Chapter 18.08
CRITICAL AREAS

Sections:

18.08.010    Authority.

18.08.020    Purpose and intent.

18.08.030    Title.

18.08.040    Administration.

18.08.050    Critical area maps.

18.08.060    Definitions.

18.08.070    Applicability and severability.

18.08.080    Mitigation.

18.08.090    Minor development activities allowed without critical area review.

18.08.100    Allowed development activities.

18.08.110    Reasonable use exceptions.

18.08.120    Public agency and utility exception.

18.08.130    Violation and enforcement.

18.08.140    Critical area permit review.

18.08.200    Wetlands.

18.08.210    Aquifer recharge areas.

18.08.220    Fish and wildlife habitat conservation areas.

18.08.230    Geological hazards.

18.08.300    Technical reports.

18.08.310    Technical reports – Specific criteria.

18.08.010 Authority.

This chapter is adopted under the authority of Chapters 36.70 and 36.70A RCW and Article 11 of the Washington State Constitution. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.020 Purpose and intent.

A. A fundamental principle of the Growth Management Act is to reduce urban sprawl through the identification of urban growth areas (UGA) and the containment of growth and development within these urban boundaries. This chapter is not intended to hinder the town’s requirement to implement this state mandate or to reduce the lawful right of property owners to use their property as they choose.

B. The purpose of this chapter is to carry out the goals of the town of Friday Harbor comprehensive plan and the state of Washington Growth Management Act, primarily codified under Chapter 36.70A RCW and its implementing rules, by designating and classifying critical areas and establishing development regulations to protect the functions and values of critical areas and the ecological processes that sustain them while allowing for appropriate economically beneficial or productive use of land and property.

C. Best Available Science.

1. RCW 36.70A.172 requires jurisdictions to include the best available science when designating and protecting critical areas. The “best available science” is that scientific information applicable to this chapter that is prepared by local, state or federal natural resource agencies, scientifically based peer reviewed literature, a qualified scientific professional or a team of qualified scientific professionals, that is consistent with the criteria established in WAC 365-195-900 through 365-195-925. Best available science shall be used in developing policy and regulations to protect the functions and values of critical areas.

2. RCW 36.70A.172 also requires the implementation of conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat (WAC 365-195-900 through 365-195-925). These measures are primarily addressed in the town of Friday Harbor shoreline management program. However, habitat and water quality measures have been incorporated into the regulatory provisions of this chapter.

D. The regulations set forth herein are adopted to:

1. Minimize development impacts to critical areas and protect the beneficial uses, natural functions and values of critical areas;

2. Protect the quality and quantity of water resources and the species inhabiting local waterways, marine waters and wetlands;

3. Protect species listed as threatened or endangered and their habitats;

4. Protect unique, fragile and/or valuable elements of the environment, including ground and surface waters, wetlands, anadromous fish species, shellfish, and other fish and wildlife and their habitats;

5. Prevent erosion and loss of slope and soil stability caused by removal of trees, shrubs, and root systems of vegetative cover;

6. Protect the public against potentially avoidable losses from landslide, subsidence, erosion, flooding, and other natural hazards;

7. Avoid or minimize adverse environmental impacts to critical areas and mitigate unavoidable impacts; and

8. Establish critical area protection standards and procedures that are consistent with state and federal regulations pertaining to critical areas.

E. Property Use. It is not the intent of this chapter to deny a reasonable use of private property, nor is it intended to prevent the provision of public facilities and services necessary to support existing and planned development; to that end, guidelines have been established in FHMC 18.08.040, Administration. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.030 Title.

A. This chapter shall be known as the critical areas ordinance and may be cited as such.

B. Short Title. This chapter may be referenced as the “CAO.” (Ord. 1720 § 4 (Exh. A), 2021)

18.08.040 Administration.

A. The director shall be the administrator of the provisions set forth in this chapter.

B. Critical Areas. The following areas are designated as critical areas for this chapter:

1. Wetlands;

2. Geologically hazardous areas;

3. Fish and wildlife habitat conservation areas;

4. Critical aquifer recharge areas; and

5. Frequently flooded areas.

C. Interpretation.

1. All provisions shall be considered to be the minimum necessary and shall be liberally construed to serve the purpose of this chapter.

2. Conflicts with this chapter and an RCW or WAC shall be reconciled by the RCW or WAC applicable to the Growth Management Act or Shoreline Management Act.

3. Where this chapter makes reference to any FHMC, RCW, WAC, or other state or federal law or regulation, the most recent amendment or current edition shall apply.

D. Administration Standards. This chapter shall be administered as follows:

1. Streamline the critical areas compliance review process to be short, simple and economical.

2. Assure that development on or near critical areas is accomplished in a manner that is sensitive to the environmental resources of the community.

3. Treat proposals located wholly or partially within a critical area no differently than other proposals under this chapter, making a threshold determination for all such proposals; the town shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area.

4. Provide the applicant with the full range of opportunities available to achieve compliance with this chapter.

E. Best Available Science. The town shall require the use of best available science in all site-specific technical reports and related decisions to protect the functions and values of critical areas. Determination of best available science shall be in accordance with WAC 365-195-905.

1. Criteria for Addressing Inadequate Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to the town’s critical areas, leading to uncertainty about which development and land uses could lead to harm of critical areas or uncertainty about the risk to critical area function of permitting development, the town will use a “precautionary or a no risk approach,” in which development and land use activities are strictly limited until the uncertainty is sufficiently resolved.

F. Relationship to Other Town Regulations.

1. Critical area regulations are used as an overlay to other town policies and regulations for properties within the town’s jurisdiction.

2. The regulations contained in this chapter are intended to implement the guidance in the town comprehensive plan.

3. These regulations are additional to, and coordinate with, the town shoreline master program, and other applicable regulations adopted by the town of Friday Harbor.

4. This chapter shall apply as an overlay to other regulations established by the town. In the event of any conflict between these regulations and any other regulations, the more restrictive shall apply.

5. Compliance with the provisions of this chapter shall not be construed as constituting compliance with any other applicable regulation. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.050 Critical area maps.

A. The town has prepared maps indicating the general locations of known or potential critical areas within the town of Friday Harbor. The maps are based on the best available scientific information and include natural resource information gathered through field inventory, as well as information prepared by state and federal natural resource agencies. These maps shall be hereafter referred to as the critical area maps of the town of Friday Harbor.

