Chapter 16.15
CRITICAL AREAS

Sections:

16.15.010    Purpose and intent.

16.15.020    Applicability.

16.15.030    Designation, classification, and delineation of critical areas.

16.15.040    Critical area buffers and setbacks.

16.15.050    Decision authority.

16.15.060    Conflicts.

16.15.070    Relationship to other codes and regulations.

16.15.080    Lands to which this chapter applies and maps.

16.15.090    Regulated activities.

16.15.100    Exempt activities.

16.15.110    Emergencies.

16.15.115    Trees and vegetation – Activities and standards.

16.15.120    Critical area review – Process and procedures.

16.15.130    Applications.

16.15.140    Notice of application.

16.15.150    Preapplication meeting.

16.15.160    Critical area review – Preliminary assessment.

16.15.200    Critical area reports.

16.15.210    Mitigation – Preferred sequencing.

16.15.220    Mitigation plan – Requirements.

16.15.230    Mitigation plans – Performance standards.

16.15.240    Maintenance and monitoring plan.

16.15.250    Notice on title.

16.15.260    Signs and fencing.

16.15.270    Protective covenants.

16.15.310    Alteration of critical areas.

16.15.320    Unauthorized alterations of critical areas.

16.15.330    Restoration plan.

16.15.340    Guarantees to ensure mitigation, maintenance, and monitoring.

16.15.350    Variances.

16.15.360    Reasonable use exceptions.

16.15.380    Enforcement and penalties.

16.15.385    Appeals of critical area decisions.

16.15.390    Fees.

16.15.400    Wetlands.

16.15.410    Streams.

16.15.420    Wildlife habitat.

16.15.430    Geologic hazard area.

16.15.440    Flood hazard areas.

16.15.450    Aquifer recharge areas.

16.15.500    Definitions.

16.15.010 Purpose and intent.

A. Purpose. The purpose of this chapter is to designate and classify ecologically sensitive and hazardous areas, and to protect these areas and their functions and values, while also allowing for reasonable use of private property. Ecologically sensitive and hazardous areas, or critical areas, include wetlands, fish and wildlife habitat conservation areas, geologically hazardous areas, frequently flooded areas including streams, and critical aquifer recharge areas. This chapter includes the following objectives:

1. Comply with the requirements of the Growth Management Act (Chapter 36.70A RCW) and implement rules to identify and protect critical areas consistent with best available science per WAC 365-195-900 through 365-195-925, as amended, and in consultation with state and federal agencies and other qualified professionals;

2. Implement the goals and policies of the Mountlake Terrace Comprehensive Plan and development codes, including those pertaining to natural features and environmental protection, and relating to land use, housing, economic development, transportation, and adequate public facilities;

3. Use best available science to prepare critical area reports and make decisions to protect the functions and values of critical areas with special consideration given to conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat, consistent with RCW 36.70A.172 and WAC 365-195-900 through 365-195-925;

4. Serve as a basis for exercise of the City’s substantive authority under the State Environmental Policy Act (Chapter 43.21C RCW) where appropriate, to identify, consider, and mitigate significant adverse effects on critical areas not otherwise addressed by this chapter, while also reducing the City’s reliance on project-level SEPA review to protect regulated critical areas; and

5. Provide consistent standards, criteria, and procedures that will enable the City to effectively manage and protect critical areas while accommodating the rights of property owners to use their property in a reasonable manner.

B. Intent. The intent of critical areas regulations, as set forth in this chapter, is to:

1. Develop and implement a comprehensive, balanced and fair regulatory program that avoids impacts to critical resources where possible, by limiting development and alterations, that requires that mitigation be performed by those affecting critical areas, and that thereby protects the public from injury, loss of life, property or financial losses due to flooding, erosion, landslide, seismic events, soil subsidence or steep slope failure;

2. Provide greater certainty to property owners regarding uses and activities that are permitted, prohibited and/or regulated due to the presence of critical areas;

3. Coordinate environmental review and permitting of proposals involving critical areas with existing development review and approval processes to avoid duplication and delay, pursuant to Chapter 36.70B RCW;

4. Establish conservation and protection measures for threatened and endangered fish species in compliance with the requirements of the Endangered Species Act and WAC 365-195-925;

5. Achieve no net loss of critical area functions. Uses and activities carried out, pursuant to this chapter, shall result in equivalent or, if the applicant chooses, greater critical area functions and values. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas;

6. Alert the public to the development limitations and hazards associated with critical areas and their required buffers; and

7. Recognize that the objectives and means of protecting critical areas is unique for each community. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.020 Applicability.

A. This chapter shall regulate all land, water areas and structures, and any use or activity that affects or potentially affects a critical area or critical area buffer, unless otherwise exempt or granted an exception, consistent with this chapter.

B. All areas within the city meeting the definition of one or more critical areas, pursuant to MTMC 16.15.500, regardless of any formal identification of location of critical areas, pursuant to MTMC 16.15.080, are hereby designated critical areas and are subject to the provisions of this chapter.

C. The use of the term “critical area” in this chapter shall generally mean to include the critical area buffer, unless the context clearly indicates otherwise.

D. Critical areas regulated by this chapter include:

1. Wetlands and streams, pursuant to MTMC 16.15.400 and 16.15.410;

2. Fish and wildlife habitat conservation areas, pursuant to MTMC 16.15.420;

3. Geologically hazardous areas, pursuant to MTMC 16.15.430;

4. Flood hazard areas, pursuant to MTMC 16.15.440; and

5. Aquifer recharge areas, pursuant to MTMC 16.15.450.

E. Areas adjacent to critical areas are subject to this chapter. An adjacent area is any of the following locations:

1. A distance equal to, or less than, the required critical area buffer width and any building setback;

2. On a portion of a site with a critical area when the critical area’s buffer overlaps the subject site;

3. A distance equal to, or less than, 200 feet upland from a stream, wetland, or water body, not otherwise regulated by Chapter 16.10 MTMC, Shoreline Management;

4. Within 100 feet of a priority habitat area;

5. Within a floodway or floodplain; and

6. A distance equal to, or less than, 330 feet from a priority habitat point as mapped by the Washington State Department of Fish and Wildlife; or, within 50 feet of a critical slope.

F. The functions and values of critical areas shall be protected, pursuant to this chapter. No activity or use shall be allowed that results in a net loss of the functions or values of the critical areas. Any action taken shall result in equivalent or greater functions and values of the critical areas associated with the proposed action.

G. A “critical area permit” means any authorization to proceed with an activity, action, or use in a critical area or buffer. An authorization may consist of an approved land use, building, or other type of construction permit.

H. A permit or approval shall be obtained from the City for any activity which alters or disturbs critical areas or buffers, including but not limited to clearing, grading, draining, filling, dumping of debris, demolition of structures and installation of utilities, unless otherwise exempt or granted an exception, consistent with this chapter.

I. Approval of a permit or development proposal, pursuant to the provisions of this chapter, does not release the applicant from responsibility to comply with the provisions of this chapter. Activities in critical areas or buffers deemed exempt from a permit are responsible to comply with the provisions of this chapter. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.030 Designation, classification, and delineation of critical areas.

Critical areas within the City of Mountlake Terrace shall be designated, classified, and delineated, pursuant to MTMC 16.15.500, and the respective critical area type in MTMC 16.15.400 through 16.15.450. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.040 Critical area buffers and setbacks.

A. The purpose of a buffer is to protect the integrity, function and value of the subject critical area (such as wetlands, streams, and wildlife habitat areas), and/or to protect life, property and resources from risks associated with development on unstable or critical lands (such as geologic hazard areas, flood hazard areas, aquifer recharge areas).

B. Required buffer widths shall reflect the sensitivity of the particular critical area or the risks associated with development. Specific regulations for individual critical area buffer widths and setbacks apply, pursuant to MTMC 16.15.400 through 16.15.450.

C. Buildings should generally be set back from the edge of a critical area buffer. The type and intensity of human activity proposed on or near the critical area buffer should be considered.

D. If two contiguous critical areas overlap, the more restrictive, wider buffer applies.

E. Restrictive covenants or conservation easements may be required to provide long-term preservation and protection of buffers and setback areas. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.050 Decision authority.

A. The Director has the authority to administer, interpret, and apply the provisions of this chapter, and is responsible to enforce this chapter to accomplish the intent and purpose.

B. When interpreting and applying the regulations of this chapter, the Director shall consider the chapter’s provisions to be the minimum requirements and liberally construed to serve the purpose of this chapter.

C. The Director has the authority to require additional information, to determine the level of detail and appropriate methodologies for critical area reports and studies, and to prepare application and informational materials, as required and necessary.

D. The Director has the authority to approve, withhold, condition, or deny development permit or activity approvals to ensure that the proposal is consistent with this chapter.

E. The Director may permit, or condition, uses not specifically mentioned in this chapter, when it can reasonably be determined that the use is sufficiently consistent with other uses permitted in the critical area. The Director shall issue a written decision stating the reasons for determining which existing review and approval process is applicable to the proposal based on its similarity to and compatibility with other allowed uses in a critical area.

F. Decisions by the Director are final unless appealed, pursuant to MTMC 16.15.385, Appeals of critical area decisions.

G. The Hearing Examiner shall have decision authority over those applications the Hearing Examiner reviews and issues decisions on, consistent with this chapter and Chapter 2.120 MTMC. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.060 Conflicts.

A. In the event of a conflict between this chapter and any other City regulations, the more restrictive regulations shall apply, except when otherwise required by federal or state law, or regulated by Chapter 16.10 MTMC, Shoreline Management.

B. In the event any easement, covenant, or deed restriction conflicts with this chapter, that which provides greater protection to the critical areas shall apply first. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.070 Relationship to other codes and regulations.

A. These critical area regulations shall apply as an overlay and are in addition to any other permits or approvals required by the City’s land use and other regulations established by the City of Mountlake Terrace.

B. When an area contains overlapping critical areas, the more restrictive provisions of the underlying critical areas prevail.

C. The regulations of this chapter shall apply concurrently, when applicable, with review conducted under the State Environmental Policy Act (SEPA), per Chapter 16.05 MTMC.

D. Critical areas within the shoreline jurisdiction shall be regulated by Chapter 16.10 MTMC, Shoreline Management, as applicable. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.080 Lands to which this chapter applies and maps.

A. The generalized location and extent of critical areas within the City of Mountlake Terrace is shown on City critical areas maps including, but not limited to, maps identified in the Comprehensive Plan, as amended. These maps are only a reference guide and cannot be relied upon to determine the presence or absence of critical areas or buffers or provide a final designation. The maps may be amended and updated as critical areas are identified, classified, or other information obtained.

B. Land may be considered a critical areas based on one, or more, of the following:

1. Location is shown on a critical area map, or is within 200 feet thereof;

2. Information in public records indicating possible presence of critical areas;

3. Field observation of presence of standing or moving water, significant vegetation, wildlife, or slopes;

4. Conflict between mapped information and observed site conditions; or

5. Apparent presence of critical area on abutting property whose critical area type buffer overlaps the subject site.

C. Shoreline Jurisdiction Map. Any critical areas shown within the adopted Shoreline Jurisdiction Area Map, shall be regulated per Chapter 16.10 MTMC, as amended, and are not subject to the provisions of this chapter. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.090 Regulated activities.

The provisions of this chapter shall apply to the following activities unless exempt, pursuant to MTMC 16.15.100, Exempt activities, or otherwise allowed, pursuant to MTMC 16.15.110. A critical area report may be required to support the requested activity. Activities include, but are not limited to:

A. Removing, excavating, disturbing or dredging soil, sand, gravel, minerals, organic matter or materials of any kind;

B. Dumping, discharging, or filling with any material;

C. Draining, flooding or disturbing the water level or water table, or diverting or impeding water flow;

D. Driving pilings or placing obstructions;

E. Constructing, reconstructing, demolishing or altering the size of any structure or infrastructure;

F. Destroying or altering vegetation through clearing, grading, harvesting, shading, or planting vegetation that would alter the character of a critical area;

G. Activities that result in significant changes in water temperature, physical or chemical characteristics of water sources, including quantity and pollutants;

H. No new critical facilities shall be constructed in any critical area and critical area buffer, unless otherwise provided for by this chapter. Existing critical facilities shall not be altered except in conformance with the provision of the chapter and consistency with current building and fire code standards per city code;

I. Critical area mitigation sites; and

J. Any other activity potentially affecting a critical area or buffer not otherwise allowed or exempt from the provisions of this chapter, as determined by the Director, in writing, per MTMC 16.15.160(D). (Ord. 2731 § 2 (Exh. A), 2018).

