Chapter 14A.154FISH AND WILDLIFE HABITAT AREAS

Sections:

14A.154.010
Purpose and Intent.
14A.154.020
Designation of Critical Fish and Wildlife Habitat Areas.
14A.154.030
Habitat Protection Standards.
14A.154.040
Title and Plat Notification.
14A.154.050
Habitat Protection for Rivers and Streams.
14A.154.060
Habitat Protection for Lakes.
14A.154.070
Habitat Protection for Ponds.
14A.154.090
Provisions for Fish and Wildlife, Habitat Buffers, Where Required.
14A.154.010Purpose and Intent.

Many land use activities can impact the habitats of fish and wildlife. Where areas of critical fish and wildlife habitat are subject to development, land use shall be managed to protect critical habitats. Managing land use to protect critical habitats is intended to allow proposed development to occur in a manner that is sensitive to the habitat needs of critical fish and wildlife species. The purpose of this Chapter is to identify critical fish and wildlife habitat species and habitats and establish habitat protection procedures and mitigation practices that are designed to achieve no “net loss” of species and habitat due to new development or other regulated activities.

As a necessary first step in achieving the necessary protection of critical fish and wildlife species, it is the intent of this Chapter to:

A. Define and identify critical fish and wildlife species and habitats;

B. emphasize and encourage education, information and voluntary action to enhance, protect, rehabilitate, and restore critical fish and wildlife species and habitats;

C. rely primarily upon existing procedures and laws, such as the State Environmental Policy Act, RCW 43.21C, the City's Shoreline Use Regulations and the Shorelines Management Act, RCW 90.58, that directly or indirectly, protect fish and wildlife species and habitats; and

D. establish buffers adjacent to rivers, streams, and other identified critical habitat areas and locations to protect critical fish and wildlife habitats.

It is not intended that this Chapter repeal, abrogate, or impair any existing law or regulations. If the buffering provisions of this Chapter conflict with any existing City law or regulation, the more stringent shall apply. (Ord. 362 § 3 (part), 2004.)

14A.154.020Designation of Critical Fish and Wildlife Habitat Areas.

A. General. This Chapter applies to proposed regulated activities within critical fish and wildlife habitat areas. Critical fish and wildlife habitat areas are those areas identified either by known point locations of specific species (such as a nest or den) or by habitat areas or both.

B. Identification of Critical Fish and Wildlife Species and Habitats.

1. Critical Fish and Wildlife Habitat Areas.

a. Federal and State-Listed Species and their Associated Habitats. Areas which have a primary association with federally or state listed endangered, threatened, or sensitive species of fish or wildlife (specified in 50 CFR 17.11, 50 CFR 17.12, WAC 232-12-014 and WAC 232-12-297) and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

b. Habitats and Species of Local Importance, including the following:

(1) Areas with which state listed monitor or candidate species or federally listed candidate species have a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

(2) Documented habitat areas or outstanding potential habitat areas for fish and wildlife species. These areas include specific habitat types which are infrequent in occurrence in Pierce County and Lakewood, and may provide specific habitats with which endangered, threatened, sensitive, candidate, or monitor species have a primary association, such as breeding habitat, winter range, and movement corridors. These areas include the following:

(a) Priority Oregon White Oak Woodlands

(b) Prairies

(c) Old growth forests

(d) Caves

(e) Cliffs

(f) Snag-rich areas

(g) Rivers and streams with critical fisheries;

(h) Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish or wildlife habitat;

(i) Waters of the state, including all water bodies classified by the Washington Department of Natural Resources (DNR) water typing classification system as detailed in WAC 222-16-030, together with associated riparian areas;

(j) Lakes, ponds, streams, and rivers planted with game fish by a governmental entity or tribal entity;

(k) State natural area preserves and natural resource conservation areas.

2. Mapping. The resources listed below provide information on fish and wildlife habitat areas:

a. Puget Sound Environmental Atlas, Puget Sound Water Quality Authority.

b. The following Washington Department of Natural Resources documents and data sources:

(1) Stream Typing Maps.

