. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.090.]

15.610.090 Critical area report – Requirements.

A.    Preparation by Qualified Professional. If required by the director in accordance with ECC 15.610.060(B)(6)(c), the applicant shall submit a critical area report prepared by a qualified professional as defined herein.

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

C.    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 stormwater management plan for the development and consideration of impacts to drainage alterations;

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, water bodies, and buffers adjacent to the proposed project area;

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

6.    An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

7.    A description of reasonable efforts made to apply mitigation sequencing pursuant to ECC 15.610.120, Mitigation sequencing, to avoid, minimize, and mitigate impacts to critical areas;

8.    Plans for adequate mitigation, as needed, to offset any impacts, in accordance with ECC 15.610.130, Mitigation plan requirements, including, but not limited to:

a.    The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

b.    The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

9.    A discussion of the performance standards applicable to the critical area and proposed activity;

10.    Financial guarantees to ensure compliance; and

11.    Any additional information required for the critical area as specified in the corresponding chapter.

D.    Unless otherwise provided, a critical area report may 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. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.100.]

15.610.100 Critical area report – Modifications to requirements.

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

1.    The applicant, with assistance from the city, 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 area report to obtain city 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 area report when determined to be necessary to the review of the proposed activity in accordance with this chapter. 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. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.110.]

15.610.110 Mitigation requirements.

A.    The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas when possible. Unless otherwise provided in this chapter, 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 area report and SEPA documents, so as to result in no net loss of critical area functions and values.

B.    Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

C.    Mitigation shall not be implemented until after the director’s approval of a critical area report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical area report. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.120.]

15.610.120 Mitigation sequencing.

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

A.    Avoiding the impact altogether by not taking a certain action or parts of an action;

B.    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;

C.    Rectifying the impact to wetlands, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;

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

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

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

G.    Monitoring the hazard or other required mitigation and taking remedial action when necessary. Mitigation for individual actions may include a combination of the above measures. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.130.]

15.610.130 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical area 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 and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

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

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 chapter 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.    Grading and excavation details;

3.    Erosion and sediment control features;

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

5.    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 of the compensation project 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, five, and seven 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.

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.    Estimates of Cost. The mitigation plan shall include an estimate of the costs to implement the required activities under the proposed plan to include both labor and materials. Any required financial guarantees shall be posted in accordance with ECC 15.610.260, Bonds to ensure mitigation, maintenance, and monitoring. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.140.]

15.610.140 Innovative mitigation.

A.    The city should encourage, facilitate, and approve innovative mitigation projects that are based on the best available science. Advance mitigation and mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

1.    Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

2.    The applicant(s) demonstrates the organizational and fiscal capability to act cooperatively;

3.    The applicant(s) demonstrates that long-term management of the habitat area will be provided; and

4.    There is a clear potential for success of the proposed mitigation at the identified mitigation site.

B.    Conducting mitigation as part of a cooperative process does not reduce or eliminate the required replacement ratios. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.150.]

15.610.150 Determination.

The director shall make a determination as to whether the proposed activity and mitigation, if any, is consistent with the provisions of this chapter. The director’s determination shall be based on the criteria of ECC 15.610.160, Review criteria. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.160.]

15.610.160 Review criteria.

A.    Any alteration to a critical area, unless otherwise provided for in this chapter, 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 ECC 15.610.120, 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 chapter and the public interest;

4.    Any alterations permitted to the critical area are mitigated in accordance with ECC 15.610.110, 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 city may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter.

C.    Standard buffer widths on legal lots or parcels recorded prior to the effective date of the ordinance codified in this chapter may be reduced by the director upon the receipt and consideration of a critical area report as required under ECC 15.610.090 and 15.610.100. In addition to the requirements of such critical area report, the report shall include recommendations for the buffer width and mitigation from the experienced, qualified professional who produced the critical area report, provided the applicant for a development permit or other city approval demonstrates:

1.    The lot was improved with a legally constructed structure prior to the effective date of the ordinance codified in this chapter. Current or continued occupancy is not required to meet this standard.

2.    The legally constructed structure is currently present on the lot or was removed pursuant to a demolition permit approved by the city prior to the effective date of the ordinance codified in this chapter.

3.    The existing buffer or critical area has been degraded by past legal land uses and is currently in a degraded state.

4.    The applicant mitigates for the proposed buffer to result in no net loss of buffer functions per best available science.