16.15.100 Exempt activities.

A. Exempt activities per subsection B of this section are subject to compliance with the following:

1. Compliance with critical area standards of this chapter, and any other applicable local, state, or federal regulations.

2. The activity results in the least amount of impact to the critical areas and is conducted using the best management practices, as defined by this chapter.

3. The use or activity may not result in a loss to the functions and values of the subject critical areas.

4. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.

5. The proponent obtains any other approvals or permits required by the City or other agencies with jurisdiction.

6. Other uses or activities, not identified in this section, may be permitted or restricted in a critical area as described in the applicable critical area section of this chapter and its provisions.

B. Exempt Activities. The following activities are exempt from critical area review or critical area permit under this chapter unless otherwise stated, provided they are consistent with subsection A of this section:

1. Development vested prior to the effective date of the ordinance codified in this chapter.

2. Activities covered by prior review and approval. Activities that are consistent with a previously completed critical area review are not required to complete a new review. For example, if a critical area review occurred as part of a development proposal (such as site development, subdivision, or conditional use permit), construction permits related to the approved development should not need to be readdressed as long as the construction is consistent with the original approval. Such activities are exempt from this chapter, when:

a. There have been no material changes in the potential impact to the critical areas or buffers since the prior review;

b. There is no new information available that is applicable to any critical area review of the site or particular critical area;

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

d. The prior permit or approval, including any conditions, has been complied with; and

e. When applicable, a notice on title is recorded, pursuant to MTMC 16.15.250, and a copy provided to the City prior to any further activities commencing.

3. Activities involving artificially created wetlands or streams intentionally created from nonwetland sites including, but not limited to, grass-lined swales, irrigation and drainage ditches, retention or detention facilities, and landscape features, except wetlands or streams intentionally created to mitigate conversion of wetlands or that provide critical habitat for anadromous fish.

4. Previously legally filled wetlands.

5. Development proposals within physically separated and functionally isolated wetland or stream buffers. A use or activity physically separated from a stream or wetland or other critical area by existing, legally established structures, or an improved public right-of-way, may be exempt from the prescribed buffer widths and mitigation of this chapter when the property owner can demonstrate the use or activity occurred prior to their acquisition of the property and prior to City adoption of codes regulating the wetland or stream buffers. The Director may, based on a site investigation and other available sources, determine to require an assessment and functional analysis report by a qualified professional that demonstrates the interrupted buffer area is functionally and/or hydrologically isolated from the critical area and consistent with MTMC 16.15.400(D)(6).

6. Minor Site Investigative Work. Site investigative work and studies that are prerequisite to preparing an application for development including soils tests, water quality studies, wildlife studies and similar tests and investigations; and where such activities do not require grading, construction of access, or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored consistent with this chapter.

7. Operation, Maintenance, or Repair.

a. Normal and routine operation, maintenance, or repair of existing structures, infrastructure improvements, utilities and associated structures, public or private roads, or drainage systems, that do not require construction permits; provided, that the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer, does not increase the impervious area, and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair.

b. Normal maintenance and repair of residential or commercial structures, facilities and landscaping; provided, that reconstruction of any structures may not increase the impervious floor area, and that the provisions of this chapter and MTMC 19.120.250 are followed.

8. Demolition. Demolition of structures located within critical areas or their buffers that are 200 square feet or less in size, subject to an approved erosion control plan and permit consistent with the City stormwater manual and clearing limits that will adequately protect the critical area, and no use of heavy equipment. Structures in excess of 200 square feet, or demolition of structures necessary to support or stabilize landslide hazard areas, or other sensitive use, are not exempt from critical area review per MTMC 16.15.120.

9. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing, legally constructed structure within critical areas or buffers shall be allowed, when the modification:

a. Does not increase the footprint or square footage of the structure; except that square footage may be added to the structure consistent with the dimensional requirements of the underlying district; provided, that on-site critical areas and/or buffers are mitigated per this chapter, at the discretion of the Director;

b. Does not alter or increase the impact to the critical area or buffer except to a more conforming status per this chapter;

c. Does not increase risk to life or property as a result of the proposed modification or replacement; and that

d. Application for restoration of structures substantially damaged by fire, flood, or act of nature must be initiated consistent with the nonconformance provisions per MTMC 19.120.250, as evidenced by the application for a valid building permit within 12 months of the damage, and diligently pursued to completion.

10. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area including but not limited to interpretive field trips, fishing, hiking, and bird watching. Walkways and trails, subject to subsections (B)(12) and (13) of this section, are limited to minor crossings of streams and wetlands having no adverse impact on water quality. They should be generally parallel to the perimeter of the wetland, located only in the outer 25 percent of the wetland buffer area, and located to avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width for pedestrian use only.

Raised boardwalks and wildlife viewing structures utilizing materials acceptable for the proposed location may be acceptable, consistent with any other permitting requirements per this chapter or City Code.

11. Recreation Areas – Operation, Maintenance, Repair, or Replacement.

a. Maintenance, operation, repair, modification, or replacement of existing publicly improved recreation areas as long as any such activity does not involve the expansion of facilities and existing improvements into a previously unimproved portion of critical areas or required buffers.

b. When such activities occur within designated fish and wildlife habitat areas they shall be performed consistent with the development standards of this chapter, best available science, or adaptive management plans as recognized by the City. Retention and replanting of native vegetation shall occur wherever possible in areas of land disturbance.

12. Existing Public and Private Pedestrian Trails. Normal maintenance, repair, and reconstruction of existing public and private pedestrian trails; provided, that the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer, and does not increase the impervious area.

13. New Public and Private Pedestrian Trails. New public and private pedestrian trails, subject to the following:

a. Walkways and trails are limited to minor crossings of streams and wetlands having no adverse impact on water quality. They should generally parallel the perimeter of the wetland, located only in the outer 25 percent of the wetland buffer area, and located to avoid removal of significant trees. The trail surface should be pervious surfaces and meet water quality standards set forth in the City’s current stormwater management regulations. Limited exceptions are permitted to allow impervious surfaces to provide accessibility. Trails are limited to pedestrian use and should be no more than five feet in width, unless the Director determines the public benefit derived from a wider trail together with compensatory mitigation is equal to or better than what would otherwise have been achieved. Raised walkways and wildlife and viewing structures utilizing approved support structures are acceptable. Removal of significant trees shall be avoided. The critical area and/or buffers abutting the trail shall be replanted or restored where feasible, equal to the width of the trail corridor, including disturbed areas.

b. Where legally established development has reduced the width of the buffer, trails may be placed in the outer 25 percent portion of the remaining critical area buffer. Public use trails may be placed within critical areas and buffers when providing public access to water-dependent activities, consistent with an adopted master plan.

c. Trails to be located in a geologic (landslide or erosion) hazard area shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report.

d. Trails in the shoreline jurisdiction are regulated by Chapter 16.10 MTMC.

14. Minor Conservation and Enhancement. Minor conservation and enhancement of critical areas that do not alter the location, dimensions or size of the critical area or buffer and result in improvement of the critical area functions and values, including the removal of noxious weeds or invasive vegetation, pursuant to MTMC 16.15.115.

15. Trees and Vegetation Maintenance.

a. Normal maintenance of vegetation and trees, performed in accordance with best management practices; provided, that such management actions are part of a regular and ongoing maintenance program, do not expand further into the critical area, are not the result of an expansion of a structure or utility, and do not directly impact an endangered or threatened species.

b. No vegetation or trees shall be altered or removed from a critical area or its buffer without prior approval from the Director, pursuant to MTMC 16.15.115, except in an emergency, pursuant to MTMC 16.15.110.

16. Active or Imminent Hazard Trees. Active or imminent hazard trees, and trees deemed an emergency pursuant to MTMC 16.15.110, may be removed subject to the following:

a. The tree is consistent with the definition of a hazard tree.

b. Removal does not include the removal of the cut tree materials themselves, unless otherwise permitted by a qualified professional or the Director.

c. The City and/or utility provider is removing the trees and/or ground cover in situations involving immediate danger to life or property, substantial fire hazards, or interruption of services provided by a utility.

d. The Director shall be provided with documents from a qualified professional that substantiate the hazardous nature of the removed trees. The City retains the right to require compliance with any applicable requirements per MTMC 16.15.115, and additional mitigation per MTMC 16.15.220. The City may also require a clearing and grading permit.

e. Removal of non-imminent hazard trees is regulated pursuant to MTMC 16.15.115.

17. 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 City-authorized private roadway except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater.

18. Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, in accordance with the criteria below and other applicable permits; provided, that the activity:

a. Involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility;

b. Disturbs an area of land no more than 75 square feet in size at any one location;

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

d. There is no practical alternative with less impact on critical areas;

e. Shall not result in the transport of sediment or increased stormwater;

f. Is constructed with best management practices;

g. Any areas disturbed shall be replanted and restored consistent with underlying critical area type;

h. Public works projects that involve the provision or transmission of a utility, and public works projects that are consistent with the City’s transportation plan, where no alternative routing options are reasonable.

19. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the City; provided, that their use shall be restricted in accordance with Washington State Department of Fish and Wildlife Management and Department of Ecology recommendations, the regulations of the State Department of Agriculture, and the U.S. Environmental Protection Agency.

20. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers, not permanently anchored.

21. Minor activities not mentioned above and determined by the Director to have minimal impacts to a critical area, pursuant to MTMC 16.15.160(D). (Ord. 2747 § 3, 2019; Ord. 2731 § 2 (Exh. A), 2018).

16.15.110 Emergencies.

A. Emergency actions are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the standard procedural requirements of this chapter.

B. Emergencies which occur in critical areas and buffers are exempt from the provisions of the critical area regulations on a temporary basis and are subsequently subject to the provisions of this section and applicable provisions of this chapter.

C. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer.

D. Notice of Emergency. Within 30 working days of commencing the emergency activity, the person or agency taking such action shall notify the Director in writing and include the following. Providing notification does not waive the need to comply with any and all other applicable local, state, or federal requirements.

1. The location and nature of the emergency.

2. Photographic proof or other evidence to document the hazardous nature of the emergency.

3. A description of the actions taken to date.

4. A description of further actions expected to be taken including restoration or mitigation.

5. The anticipated time frame for completing abatement and restoration actions.

6. Contact information (name, address, phone, and email and after-hours contact).

7. Any other useful and pertinent information related to the cause of the emergency and reason to take emergency action.

E. Determination of Emergency – Process and Decision.

1. Within 14 days of notice of the emergency, the Director shall review the submitted notification per subsection D of this section, and determine if the action taken was within the scope of an emergency action per subsection A of this section, and as defined in MTMC 16.15.500.

2. If the Director determines the action was within the scope of an emergency, the person or agency shall proceed with the applicable procedural and mitigation requirements of this chapter.

3. If the Director determines that the action or any part of the action taken was beyond the scope of an allowed emergency action, then the provisions of MTMC 16.15.320, Unauthorized alterations of critical areas, may apply.

4. The Director may initiate the enforcement and penalty provisions of this chapter, MTMC 16.15.380, when the Director has reason to believe a violation has occurred.

F. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency and completed in a timely manner, unless otherwise approved. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.115 Trees and vegetation – Activities and standards.

Activities that improve critical area functions and values are permitted. This includes minor conservation and enhancement of critical areas that does not alter the location, dimensions, or size of the critical areas or buffers, and removal activities described in this section, subject to the applicable regulations. Nonexempt and unauthorized alterations of trees are subject to MTMC 16.15.350 and 16.15.380.

A. Removal of Noxious Weeds or Invasive Vegetation.

1. The purpose is to encourage the removal of noxious, nonnative, and invasive species of vegetation and trees within critical areas and their buffers to improve, preserve, and protect the health of the vegetation and trees, and promote increased diversity of native vegetation and trees.

2. No permit or prior approval is required to conduct the activities as described in this section, except as otherwise stated.

3. Noxious weeds or invasive vegetation may be removed from critical areas in unlimited quantities (such as English ivy (Hedera helix); Himalayan blackberry (Rubus discolor, R. procerus); and evergreen blackberry (Rubus laciniatus), provided:

a. All work is performed above the ordinary high water mark and above the top of a stream bank, and is prohibited in very high risk landslide hazard areas unless otherwise approved;

b. Invasive and noxious weeds are on either the Snohomish County or Washington State Noxious Weed Control Board lists and removed in accordance with the control board guidelines and best management practices including handling and disposal methods appropriate to that species.

