Chapter 15.650
FISH AND WILDLIFE HABITAT CONSERVATION AREA

Sections:

15.650.010    Designation of fish and wildlife habitat conservation areas.

15.650.020    Critical area report – Additional requirements for habitat conservation areas.

15.650.030    Performance standards – General requirements.

15.650.040    Performance standards – Specific habitats.

15.650.010 Designation of fish and wildlife habitat conservation areas.

A.    Fish and wildlife habitat conservation areas include:

1.    Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association.

a.    Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status.

b.    State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington and identified by the Washington Department of Fish and Wildlife, which are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The State Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.

2.    State priority habitats and areas associated with state priority species. Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by the State Department of Fish and Wildlife.

3.    Naturally occurring ponds under 20 acres. Naturally occurring ponds are those ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation.

4.    Waters of the state. Waters of the state include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-031 (or WAC 222-16-030 depending on classification used).

5.    Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity.

6.    State natural area preserves and natural resource conservation areas. Natural area preserves and natural resource conservation areas are defined, established, and managed by the Washington State Department of Natural Resources.

7.    Areas of rare plant species and high-quality ecosystems. Areas of rare plant species and high-quality ecosystems are identified by the Washington State Department of Natural Resources through the Natural Heritage Program.

B.    All areas within the city meeting one or more of these criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter and shall be managed consistent with the best available science, such as the Washington Department of Fish and Wildlife’s Management Recommendations for Priority Habitat and Species.

C.    Mapping. The approximate location and extent of habitat conservation areas are shown on the critical area maps adopted with the ordinance codified in this chapter by the city, as most recently updated. The following maps and data are hereby adopted and are available from the city and/or the listed governmental agency:

1.    Washington Department of Fish and Wildlife Priority Habitat and Species Maps;

2.    Washington State Department of Natural Resources, Official Water Type Reference Maps, as amended; and

3.    Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors Reports published by the Washington Conservation Commission.

The above maps are to be used as a guide for the city, project applicants, and/or property owners and should be continuously updated as new critical areas are identified. The above maps are a reference and do not provide a final critical area designation. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.650.020 Critical area report – Additional requirements for habitat conservation areas.

A.    All critical areas located within 300 feet of the project area that have been designated by the city and are shown on city, state, or federal government agency maps and/or reports shall be addressed in a critical area report for habitat conservation areas.

B.    Habitat Analysis. A habitat assessment to include at a minimum the following:

1.    Detailed description of vegetation on the project area and its associated buffer.

2.    Identification of any endangered, threatened, or candidate species that have a primary association with habitat on the project area, and assessment of potential project impacts to use of the buffer and critical area on the site by the species.

3.    A detailed discussion of the direct and indirect potential impacts on habitat by the project. Such discussion shall include a discussion of the ongoing management practices that will protect habitat after the project site has been developed. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.650.030 Performance standards – General requirements.

A.    Nonindigenous Species. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.

B.    Mitigation and Contiguous Corridors. Mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical area report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

C.    Approvals of Activities. The director shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary to minimize or mitigate any potential adverse impacts. Conditions shall be based on the best available science and may include, but are not limited to, the following:

1.    Establishment of buffer zones;

2.    Preservation of critically important vegetation and/or habitat features such as snags and downed wood;

3.    Limitation of access to the habitat area, including fencing to deter unauthorized access;

4.    Seasonal restriction of construction activities;

5.    Establishment of a duration and timetable for periodic review of mitigation activities; and

6.    Requirement of a performance bond, when necessary, to ensure completion and success of proposed mitigation.

D.    Mitigation to at Least Biological Functions. Mitigation of alterations to habitat conservation areas shall achieve at least equivalent biologic and hydrologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

E.    Approvals and the Best Available Science. Any approval of alterations or impacts to a habitat conservation area shall be supported by the best available science.