5.    The applicant provides in the critical areas report a discussion comparing the functions provided by the existing buffer and the functions provided by the proposed buffer with mitigation demonstrating no net loss of function.

6.    The applicant provides for the protection of the reestablished buffer and critical area in perpetuity through one or more of the following measures:

a.    Major and minor subdivisions, commercial, and multifamily residential developments completed under this section shall dedicate all buffers and critical areas as a critical area tract recorded prior to the issuance of an occupancy permit or other final city approval.

b.    Single-family development and boundary line adjustments shall record a notice on the title of affected properties identifying the presence and location of buffer widths and adjoining critical areas. Recording the notice on title shall occur prior to occupancy permits or other final city approvals and follow the procedure and requirements contained in ECC 15.610.240.

D.    Except as provided for by this chapter, any project that cannot adequately mitigate its impacts to critical areas in the sequencing order of preferences in ECC 15.610.120 shall be denied. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.170.]

15.610.170 Report acceptance.

If the director determines that the proposed activity meets the criteria in ECC 15.610.160, Review criteria, and complies with the applicable provisions of this chapter, the director shall prepare a written notice of determination and identify any required conditions of approval. The notice of determination 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 determination shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous determination pending re-review of the proposal and conditions of approval by the director. A favorable determination should not be construed as endorsement or approval of any underlying permit or approval. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.180.]

15.610.180 Report rejection.

If the director determines that a proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the criteria in ECC 15.610.160, Review criteria, and the provisions of this chapter, the director shall prepare written notice of the determination 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 chapter. Following notice of determination that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this chapter, 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 determination based on the revised report. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.190.]

15.610.190 Completion of the critical area review.

The city’s determination regarding critical areas pursuant to this chapter shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.200.]

15.610.200 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.210.]

15.610.210 Variances.

A.    Variances from the standards of this chapter may be authorized by the city in accordance with the procedures set forth in ECC 15.610.050 and Chapters 15.210 and 15.220 ECC. The hearing examiner shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

B.    Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

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 chapter 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 chapter, 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 chapter 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 chapter, 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;

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

7.    The granting of the variance is consistent with the general purpose and intent of the city’s comprehensive plan and adopted development regulations.

C.    Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

D.    Time Limit. The city 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.

E.    Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.220.]

15.610.220 Unauthorized critical area alterations and enforcement.

A.    When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city 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 provisions of this chapter.

B.    Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared. The plan is subject to approval by the city. 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 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 structural and functional values that existed prior to the unauthorized alteration shall be restored, including water quality and habitat functions;

b.    The soil types and configuration that existed prior to the unauthorized alteration shall be replicated;

c.    The disturbed critical area and buffers shall be replanted with vegetation in species types, sizes, and densities chosen from an approved restoration plant list. The functions and values that existed prior to the unauthorized alteration should be replicated at the location of the alteration; and

d.    Information demonstrating compliance with the requirements in ECC 15.610.130, Mitigation plan requirements, shall be submitted to the director.

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 pre-development 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 chapter. The director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto any property which may be subject to an investigation that could potentially lead to a critical area enforcement action. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.230.]

15.610.230 Critical area markers and signs.

A.    The boundary at the outer edge of critical area tracts and easements shall be delineated with permanent survey stakes, using iron or concrete markers as established by local survey standards.

B.    The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall 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. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.240.]

15.610.240 Notice on title.

A.    In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall record a notice with the county auditor. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall “run with the land.”

B.    The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.250.]

15.610.250 Critical area tracts.

A.    Critical area tracts shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below that total 5,000 or more square feet:

1.    All landslide hazard areas and buffers;

2.    All wetlands and buffers;

3.    All habitat conservation areas; and

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

B.    Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C.    Critical area tracts shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restriction:

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 city to enforce the terms of the restriction.

D.    The city may require that any required critical area tract be dedicated to the city, 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 homeowners’ association or other legal entity (such as a land trust, which ensures the ownership, maintenance, and protection of the tract). [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.260.]

15.610.260 Bonds to ensure mitigation, maintenance, and monitoring.

A.    When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. 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 125 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.

C.    The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution, with terms and conditions acceptable to the city attorney and with a company authorized to do business in the state of Washington.

D.    Bonds or other security authorized by this section shall remain in effect until the city 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.

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 by the city code or any other law.

H.    Any funds recovered pursuant to this section shall be used to complete the required mitigation and reimburse the city for its costs relating to the enforcement action. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.270.]