4. The removal may be only undertaken with hand labor, including handheld mechanical tools, and the soil surface must remain undisturbed. On private property, other removal methods may be allowed with a permit and City approval, consistent with the Snohomish County Noxious Weed Control Board. When performed on City-owned property, use of other means of removal shall be in accordance with Snohomish County Noxious Weed Control Board requirements and any requisite certification.

5. Areas cleared by removal of noxious and/or invasive plant species must be revegetated with site-appropriate native species at natural densities and the site must be stabilized against erosion in accordance with the stormwater manual adopted by the City.

6. Noxious weed removal is exempt from a permit subject to the following area limitations; otherwise a clearing and grading permit is required.

a. Within private property, up to 250 square feet of area may be cleared to bare soil, cumulative in any one calendar year, without a permit and critical area report prepared by a qualified professional.

b. On City-owned property or right-of-way, no more than 2,000 square feet of soil may be exposed at any one time.

B. Alteration and Removal Activities of Healthy Trees.

1. Removal or topping of a significant or nonsignificant healthy tree, as defined by this chapter, is not permitted in critical areas and buffers, unless otherwise justified by the submittal of a critical area preliminary assessment application, per MTMC 16.15.160, or a tree assessment and removal report from a qualified professional that documents the hazard and provides a removal and mitigation plan, per subsection E of this section.

2. Mitigation for removed trees shall be pursuant to subsection D of this section.

C. Hazard Trees.

1. Imminent hazard trees, as defined by this chapter, may be removed subject to emergency provisions of MTMC 16.15.110.

2. Minor pruning and crown thinning of non-imminent hazard trees is permitted to lessen or remove the hazard, such as wind damage to limbs or trunks. Where pruning or crown thinning is not sufficient to address the hazard, trees should be converted to wildlife snags or, when this still presents a hazard, removed entirely, subject to subsection E of this section.

3. For hazardous circumstances that are not active or imminent, such as suspected tree rot or diseased trees or less obvious structural wind damage to limbs or trunks, the property owner shall submit a critical area preliminary assessment application and tree evaluation report, per subsection E of this section.

4. Mitigation for removed trees shall be pursuant to subsection D of this section.

D. Mitigation.

1. The Director shall authorize only such alteration to existing trees and vegetation as may be necessary to eliminate the hazard and shall condition authorization on means and methods of removal necessary to minimize environmental impacts, including replacement of any significant trees.

2. All cut vegetation (tree stems, branches, etc.) shall be left within the critical areas or buffers unless removal is warranted due to the potential for disease or pest transmittal to other healthy vegetation per the recommendations of the qualified professional buffer, and approval from the Director.

3. Removed trees shall be replaced within one year of removal. Replacement shall be 10 trees for each tree removed and may be planted at a different, nearby location on the same property if planting in the same location would create a new hazard or potentially damage the critical area, in accordance with an approved restoration plan. Replacement trees should be native and indigenous to the area. Tree size shall be a minimum of one inch in diameter at breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball, unless otherwise approved or required. The Director may approve or require, or a qualified professional tree evaluation report may recommend, an increase or decrease in the replacement quantity and size to improve survival rates, achieve quick recovery or other benefit to the critical area or buffer. The final decision is at the discretion of the Director.

4. For a priority habitat tree, such as an eagle perch or occupied nest, a qualified professional shall be consulted, at the applicant’s expense, to determine timing, methods of removal and mitigation of such tree.

E. Tree Evaluation Report. Approval to cut or clear trees, as proposed by the property owner, may only be given upon recommendation of the qualified professional that the condition constitutes an actual threat to life or property in homes, private yards, buildings, public or private streets and driveways, sidewalks, improved utility corridors, or access for emergency vehicles, or a pedestrian way, and approved by the Director for purposes of this section.

1. Tree Evaluation Report. A professional evaluation of trees and/or a tree protection plan, prepared by a qualified professional, may be required where the Director deems such services necessary to demonstrate the condition of a tree proposed for removal or significant alteration, or an activity that poses harm to a tree, such as filling or grading with more than six inches of highly humus-rich and permeable soil, whether or not the tree is hazardous.

2. Report Contents. The evaluation may include, but is not necessarily limited to:

a. A written description of the existing conditions on the property in proximity to the tree and at least 10 feet beyond the dripline of the tree.

b. An assessment of the condition of the tree, documenting the degree of hazard.

c. An evaluation of the anticipated effects of removal of the tree on the critical areas functions and values, including the impact on the viability of trees on and off site in proximity to the subject tree.

d. A plan for any required tree protection or replacement measures; and supervising and/or monitoring implementation of any required tree protection or replacement measure appropriate to the impact.

e. Include a post-construction site inspection and evaluation.

f. The qualified professional shall include an assessment of whether a portion of the tree is suitable for a snag for wildlife habitat and may safely be retained.

g. The report (or critical area preliminary assessment (CAPA)) shall include a grant of permission for the Director and/or qualified professionals under contract with or employed by the City to enter the subject property to evaluate the circumstances.

h. The report is signed by the qualified professional.

3. The Director may determine the extent of tree removal or that there may be sufficient impact of the functions and value of the critical area that a critical area report is required, pursuant to MTMC 16.15.200. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.120 Critical area review – Process and procedures.

When a proposed use, activity or action may impact a critical area the following procedure would generally be followed to evaluate whether and how the use or activity is regulated by this chapter. Additional procedural steps and filing requirements may apply.

A. The proponent of a development use or activity for a property meets formally or informally with the City, pursuant to MTMC 16.15.150.

B. Concurrent with or subsequent to A of this section, the applicant may submit an application for a critical area preliminary assessment (CAPA), pursuant to MTMC 16.15.160. The applicant may also elect to proceed directly to preparation of a critical area report(s), pursuant MTMC 16.15.200, and any other applicable critical area sections of this chapter.

C. The Director will evaluate the project area and vicinity of the proposal for critical areas and make an initial determination on presence of critical areas and the appropriate review and decision-making process for the proposed use or activity, pursuant to MTMC 16.15.160.

D. Critical Area Review.

1. The applicant prepares and submits any required applications, permits, reports, and any special studies. Critical area reports shall be prepared consistent with MTMC 16.15.200 and the additional reporting requirements for each critical area type, per MTMC 16.15.400 through 16.15.450, as applicable.

2. The City shall:

a. Make a determination of complete application and issue notice of application, pursuant to MTMC 16.15.140.

b. Evaluate the application materials and determine whether the proposal is likely to impact the functions or values of critical areas.

c. Determine if the proposed project adequately addresses the potential impacts to the critical area and whether they can be avoided, minimized or mitigated per the mitigation sequencing process.

d. Determine whether the proposal conforms to the requisite critical area requirements and standards of this chapter.

e. Confirm the mitigation sequencing and location preferences per MTMC 16.15.210 through 16.15.240 have been satisfied.

3. The Director shall issue a written decision, with or without conditions, consistent with the procedures, notification, criteria and applicable requirements and standards set forth in this chapter, or forward a recommendation to the Hearing Examiner when the Hearing Examiner is the decision authority.

4. The applicant may proceed with the proposed use, activity, or action consistent with the decision and all applications, standards and regulations, including MTMC 16.15.250, Notice on title.

5. Appeals of decisions can be made, pursuant to MTMC 16.15.385.

E. Review and Decision-Making Matrix.

Type of Review

Application Form

Process

Decision Criteria

Decision Maker

Decision Timeline1

Appeal

Public Notice

Notice on Title

Fee

Informal Meeting

N/A

Admin

N/A 16.15.150

N/A

N/A

N/A

N/A

N/A

No

Preapplication Conference

Preap CAPA (opt.)

Admin

16.15.150

Admin

Varies

N/A

N/A

N/A

Yes*

Critical Area Preliminary Assessment2,3

CAPA

Admin

16.15.160

Director

30 days

Director

N/A

Yes

No

Emergency, Determination of4

Letter

Admin

16.15.110

Director

14 days

Hearing Examiner

N/A

N/A

No

Critical Area Review and Approval

CAR

Admin

16.15.120

Director

Consistent with any underlying permit, unless otherwise approved (typically 120 days)

Hearing Examiner

Yes

Yes

Yes

Alteration, or Buffer Averaging

CAR

Admin

16.15.310; 16.15.40016.15.450

Director

Hearing Examiner

Yes

Yes

Yes

Reasonable Use Exception

RUE

Public Hearing

16.15.360

Hearing Examiner

Superior Court

Yes

Yes

Yes

Variance

VAR

Public Hearing

16.15.350

Hearing Examiner

Superior Court

Yes

Yes

Yes

1    From date of application or determination of completeness, whichever is later.

2    Critical Area Preliminary Assessment: A process to allow a preliminary determination whether or not critical areas or buffers are present in the project area, whether the proposal would likely affect a critical area or buffers, and if additional review is required. This decision vests for five years but does not vest future permits or land use proposals or applications.

3    Designation of Critical Area: A process that allows a property owner to have the limits of critical areas and/or buffers, on or near the site, defined to establish the buffers and identify the development impact on them and potential mitigation measures for a specific development. The property is posted with a notice of critical area designation application. A decision vests for five years for the development proposal.

4    Emergency, Determination of: The person or agency who took an action affecting a critical areas as an emergency measure shall, within 30 working days of taking such emergency action, submit a written notice of emergency to the Director, pursuant to MTMC 16.15.110(D). Providing notification does not waive the need to comply with any and all applicable requirements.

*    Except single-family homeowner.

(Ord. 2731 § 2 (Exh. A), 2018).

16.15.130 Applications.

A. All applications for permits or actions within the City’s critical areas shall be submitted on forms provided by the Department. The permit application forms, copies of all current regulations, and submittal requirements that apply to the subject application shall be available from the Department. Application types include, but are not limited to, critical area preliminary assessment, reasonable use exception, variance, or alteration.

B. At a minimum, each application submittal shall include:

1. Completed application form(s) with the authorized signature of the applicant;

2. All requisite filing requirements including drawings, reports and studies, and any other materials, as appropriate and sufficient to review and process the application and render a decision consistent with the provisions of this chapter; and

3. Processing fee. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.140 Notice of application.

A. No notice is required to review and make a critical area preliminary assessment.

B. Notification to the public of the presence or potential presence of critical areas shall occur per notice of development application consistent with MTMC 18.05.400. The notice shall include the critical area preliminary assessment determination, if already made. Other noticing requirements which may apply to the underlying application or permit shall include notice of critical area, if determined to be present. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.150 Preapplication meeting.

A. General. The purpose of the preapplication meeting is to discuss the proposal in general terms and the requirements of this chapter, provide critical areas map information, identify potential concerns related to the proposal, and generally outline the applicable requirements, including permits and the review and approval process. Information given at a preapplication meeting is nonbinding. Plans presented at the preapplication meeting are nonbinding and do not vest an application. All applicants, regardless of participation in any preapplication meeting, are held fully responsible for knowledge and disclosure of critical areas on, adjacent to, or associated with a subject parcel and full compliance with the specific provisions and goals, purposes, objectives, and requirements of this chapter.

B. An informal preapplication meeting, pursuant to MTMC 18.05.360(A), is optional at the discretion of the proponent. The proponent provides basic information on the property and the proposal. The City provides best available information on critical areas on, or in, the vicinity of the property. The City also provides guidance on the expected review and approval process.

C. A formal preapplication meeting, pursuant to MTMC 18.05.360(B) and this section, is required prior to submitting a formal application for development or use of land, or prior to starting an activity or use of the land, that may be regulated by this chapter.

1. Prior to the meeting, the applicant shall submit information to the City to include:

a. A completed preapplication form.

b. An existing features site plan.

c. A conceptual proposal map.

d. A description of the proposed development or activity.

e. A completed critical area preliminary assessment form.

f. Preliminary critical area reports, if available.

g. Any other information that could be useful to understand and evaluate the proposal and the requirements of this chapter.

2. The City is to review the information submitted and conduct a site visit.

3. At the preapplication meeting, the Director may provide a preliminary determination of the presence of critical areas, pursuant to MTMC 16.15.160. The preliminary determination may include whether critical area reports are required and, if so, what level of detail and what elements may be necessary for the proposal. A preliminary determination does not preclude the Director from requiring additional critical area report information during the review of the project once applied for. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.160 Critical area review – Preliminary assessment.