F.    Buffers.

1.    Establishment of Buffers. The director shall require the establishment of buffer areas for activities adjacent to habitat conservation areas when needed to protect habitat conservation areas. Buffers shall consist of an undisturbed area of native vegetation or areas identified for restoration established to protect the integrity, functions, and values of the affected habitat. Required buffer widths shall be designed to address the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby and shall consider the management recommendations issued by the Washington Department of Fish and Wildlife. Habitat conservation areas and their buffers shall be preserved in perpetuity through the use of critical area tracts in accordance with ECC 15.610.250.

2.    Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply.

3.    Habitat Buffer Averaging. The director may allow the recommended habitat area buffer width to be reduced in accordance with a critical area report, the best available science, and the management recommendations issued by the Washington Department of Fish and Wildlife, only if:

a.    It will not reduce stream or habitat functions;

b.    It will not adversely affect salmonid habitat;

c.    It will provide additional natural resource protection, such as buffer enhancement;

d.    The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer; and

e.    The buffer area width is not reduced by more than 25 percent in any location.

G.    Signs and Fencing of Habitat Conservation Areas.

1.    Temporary Markers. The outer perimeter of the habitat conservation area or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and verified by the director prior to the commencement of permitted activities. The director shall have the authority to require that temporary fencing be placed on-site to mark the outer perimeter of the habitat conservation area and its associated buffer area. This temporary marking, and any required temporary fencing, shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

2.    Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the director may require that applicant to install permanent signs along the boundary of a habitat conservation area or buffer.

a.    Permanent signs shall be made of a metal face with a green color background and white letters; attached to a metal post or another nontreated material of equal durability; made with a sign face no smaller than one foot by one foot and no larger than two feet by two feet; and mounted with the bottom of the sign face no less than three feet above and no more than five feet above adjacent grade. Signs must be posted at a minimum of one per lot of record, or on large parcels every 300 feet, or additional signs as required by the director and must remain unobstructed and be maintained by the property owner in perpetuity. The sign(s) shall be worded as follows or with alternative language approved by the director:

Protected Critical Area

Do Not Disturb

Contact the city of Ellensburg

Regarding Uses and Restriction

b.    The provisions of subsection (G)(2)(a) of this section may be modified by the director as necessary to assure protection of sensitive features or wildlife. [Ord. 4803 § 9, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.650.040 Performance standards – Specific habitats.

A.    Endangered, Threatened, and Sensitive Species.

1.    No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association, except that which is provided for by a management plan established by the Washington Department of Fish and Wildlife or applicable state or federal agency.

2.    Whenever activities are proposed adjacent to a habitat conservation area within which state or federally endangered, threatened, or sensitive species have a primary association, such area shall be protected through the application of protection measures in accordance with a critical area report prepared by a qualified professional and approved by the city. All applications for activities proposed adjacent to a habitat conservation area or buffer addressed in this subsection shall be sent for review and comment to the Department of Fish and Wildlife for animal species, the Washington State Department of Natural Resources for plant species, and other appropriate federal or state agencies.

3.    Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 220-610-100). Whenever activities are proposed adjacent to a verified nest territory or communal roost, a habitat management plan shall be developed by a qualified professional. Activities are adjacent to bald eagle sites when they are within 800 feet, or within one-half mile (2,640 feet) and in a shoreline foraging area. The city shall verify the location of eagle management areas for each proposed activity. Approval of the activity shall not occur prior to approval of the habitat management plan by the Washington Department of Fish and Wildlife.

B.    Anadromous Fish.

1.    All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or where such fish have a primary association shall give special consideration to the preservation of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a.    Activities shall be timed to occur only during the allowable work window as designated by the Washington Department of Fish and Wildlife for the applicable species;

b.    An alternative alignment or location for the activity is not feasible;

c.    The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas;

d.    Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques, according to an approved critical area report; and

e.    Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report.

2.    Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed.

C.    Wetland Habitats. All proposed activities within or adjacent to habitat conservation areas containing wetlands shall conform to the wetland development performance standards set forth in ECC 15.620.030, wetlands. If nonwetlands habitat and wetlands are present at the same location, the provisions of this chapter or Chapter 15.620 ECC, Wetlands, whichever provides greater protection to the habitat, apply.