B. The critical area maps do not have regulatory authority, as such are for information or illustration proposes only. However, they shall be used as a screening tool to assist both the town and the property owner in achieving compliance with this chapter (WAC 365-190-080).

C. The critical area maps do not identify all critical areas in the town; a site inspection is required at the time of development to verify the presence or absence of critical areas. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.060 Definitions.

All terms defined in FHMC Titles 17 and 19 apply to this chapter except the terms set out in this section shall have the meanings indicated.

A. “Anadromous fish” means those fish that spawn and rear in fresh water and mature in the marine environment, including salmon and char (bull trout).

B. “Development” means any land use action regulated by FHMC Titles 15 through 19.

C. “Development activity” means any development, use, or activity.

D. “Director” means the community development and planning director or his/her designee.

E. “Geotechnical report” or “geotechnical analysis” means a scientific study or evaluation conducted by a qualified expert that includes a description of the ground and surface hydrology and geology, the affected land form and its susceptibility to mass wasting, erosion and other geologic hazards or processes, conclusions and recommendations regarding the effect of the proposed development on geologic conditions, the adequacy of the site to be developed, the impacts of the proposed development, alternative approaches to the proposed development, and measures to mitigate potential site-specific and cumulative geological and hydrological impacts of the proposed development, including the potential adverse impacts to adjacent and down-current properties. Geotechnical reports shall conform to accepted technical standards and must be prepared by qualified professional engineers or geologists who have professional expertise about the regional and local shoreline geology and processes.

F. “Minor utility projects” means the placement of a small utility facility which does not disturb areas of less than 200 square feet.

G. “Qualified professional” means a person which the town has determined meets the qualified professional definition in WAC 365-195-905(4) for each discipline, conducts interactions with staff with professionalism, and whose submitted materials meet the standards of the town. The following qualifications must also be met for specific critical areas:

1. Critical aquifer recharge areas – the professional is a currently licensed Washington State geologist holding a current specialty license in hydrogeology. A general practice geologist or PE, or one whose specialty lies in another area, may or may not have appropriate background to perform this work.

2. Geologically hazardous areas – the professional is a currently licensed professional engineering geologist or geotechnical engineer. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.070 Applicability and severability.

A. Scope. This chapter shall be consistently applied to any development, use or land surface modification within geographical areas of the town of Friday Harbor that meet the definition and criteria for critical areas and critical area buffers as set forth in this chapter.

B. Review Area. For the purpose of this title, the area of review is defined as the critical area and its largest potential buffer. For geologically hazardous areas the review area is all geologically hazardous areas within zone or distance of potential significant influence as determined by a professional engineer/geologist.

C. Severability. Should any section or provision of this chapter be declared invalid, such decision shall not affect the validity of this chapter as a whole. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.080 Mitigation.

Development permitted pursuant to this chapter that adversely impacts or alters a critical area or buffer shall include mitigation sufficient to minimize risks associated with geologic hazards and/or maintain or replace critical areas functions and values.

A. Development Mitigation. Any proposed development that cannot adequately mitigate critical area impacts as determined by the technical administrator shall be denied, except as may be allowed as exceptions in FHMC 18.08.110 and 18.08.120.

B. Mitigation Sequencing. Before impacting any critical area or the critical area buffer, an applicant shall demonstrate that the following actions have been taken. Actions are listed in the order of preference:

1. Avoid the impact altogether by not taking a certain action or parts of an action.

2. Minimize impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts.

3. Rectify the impact by repairing, rehabilitating or restoring the affected environment.

4. Reduce or eliminate the impact over time by preservation and maintenance operations.

5. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments.

6. Monitor the required compensation and take remedial or corrective measures when necessary.

C. On-Site Versus Off-Site Mitigation.

1. On-site mitigation for a wetland or its buffer is preferable to off-site mitigation. Given on-site constraints, the town may approve a plan to implement all or a portion of the required mitigation off site if the off-site mitigation provides a greater ecological function in the landscape than on-site mitigation. The applicant shall demonstrate that the off-site mitigation will result in higher wetland functions, values and/or acreage than on-site mitigation. Required compensatory mitigation ratios shall be determined based on location, type of mitigation and functions and values being replaced.

2. If the proposed on-site or off-site mitigation plan will result in the creation or expansion of a wetland or its buffer on any property other than the subject property, the plan shall not be approved until the applicant submits to the town a copy of a statement signed by the owners of all affected properties, in a form approved by the town attorney and recorded with the San Juan County auditor, consenting to the wetland and/or buffer creation or increase on such property, and to the required maintenance and monitoring that may follow the creation or expansion of a wetland or its buffer.

D. Critical Areas Protective Measures.

1. Temporary Fence or Barrier. Prior to beginning development activities, the applicant shall install a six-foot-high construction-phase chain link fence or equivalent fence with silt screen fabric, as approved by the director and consistent with town standards, along the upland boundary of the entire wetland buffer or FWHCA buffer. The construction-phase fence shall remain upright in the approved location for the duration of development activities.

2. Permanent Critical Area Buffer Fence or Barrier. Upon project completion, the applicant shall install between the upland boundary of all wetland buffers or FWHCA buffers and the developed portion of the site, either (a) a permanent three- to four-foot-tall split rail fence; or (b) equivalent barrier, as approved by the director. Installation of the permanent fence or equivalent barrier must be done by hand where necessary to prevent machinery from entering the wetland or its buffer.

3. Buffer Setback. Buildings, structures, paving, and other hard surfacing shall be set back a distance of 10 feet from the edge of the stream buffer unless a smaller setback is approved by the director. This setback is to avoid conflicts with tree branches and/or critical root zones of trees that are in the buffer or will be planted in the buffer. The following may be allowed in the building setback from the buffer if they do not cause damage to the critical root zone of trees in the buffer:

a. Landscaping;

b. Uncovered decks and unroofed stairways and steps;

c. Roof eaves and overhangs;

d. Pervious ground surfaces, such as driveways, patios, and parking may be allowed; provided, that they are engineered as a pervious system;

e. Above and below ground water conservation cisterns and associated infrastructure, used for residential rainwater catchment but not to exceed 300 square feet total; provided, that if above ground, the necessary foundation is engineered as a pervious system.