A. Purpose and Applicability.

1. Whenever a proposed use or activity is, or is believed to be, in or adjacent to a critical area, per MTMC 16.15.030, or as shown on the City’s critical area maps per MTMC 16.15.080, the proponent shall apply for a “Critical Area Preliminary Assessment” review and determination on a form provided by the City, except the applicant may choose to hire a qualified professional to provide assurances on critical areas and potential impacts and elect to forgo the critical area preliminary assessment process. The purpose of a critical area preliminary assessment review is to evaluate whether a critical area or critical area buffer appears to exist on, or adjacent to, the proposal site, whether the proposed use or activity may affect the critical area, and whether more detailed critical area information is needed.

2. The critical area preliminary assessment process applies only to the current inquiry or proposal and does not mean that further or future review of critical areas impacts may not be required for consistency with this chapter.

3. Proposals that qualify as an exempt activity or use, per MTMC 16.15.100 or 16.15.110, may proceed with the proposal subject to compliance with those sections of this chapter and meeting any other applicable City laws and standards.

4. The property owner may submit for a critical area preliminary assessment with or without a development proposal or development application.

B. Filing Requirements. The applicant shall, at a minimum, prepare and submit the following materials for review:

1. A completed and signed critical area preliminary assessment (CAPA) application form, except the applicant may elect to forgo the critical area preliminary assessment process and proceed directly to preparation of a critical area report per MTMC 16.15.200. The applicant may choose but is not necessarily required to hire a qualified professional to provide assurances on critical areas and potential impacts.

2. Processing fee, if applicable.

3. Vicinity map, one-quarter mile radius from site of proposal, labeled. Show parcel lines.

4. Site plan map, showing location of proposed use/activity, existing structures and improvements, and topography, along with other relevant information, at a scale of one inch equals 20 feet unless otherwise approved by the Director.

5. Other pertinent information (studies, photographs, other).

6. Any materials the applicant considers informative and relevant to the determination process.

7. Any additional materials the Director may request prior to, or subsequent to, submittal of the application when the Director judges it is valid to evaluate and make a preliminary assessment determination.

C. Review and Approval Process. The following steps shall be taken to process a critical area preliminary assessment application to determine the presence or lack of critical areas and/or buffers on a site and whether there may be a potential impact of the proposed use or activity:

1. A preapplication conference per MTMC 16.15.150 is required unless waived by the Director. An informal preapplication conference may be requested by the applicant, pursuant to MTMC 16.15.150(B).

2. Application. The applicant submits the critical area preliminary assessment form together with the filing requirements, other information and any requested materials consistent with subsection B of this section.

3. Determination of Completeness.

a. The Director shall verify the filing requirements in subsection B of this section have been met and reject the application if there are obvious factual errors or omissions, or there are inconsistencies between the submitted materials and observable data, and/or any best available science.

b. When deemed complete, a public notice of application will be issued consistent with MTMC 16.15.140.

4. Review and Decision. The Director shall, in general, review and make a decision based on:

a. Review of the information submitted by the applicant, and other relevant and best available information for site conditions and evidence of critical area.

b. A site visit for a visual check of the potential presence of a critical area on or adjacent to the subject property and potential impact on any critical area or buffer. The site visit will include an assessment of what functions and values the project area and site conditions provide for the critical area.

c. An evaluation whether the proposal is likely to negatively impact the functions and values of a critical area or buffer based on a review of the submittal materials, best available information, the site visit and the criteria per subsection D of this section.

D. Criteria for Decision. The Director shall conclude that one of the following applies to the subject property and issue a written determination of consistency, per subsection E of this section, based on finding the requisite criteria have been met:

1. No critical areas present. No further critical area review is required.

a. The application materials and other available information are complete, pursuant to subsection B of this section, and sufficient to make a determination.

b. The application materials, together with a site visit, reveal that the project area is not within, or adjacent to, a critical area or buffer.

2. Critical areas are present, but no impact. There is no need for a critical area report or mitigation.

a. The application materials and other available information are sufficient to make a determination.

b. The application materials, together with a site visit, reveal that there are critical areas or buffers within or adjacent to the project area.

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

d. The proposed activity is not prohibited within a critical area or its buffer.

e. The proposal is unlikely to degrade the functions or values of the critical area.

3. Critical areas are present; there may be an impact. A critical area report may be required, pursuant to MTMC 16.15.200, to assess the impacts and prepare a mitigation plan.

a. The application materials and other available information are complete pursuant to subsection C of this section and sufficient to make a determination;

b. The application materials, together with a site visit, reveal that the project area is within, or adjacent to, a critical area or buffer;

c. The proposed activity is consistent with exempt or allowed activities within a critical area or its buffer;

d. While the project area has no, or low, current function or value for a critical area or buffer, the proposed activity is likely to have a minor impact on and further degrade the functions or values of a critical area or buffer on or adjacent to the project area or site;

e. The potential impact of the proposed activity can be adequately mitigated, pursuant to MTMC 16.15.210 through 16.15.240, and there will be no alteration of the critical area or buffer except to improve functions and value per a mitigation plan.

4. Critical areas are present and likely to be affected by the proposal.

a. The application materials and other available information are sufficient to make a determination;

b. The application materials together with a site visit reveal that the project area is within, or adjacent to, a critical area or buffer;

c. The proposed activity is not prohibited within a critical area or its buffer;

d. The project area provides some functions or values for a critical area or buffer, and/or the proposed activity is likely to have an impact on or degrade the functions or values of a critical area or buffer on or adjacent to the project area or site;

e. There will be alteration of the critical area or buffer and mitigation is needed;

f. A critical area report is required to assess the impacts and prepare mitigation and monitoring plans consistent with MTMC 16.15.200, and mitigation plans, pursuant MTMC 16.15.210 through 16.15.240, as applicable.

E. Decision. The Director shall issue a written determination consistent with conclusions reached per subsection D of this section.

1. The Director may attach conditions to any decision in order to protect critical areas or to require further evaluation and/or special reports to assure protection of critical areas and indicate the reason for the condition.

2. The critical area determination shall be referenced on any permits related to this decision.

3. Required reports shall be consistent with the critical area reporting requirements in this chapter for each critical area type. Critical area reports must be submitted prior to further review of the proposal.

4. The Director’s determination regarding the apparent presence or absence of critical areas is not an expert certification regarding critical areas and the determination is subject to possible reconsideration if new information is received.

5. The determination shall be valid up to five years. The critical area preliminary assessment decision does not vest to future permits or land use proposals or applications.

6. Notice on Title. The applicant shall record a notice on title, consistent with MTMC 16.15.250, except when a determination of no critical areas is made.

7. The applicant may proceed with the proposal subject to the decision and any conditions thereto, and meeting all applicable City laws and standards.

F. Appeal. The decision may be appealed, pursuant to MTMC 16.15.385. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.200 Critical area reports.

A. Report Required. When uses, activities, or developments are proposed within, adjacent to, or are likely to impact critical areas or their buffers, an applicant shall provide site-specific information and analysis in the form of critical area report(s) as required in this chapter. A critical area report shall identify the presence, extent, and classification/rating of potential critical areas, as well as analyze, assess, and mitigate the potential adverse impact to or risk from critical areas for a development project.

B. Critical area reports shall be prepared using best available science to evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

C. Preparation by Qualified Professional. When a critical area report is required it shall be prepared by a qualified professional. Proof of licensing, credentials, and resume of the qualified professional(s) preparing the report shall be included in the report, which the Director shall review to determine if the minimum qualifications are met.

D. Minimum Report Contents. The report shall contain adequate information to determine compliance with the requirements of the critical area regulations in this chapter, specific to each critical area type, as indicated in the corresponding sections of this chapter. Reports for two or more types of critical areas must meet the reporting requirements for each type of critical area. Critical area reports can be submitted as multiple reports or combined in one report. The scope and location of the proposed project will determine which report(s) alone, or combined, are sufficient to meet the critical area report requirements for the impacted critical area type(s).

At a minimum, a critical area report shall contain the following:

1. The name and contact information of the applicant.

2. The dates, names and qualifications of the qualified professionals preparing the report or who contributed to the report and documentation of any fieldwork performed by them on the site.

3. Locational information including address, parcel number(s), legal description and a vicinity map.

4. A list of the development permit(s) associated with the proposal, including other agency critical area-related permits required for the project.

5. A copy of the site plan for the development proposal, drawn to scale to show the location of critical areas, buffers, the development proposal, and any areas to be cleared or otherwise impacted.

6. Identification and characterization of all critical areas and buffers, on- and off-site, adjacent to the proposed project area, per MTMC 16.15.020, and the corresponding reporting requirements applicable to the identified critical areas as set forth in this chapter.

a. Site designation as shown on a regional, state or federal inventory map (such as National Wetland Inventory Map by U.S. Fish and Wildlife Service).

b. Designations as shown on any city inventory map.

c. Location of the critical area boundaries shall be accurately drawn at an appropriate engineering scale such that the information is clearly legible. Generally, a scale of one inch equals 20 feet shall be used (other preapproved scales may be acceptable). Existing features must be distinguished from proposed features. The map shall show:

i. Site boundary property lines and roads;

ii. Internal property lines, rights-of-way, easements, etc.;

iii. Existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.;

iv. Contours at the smallest readily available intervals, preferably at two-foot intervals;

v. Delineated boundary of critical area (when multiple critical areas exist, each shall be prepared on a separate sheet and then shown on a composite sheet);

vi. Location of all test holes and vegetation sample sites, numbered to correspond with flagging in the field and field data sheets;

vii. For large and/or complex projects, an air photo with overlays displaying the site boundaries and wetland delineation may be required. Generally, an orthophotograph at a scale of one inch equals 400 feet or greater (such as one inch equals 200 feet) should be used. If an orthophotograph is not available, the center of a small scale (e.g., one inch equals 2,000 feet) aerial photograph enlarged to one inch equals 400 feet may be used.

7. A description of the methodologies used to conduct the critical areas investigation, including references and data sheets.

8. A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations, when applicable.

9. Report Sections. A critical area report shall typically include the following sequence of report sections, unless modified pursuant to subsection E of this section:

a. Reconnaissance. This section of the report shall describe the general site conditions including topography and acreage, all natural and manmade features within 200 feet of the site boundary, and the existence, general location, and type of critical areas on, and in the vicinity of, a project site. A determination whether the project will adversely impact, or be at risk from, the potential critical areas based on maximum potential buffers should be addressed;

b. Delineation. This section of the report shall identify the extent, boundaries, rating or classification, and applicable standard buffers of critical areas where the project area could potentially impact the critical area or its buffer, including an assessment of the characteristics of, or functions and values of, the critical area and buffers identified;

c. Analysis. This section of the report is an impact assessment documenting the potential project impacts to the critical area and buffers including a discussion of the efforts taken to avoid, minimize, and reduce potential impacts to those areas, consistent with MTMC 16.15.210;

d. Mitigation. This section of the report describes actions and measures that will be taken to prevent or compensate for the potential impacts of the project in accordance with the mitigation plan requirements of this chapter and the standards for the specific critical areas impacted. Mitigation includes, but is not limited to, adjustments to required buffer sizes, best practices to minimize impacts, and critical area or buffer enhancement, restoration, or preservation plans. Mitigation plans may include habitat management plans, revegetation or replanting plans, and restoration plans, and identify appropriate performance standards, as applicable. When mitigation is required, the applicant shall submit a mitigation plan per MTMC 16.15.220 and 16.15.230, this section, and the mitigation provisions for the applicable critical area type per MTMC 16.15.400 through 16.15.450;

e. Maintenance and Monitoring. Maintenance and monitoring plans must be consistent with maintenance and monitoring plan requirements pursuant to MTMC 16.15.240. The goals of the mitigation proposed, performance standards for success, monitoring methods and reporting schedule, maintenance methods and schedule, and contingency actions must be adequately addressed. Include cost estimates for determination of financial guarantee requirements to ensure implementation and compliance.

10. A statement of the accuracy of the report and all assumptions made can be relied upon.

11. Any additional reporting information required in the corresponding critical area reporting sections per MTMC 16.15.400 through 16.15.450.

12. 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, which may include, 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; and

b. Clearing, grading and drainage plans.

13. A critical area report may be supplemented by reports or studies previously prepared for and applicable to the development proposal site, subject to the five-year limit of validity of contents per subsection F of this section.

E. Modifications to Report Requirements. The Director may allow modifications to the report contents to be prepared under the following circumstances. The Director reserves the right to subsequently require such information. Permitted modifications shall be identified in the determination of complete application.

1. Prior to the preparation of a report, the Director has determined that some filing requirements do not apply to the proposal.

2. The applicant has consulted with and obtained approval from the Director, prior to or during preparation of a critical area report, to modify the required contents of the report where, in the judgment of a qualified professional and concurrence of the Director, more or less information is required to adequately address the potential critical area impacts and required mitigation.