D.    Riparian Habitat Areas. Unless otherwise allowed in this chapter, all structures and activities shall be located outside of the stream buffers.

1.    Establishment of Stream Buffer Areas. Stream buffers shall be established for habitats that include aquatic and terrestrial ecosystems that mutually benefit each other and that are located adjacent to rivers, perennial or intermittent streams, seeps, and springs.

2.    Stream Buffer Widths. Required stream buffer widths are shown in the table below. A stream buffer shall have the width required, unless a greater width is required pursuant to subsection (D)(3) of this section, or a lesser width is allowed pursuant to subsection (D)(4) of this section. Widths shall be measured outward in each direction, on the horizontal plane from the ordinary high water mark, or from the top of bank if the ordinary high water mark cannot be identified. Stream buffers should be sufficiently wide to achieve the full range of riparian and aquatic ecosystem functions, which include but are not limited to protection of instream fish habitat through control of temperature and sedimentation in streams; preservation of fish and wildlife habitat; and connection of riparian wildlife habitat to other habitats.

 

Type S Streams: Yakima River

250 feet

Type F Streams: Reecer Creek; Currier Creek; Whiskey Creek; Wilson Creek (including West and East Branches); Mercer Creek

85 feet

Type F Streams: Lyle Creek

50 feet

Type Np and Ns Streams and Ponds: Englehorn Pond; West Interchange Ponds

50 feet

3.    Increased Stream Buffer Widths. The director may require increased buffer widths in accordance with the recommendations of an experienced, qualified professional, and the best available science on a case-by-case basis when a large buffer is necessary to maintain the structure and functions of the habitat area, based on site-specific characteristics. When the SEPA checklist discloses the possibility that the buffers may be increased, the procedures in WAC 197-11-158 shall be invoked. The criteria to be used to analyze the issue whether the buffers should be increased are as follows:

a.    When the director determines that the recommended width is insufficient to prevent habitat degradation and to protect the structure and functions of the habitat area;

b.    When a channel migration zone is present, the stream buffer width shall be measured from the outer edge of the channel migration zone; or

c.    When the habitat area is within an erosion or landslide hazard area, or buffer, the stream buffer width shall be the recommended distance, or the erosion or landslide hazard area or buffer, whichever is greater.

4.    Stream Buffer Width Averaging. The director may allow the recommended stream buffer width to be reduced in accordance with a critical area report only if:

a.    The width reduction will not reduce stream or habitat functions, including those of nonfish habitat;

b.    The width reduction will not degrade the habitat, including habitat for anadromous fish;

c.    The proposal will provide additional habitat protection;

d.    The total area contained in the riparian habitat area of each stream on the development proposal site is not decreased;

e.    The recommended stream buffer width is not reduced by more than 25 percent in any one location;

f.    The width reduction will not be located within another critical area or associated buffer; and

g.    The reduced stream buffer width is supported by the best available science.

5.    Interrupted Buffer.

a.    Where a legally established, pre-existing use of the buffer exists, those proposed activities that are within the wetland or stream buffer, but are separated from the critical area by an existing permanent substantial improvement, which serves to eliminate or greatly reduce the impact of the proposed activity upon the critical area, are exempt; provided, that the detrimental impact to the critical area does not increase. However, if the impacts do increase, the city shall determine if additional buffer may be required along the impact area of the interruption. Substantial improvements may include developed public infrastructure such as roads and railroads. Substantial improvements may not include paved trails, sidewalks, or parking areas. An allowance for activity in an interrupted buffer may require a critical areas report for the type of critical areas buffer that is affected. In determining whether a critical areas report is necessary, the city shall consider the hydrologic, geologic and/or biological habitat connection potential and the extent and permanence of the interruption.

b.    Where a legally established, pre-existing structure or use is located within a regulated wetland or stream buffer and where the regulated buffer is fully paved and does not conform to the interrupted buffer provision above, the buffer will end at the edge of the pavement, adjacent to the wetland or stream.