(2) Natural Heritage Data Base.

c. The following Washington Department of Wildlife documents and data sources:

(1) Priority Habitats and Species Program.

(2) Non-game Data Base.

(3) Washington Rivers Information System.

d. The following Washington Department of Fisheries documents:

(1) Water Resource Index Areas (WRIA). (Ord. 630 § 1, 2015; Ord. 362 § 3 (part), 2004.)

14A.154.030Habitat Protection Standards.

A. Education and Information. A voluntary education program to explain the need for and methods of habitat management will help provide for long-term protection and enhancement of critical fish and wildlife habitat areas. By informing citizens of the declining populations of several fish and wildlife species in Pierce County, the diminishing animal habitat available, and the management techniques that individuals can use to preserve and restore fish and wildlife habitat areas, the City can foster good stewardship of the land by property owners.

1. The Department will provide educational materials and lists of additional sources of information to applicants proposing regulated activities in the vicinity of critical fish and wildlife habitat areas. Materials will be selected from a variety of state and local resources.

2. The Department will accumulate information on the number of proposed activities associated with fish and wildlife habitat areas as identified by this Chapter and indicated by County maps to be in the vicinity of identified critical fish and wildlife habitats pursuant to 14A.154.020. Information shall include the number of single family residences and other development occurring in the vicinity of critical fish and wildlife areas. Based on this information, additional regulations may be developed.

B. Use of Existing Procedures and Laws, Biological Assessments. The primary procedures used to implement this Chapter shall include this Chapter itself, the City’s Land Use and Development Code, the State Environmental Policy Act (RCW 43.21C), the City's Environmental Regulations, the State Shorelines Management Act (RCW 90.58), and the City's Shoreline Management Regulations.

Regulated activities subject to environmental review shall be reviewed with consideration for impacts on critical fish and wildlife habitat as identified in this Title. The Community Development Director may require a biological assessment prepared by a qualified wildlife biologist whenever the Director finds that a project site may contain, affect, or be affected by, species or habitats designated in this Chapter. Biological assessments shall be prepared in accordance with LMC 14A.154.050(B), and are subject to the review and approval of the Director.

Projects undergoing review for fish and wildlife considerations shall be routed to the Washington Department of Fish and Wildlife, the Washington Department of Ecology, the US Fish and Wildlife Service, the US Army Corps of Engineers and any other appropriate state and federal agencies. These agencies will have an opportunity to provide specific habitat information on proposed development sites, advise the City of their jurisdiction and applicable permit requirements, and suggest appropriate project modifications and or other mitigation.

The City shall give substantial weight to the management recommendations contained in the Washington Department of Fish and Wildlife Priority Habitats and Species Program, particularly the management recommendations for Oregon White Oak Woodlands. (Ord. 630 § 2, 2015; Ord. 362 § 3 (part), 2004.)

14A.154.040Title and Plat Notification.

For regulated activities where a Habitat Assessment or Habitat Management Plan has been prepared as part of the proposal's environmental review, the owner of the site shall record a notice of the reports with the Pierce County Auditor so that information is known if the property ownership changes.

A. Title Notification. The owner of any site where a habitat assessment or habitat management plan has been prepared for a development proposal shall record a notice with the Pierce County Auditor in the form set forth below:

Form of Notice:

FISH AND WILDLIFE HABITAT AREA NOTICE

Parcel Number: ____________________

Address: ____________________

Legal Description: ____________________

Present Owner: ____________________

Notice: This site lies within/ contains a critical fish and wildlife habitat area as defined by Chapter 14A.154 of the Lakewood Municipal Code. The site was the subject of a development proposal for ____________________
application number ____________________
filed on ____________________ (date).

Restrictions on use or alteration of the site may exist due to natural conditions of the site and resulting regulation. Review of such application has provided information on the location of the fish and wildlife habitat area and any restriction on use.

____________________
Signature of Owner(s)

____________________
Date

(NOTARY ACKNOWLEDGMENT)

B. Plat Notification. For all proposed short subdivision and subdivision proposals within critical fish and wildlife habitat areas, the applicant shall include a note on the face of the plat. (Ord. 630 § 3, 2015; Ord. 362 § 3 (part), 2004.)