3. The Director may limit the required geographic area of the critical area report if:

a. The applicant, with assistance from the City, cannot obtain permission to access properties adjacent to the project area, in which case the critical area size and characteristics beyond the project area may be estimated through aerial photography, visual interpretations, discussion with agencies or some other acceptable means; or mitigation.

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

F. Existing Reports and Expiration.

1. Critical area reports shall be considered valid for up to five years. Thereafter, the Director shall determine whether a revision or additional assessment is necessary per subsection (F)(2) or (3) of this section, or consult a third party to make that determination per subsection G of this section. Supplemental critical area report(s) may be required to provide information and analysis to address changes to the project scope and potential impacts or to changes to applicable regulations that have been made subsequent to existing, valid critical area reports.

2. A critical area report prepared within the last five years may be incorporated into, supplement, or submitted in its entirety as the critical area report for a proposal; provided, that such previously prepared report or study is applicable to the proposed location, use, activity or development, and the proposed land use activity and surrounding site conditions are substantially unchanged.

3. A qualified professional shall evaluate the previously prepared reports, the proposal, and the current environmental conditions associated with the site and submit a letter of validity, sufficiency, verification, or recommendation regarding all of the following:

a. The provisions in subsection (F)(1) of this section are met; and

b. The report, or used sections thereof, meets the requirements of this section and the reporting requirements for each specific critical area type; and

c. A recommendation on the extent to which the previously prepared report(s) can be used and any supplemental information to be prepared and submitted to meet the requirements of this chapter. The recommendation can be to reject the previously prepared materials entirely.

G. Third Party Review of Critical Area Reports.

1. The purpose of third party review is to protect critical areas, maintain public safety, protect public health and property, and to ensure that the nature and extent of critical areas and any associated buffers are correctly determined, protected and restored. The City shall attempt to resolve any issues with the original author(s) or applicant before requiring third party review.

2. The Director shall state in writing the reasons for requiring the third party review. Third party review will be conducted by a qualified professional under contract with, or employed by, the City, at the applicant’s expense, when the Director determines:

a. The submission contains factual errors, omissions, faulty analytical procedures, or incomplete analysis; or

b. Inconsistencies exist between the submitted materials and observable data, and/or accepted scientific or technical criteria; or

c. Such services are necessary to demonstrate compliance with the standards and guidelines of this chapter; or

d. Specialized expertise is required for adequate review of a proposal.

3. The third party review shall evaluate the validity and applicability of previous reports, if any, applicant’s methodology, adequacy of data collection, the analysis and findings, and the effectiveness of any proposed mitigation, monitoring plans and guarantee measures or programs proposed by the applicant as sufficient to protect the critical areas and include any recommendations as appropriate.

4. The Director shall consider the third party review and recommendations and determine if the report and plans, with the recommendations, are sufficient to protect critical area, consistent with the requirements of this chapter. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.210 Mitigation – Preferred sequencing.

When alterations and impacts to critical areas cannot be avoided, compensatory mitigation to replace a critical area or buffer and its functions may be permitted. Mitigation includes, but is not limited to, adjustments to required buffer sizes, best practices to minimize impacts, and critical area or buffer enhancement, restoration, or preservation plans. Mitigation actions may be implemented on or off site based on the preferred location identified in this section.

A. Mitigation Sequencing. Mitigation is to be provided in the following order of preference:

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

2. Minimizing 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. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

4. Reducing or eliminating the impact over time by preservation and maintenance operations.

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

B. Location of Mitigation. The replacement of critical areas, buffers, and functions shall generally occur at or adjacent to the site on which a critical area has been or will be altered or impacted by an allowed use or activity, except when the applicant can demonstrate that off-site mitigation is ecologically preferable. Mitigation sequencing shall consider and/or perform mitigation actions in a priority order from avoidance to compensation. Compensatory mitigation actions shall generally be conducted within the same subdrainage basin and on the site of the alteration.

1. On-Site Mitigation. The replacement of critical areas, buffers, and functions shall be provided on site. Mitigation may be allowed off site only when it is determined by the Director that on-site mitigation is not scientifically feasible or practical due to physical features of the property, or where the affected site is identified as appropriate for off-site mitigation, pursuant to an off-site mitigation program. The burden of proof, based on a preponderance of the evidence, shall be on the applicant to demonstrate that mitigation cannot be provided on site.

2. Off-Site Mitigation. Off-site mitigation is allowed when there are no reasonable opportunities on site, on-site mitigation would require elimination of high-quality upland habitat, or off-site opportunities have a greater likelihood of providing equal or improved functions than the altered site. Off-site mitigation shall be provided in the same drainage basin as the permitted activity on property owned, secured, or controlled by the applicant where such mitigation is practical and beneficial to the critical area and associated resources.

3. Mitigation Bank. For mitigation of wetland impacts, a wetland mitigation bank is an alternative to on-site permittee-responsible mitigation; provided, that:

a. Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:

i. The bank is certified under state rules;

ii. The City determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

iii. The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.

b. Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.

c. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.

4. In-Lieu Fee. To aid in the implementation of off-site mitigation, the City may develop an in-lieu fee (ILF) program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in-lieu fee mitigation and state water quality regulations. An approved ILF program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to an ILF program sponsor. The sponsor of an ILF program must be a nonprofit organization such as a local land trust, private conservation group, or government agency with demonstrated competence in natural resource management. Credits from an approved ILF program may be used when the conditions below apply:

a. The Director determines that it would provide environmentally appropriate compensation for the proposed impacts.

b. The mitigation will occur on a site identified using the site selection and prioritization process in the approved in-lieu fee program instrument.

c. The proposed use of credits is consistent with the terms and conditions of the approved in-lieu fee program instrument.

d. Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three years of the credit sale.

e. Projects using in-lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified professional wetland scientist using the method consistent with the credit assessment method specified in the approved instrument for the in-lieu fee program.

f. Credits from an approved in-lieu fee program may be used to compensate for impacts located within the service area specified in the approved in-lieu fee instrument.

5. In-Kind Mitigation. In-kind mitigation, or in-kind compensation, is intended to replace a critical area whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity.

6. Out-of-Kind Mitigation. Allows mitigation that will replace critical area, buffer and their functions, away from the site on which a critical area has been impacted, with a substitute critical area, buffer or function, whose characteristics do not closely approximate those adversely affected, destroyed or degraded by an allowable use or activity. Out-of-kind-mitigation shall be permitted only when it has been demonstrated, based on a preponderance of evidence and the Director concurs, that greater function and habitat value can be achieved than with in-kind mitigation. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.220 Mitigation plan – Requirements.

Mitigation shall be sufficient to maintain or compensate for the impacted functions and values of the critical area and to prevent risk from a hazard posed by a critical area. Mitigation shall not be implemented until after the Director has provided approval of a critical area report that includes a mitigation plan.

A. Mitigation Plan Standards. The following standards are the minimum requirements that a mitigation plan is to satisfy:

1. Adverse impacts to critical area functions and values shall be mitigated to achieve functionally equivalent or greater biologic functions.

2. Proposals which include less preferred and/or compensatory mitigation shall demonstrate that:

a. All feasible and reasonable measures have been taken to reduce impacts and losses to the critical area, or to avoid impacts where avoidance is required by this chapter;

b. The restored, created or enhanced critical area or buffer will be as viable and enduring as the critical area or buffer area it replaces;

c. In the case of wetlands and streams, no overall net loss will occur in wetland or stream functions and values. The mitigation shall be functionally equivalent to the altered wetland or stream in terms of hydrological, biological, physical, and chemical functions; and

d. When wetland, stream or habitat mitigation is permitted on site, or off site, by these regulations, the mitigation project shall occur near an adequate water supply (river, stream, ground water) with a hydrologic connection to the critical area to ensure a successful mitigation or restoration. A natural hydrologic connection is preferential as compared to one which relies upon manmade features requiring routine maintenance.

3. Any agreed-upon mitigation plan shall be completed before initiation of other permitted activities, unless a phased or concurrent schedule that assures completion prior to occupancy has been approved by the Director.

B. When mitigation is required, the applicant shall submit a mitigation plan, pursuant to this section, as part of the critical area report for approval by the Director. The mitigation plan shall include:

1. A written report identifying environmental goals and objectives of the compensation proposed, to include:

a. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation goals; identification of resource functions; and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

b. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed;

c. An analysis of the likelihood of success of the mitigation plan;

d. Written specifications and descriptions of the mitigation proposed, such as:

i. The proposed construction sequence, timing, and duration;

ii. Grading and excavation details;

iii. Erosion and sediment control features;

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

v. Measures to protect and maintain plants until established; and

vi. Detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

2. The mitigation plan may include a habitat management plan, revegetation or replanting plan, and/or restoration plan.

3. Performance standards, pursuant to MTMC 16.15.230.

4. A maintenance and monitoring plan, pursuant to MTMC 16.15.240.

5. The mitigation plan shall also include a contingency plan to identify potential courses of action and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

C. Mitigation shall be completed immediately following disturbance, and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora. On completion of construction, any approved mitigation project must be signed off by the applicant’s qualified professional and approved by the Department. Signature will indicate that the construction has been completed as approved. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.230 Mitigation plans – Performance standards.

A. The mitigation plan shall include performance standards of measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this chapter have been met.

B. The mitigation plan shall include any additional specific performance standards that apply to critical area types, per this chapter.

C. A performance and maintenance guarantee shall be provided consistent with MTMC 16.15.340. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.240 Maintenance and monitoring plan.

A. A maintenance and monitoring plan shall be prepared and implemented by the applicant, pursuant to this section, to evaluate and assure the success of the required mitigation measures, to determine if the mitigation plan’s goals and objectives are being met, and to determine necessary corrective actions. This plan shall be reviewed and approved by the Department prior to implementation.

B. In general, the maintenance and monitoring plan shall identify what monitoring data will be collected and how it will be collected, describe how the monitoring data will be evaluated to determine if the performance standards are being met, and identify corrective action and when implementation standards are met. The contents of the maintenance and monitoring plan shall include:

1. Appropriate, accepted, and unbiased qualitative or precise and accurate quantitative sampling methods by which to evaluate the success or failure of the project compared to performance standards approved by the City;

2. An outline of the quantitative sampling methods that include permanent photopoints installed at the completion of construction and maintained throughout the monitoring period and shall also include permanent transects, sampling points (e.g., plots or quadrants or water quality or quantity monitoring stations), and wildlife monitoring stations;

3. Clearly stipulated qualitative and quantitative sampling methods that are approved by the City or the qualified professional selected or approved by the City to review the monitoring plan before implementation by the project proponent;

4. Appropriate qualitative and/or quantitative performance standards that will be used to measure the success or failure of the mitigation. These will include, at a minimum, standards for plant survival and diversity, including structural diversity, the extent of wetland hydrology, hydric soils, and habitat types and requirements as appropriate; all proposed standards are subject to review and approval by the City or the qualified professional selected by the City to review the monitoring plan;

5. Monitoring plans shall include, at a minimum: preparation of an as-built (baseline) plan; an outline of the site monitoring and maintenance schedule to include periodic removal of noxious weeds and revegetation; semi-annual site inspection to collect and analyze data of the status of the mitigation measures implemented; preparation of annual monitoring reports following implementation; a contingency plan in the event that implementation of the mitigation plan is inadequate or fails;

6. Monitoring reports shall be submitted to the Department by December 1st of the year in which monitoring is conducted. The reports are to be prepared by a qualified professional and must contain all qualitative and quantitative monitoring data, photographs, and an evaluation of each of the applicable performance standards from each semi-annual monitoring evaluation. If performance standards are not being met, appropriate corrective or contingency measures must be identified and implemented to ensure that performance standards will be met;

7. Time Period. Monitoring of the project mitigation shall be for a period necessary to establish that performance standards have been met, but not for less than five years. More stringent monitoring requirements may be required on a case-by-case basis for more complex mitigation plans; for example, if a scrub-shrub or forested vegetation community is proposed, monitoring may be required for 10 years or more. The project mitigation plan shall include monitoring elements that ensure certainty of success for the project’s natural resource values and functions. This will include data collection and annual reports, at a minimum. If the mitigation goals are not obtained within the initial five-year period, the applicant remains responsible for restoration of the natural resource values and functions until the mitigation goals agreed to in the mitigation plan are achieved;

8. The plan shall include a provision for extension of the monitoring period beyond the minimum time frame if performance standards are not being met at the end of the initial monitoring period; and provision for additional financial securities or guarantees to ensure that any additional monitoring and contingencies are completed to ensure the success of the mitigation.