4. Protection of critical areas that are part of an approved mitigation plan shall be achieved through a native growth protection easement recorded at the San Juan County auditor’s office, or similar means of protection in perpetuity.

5. As a condition of any permit or authorization issued pursuant to this chapter, the director may require the applicant to install permanent signs along the boundary of a critical area. Permanent signs shall be made of a durable material and vandal-resistant, and shall be attached to a metal post, or other material of equal durability. Signs must be posted at an interval of 100 feet, or at intervals with a clear line of sight as the director deems necessary and must be maintained and replaced by the property owner if the sign language is no longer visible. Any modification of the location or materials required for permanent signs shall be approved by the director. The sign shall meet the specifications in the technical report guidance.

E. Mitigation Surety. A financial surety of 150 percent of the cost estimate for mitigation shall be established by the applicant. The applicant shall provide a financial performance assurance device in lieu of constructing required mitigation measures and may require such a device to guarantee installation/construction of required mitigation measures within one year of the issuance of a certificate of occupancy or final inspection.

1. Performance assurance devices shall take the form of one of the following:

a. A surety bond executed by a surety company authorized to transact business in the state, in a form approved by the town attorney;

b. Cash;

c. A letter of credit, approved by the town attorney, from a financial institution; or

d. An assigned savings account, pursuant to an agreement approved by the town attorney.

2. If a performance assurance device is employed, the property owner shall provide the town with a nonrevocable notarized agreement granting the town and its agents the right to enter the property and perform any required work remaining undone at the expiration of the time given to the owner for completion.

3. If the owner fails to complete the work and the town has incurred costs or expenses resulting from such failure, the town shall make demand on the assurance device for reimbursement. If the amount available is less than the expense incurred by the town, the owner shall be liable to the town for the difference. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.090 Minor development activities allowed without critical area review.

Development activities exempt from review of this chapter shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this chapter or any other laws or ordinances of this jurisdiction. The proposed development may require a permit per FHMC Titles 15, 16, 17, and 19. The following activities as specified are allowed without critical area review:

A. Minimum actions necessary to protect life or property in an emergency situation. Qualification as an emergency shall be based upon the factual occurrence of imminent threat or danger; after the emergency is abated and within 30 days retroactive permitting or migration will be required.

B. Areas previously reviewed for critical areas impacts. Development proposed in a review area, as defined in FHMC 18.08.060, within the last five years, unless this chapter has been amended and the amendment would apply to the development proposal.

C. Passive outdoor activities. This includes recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching.

D. Minor site investigative work. Minimal site work expressly for the need to gather site information such as surveys, soil logs and borings, percolation tests, wetland delineation conducted in accordance with local and state standards, archaeological investigations, or similar investigations or surveys which do not require the construction of permanent structures or vehicle access and only minimal amounts of excavation. In every case, disturbance to the critical area shall be minimized through best management practices and the use of low-impact equipment. Septic excavation pits are prohibited in wetlands or areas suspected of being wetlands. The site must be rectified to predisturbance conditions, once the investigation or survey is complete.

E. Operation, maintenance, repair or improvements of existing structures or infrastructure, if the activity does not alter or increase impacts to critical areas and there is no increased risk to life or property.

F. Modification of existing structures. Structural modifications or replacement of an existing legally constructed structure that does not alter or increase impacts to a critical area or buffer and does not increase risk to life or property.

G. Signs. When the placement is consistent with FHMC Title 14 and land clearing or fill and grade permit is not required.

H. Forest practices regulated by the state. Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, Title 222 WAC, are exempt, except for conversions to nonforestry use, unless within a geologically hazardous area or setback as defined in FHMC 18.08.230.

I. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.100 Allowed development activities.

The following development activities are generally allowed with an approved critical area permit and all provisions of this chapter have been met. The proposed development may require a permit per FHMC Titles 15, 16, 17 and 19.

A. Trails. Public and private trails in wetlands and fish and wildlife conservation areas or their buffers when all of the following are met:

1. Trails shall meander through the outer 50 percent of the wetland or FWHCA buffer.

a. When approved, trail crossing a wetland or stream is limited to minimum number and extent necessary for the intended use.

b. Public trails through wetlands must be elevated and private trails are prohibited from crossing wetlands.

c. Public trails over all stream types must be the minimum width necessary and private trails be five feet or less.

2. Trails are constructed of pervious materials.

3. Public trail width is the minimum necessary for the intended use and private trail width may not exceed five feet.

B. Hazard trees. Removal is allowed with an approved hazard tree risk assessment and approved replanting plan.

C. View protection. Tree and vegetation removal to maintain an existing view or create a view corridor which does not exceed 10 percent of the length of the buffer or frontage of the critical area, whichever is less.

D. Minor vegetation removal. Enhancement of critical areas and critical area buffers through selective removal of invasive, noxious, and nonnative vegetation with hand labor and light equipment. Revegetation with appropriate native species at natural densities is required in conjunction with removal of invasive plant species. Proper disposal of invasive species is required.

E. Signs. When the placement is consistent with FHMC Title 14 and land clearing or fill and grade permit is required.

F. Utilities. Drilling for utilities/utility corridors under a critical area or buffer, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column will be disturbed.

G. Modification of existing structures. As allowed by this chapter for new development, structural modifications or replacement of an existing legally constructed structure that alters or increases impacts to a critical area or buffer.

H. Storm water management facilities. Storm water management facilities are limited to storm water dispersion outfalls and bioswales. They may be allowed within the outer 25 percent of the buffer of Category III or IV wetlands only; provided, that:

1. No other location is feasible; and

2. The location of such facilities will not degrade the functions or values of the wetland; and

3. Storm water management facilities are not allowed in buffers of Category I or II wetlands.

I. Water quality facilities. Water quality facilities as determined by the town may be allowed within the outer 25 percent of the buffer of Category III or IV wetlands only; provided, that:

1. No other location is feasible; and

2. The location of such facilities will not degrade the functions or values of the wetland; and

3. Water quality facilities are not allowed in buffers of Category I or II wetlands.

J. Temporary roads. Construction of temporary access in wetland buffers or FWHCA buffers to complete technical reports for a proposed development. The location of the road construction shall be the most direct route and materials used must be installed and removed with minimal disturbance. Rectification or mitigation is required.