14A.154.050Habitat Protection for Rivers and Streams.

Regulated activities proposed along rivers and streams shall provide for habitat protection.

A. Habitat Protection for Rivers and Streams Shall be Provided Through Buffers.

1. The buffer, consisting of undisturbed natural vegetation, shall be required along all streams, as classified by the DNR water typing classification system (WAC 222-16-030). The buffer shall extend landward from the ordinary high water mark of the water body.

a. Outside of the buffer removal of native vegetation shall not exceed 35 percent of the surface area of the portion of the site in the Regulatory Floodplain. Native vegetation within the buffer portion of the property can be counted toward this requirement.

2. The buffer of a river or stream shall not extend landward beyond an existing substantial improvement such as an improved road, dike, levee, or a permanent structure which reduces the impact proposed activities would have on the river or stream.

3. Buffer widths shall be as established by by the City of Lakewood Shoreline Master Program (SMP) as contained in Chapter 4, Section C of the SMP.

4. If a proposed project does not meet the criteria established in LMC 18A.40.180.A. and B. a habitat impact assessment shall be conducted in accordance with Section 14A.154.050.C, and if necessary, a habitat mitigation plan shall be prepared and implemented in accordance with the provisions of this chapter.

B. Habitat Impact Assessment. Unless allowed under Sec. 18A.40.180, a permit application to develop in the Regulatory Floodplain shall include an assessment of the impact of the project on water quality and aquatic and riparian habitat. The assessment shall be:

1. A biological evaluation or biological assessment that has received concurrence from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, pursuant to Section 7 of the Endangered Species Act; or

2. Documentation that the activity fits within a habitat conservation plan approved pursuant to Section 10 of the Endangered Species Act; or

3. Documentation that the activity fits within Section 4(d) of the Endangered Species Act; or

4. An assessment prepared in accordance with the most current Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA (Federal Emergency Management Agency) Region X. The assessment shall determine if the project would adversely affect:

a. The primary constituent elements identified when a species is listed as threatened or endangered,

b. Essential fish habitat designated by the National Marine Fisheries Service,

c. Fish and wildlife habitat conservation areas,

d. Vegetation communities and habitat structures,

e. Water quality,

f. Water quantity, including flood and low flow depths, volumes and velocities,

g. The channel’s natural planform pattern and migration processes,

h. Spawning substrate, if applicable, and/or,

i. Floodplain refugia, if applicable.

C. Habitat Mitigation Plan.

1. If the assessment conducted under Sec. 14A.154.050(C) concludes the proposed project is expected to have an adverse effect on water quality and/or aquatic or riparian habitat or habitat functions, the applicant shall provide a plan to mitigate those impacts, in accordance with the current Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA (Federal Emergency Management Agency) Region X.

a. If the proposed project is located outside of the protected area, the mitigation plan shall include such avoidance, minimization, restoration, or compensation measures as are appropriate for the situation.

b. If the proposed project is located within the protected area, the mitigation plan shall include such appropriate measures as are needed to ensure that there is no adverse effect due to the project. Minimization measures are not allowed in the protected area, unless they, in combination with other measures result in no adverse effect. No compensatory mitigation is allowed in the Protected Area.

2. The plan’s habitat mitigation activities shall be incorporated into the proposed project. The floodplain development permit shall be based on the redesigned project and its mitigation components.

3. A certificate of occupancy or final inspection approval for a project shall not be issued until all work identified in the biological evaluation, biological assessment, or mitigation plan has been completed or the applicant has provided the necessary assurances that unfinished portions of the project will be completed.

D. Compensatory Storage. New development shall not reduce the effective flood storage volume of the Regulatory Floodplain. A development proposal shall provide compensatory storage if grading or other activity displaces any effective flood storage volume. Compensatory storage shall:

1. Provide equivalent volume at equivalent elevations to that being displaced. For this purpose, “equivalent elevation” means having similar relationship to ordinary high water and to the best available 10-year, 50-year and 100-year water surface profiles;

2. Be hydraulically connected to the source of the flooding; and

3. Provide compensatory storage in the same construction season as when the displacement of flood storage volume occurs and before flood season begins.