C. A performance and maintenance guarantee shall be provided consistent with MTMC 16.15.340. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.250 Notice on title.

A. The purpose of recording a notice of critical area presence on the title of an affected property is to inform subsequent purchasers of their existence on said property. The notice shall be approved by the Director for compliance with this section. The notice does not vest any critical areas. The notice shall run with the land.

B. A notice on title is required whenever the presence of a critical area or buffer has been identified and no further evaluation has been made, a critical area or buffer has been delineated with or without further action on the property, or an application has been made for a site development, subdivision, or construction permit for the property containing a critical area or buffer.

C. The location of the critical areas and those contiguous critical areas and buffers, listed below, that total 200 or more square feet, shall be delineated and protected, except as otherwise indicated:

1. All wetlands and buffers;

2. Any stream water type S, F, Np or Ns, regardless of the square footage;

3. All habitat conservation areas;

4. All severe landslide hazard areas and buffers; and

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

D. Form and Content of Notice.

1. The notice form and required content shall be provided by the Department.

2. The notice shall state the presence of the critical area or buffer on the property, that this chapter and any amendments thereto apply to the property, and that there may be one or more critical areas or buffers.

3. Any site-specific modifications, restrictions to development, and limitations on actions in or affecting the critical areas shall be clearly noted on the notice and plat or site plan.

4. The recorded notice shall include a map to indicate the general location and type of critical areas.

5. In the case of subdivisions or development, an easement or tract shall be created per subsection E of this section and shown in a format approved by the Department on the face of the drawing to be recorded, pursuant to subsection F of this section.

E. Critical Area Tract, Protection Area Easement, or Dedication. A critical area tract, protection area easement, or dedication may be used to protect a critical area and/or buffer from future alteration.

1. A critical area tract shall be created as part of a site development or subdivision action. The subdivision drawing or project site plan shall clearly depict the critical area tract to include all of the subject critical area, any required buffer, and any additional lands included voluntarily by the developer. The applicant may establish a separate critical area tract for each critical area type.

2. A protection easement shall be created on a property where no subdivision or site plan is proposed, but a critical area report has been prepared and critical areas identified or delineated.

3. Dedication of Critical Area. The City may require a critical area tract be dedicated to the City, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity which ensures the ownership, maintenance, and protection of the tract (such as a land conservation trust).

4. When the critical area has already been delineated, it shall be shown on the recording document with the legal description of the critical area.

F. Recording the Notice, Tract, Easement, or Dedication.

1. The property owner shall record the notice, easement, or tract, at their expense, with the Snohomish County Auditor’s Office Recording Division.

2. The applicant shall submit proof that the notice has been recorded on title before the Director approves any site development or construction permit, or at or before the recording of any type of subdivisions or phased development project.

G. Extinguishment of Notice. The titleholder has the right to challenge a notice and to have it extinguished if it can be documented that the presence of critical area no longer applies. The titleholder shall apply for a critical area preliminary assessment, pursuant to MTMC 16.15.160, and submit a critical area report, pursuant to MTMC 16.15.200, for review and approval by the Director per MTMC 16.15.120, before the notice on title can be extinguished. The extinguishment shall be recorded per subsection F of this section. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.260 Signs and fencing.

Short- and long-term protection of critical areas is necessary to minimize damage to critical areas, to ensure the success of restoration or mitigation and to protect their functions and values. The following signage and fencing provisions may be modified by the Director as necessary to ensure protection of sensitive features or wildlife needs.

A. Signage. The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

1. Temporary Markers. Prior to the commencement of permitted activities, pursuant to an approved permit or authorization, the perimeter of the critical area or buffer and the limits of those areas to be disturbed shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and is subject to inspection by the City. The location and quantity of signs shall be determined by the Director. Temporary markers shall be maintained throughout construction and not be removed until permanent signs, if required, are in place.

2. Permanent Signs. When a permanent sign is required as a condition of any permit or authorization issued, pursuant to this chapter, the applicant shall install permanent signs along the boundary of a critical area or buffer as follows:

a. Signs shall be made of an enamel-coated metal face and attached to a metal post, or another nontreated material of equal durability.

b. Signs must be posted at an interval of one per lot or every 100 feet, or at the discretion of the Director.

c. The sign shall be worded as follows or with alternative or additional language approved by the Director. Graphics are encouraged and may be required.

Protected (insert name of critical area type)

Do Not Disturb

Contact the City of Mountlake Terrace

Regarding Uses and Restriction

d. Signs must be maintained by the property owner in perpetuity.

B. Fencing.

1. Fencing of critical areas is required when called for in a critical area report or mitigation plan, when any of the circumstances described in subsection (B)(3) of this section apply, or when the Director determines that such fencing is necessary to protect the functions and/or values of a critical area. Fencing may be temporary or permanent or both. The Director may also waive this requirement.

2. Temporary fencing shall be installed to protect critical areas during construction activities or intermittent activities that may impact such critical areas. Temporary fencing shall be appropriate for the location and critical area at the discretion of the Director.

3. Permanent fencing shall be installed at the outer edge of the critical areas in the following circumstances:

a. As part of any development proposal affecting a critical area or buffer;

b. As part of a use or activity in a park where the adjacent existing or proposed use is active recreation and the Director determines that such fencing is necessary to protect the functions of the critical area;

c. When buffer averaging is employed as part of a development proposal;

d. When buffer reductions are employed as part of a development proposal; or

e. As part of a proposal, whether or not a permit is required, on any parcel that affects the critical area and buffer.

4. The location, materials, height, and type of fencing shall be consistent with the associated critical area report, mitigation plan, or as determined by the Director.

5. Fencing shall not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts. Breaks in permanent fencing may be allowed for access to permitted buffer uses.

6. Fences must be maintained by the property owner in perpetuity. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.270 Protective covenants.

A. Long-term protection of a regulated critical area and its associated buffer shall be required, when applicable, as a condition of an approved permit or authorization, consistent with MTMC 16.15.250, Notice on title. The means of protection can be provided for in one of the following ways:

1. Separate critical areas tract;

2. Execution of an easement;

3. Dedication to a conservation organization or land trust; or

4. Preserved through a comparable permanent protective mechanism acceptable to the City such as a dedication.

B. The location and limitations associated with the critical area and its buffer shall be shown on a document prepared for that purpose, on the face of the deed or the face of the plat applicable to the property. The City shall review and find the protection document acceptable, prior to the applicant recording it on the property title, pursuant to MTMC 16.15.250. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.310 Alteration of critical areas.

A. Purpose and Applicability.

1. Critical areas shall, in general, be maintained in their natural state or current legally established condition, including undisturbed, native vegetation to maintain the functions, values, resources, and public health and safety for which they are protected.

2. An “alteration of a critical area” means any human induced change to, addition to, or modification of an existing condition, structure, or use of a critical area or its buffer that changes the existing character of the critical area.

3. Alteration of critical areas, including their established buffers, may only be permitted subject to the criteria and standards in this chapter, and compliance with any federal and/or state permits required.

4. Unless otherwise provided in this chapter, if alteration of the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved critical area report and mitigation plan per MTMC 16.15.200 and 16.15.210, so the result is no overall net loss of critical area functions and values, and no increased risk of hazards.

B. Review Criteria. Any alteration to a critical area, unless otherwise provided for in this chapter, shall be evaluated based on the proposal’s ability to comply with the following criteria:

1. The proposal is consistent with the alteration provisions for the critical area type per 16.15.400 through 16.15.450;

2. The proposal minimizes the impact on critical areas in accordance with MTMC 16.15.210;

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 protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values;

5. A restoration plan has been prepared, pursuant to MTMC 16.15.330;

6. The mitigation plan has been amended, and/or the restoration plan prepared consistent with any conditions, and approved by the City prior to issuance of any construction permits. Construction techniques shall be approved by the City prior to any site work.

C. Decision. Pursuant to MTMC 16.15.120(D), the proposal shall be reviewed and approved, approved with conditions, or denied subject to a determination by the Director the following have been met:

1. The submittal for alteration is found responsive to the criteria in subsection B of this section.

2. Any other filing requirements, as set forth by the Director, are submitted and found satisfactory. The submittal shall include an affidavit by the applicant, which declares whether the applicant has knowledge of any illegal alteration to any or all wetlands on the proposed site and whether the applicant previously had been found in violation of this chapter. If the applicant has been found previously in violation, the applicant shall declare whether such violation has been corrected to the satisfaction of the jurisdiction.

3. Notice on title shall apply, pursuant to MTMC 16.15.250. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.320 Unauthorized alterations of critical areas.

A. When a critical area or its buffer has been altered in violation of this chapter, the City may issue a stop work order and order restoration of the critical area.

B. All development work shall remain stopped until the requirements of MTMC 16.15.310 and 16.15.330 have been satisfied and the critical area restored.

C. Unauthorized alteration of a critical area shall be considered a violation of this chapter and may be subject to the provisions of MTMC 16.15.380. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.330 Restoration plan.

A restoration plan shall be prepared consistent with the requirements, criteria, and performance standards of this section.

A. A restoration plan is required when needed to reestablish the critical area’s functional characteristics and processes that have been lost by project-induced alterations to critical areas, or activities or catastrophic events have occurred within an area so that it no longer meets the definition of such critical area.

B. A restoration plan shall be prepared by a qualified professional using the best available science and describe how the actions proposed meet the minimum requirements described in subsection E of this section. The Director may require third party review per MTMC 16.15.200(G).

C. Restoration, and any other required measures, are at the owner’s or other responsible party’s expense to remediate the impacts of the violation of the provisions of this chapter. All ongoing development work shall stop and the critical area shall be restored.

D. At the Director’s discretion, and based on the severity of the alterations, the submittal, review, and approval process of the restoration plans required for remediation of violations of this chapter shall be determined by the Director and may be elevated to a site permit application process, including fees.

E. Minimum Performance Standards for Restoration.

1. For alterations to aquifer recharge areas, wetlands, streams, and fish and wildlife habitat conservation areas, the following minimum performance standards shall be met for restoration; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The previolation function and values of the affected critical areas and buffers shall be restored, including water quality and habitat functions;

b. The previolation soil types and configuration shall be replicated;

c. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically, or previolation, found on the site in species types, sizes, and densities. The previolation functions and values should be replicated at the location of the alteration; and

d. Information demonstrating compliance with the requirements in MTMC 16.15.220 and the applicable mitigation sections for the affected type(s) of critical area(s) and their buffer(s) shall be submitted to the Director with the complete, applicable permit application.

2. For alterations to flood hazard and geologic hazard areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to or less than the previolation hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

F. Site Investigations. The Director is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The Director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.340 Guarantees to ensure mitigation, maintenance, and monitoring.

A. If the development proposal is subject to mitigation, the applicant shall post a mitigation guarantee or other security in a form and amount deemed acceptable by the City to ensure mitigation is fully functional.

B. When mitigation required for a development proposal is not completed prior to final permit approval, such as final plat approval or final building inspection, the applicant shall be required to post a performance guarantee, bond or other security in a form and amount deemed acceptable by the Director.

C. The guarantee shall be in the amount of 150 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater. The amount of the performance guarantee shall include a reasonable allocation for inflation based on the length of anticipated delay and the provisions of subsection E of this section.

D. The guarantee shall be in the form of a surety bond, performance bond, and/or maintenance bond from an acceptable financial institution, or other acceptable form of warranty as permitted consistent with Chapter 15.35 MTMC, Performance Guarantees and Warranties.

E. Guarantees or other security authorized by this section shall remain in effect until the Director determines, in writing, that the standards bonded for have been met. Guarantees or other security shall be held by the City for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary to achieve these goals. The Director may agree to reduce the guarantee in proportion to work successfully completed over the period of the guarantee.

F. Depletion, failure, or collection of guarantee funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

G. Public development proposals shall be relieved from having to comply with the guaranteeing requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

H. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the City may demand payment of any financial guarantees or require other action authorized under this chapter or any other law. Any funds recovered, pursuant to this section, shall be used to complete the required mitigation. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.350 Variances.

A. Variances from the standards of this chapter may be granted when the strict application of the provisions of this chapter would deprive the applicant all reasonable economic uses and privileges commonly enjoyed by other properties in similar circumstances. A variance may only be granted by the Hearing Examiner.