K. 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 an existing town approved private roadway. To address activities that alter a wetland or watercourse or result in the transport of sediment or increased stormwater runoff the director may require:

1. Increasing buffer widths equal to the width of the right-of-way improvement, including disturbed areas; and

2. Retention and replanting of native vegetation along the right-of-way and resulting disturbance.

L. Minor utility projects. Utility projects with minor or short-duration impacts to critical areas and no significant impact on the function or values of a critical area, provided no feasible alternative exists with less impact to the critical area, and such projects implement best management practices as additional restoration measures.

M. Navigational aids and boundary markers. Construction or modification of navigational aids and boundary markers.

N. Chemical applications. The application of herbicides, pesticides, fertilizers, or other hazardous substances, as approved by the town. Provided, their use should be restricted in accordance with state Department of Fish and Wildlife management recommendations and the regulations of the state Department of Agriculture and the U.S. Environmental Protection Agency.

O. Fill. A wetland may be allowed to be altered when associated with an approved development and 401/404 permits have been obtained from the Army Corps of Engineers and Department of Ecology. A copy of the permit must be provided to the town prior to critical area permit approval. If the wetland is determined by the Army Corps of Engineers to be nonjurisdictional than only local approval is required. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.110 Reasonable use exceptions.

If the application of this chapter would preclude all reasonable use of a parcel, then development consistent with the general purposes and intent of this chapter may be permissible in accordance with this section.

A. Authority. The town council shall have the authority to grant or deny reasonable use exceptions.

B. Information Required. An application for a reasonable use exception shall be submitted to the director and shall include the following information:

1. A description of the area of the property which is within the critical area;

2. An analysis of the impact that the amount of development proposed would have on the critical area;

3. An analysis of whether any other reasonable use with less impact on the critical area is possible;

4. A design of the reasonable use proposal that will have the least practicable impact on the critical area;

5. A description and analysis of any minimum requirements of this chapter, which must be modified to accommodate the proposed development; and

6. Such other information as may be reasonable and necessary to evaluate the proposal.

C. Findings. The director shall make written findings in support of the decision, as follows:

1. The applicant demonstrates that the requirements of this chapter would deny all reasonable use of a parcel;

2. There are no feasible alternatives to the proposed development which would have less impact on the critical area;

3. The inability of the applicant to derive a reasonable use of the property is not the result of actions taken by the applicant after the effective date of the ordinance codified in this chapter;

4. The proposal mitigates the impacts on the critical area to the maximum extent practicable, consistent with best available science, while maintaining the reasonable use of the site;

5. The modification of the requirements of this chapter is the minimum necessary to allow for the reasonable use of the property; and

6. The proposal meets the variance criteria in Chapter 17.84 FHMC.

D. Approval. The town council or director may impose reasonable conditions on the granting of the reasonable use exception.

E. Notification of Decision. The decision shall be provided, in writing, to the applicant and all property owners immediately adjacent to or abutting the site. The applicant shall be responsible for providing a current listing of all such property owners.

F. Appeal. The decision of town council is appealable to superior court. The appellant shall file a written notice of appeal within 21 calendar days of the final decision of the hearing examiner, as provided in RCW 36.70C.040. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.120 Public agency and utility exception.

A. Permit. If the application of regulations for critical areas would prohibit a development proposal by a public agency or public utility, the proposed development may be permitted if a critical area exception is approved in accordance with this section. The proposed development may require a permit per FHMC Titles 15, 16, 17 and 19.

B. Criteria for approval shall include:

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

2. The application of the critical area regulations 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. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.130 Violation and enforcement.

A. A violation of this chapter shall be and hereby is declared both a public nuisance and a Class 1 civil infraction, as defined in Chapter 1.18 FHMC as amended from time to time. Each day that a violation of this chapter exists may be treated as a separate infraction.

B. Except in circumstances where there is a serious and imminent threat to public health or safety, prior to filing a public nuisance abatement action in San Juan County superior court, the town shall attempt to gain compliance by use of the civil infraction procedures set forth in Chapter 1.18 FHMC as amended from time to time.

C. The penalty for committing a civil infraction under this chapter shall be as set forth in Chapter 1.18 FHMC. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.140 Critical area permit review.

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

1. Verify the information submitted by the applicant;

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

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

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

5. Determine whether the development proposal conforms to the purposes and performance standards of this chapter;

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

7. Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives and requirements of this chapter.

B. Technical Report. If the initial site inspection or information subsequently obtained indicates that a critical area, critical area buffer or setback may exist on or near the subject property or surrounding area, the applicant shall submit a report prepared by a qualified professional approved by the town and shall be paid for by the applicant. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.200 Wetlands.

A. Authorization. No land surface modification shall occur, and no improvement may be located in a wetland or its buffer, except as provided in this section.

B. General Wetland Procedures. All determinations and delineations of wetlands shall be made using the criteria and procedures outlined in WAC 173-22-035 and contained in 1987 Corps of Engineers Wetland Delineation Manual and the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0 or as amended). All determinations, delineations, and regulations of wetlands shall be based on the entire extent of the wetland, irrespective of property lines, ownership patterns, or other factors.

C. Wetland Determinations. Either prior to or during review of a project permit application, the director shall determine whether a wetland or its buffer is present within the review area using the following provisions:

1. Initial Site Inspection. The director shall make an initial assessment as to whether any portion of the subject property or surrounding area meets the definition of a wetland indicator or buffer. If this initial site inspection does not indicate the presence of a wetland indicator or buffer on the subject property or surrounding area, no additional wetland studies will be required at that time.

2. Technical Report. If the initial site inspection or information subsequently obtained indicates that a wetland indicator or buffer may exist on or near the subject property or surrounding area, the applicant shall submit a report prepared by a qualified professional approved by the town and shall be paid for by the applicant. The study shall be performed by a qualified person selected or approved by the town.

3. Final Determination. Formal determination of whether a wetland exists on the subject property, as well as its boundaries and rating, shall be made by the director after preparation and review of the delineation report, if applicable, by the town’s consultant. The director’s decision under this section shall be used for review of any development permit or activity proposed on the subject property for which an application is received within five years of the delineation report; provided, that the director may modify any decision whenever physical circumstances have markedly and demonstrably changed on the subject property or the surrounding area as a result of natural processes or human activity.