4. The newly created storage area shall be graded and vegetated to allow fish access during flood events without creating fish stranding sites. (Ord. 630 § 4, 2015; Ord. 362 § 3 (part), 2004.)

14A.154.060Habitat Protection for Lakes.

A. Regulated activities proposed on lakes that are urban in character will not be subject to the buffering requirements of this Chapter. The following lakes are urban in character:

American

Gravelly

Louise

Steilacoom

For proposed regulated activities on lakes that are subject to the State Shoreline Management Act, habitat protection shall be provided through education, voluntary agreements, and existing laws as referenced in 14A.154.030(B), and regulation via the City’s Shoreline Master Program and Shoreline Management Regulations.

B. Regulated activities proposed on lakes that are not subject to the State Shoreline Management Act shall be subject to a 35 foot buffer requirement. The buffer, consisting of undisturbed natural vegetation, shall extend landward from the ordinary high water mark of the water body. Existing laws as referenced in Section 14A.154.030(B) may also affect such proposals. (Ord. 362 § 3 (part), 2004.)

14A.154.070Habitat Protection for Ponds.

Regulated activities proposed on ponds will not be subject to the buffering requirements of this Section. Habitat protection for ponds shall be provided through education, voluntary agreements and existing laws as referenced in 14A.154.030(B). Ponds shall be regulated as wetlands where appropriate. (Ord. 362 § 3 (part), 2004.)

14A.154.090Provisions for Fish and Wildlife, Habitat Buffers, Where Required.

A. Building Setback and Construction near Buffer. A minimum setback of eight (8) feet from the buffer shall be required for construction of any impervious surface(s) greater than 120 square feet of base coverage. Clearing, grading, and filling within eight feet of the buffer shall only be allowed when the applicant can demonstrate that vegetation within the buffer will not be damaged.

B. Marking of the Buffer Area. The edge of the buffer area shall be clearly staked, flagged, and fenced prior to and through completion of construction. The buffer boundary markers shall be clearly visible, durable, and permanently affixed to the ground.

C. Fencing from Farm Animals. The Director shall determine if fencing is necessary to protect the functions and values of the critical area. If found to be necessary, the Director shall condition any permit or authorization issued pursuant to this Chapter to require the applicant to install a permanent fence around the habitat conservation area or buffer, when fencing will prevent future impacts to the habitat conservation area. The applicant shall be required to install a permanent fence around the habitat conservation area or buffer when domestic grazing animals are present or may be introduced on site. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as not to interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts.

D. Enhancements to natural buffers consistent with the education program (such as re-vegetation or nest boxes) are allowed.

E. Allowable Activities Within Buffers. The following activities may occur within the buffer after notification to the Department, provided that any other required permits are obtained.

1. Removal of diseased trees and trees that present an imminent threat to properties. The Director may require a written report by a registered landscape architect, certified nursery professional, or certified arborist assessing the condition of any tree that is purported to be diseased or hazardous.

2. Repair of existing fences.

3. Construction, reconstruction, remodeling, or maintenance of docks and bulkheads as authorized and pursuant to the Shoreline Management Regulations.

4. Construction of a pervious path for purposes of private access to the shoreline.

5. Trimming of vegetation for purposes of providing view corridors, provided that trimming shall be limited to view corridors of 20 feet or less and provided that benefits of the buffer to fish and wildlife habitat are not reduced. Trimming shall be limited to pruning of branches and vegetation. Trimming shall not include felling or removal of trees.

6. Construction of public trails.

7. Roadways, bridges, rights-of-way, and utility lines where no feasible alternative exists, and where the development minimizes impacts on the stream and buffer area. Clear documentation explaining the lack of alternatives and measures taken to minimize impacts on the critical area and buffer shall be provided to the Community Development Department prior to approval. (Ord. 362 § 3 (part), 2004.)