6.    Riparian Habitat Mitigation. Mitigation of adverse impacts to stream buffers shall result in equivalent functions and values on a per function basis, be located as near the alteration as feasible, and be located in the same subdrainage basin as the habitat impacted.

7.    Alternative Mitigation for Stream Buffers. The performance standards set forth in this subsection may be modified at the city’s discretion if the applicant demonstrates that greater habitat functions, on a per function basis, can be obtained in the affected subdrainage basin as a result of alternative mitigation measures.

E.    Aquatic Habitat. The following specific activities may be permitted within a stream buffer, pond, lake, water of the state, and associated buffer when the activity complies with the provisions set forth in the applicable shoreline management program and subject to the standards of this subsection. The standards that provide the most protection to protected habitat and species shall apply.

1.    Streambank Stabilization. Streambank stabilization to protect new structures from future channel migration is not permitted except when such stabilization is achieved through bioengineering or soft armoring techniques in accordance with an approved critical area report.

2.    Launching Ramps – Public or Private. Launching ramps may be permitted in accordance with an approved critical area report that has demonstrated the following:

a.    The project will not result in alterations to, or loss of, shoreline substrate within one-quarter mile of the site;

b.    The ramp will not adversely impact critical fish or wildlife habitat areas or associated wetlands; and

c.    Adequate mitigation measures ensure that there is no net loss of the functions or values of riparian habitat as a result of the ramp.

3.    Docks. Repair and maintenance of an existing dock or pier may be permitted in accordance with an approved critical area report subject to the following:

a.    There is no increase in the use of materials creating shade for predator species or eelgrass;

b.    There is no expansion in overwater coverage;

c.    There is no new spanning of waters between three and 13 feet deep;

d.    There is no increase in the size and number of pilings; and

e.    There is no use of toxic materials (such as creosote) that come in contact with the water.

4.    Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, and minor road bridging, less than or equal to 30 feet wide, may be permitted in accordance with an approved critical area report subject to the following standards:

a.    There is no other feasible alternative route with less impact on the environment;

b.    The crossing minimizes interruption of downstream movement of wood and gravel;

c.    Roads in stream buffers shall not run parallel to the water body;

d.    Trails shall be located on the outer edge of the buffer, except for limited viewing platforms, crossings and limited trails;

e.    Crossings, where necessary, shall only occur as near to perpendicular with the water body as possible;

f.    Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical area report;

g.    Road bridges are designed according to the Washington Department of Fish and Wildlife Fish Passage Design at Road Culverts, 1999, and the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000; and

h.    Trails and associated viewing platforms shall not be made of continuous impervious materials.

5.    Utility Facilities. New utility lines and facilities may be permitted to cross watercourses in accordance with an approved critical area report, if they comply with the following standards:

a.    Fish and wildlife habitat areas shall be avoided to the maximum extent possible;

b.    Installation shall be accomplished by boring beneath the scour depth and hyporheic zone of the water body and channel migration zone, where feasible;

c.    The utilities shall cross at an angle greater than 60 degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;

d.    Crossings shall be contained within the footprint of an existing road or utility crossing where possible;

e.    The utility route shall avoid paralleling the stream or following a down-valley course near the channel; and

f.    The utility installation shall not increase or decrease the natural rate of shore migration or channel migration.

6.    Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to the city’s review and approval of a critical area report and the approval of a federal biological assessment by the federal agency responsible for reviewing actions related to a federally listed species.

7.    Instream Structures. Instream structures, such as, but not limited to, high flow bypasses, sediment ponds, instream ponds, retention and detention facilities, dams, and weirs, shall be allowed only as part of an approved watershed basin restoration project approved by the agency with jurisdiction and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect habitat conservation areas.

8.    Stormwater Conveyance Facilities. Conveyance structures may be permitted in accordance with an approved critical area report subject to the following standards:

a.    No other feasible alternatives with less impact exist;

b.    Mitigation for impacts is provided;

c.    Stormwater conveyance facilities shall incorporate fish habitat features; and

d.    Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds in order to retard erosion, filter out sediments, and shade the water. [Ord. 4803 § 9, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]