4. Mediation. When the wetland assessment and field investigations by the director are not in agreement, the director may request review by the Department of Ecology. Wetland reports should be forwarded to the Department of Ecology for review as soon as possible.

D. Wetland Buffers.

1. Measurement of Wetland Buffers. The standard wetland buffer is measured perpendicular from the outer edge of the wetland boundary.

2. Buffers on Wetland Mitigation Sites. All wetland mitigation sites shall have buffers consistent with the buffer requirements of this section. Buffers shall be based on the expected or target category of the proposed wetland mitigation site.

3. Overlapping Critical Area Buffers. If buffers for two contiguous critical areas overlap (such as buffers for a stream and a wetland), the wider buffer applies.

4. Base Buffer. The standard buffer widths in Table 1 have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State Wetland Rating System for Western Washington.

5. Habitat Buffer. Additional buffer widths are added to the standard buffer widths depending on the habitat score as determined by the Department of Ecology Wetland Rating Form.

6. Buffer Condition. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the eco-region. If the existing buffer is nonvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer either should be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

Table 1: Wetland Buffers
 

Wetland Category

Standard Buffer Width

Buffer Width if Wetland Scores 6 – 7 Habitat Points

Buffer Width if Wetland Scores 8 – 9 Habitat Points

Category I: based on total score

100 ft

150 ft

300 ft

Category I: bogs

250 ft

250 ft

300 ft

Category I: natural heritage wetlands

250 ft

250 ft

300 ft

Category I: forested

100 ft

150 ft

300 ft

Category I: coastal lagoons and estuarine

200 ft

No additional buffer width

No additional buffer width

 

Category II: coastal lagoons and estuarine

150 ft

No additional buffer width

No additional buffer width

Category II:

100 ft

150 ft

300 ft

Category III:

80 ft

150 ft

300 ft

Category IV:

50 ft

No additional buffer width

No additional buffer width

7. Modification to Wetland Buffer Width – Performance Standards. The wetland buffer may be reduced by 25 percent when the applicant implements all reasonable measures to minimize the adverse effects of adjacent land uses and ensure no net loss of buffer functions and values. Such measures shall at minimum include the following:

a. Direct lights away from the wetland and buffer.

b. Locate activities that generate noise away from the wetland and buffer.

c. Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered.

d. Establish covenants limiting use of pesticides within 150 feet of wetland.

e. Apply integrated pest management.

f. Retrofit stormwater detention and treatment for roads and existing adjacent development.

g. Prevent channelized flow from lawns that directly enters the buffer.

h. Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns.

i. Post signs at the outer edge of the critical area or buffer to clearly indicate the location of the critical area according to the direction of the county.

j. Use privacy fencing.

k. Plant with dense native vegetation appropriate for the county to delineate buffer edge and to discourage disturbance.

l. Use low impact development where appropriate.

m. Establish a permanent conservation easement or tract to protect the wetland and the associated buffer.

n. Use best management practices to control dust.

8. Modification to Wetland Buffer – Averaging Width. Buffer averaging to improve wetland protection may be permitted when all of the following conditions are met:

a. The wetland has significant differences in characteristics that affect its habitat functions, such as a wetland with a forested component adjacent to a degraded emergent component or a “dual-rated” wetland with a Category I area adjacent to a lower-rated area.

b. The buffer is increased adjacent to the higher-functioning area of habitat or more sensitive portion of the wetland and decreased adjacent to the lower-functioning or less sensitive portion as demonstrated by a technical report from a qualified wetland professional.

c. The total area of the buffer after averaging is equal to the area required without averaging.

d. The buffer at its narrowest point is never less than either three-quarters of the required width or 75 feet for Category I and II, 50 feet for Category III, and 25 feet for Category IV, whichever is greater.

9. Modification to Wetland Buffer – Nonconforming Structures. The director may approve a modification of the required buffer width where an open public right-of-way, improved easement road or existing structure divides a wetland buffer. The modification may be allowed in that portion of the buffer isolated from the wetland by the road or structure; provided, that the isolated portion of the buffer:

a. Does not provide additional protection of the wetland from the proposed development; and

b. Provides insignificant biological, geological, or hydrological buffer functions relating to the portion of the buffer adjacent to the wetland.

E. Compensatory Mitigation Compensatory Mitigation. All approved impacts to regulated wetlands require compensatory mitigation so that the goal of no net loss of wetland function, value, and acreage is achieved. A mitigation proposal must utilize the mitigation ratios specified below as excerpted from: Washington State Department of Ecology, U.S. Army Corps of Engineers Seattle District, and U.S. Environmental Protection Agency Region 10, March 2006. Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance (Version 1). Washington State Department of Ecology Publication No. 06-06-011a. Olympia, WA.

 

Table 2: Compensatory Mitigation 

Category and Type of Wetland Impacts

Reestablishment or Creation

Rehabilitation Only1

Reestablishment or Creation (R/C) and Rehabilitation (RH)1

Reestablishment or Creation (R/C) and Enhancement (E)1

Enhancement Only1

All Category IV

1.5:1

3:1

1:1 R/C and 1:1 RH

1:1 R/C and 2:1 E

6:1

All Category III

2:1

4:1

1:1 R/C and 2:1 RH

1:1 R/C and 4:1 E

8:1

Category II

3:1

6:1

1:1 R/C and 4:1 RH

1:1 R/C and 8:1 E

12:1

Category I forested

6:1

12:1

1:1 R/C and 10:1 RH

1:1 R/C and 20:1 E

24:1

Category I – based on score for functions

4:1

8:1

1:1 R/C and 6:1 RH

1:1 R/C and 12:1 E

16:1

Category I natural heritage site

Not allowed

6:1 rehabilitation of a natural heritage site

Not allowed

Not allowed

Case-by-case

Category I bog

Not allowed

6:1 rehabilitation of a bog

Not allowed

Not allowed

Case-by-case

1 These ratios are based on the assumption that the rehabilitation or enhancement actions implemented represent the average degree of improvement possible for the site. Proposals to implement more effective rehabilitation or enhancement actions may result in a lower ratio, while less effective actions may result in a higher ratio. The distinction between rehabilitation and enhancement is not clear-cut. Instead, rehabilitation and enhancement actions span a continuum. Proposals that fall within the gray area between rehabilitation and enhancement will result in a ratio that lies between the ratios for rehabilitation and the ratios for enhancement.