15.610.270 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.280.]

15.610.280 Enforcement and penalties.

A.    Rights of Entry.

1.    For Permitting or Inspection of Work Conducted under Permit. Whenever a person applies for a permit or approval under any section of this chapter, the director shall have a limited right of entry to conduct studies necessary to determine whether to approve the proposal or to inspect work being conducted under the permit or approval. The property owner’s failure to grant permission for the director to enter the property shall be grounds for denial of the permit or issuance of a stop work order.

2.    To Investigate Violations and Corrections. The director is authorized to enter upon property to determine whether the provisions of this chapter are being obeyed and to make any examinations, surveys, and studies as may be necessary in the performance of his or her duties. The director shall obtain the property owner’s permission prior to entry. If the property owner declines to give permission or cannot be located, the director shall enter upon the property only in a manner consistent with the constitutions and laws of the United States and the state of Washington. If so required by the constitutions and laws of the United States and the state of Washington, the director shall apply to a court of competent jurisdiction for a search warrant authorizing access to such property for such purpose.

B.    Civil Violations and Penalties.

1.    Any person who violates any provision of this chapter shall be subject to a civil infraction not to exceed $300.00 for each violation. The minimum civil penalty shall be $50.00.

2.    Each violation of this chapter shall be a separate offense, and in the case of a continuing violation, each day’s continuance shall be deemed to be a separate and distinct violation.

3.    Civil infractions under this chapter shall be issued and processed in accordance with Chapter 7.80 RCW.

C.    Criminal Violations and Penalties.

1.    Any person who intentionally, knowingly, recklessly, or criminally negligently violates any provision of this chapter and who has had a judgment entered against him or her pursuant to subsection (B) of this section within the immediately preceding five years shall be subject to criminal prosecution and upon conviction shall be guilty of a misdemeanor.

2.    Any person convicted of a crime under subsection (C)(1) of this section shall be punished by imprisonment in jail for a maximum term fixed by the court of not more than 90 days, or by a fine in an amount fixed by the court of not more than $1,000, or by both such imprisonment and fine. Each day or part thereof during which any violation is committed shall constitute a separate offense.

D.    Stop Work Orders.

1.    Whenever any work or development is being done or use is being conducted contrary to the provisions of this chapter, the director may issue a stop work order requiring that all work on the project be stopped or that the use be discontinued.

2.    Issuance of a stop work order shall not bar the imposition of a civil or criminal penalty under this chapter or the use of any other provision of this chapter.

3.    It is unlawful for any person with actual or constructive knowledge of the issuance of a stop work order pursuant to this chapter to do work or an activity prohibited by the order until the director has removed or lifted the order and issued written authorization for the work or activity to be continued. Violation of a stop work order shall be a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in jail for a maximum term fixed by the court of not more than 90 days in jail or by a fine in an amount fixed by the court of not more than $1,000, or by both such imprisonment and fine. Each day or part thereof during which any violation is committed shall constitute a separate offense.

4.    Any person issued a stop work order who believes the issuance of such order was the result of a mistaken determination may appeal its issuance at an informal hearing before the director or his designee. To be timely, such appeal shall be filed in writing at the community development department within five business days of the date of issuance of the stop work order. The hearing will be conducted within three business days of the director’s receipt of the written appeal, unless the appellant requests additional time not to exceed 10 business days following receipt of the appeal. At the hearing, the appellant will be provided:

a.    An explanation of, and opportunity to ask questions about, the reasons for and evidence supporting issuance of the stop work order;

b.    An opportunity to give any statements, reasons or documentation, personally or through others, explaining why the order was wrongfully or mistakenly issued;

c.    An opportunity to identify any mitigating circumstances the appellant believes would justify withdrawal of the order; and

d.    The right to have legal counsel present. The director shall issue a written decision within five days following the conclusion of the hearing.

E.    Remedies Not Exclusive – Nuisance.

1.    The remedies prescribed in this chapter are in addition to all other remedies provided or authorized by law. The enforcement official or his or her designee may enforce the provisions of this title through any enforcement provisions herein, in Chapter 1.80 ECC or any other applicable provision of the Ellensburg City Code or state law.

2.    Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance as set forth in ECC 5.40.060 and may be abated as provided in Chapter 5.40 ECC or by the statutes of the state of Washington. [Ord. 4803 § 5, 2018; Ord. 4656 § 1 (Exh. O2), 2013. Formerly 15.610.290.]