B. Criteria. The variance may be granted only if the applicant demonstrates that the requested action is consistent with all of the following criteria:

1. There are unique physical conditions or circumstances peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;

2. The special conditions and circumstances are not a result of the actions of the applicant, owner, or previous owner;

3. The variance is the minimum necessary to accommodate the proposed activity (such as building footprint and access);

4. The granting of the variance would preserve the functions or values of the critical areas;

5. The proposed variance would not adversely affect or be materially detrimental to the public welfare or injurious to the property or improvements to properties in the vicinity of the subject property;

6. Adverse impacts to critical areas resulting from the proposal are minimized;

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

8. The variance is consistent with the additional variance requirements/criteria for the specific critical area impacted, pursuant to MTMC 16.15.400 through 16.15.450; and

9. The granting of the variance is consistent with the general purpose and intent of the City’s Comprehensive Plan and adopted development regulations.

C. Process and Procedure.

1. A formal preapplication conference is required per MTMC 16.15.150.

2. An applicant submits a complete application, including all filing requirements and the appropriate fee. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application.

3. The land use project procedures time line set forth in MTMC 18.05.620 applies, except as otherwise stated in this section.

4. The Director shall review the application and make a determination of completeness and provide public notice, pursuant to MTMC 16.15.140.

5. The Director shall evaluate the proposal’s consistency with the criteria and forward a written recommendation to the Hearing Examiner to approve, with or without conditions and any time limits for application or completion of work, or to deny the variance request.

6. A public hearing is held before the Hearing Examiner pursuant to MTMC 18.05.420, Notice of public hearing, and MTMC 18.05.500, Procedures for public hearings.

D. Decision.

1. The Hearing Examiner shall make written findings that the request meets or fails to meet the variance criteria and issue a decision to approve, approve with conditions, or deny the variance, pursuant to MTMC 18.05.490.

2. A final decision shall be rendered within 120 days of the determination of completeness per MTMC 18.05.540.

3. Time Limit. Permits necessary to establish or construct the approved variance shall be applied for and the work completed within one year of the effective date of the Hearing Examiner’s decision, unless a different time limit is specified by the Hearing Examiner. Failure to meet the established time limit shall void the variance, unless a time extension is obtained pursuant to MTMC 19.110.130, including a demonstration that the conditions of the site and critical areas have not changed since the approval decision was issued. Knowledge of the expiration date is the responsibility of the applicant.

E. Appeal. An appeal of the final decision shall be consistent with the appeal process, pursuant to MTMC 16.15.385. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.360 Reasonable use exceptions.

A. Applicability. A reasonable use exception is required when strict adherence to the provisions of this chapter would deny all reasonable use of the subject property as a whole, due to the property’s size, topography, or location relative to the critical area and any associated buffer.

1. A reasonable use exception shall only be granted if no other reasonable alternative method of development is provided, subject to review and criteria under this section.

2. The fact that property may be utilized more profitably than allowed based on strict interpretation of this title shall not be an element of consideration in any review of a reasonable use request. Reasonable use exceptions shall not be permitted for the subdivision of land.

B. Application and Filing Requirements.

1. A complete request for reasonable use exception application shall be submitted to include the following information:

a. A description of the proposed development site, including the entire critical area and the setbacks or buffers as required under this title, whether the critical area is wholly contained on the development site or not;

b. An analysis of the impact that the amount of development proposed, in accordance with all applicable development regulations, would have on the critical area;

c. An analysis of whether any other reasonable use with less adverse impact on the critical area and buffer area, as required, is possible;

d. A design of the project as proposed as a reasonable use so that the development will have the least practicable adverse impact on the critical area;

e. A description and analysis of the modification requested of the minimum requirements of this chapter to accommodate the proposed development;

f. Such other information as may be required by the Director as reasonable and necessary to evaluate the reasonable use respective to the proposed development;

g. The applicant shall address all criteria, pursuant to subsection C or D of this section, as applicable;

h. Any additional materials, studies or reports or previously prepared or issued approvals related to the proposal such as a critical area identification form; critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act.

2. Burden of Proof. The burden of proof is on the applicant to submit sufficient evidence and information in support of the request on which the decision is to be made.

C. Criteria for Public Agencies and Utilities Reasonable Use Exceptions. If strict application of this chapter would unreasonably prohibit the provision of a public service by a public agency or public utility development proposal, the public entity may be granted an exception subject to meeting all of the following criteria:

1. The application of the critical areas regulations would unreasonably restrict the ability to provide utility services to the public;

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

3. The proposal does not pose an unreasonable threat to the public health or safety on or off the development proposal site and will not be materially detrimental to the property or improvements in the vicinity;

4. The proposal attempts to protect and mitigate impacts to the existing critical area functions and value, consistent with MTMC 16.15.310, Alteration of critical areas, and best available science to the fullest extent possible;

5. Any impacts or alterations permitted to the critical area are the minimum necessary and will be mitigated consistent with relevant mitigation standards in this chapter;

6. The proposal attempts to protect and mitigate, consistent with MTMC 16.15.210 and best available science, the existing critical area functions; and

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

D. Criteria for Private Development and Private Permit Application Reasonable Use Exceptions. The property owner may apply for and be granted a reasonable use exception subject to meeting all of the following criteria:

1. The application of the critical area regulations would deny all reasonable economic use of the property;

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

3. The inability of the applicant to derive reasonable economic use of the property is not the result of a self-created hardship, due to the applicant’s actions or that of a previous property owner, after the effective date of this chapter or its predecessor (Ordinance No. 2370), or other actions thereby creating an undevelopable condition;

4. The proposed encroachment into the critical area and/or buffer is the minimum necessary to allow for reasonable economic use of the property and no feasible and reasonable on-site alternative is possible to the activities proposed, considering possible changes in site layout, reductions in density and similar factors, with fewer adverse impacts;

5. The proposed reasonable use will result in minimal impact and/or alteration of the critical areas and/or buffers;

6. Any impacts or alterations permitted to the critical area are mitigated consistent with relevant mitigation standards in this chapter;

7. The proposal attempts to protect and mitigate, consistent with MTMC 16.15.210 and best available science, the existing critical area functions and values to the fullest extent possible;

8. The proposal does not create a health or safety hazard on or off the proposal site or be materially detrimental to the property or improvements in the vicinity; and

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

E. Review and Approval Process.

1. A formal preapplication conference is required, per MTMC 16.15.150.

2. The applicant shall submit an application to include all filing requirements per subsection B of this section and applicable fee.

3. The land use project procedures time line set forth in MTMC 18.05.620 applies, except if otherwise stated in this chapter.

4. The Director shall review the application for completeness, pursuant to meeting all the filing requirements of this section. The Director shall review the complete application for:

a. Consistency with criteria in subsections C or D of this section, as applicable.

b. Adequacy of any reports, studies or other materials submitted.

5. A notice of application shall be issued, pursuant to MTMC 16.15.140.

6. The Director shall evaluate the proposal’s consistency with the criteria and forward a written recommendation to the Hearing Examiner to approve or deny the variance request. The recommendation may include conditions, as are necessary to ensure adequate protection of critical areas from adverse impacts and to ensure conformity with this chapter, including the preparation and implementation of a mitigation and monitoring plan consistent with this chapter, and any time limits for application or completion of work.

7. The Hearing Examiner shall hold a public hearing and provide public notice, pursuant to Chapter 18.05 MTMC.

8. A final decision shall be rendered within 120 days of the determination of completeness, per MTMC 18.05.540.

F. Decision.

1. The Hearing Examiner shall make written findings that the request meets, or fails to meet, the criteria for a reasonable use exception, pursuant to MTMC 18.05.490, that the proposed mitigation is sufficient to protect the critical area, and that strict application of the standards in this chapter would deny all reasonable use of the property.

2. The Hearing Examiner may impose any conditions he or she feels necessary, to ensure that the criteria are met and any impacts adequately mitigated to ensure no net loss to critical area functions and values, and set time limits for making application and completing work.

3. Approval of a reasonable use exception shall not eliminate the need for any other permits or approvals otherwise required by applicable city codes.

G. Time Limits.

1. Any permits necessary to establish or construct the approved reasonable use shall be applied for within one year of the effective date of the Hearing Examiner’s decision, unless a different time is approved or required.

2. The approval is automatically null and void if the necessary permit applications to establish the use are not received within the specified time, unless a time extension is obtained pursuant to MTMC 19.110.130, including a demonstration that the conditions of the site and critical areas have not changed since the approval decision was issued. Knowledge of the expiration date is the responsibility of the applicant.

H. Appeal. An appeal of the final decision shall be consistent with the appeal process, pursuant to MTMC 16.15.385. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.380 Enforcement and penalties.

A. Any responsible party violating any of the provisions of this chapter may be subject to enforcement procedures and penalties of this section and any applicable procedures and penalties, per Chapter 19.140 MTMC, Enforcement. Penalties are cumulative. Any developer/owner who violates the provisions of this chapter, or an approved plan, shall incur a civil penalty in the amount of $500.00 per day from the date set for correction, until the violation is corrected.

B. Enforcement.

1. Voluntary Correction. When it has been determined that a violation has occurred or is occurring, the City of Mountlake Terrace may enter into a voluntary correction agreement, which is a contract between the City and the responsible person, under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:

a. The name and address of the person responsible for the violation; and

b. The street address or other description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and

c. A description of the violation and a reference to the regulation(s) which has been violated; and

d. The necessary corrective action to be taken, and a date or time by which the correction must be completed; and

e. An agreement by the person responsible for the violation that the City may inspect the premises as necessary to determine compliance with the voluntary correction agreement; and

f. A statement of understanding that if the terms of the voluntary correction agreement are not satisfied, that the City may abate the violation and recover its costs and expenses (including attorney fees, expert witness fees, and court costs) from the person responsible for the violation, and/or they may be subject to a monetary penalty consistent with this section; and

g. A statement of understanding that by entering into the voluntary correction agreement, the person responsible for the violation waives the right to a hearing as to the existence of the violation and stipulates to the same. A statement of understanding that an extension of the time limit for correction or a modification of the required corrective action may be granted if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions.

2. Notice of Civil or Criminal Violation. When it is determined that a violation has occurred or is occurring, and the City is unable to secure voluntary correction or a voluntary agreement is not applicable, the City may issue notices of civil violation, and criminal violation, to the person responsible for the violation, per Chapter 19.140 MTMC. Each violation, and in the case of a continuing violation, each day of continued violation, shall be a separate and distinct violation and civil penalties shall be assessed per day per violation.

3. Abatement.

a. Urgent Abatement. Whenever a condition, the continued existence of which constitutes an immediate threat to the public health, safety, or welfare or to the environment, is found to exist, the City may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement. The costs and expenses of abatement incurred by the City may be assessed against the property owner or person responsible for failing to abate the condition.

b. Judicial Abatement. The City may seek judicial process as it deems necessary to abate a condition which was caused by or continues to be a violation of this chapter and other methods of remedial action failed to produce compliance. An order of abatement is issued through the appropriate court of jurisdiction.

C. Additional Penalties. The penalties of this section are in addition to, and not in lieu of, any other applicable penalties set forth in this chapter, Chapter 16.20 or 19.140 MTMC.

1. A square footage cost of $3.00 per square foot of impacted critical area buffer; and

2. A square footage cost of $15.00 per square foot of impacted critical area; and

3. A per tree penalty, in the amount of $1,000 per nonsignificant tree and $3,000 per significant tree, for each tree cleared, cut, damaged, or removed from a critical area or critical area buffer in violation of the provisions of this chapter. Each tree is a separate violation, subject to separate penalties; and

4. Restoration of impacts to critical areas is required, pursuant to MTMC 16.15.115 and 16.15.330. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.385 Appeals of critical area decisions.

A. Administrative interpretations and administrative approvals may be appealed, by the applicant or any party of record, to the Hearing Examiner, pursuant to Chapter 2.120 MTMC.

1. Appeals shall be written and shall state the following:

a. The decision being appealed, the name of the project applicant and the date of the decision.

b. The name and address of the person appealing, and his or her interest in the matter.

c. The reasons why the person appealing believes the decision to be in error under the provisions of this chapter.

2. Filing the Appeal. The person appealing shall file the appeal and applicable fee with the Director within 14 calendar days after the date of the decision being appealed.

3. Standards. In deciding the appeal, the Hearing Examiner shall determine whether the critical area decision, pursuant to the appeal, was in error, pursuant to the provisions of this chapter.

B. Decisions by the Hearing Examiner may be appealed, by the applicant or any party of record, pursuant to the judicial appeal process per Chapter 2.120 MTMC and MTMC 18.05.570. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.390 Fees.

A. Fees for critical area review and processing of applications and other services provided by the city, pursuant to this chapter, apply per the City’s adopted fee schedule.