(Ord. 1720 § 4 (Exh. A), 2021)

18.08.210 Aquifer recharge areas.

A. Classification of Critical Aquifer Recharge Areas. The following characteristics define the hydrogeological conditions of the town’s aquifers:

1. The town’s aquifers are sole source aquifers, recharged by local rainfall only.

2. Many of the town’s aquifers are located in bedrock and are at risk from direct surface contamination.

3. The town’s small land areas and extensive shoreline create conditions where the balance between the sea water and freshwater interface is critical to prevent sea water intrusion.

4. Groundwater is an important source of water to lakes and streams that provide both drinking water and water for fish and wildlife.

B. San Juan County Code 18.35.080, Critical aquifer recharge areas, is hereby adopted by reference, except for subsections A(3) and A(4). Because of the hydrogeologic characteristics listed in subsection B of this section, all of the land area of San Juan County is classified as highly susceptible. High vulnerability is indicated by activities that contribute to the risk of contamination, such as those listed in SJCC 18.35.080(E).

1. Performance Standards. All development shall implement the following: groundwater protection requirements of SJCC 18.35.080(C).

2. Plan review requirements of SJCC 18.35.080(D).

3. Inspection requirements of SJCC 18.35.080(E).

4. All development shall implement appropriate source controls in the current edition of the Western Washington Stormwater Manual.

5. Existing commercial and industrial uses shall be required to implement source control best management practices as a condition of approval when any project permit is submitted to the town. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.220 Fish and wildlife habitat conservation areas.

All areas within the town meeting one or more of the criteria for FWHCA, 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.

A. Fish and Wildlife Habitat Conservation Areas. Fish and wildlife habitat conservation areas include:

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

2. 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.

3. State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington Department of Fish and Wildlife, that 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 (WAC 232-12-014 and 232-12-011). The state Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.

4. State priority habitats and areas associated with state priority species are 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 (PHS) are identified and listed by the state Department of Fish and Wildlife.

5. Critical saltwater habitats. Critical saltwater habitats include all kelp beds, eelgrass beds, spawning and holding areas for forage fish, such as herring, smelt and sandlance; subsistence, commercial and recreational shellfish beds; mudflats, intertidal habitats with vascular plants, and areas with which priority species have a primary association.

6. 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 upland areas for mitigation purposes. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as detention facilities, wastewater treatment facilities, temporary construction ponds, and landscape amenities. To distinguish between ponds and wetlands, refer to current state or federal definitions and guidance.

7. 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, including wetlands, within the jurisdiction of the state of Washington as defined in WAC Title 17.

8. 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.

9. 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.

10. Wildlife corridors. Land useful or essential for preserving connections between habitat blocks and open spaces.

B. Performance Standards.

1. 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.

2. 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. 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 follow best available science and reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby.

2. Buffer Standards. The buffer standards required by this chapter presume the existence of a dense vegetation community in the buffer adequate to protect the stream functions and values. When a buffer lacks adequate vegetation, the director may increase the standard buffer, requiring buffer planting or enhancement, and/or deny a proposal for buffer reduction or buffer averaging. Buffers may not include areas that are functionally and effectively disconnected from the stream or buffer areas by a public or private road.

3. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply. Larger buffers may be required, and activities may be further restricted during the specified season.

D. Fish and Wildlife Conservation Areas – Standards.

1. Endangered, Threatened, and Sensitive Species. 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, unless a management plan consistent with applicable state or federal agency regulations or guidance is provided. Appropriate management measures shall be included in a technical report prepared by a qualified professional for review by the town. The town may require a consultation with the respective agency prior to approval.

2. Eagles. Nesting bald eagles and bald eagle habitat shall be protected consistent with the U.S. Fish and Wildlife Service Bald Eagle Management Guidelines, or the state or federal regulations in place at the time of application. Whenever activities are proposed adjacent to a verified nest territory or communal roost, a bald eagle habitat management plan shall be developed by a qualified professional. Activities are adjacent to managed bald eagle sites when they are within 660 feet of a nest or within one-half mile (2,640 feet) of a shoreline foraging area. Approval of the activity shall not occur prior to consultation with the state or federal agency with authority on bald eagle pairs and their nest.

3. Anadromous and Resident Fish. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement 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. Structures that prevent the migration of fish shall not be allowed in the portion of water bodies currently, historically, or potentially used by 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.

f. Fills, when authorized by the shoreline master program, shall not adversely impact fish or their habitat or shall mitigate any unavoidable impacts and shall only be allowed for a water-dependent use. Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.230 Geological hazards.

A. Geologically Hazardous Areas. Areas susceptible to erosion, landslide, rock fall, subsidence, earthquake, or other geological events pose a threat to the health and safety of citizens when incompatible development is sited in areas of significant hazard. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous areas:

1. Erosion hazard. Areas likely to become unstable, such as bluffs, steep slopes, and areas with unconsolidated soils. Erosion hazard areas may also include coastal erosion areas. This information can be found in the Washington State coastal atlas available from the Department of Ecology. Counties and cities may consult with the United States Department of Agriculture Natural Resources Conservation Service for data to help identify erosion hazard areas (WAC 36-190-120(5)).

2. Landslide hazard. Areas subject to landslides based on a combination of geologic, topographic and hydrologic factors include any areas susceptible to landslide because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors, and include, at a minimum, the following (WAC 36-190-120(6)):

a. Areas of historic failures, such as:

i. Those areas delineated by the United States Department of Agriculture Natural Resources Conservation Service as having a significant limitation for building site development;

ii. Those coastal areas mapped as class U (unstable), UOS (unstable old slides), and URS (unstable recent slides) in the Department of Ecology Washington coastal atlas; or

iii. Areas designated as quaternary slumps, earthflows, mudflows, lahars, or landslides on maps published by the United States Geological Survey or Washington Department of Natural Resources.

b. Areas with all three of the following characteristics:

i. Slopes steeper than 15 percent;

ii. Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and

iii. Springs or groundwater seepage.

c. Areas that have shown movement during the Holocene Epoch (from 10,000 years ago to the present) or which are underlain or covered by mass wastage debris of this epoch;

d. Slopes that are parallel or subparallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;

e. Slopes having gradients steeper than 80 percent subject to rockfall during seismic shaking;

f. Areas potentially unstable as a result of rapid stream incision, stream bank erosion and undercutting by wave action, including stream channel migration zones;

g. Any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of bedrock. A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least 10 feet of vertical relief. Slope shall not include those lands that have 10 feet of vertical change by virtue of a legally established retaining wall(s), foundation wall, stairways or similar vertical structure or those land areas where public infrastructure and its supporting elements have been developed.

3. Seismic hazard. Areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement or subsidence, soil liquefaction, surface faulting, or tsunamis. Settlement and soil liquefaction conditions occur in areas underlain by cohesionless soils of low density, typically in association with a shallow groundwater table (WAC 36-190-120(7)).

4. Mine hazard. Areas underlain by, adjacent to, or affected by mine workings such as adits, gangways, tunnels, drifts, or air shafts. Factors which should be considered include: proximity to development, depth from ground surface to the mine working, and geologic material (WAC 365-190-120(8)(b)).

B. General Performance Standards.

1. Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

a. Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;

b. Will not adversely impact other critical areas;

c. Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and

d. Are certified as safe as designed and under anticipated conditions by a qualified engineer or geologist, licensed in the state of Washington.

2. Essential public facilities shall not be sited within geologically hazardous areas unless there is no other practical alternative.

C. Geological Hazard Setback. Some geological hazards can be reduced or mitigated by engineering, design, or modified construction or mining practices so that risks to public health and safety are minimized.

1. Limitations. Building in geologically hazardous areas must be avoided when all known appropriate and reasonable technologies (AKART) cannot reduce risks to acceptable levels.

2. Erosion and Landslide Hazard Areas. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer shall be determined by the director to eliminate or minimize the risk of property damage, death or injury resulting from landslides caused in whole or part by the development, based upon review of and concurrence with a critical area report prepared by a qualified professional.

a. Minimum Buffer. The minimum buffer shall be equal to the height of the slope or 50 feet, whichever is greater.

b. Buffer Reduction. The buffer may be reduced to a minimum of 10 feet when a qualified professional demonstrates to the director’s satisfaction that the reduction will adequately protect the proposed development, adjacent developments, and uses and the subject critical area.

c. Increased Buffer. The buffer may be increased where the director determines a larger buffer is necessary to prevent risk of damage to proposed and existing development.

D. Performance Standards. Alterations of an erosion or landslide hazard area and/or buffer may only occur for activities for which a hazards analysis is submitted and certifies that:

1. The development will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions;

2. The development will not decrease slope stability on adjacent properties; and

3. Such alterations will not adversely impact other critical areas.

E. Design Standards. Development within an erosion or landslide hazard area and/or buffer shall be designed to meet the following basic requirements unless it can be demonstrated that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this chapter. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development design standards are:

1. The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.2 for dynamic conditions. Analysis of dynamic conditions shall be based on a minimum horizontal acceleration as established by the current version of the International Building Code;

2. Structures and improvements shall be clustered to avoid geologically hazardous areas and other critical areas;

3. Structures and improvements shall minimize alterations to the natural contour of the slope and foundations shall be tiered where possible to conform to existing topography;

4. Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

5. The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;

6. The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes; and

7. Development shall be designed to minimize impervious lot coverage.

F. Vegetation Retention. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited.

G. Allowed Development Activities.

1. Utility Lines and Pipes. Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available. The line or pipe shall be located above ground and properly anchored and/or designed so that it will continue to function in the event of an underlying slide. Stormwater conveyance shall be allowed only through a high-density polyethylene pipe with fuse-welded joints, or similar product that is technically equal or superior.

2. Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from an erosion or landslide hazard area shall be prohibited except as follows:

a. Conveyed via continuous storm pipe downslope to a point where there are no erosion hazard areas downstream from the discharge;

b. Discharged at flow durations matching predeveloped conditions, with adequate energy dissipation, into existing channels that previously conveyed stormwater runoff in the predeveloped state; or

c. Dispersed discharge upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and stormwater runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope.

3. Monitoring. For point discharges, a monitoring and reporting schedule for specified phases of the development or activity shall be developed by a qualified professional.

4. Roads and Utilities. Access roads and utilities may be permitted within the landslide hazard area and associated buffers if the town determines that no other feasible alternative exists.

5. Land Division. Areas that are located wholly or partially within a landslide hazard area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the landslide hazard or its buffer, as determined by a qualified professional. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.300 Technical reports.

The director my require a technical report for any critical area within the town of Friday Harbor. All technical reports shall meet the general requirements, Washington State guidance for the subject of the technical report, standard reporting for the discipline, and specific requirements of this chapter for the critical area.

A. Administration.

1. Composition. 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.

2. Prepared by a Qualified Professional. The applicant shall submit a critical area report prepared by a qualified professional that shall be selected or approved by the town.

3. 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.

4. Consultation. The director may require the report by the qualified professional and other documents to be reviewed by other agencies with jurisdiction or a third-party consultant chosen by the town. The director may also require peer review of any reports or documents at the expense of the applicant for the director’s assurance that the materials are accurate and consistent with federal, state and local regulations and guidelines.

5. Critical Area Report – Modifications to Requirements. The director may waive portions of a technical report as follows:

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

i. The applicant, with assistance from the town, cannot obtain permission to access properties adjacent to the project area; or

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

6. Modifications to Required Contents. The applicant may consult with the director prior to or during preparation of the critical area report to obtain town approval of modifications to the required contents of the report where more or less information is required to adequately address the potential critical area impacts and required mitigation. A qualified professional shall provide a detailed narrative describing the reason for the reduction in required contents.

7. 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:

a. 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;

b. Grading and drainage plans; and

c. Information specific to the type, location, and nature of the critical area.

B. General. The following shall be required for all technical reports:

1. The name and contact information of the applicant; the name, qualifications, and contact information and signature for the primary author (indicated) and other authors of the technical report; a description of the proposal; identification of the local permit(s) requested and all state, and/or federal related permit(s) required for the project.

2. A vicinity map for the project.

3. Maps (to scale) depicting on-site critical areas including buffers or off-site critical areas including buffers that extend onto the project site; the development proposal; grading and clearing limits; and areas of proposed impacts to critical area or buffers.

4. A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations.

5. Identification and characterization of all critical areas including their buffers, adjacent to the subject site and characterization of the ecological relationship of the critical area and buffers with any adjacent noncritical areas such as upland forest patches.

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

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

8. A summary of the methodology used to conduct the study.

9. Documentation of any fieldwork performed on the site, including field data sheets.

10. Implementation Schedule. Construction sequence and time schedule for project start, grading, water diversions, plantings, completion, etc. The applicant must work with the town to develop an agreed construction schedule for the mitigation project. Delays in implementing the construction of the mitigation site may result in an increase in the mitigation required and enforcement actions.

11. Completion. Acknowledgment that the wetland specialist will submit an as-built report to the department for review and acceptance. (Ord. 1720 § 4 (Exh. A), 2021)

18.08.310 Technical reports – Specific criteria.

A. Wetland. The report shall include all the following wetland-specific requirements:

1. Survey. A professional survey that is tied to a known monument, depicting the delineated wetland boundary and buffers on site, including buffers for off-site critical areas that extend onto the project site; the development proposal; other critical areas.

2. Documentation of any fieldwork performed on the site, including field data sheets for delineations, baseline hydrologic data, a completed rating form and required figures using the Washington State Wetland Rating System for Western Washington (Washington State Department of Ecology Publication No. 14-06-019, or latest version), and any other similar documents.

B. Fish and Wildlife Habitat Conservation Area. A habitat management plan is an investigation of the project area to evaluate the potential presence or absence of designated critical fish or wildlife species or habitat. A habitat management plan shall contain an assessment of habitats including the following site and proposal-related information at a minimum:

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

2. Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;

3. A discussion of any federal, state, or local special management recommendations, including Washington Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

4. A detailed discussion of the direct and indirect potential impacts on habitat by the project, including potential impacts to water quality;

5. A discussion of measures, including avoidance, minimization, and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with mitigation sequencing; and

6. A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.

7. Additional Information May Be Required. When appropriate due to the type of habitat or species present or the project area conditions, the director may also require the habitat management plan to include:

a. An evaluation by an independent qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate;

b. A request for consultation with the Washington Department of Fish and Wildlife or other appropriate agency; and

c. Detailed hydrologic features both on and adjacent to the site.

C. Geologic Hazard Reports. A critical area report for a geologically hazardous area shall contain an assessment of geological hazards including the following site- and proposal-related information at a minimum:

1. Site and Construction Plans. The report shall include a copy of the site plans for the proposal showing:

a. The type and extent of geologic hazard areas, any other critical areas, and buffers on, adjacent to, or within a zone or distance of potential significant influence as determined by a professional engineer/geologist;

b. Proposed development, including the location of existing and proposed structures, fill, storage of materials, and drainage facilities, with dimensions indicating distances to the floodplain, if available;

c. The topography, as determined by a professional engineer or geologist, of the project area and all hazard areas addressed in the report; and

d. Clearing limits.

2. Assessment of Geological Characteristics. The report shall include an assessment of the geologic characteristics of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties, and a review of the site history regarding landslides, erosion, and prior grading. Soils analysis shall be accomplished in accordance with accepted classification systems in use in the region. The assessment shall include, but not be limited to:

a. A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazardous areas addressed in the report;

b. A detailed overview of the field investigations, published data, and references; data and conclusions from past assessments of the site; and site-specific measurements, test, investigations, or studies that support the identification of geologically hazardous areas; and

c. A description of the vulnerability of the site to seismic and other geologic events.

3. Analysis of Proposal. The report shall contain a hazards analysis including a detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property, and affected adjacent properties.

4. Shoreline Stabilization. The report shall be consistent with WAC 173-26-231, Shoreline Modifications, specifically Sections 1 through 3(a). The report shall include all the requirements for a geotechnical report as provided in WAC 173-26-231(3)(iii).

5. Minimum Buffer and Building Setback. The report shall make a recommendation for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis.

6. Incorporation of Previous Study. Where a valid critical areas report has been prepared, and where the proposed land use activity and surrounding site conditions are unchanged, said report may be incorporated into the required critical area report, if deemed still valid and appropriate by a professional engineer or geologist. The applicant shall submit a hazards assessment detailing any changed environmental conditions associated with the site based on best professional judgment of the engineer/geologist.

7. Mitigation of Long-Term Impacts. When hazard mitigation is required, the mitigation plan shall specifically address how the activity maintains or reduces the preexisting level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected life span of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the preexisting conditions following abandonment of the activity.

D. Mitigation Plans. If mitigation is required, at a minimum the report shall include all the following mitigation-specific requirements:

1. Prepared by a qualified professional specializing in the type of critical area.

2. Report Requirements.

a. Detailed summary of the project, including the impacts to the critical area, and the proposed mitigation to compensate for lost functions and values.

b. Rationale for selecting the mitigation site.

c. Complete site characterization of the proposed mitigation site to include parcel size, ownership, soils, vegetation, hydrology, topography, and wildlife.

d. Goals, objectives, performance standards and dates of commencement and completion of the mitigation proposal.

e. Report and maps of the critical area to be impacted. (If it is a wetland, the report must include a functional assessment; see Technical Report Guidebook.)

f. Monitoring, Maintenance, Contingency Plan and As-Built Report. The mitigation plan shall include the dates, frequencies, protocols, and submittal deadlines for the monitoring, maintenance, contingency and as-built report requirements. Monitoring and maintenance shall be required for at least five consecutive years unless otherwise stipulated by another government agency or the director.

g. Map of development, with scale, shown in relation to critical area.

3. A detailed, line-item estimate of the total cost to complete the approved mitigation plan, including a minimum of five years of maintenance and monitoring, shall be submitted for approval for the required financial surety for the project. The total estimate shall be multiplied by 150 percent.

4. Any mitigation plan prepared pursuant to this section and approved by the director shall become part of the application for the permit. The director will require an additional year of monitoring unless the applicant requests a final mitigation-year inspection prior to the end of the growing season. (Ord. 1720 § 4 (Exh. A), 2021)