B. The applicant shall be responsible for all costs associated with the initiation, preparation, submission, and expense of all required reports, assessments, studies, plans, reconnaissance, third party review by qualified professionals and any other work prepared in support of or necessary to review and process the application and install, maintain, and monitor critical area work.

C. Performance and maintenance warrantees may be required for restoration, mitigation, and monitoring activities. These are at the sole expense of the applicant. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.400 Wetlands.

A. Wetland Designations.

1. Wetlands are those areas designated in accordance with the approved federal delineation manual and applicable regional supplements as set forth in WAC 173-22-035, consistent with the definition of “wetland” per MTMC 16.15.500. All areas within the City meeting the wetland designation criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

2. Wetland delineations are valid for five years, subject to MTMC 16.15.200(F).

B. Wetland Classification. Wetland shall be rated according to the Washington State Wetlands Rating System for Western Washington: 2014 Update (Department of Ecology Publication No. 14-06-029, or as revised and approved by Ecology), which contains the definitions and methods for determining whether the criteria below are met. Wetland rating categories shall not be altered to recognize illegal modifications made by the applicant or with the applicant’s knowledge. Categories may be modified in accordance with permitted activities.

1. “Category I wetlands” are those wetlands which meet any one of the following criteria:

a. Documented habitat for federal or state listed “endangered” or “threatened” species of plant, animal or fish within the wetland; or

b. High quality native wetland communities listed in, or which qualify for inclusion in, Washington Natural Heritage Program maintained by the state Department of Natural Resources; or

c. Wetlands that are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or

d. Wetlands of local significance, as now or hereafter designated by the City of Mountlake Terrace, pursuant to criteria in the Washington State Wetland Rating System for Western Washington; or

e. Wetlands that provide a high level of function with a score of 23 points or more based on the wetland rating system.

2. “Category II wetlands” are those wetlands which are not Category I wetlands and which meet any one of the following criteria:

a. A documented habitat for federal or state listed “candidate” or “sensitive” species of plant, animal or fish species within the wetland; or

b. Wetlands that contain “priority” species or habitats documented by the Washington Department of Wildlife Priority Habitat and Species program; or

c. Wetlands with significant functions, as determined by the required wetland report, which may not be adequately replicated through creation or restoration; or

d. Wetlands with a moderately high level of functions scoring between 20 and 22 points; or

e. Wetlands of local significance, as now or hereafter designated by the City of Mountlake Terrace.

3. “Category III wetlands” are those wetlands that do not satisfy Category I, II or IV criteria, with a moderate level of functions scoring between 16 and 19 points, have generally been disturbed in some ways, and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.

4. “Category IV wetlands” are those wetlands which have the lowest levels of function with scores below 16 points and are often heavily disturbed. These are wetlands that should be able to be replaced or in some cases improved.

5. “Artificially created wetlands” are wetlands as defined in MTMC 16.15.500. Such wetlands, except for those created as mitigation or previously modified for approved land use activities, are excluded from regulation under this section; provided, that their purposeful creation is demonstrated to the Department through documentation, photographs, statements and/or other evidence.

C. Mapping. The approximate location and extent of wetlands are shown on the adopted critical areas maps, pursuant to MTMC 16.15.080. The exact location of a wetland’s boundary and classification shall be determined through field investigation by a qualified professional applying the applicable manuals adopted by this chapter.

D. Allowed Activities and Uses in Wetlands and Wetland Buffers.

1. Activities that are regulated in critical areas, pursuant to MTMC 16.15.090, apply to wetlands and wetland buffers.

2. In general, activities and uses shall be prohibited in wetlands and wetland buffers, except as otherwise provided for in this subsection, and in subsection (D)(6) of this section. When applicable, exempt activities per MTMC 16.15.100, emergencies per MTMC 16.15.110, variances per MTMC 16.15.350, and reasonable use exceptions per MTMC 16.15.360 are permitted.

3. Category I Wetlands. Activities and uses shall be prohibited from Category I.

4. Category II and III Wetlands. Activities and uses proposed in Category II and III wetlands are subject to the following standards together with any other applicable standards:

a. Water-dependent activities may be allowed where there are no practicable alternatives that would have a less adverse impact on the wetland, its buffers, and other critical areas.

b. Where non-water-dependent activities are proposed, it shall be presumed that alternative locations are available, and activities and uses shall be prohibited, unless the applicant demonstrates that:

i. The basic project purpose cannot reasonably be accomplished and successfully avoid, or result in less adverse impact on, a wetland on another site or sites in the general region; and

ii. All alternative designs of the project as proposed that would avoid or result in less of an adverse impact on a wetland or its buffer, such as a reduction in the size, scope, configuration, or density of the project, are not feasible.

c. Full compensation for the loss of acreage and functions and values of wetland and buffers due to unavoidable impacts shall be provided in compliance with the mitigation performance standards and requirements of this chapter.

5. Category IV Wetlands. Activities and uses that result in unavoidable and necessary impacts may be permitted in Category IV wetlands and associated buffers in accordance with an approved critical area report per MTMC 16.15.200, and with MTMC 16.15.210 through 16.15.240, as applicable, and only if the proposed activity is the only reasonable alternative that will accomplish the applicant’s objectives.

6. Exemptions and Allowed Activities – Wetlands. The activities listed below are allowed in wetlands and wetland buffers in addition to those activities listed in and consistent with the provisions in the MTMC 16.15.100 and 16.15.110. These activities do not require a critical area report, except where such activities result in a loss to the functions and values of a wetland or wetland buffer. Additional exceptions may be granted by variance or reasonable exception use pursuant to MTMC 16.15.350 or 16.15.360.

a. Conservation or enhancement of a wetland, or preservation of soil, water, vegetation, fish and other wildlife, that does not entail changing the structure or functions of the existing wetland, including removal of noxious weeds or invasive species pursuant to MTMC 16.15.115.

b. 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.

c. Drilling for utilities under a wetland; 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 could be disturbed.

d. Allowed uses in wetland buffers are pursuant to MTMC 16.15.400(F)(2).

7. Subdivisions. The subdivision and/or short subdivision of land that contains wetlands and associated buffers are subject to the following:

a. Land that is located wholly within a wetland or its buffer may not be further subdivided; and

b. Land that is located partially within a setland or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is located outside of the wetland and its buffer; and the lot can meet the minimum size requirements as provided for and allowed in MTMC Titles 17 and 19.

E. Critical Area Report Requirements – Wetlands.

1. Wetland boundaries must be staked and flagged in the field by a qualified consultant employing the federal methodology. Field flagging must be distinguishable from other survey flagging on the site. The field flagging must be accompanied by a wetland delineation report.

2. Wetland critical area reports shall be prepared by a qualified professional. Critical area reports shall be consistent with MTMC 16.15.200 and this section. The area covered by the report shall include:

a. The project area of the proposed activity;

b. All wetlands and applicable buffers within 200 feet of the project area; and

c. All shoreline areas, water features, floodplains, and other critical areas per City inventory map(s) per MTMC 16.15.080, and as designated on a National Wetland Inventory Map (U.S. Fish and Wildlife Service);

3. Wetland Analysis. In addition to the minimum report filing requirements set forth in MTMC 16.15.200(D), the report shall also contain an analysis of the wetlands to include the following site and proposal related information:

a. A written assessment and accompanying maps of the wetlands and buffers within 200 feet of the project area, including the following information, at a minimum:

i. Wetland delineation and required buffers;

ii. Existing wetland acreage;

iii. Wetland category;

iv. Vegetative, faunal, and hydrologic characteristics;

v. Soil and substrate conditions;

vi. Topographic elevations, at two-foot contours;

vii. Delineation methodology, with special emphasis on whether the approach used was routine, intermediate, or comprehensive, as described in the federal manual;

viii. Specific descriptions of plant communities, soils, and hydrology;

ix. A summary of existing wetland function and value; and

x. A discussion of the water sources supplying the wetland and documentation of hydrologic regime (locations of inlet and outlet features, water depths throughout the wetland, evidence of recharge or discharge, evidence of water depths throughout the year – drift lines, algal layers, moss lines, and sediment deposits).

b. A summary of proposed wetland and buffer alterations, impacts, and the need for the alterations as proposed. Potential impacts may include but are not limited to loss of flood storage potential, loss of wildlife habitat, expected decreases in species diversity or quantity, changes in water quality, increases in human intrusion, and impacts on associated wetland or water resources.

c. A discussion of measures, including avoidance, minimization, and mitigation, proposed to preserve existing wetlands and restore any wetlands that were degraded prior to the current proposed land use activity.

d. A habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and wetland functions.

e. Functional evaluation for the wetland and adjacent buffer citing the method and including all data sheets from the federal manual, numbered to correspond with sample site locations as staked and flagged in the field.

f. Proposed mitigation, if needed, including a written assessment and accompanying maps of the mitigation area including, at a minimum, any of the following information not already required by a mitigation plan per MTMC 16.15.220:

i. Existing and proposed wetland acreage;

ii. Vegetative and faunal conditions;

iii. Surface and subsurface hydrologic conditions including an analysis of existing and future hydrologic regime and proposed hydrologic regime for enhanced, created, or restored mitigation areas;

iv. Relationship within watershed and to existing waterbodies;

v. Soil and substrate conditions, topographic elevations;

vi. Existing and proposed adjacent site conditions;

vii. Required wetland buffers (including any buffer reduction and mitigation proposed to increase the plant densities, remove weedy vegetation, and replant the buffers);

viii. Property ownership; and

ix. Associated wetlands and related wetlands that may be greater than 200 feet from the subject project.

g. A scale map of the development proposal site and adjacent area. A discussion of ongoing management practices that will protect wetlands after the project site has been developed, including proposed monitoring and maintenance programs.

h. A guarantee estimate for the installation (including site preparation, plant materials and installation, fertilizers, mulch, stakes) and the proposed monitoring and maintenance work for five years, unless a different number of years is recommended by the qualified professional or specified by the Director before or after submittal of report.

4. A notice on title applies, pursuant to MTMC 16.15.250.

5. Nothing in this section limits the authority of the Director to request additional information deemed necessary before, during, or after review of the report contents.

6. The Director may require third party review, pursuant to MTMC 16.15.200(G).

F. Wetland Buffers and Setbacks.

1. The general purpose and provisions applicable to wetland buffers and setbacks are subject to the provisions in MTMC 16.15.040, unless otherwise provided for in this section.

2. Wetland Buffer Uses. The following uses may be permitted within a wetland buffer in accordance with the review procedures of this chapter; provided, they are not prohibited by any other applicable law and conducted in a manner to minimize impacts to the buffer and adjacent wetland:

a. All activities and uses as defined in this section;

b. Conservation and/or restoration activities aimed at protecting the soil, water, vegetation, or wildlife;

c. Passive Recreation. Passive recreation facilities designed and in accordance with an approved critical area report, including walkways and trails consistent with MTMC 16.15.100(B)(13). The Director may allow trails within the inner 25 percent of wetland buffers when required to provide access to wildlife viewing structures, fishing access areas, or connections to other trail facilities, wildlife viewing structures, and fishing access areas down to the water’s edge that should be no larger than six feet; and

d. Low impact uses may be permitted within the additional building setback per the Wetland Buffer Requirements table in subsection (F)(3) of this section. Examples of such uses include utilities, recreation, and temporary construction staging required for such uses, and permitted accessory uses; provided, that any building or structure shall not be of such size, individually or cumulatively, as to require issuance of a building permit.

3. Wetland Buffer Widths – Standards.

a. Standard Buffer. The standard buffer widths in this section have been established in accordance with best available science. The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the wetland functions and values at the time of the proposed activity. Lawns, walkways, driveways, and other mowed or paved areas are not considered to be buffers.

b. Wetland buffers shall be measured perpendicular from the wetland edge as delineated and marked in the field using U.S. Army Corps of Engineers Wetlands Delineation Manual (1987) and applicable regional supplements.

c. Standard Buffer Widths.

i. Wetland buffer widths shall be established according to the table:

Wetland Buffer Widths (in Feet)

Wetland Category

Without minimization measures

With minimization measures

Additional Building Setback from Buffer

Habitat Score

Habitat Score

 

Low (3 – 5)

Moderate (6 – 7)

High (8)

Low (3 – 5)

Moderate (6 – 7)

High (8)

All Habitat scores

1

75

110

225

75

150

300

15

2

75

110

225

75

150

300

10

3

60

110

225

60

150

300

5

4

40

50

0

Artificial

As required

ii. The use of the standard buffer widths requires the implementation of the measures in subsection (F)(4) of this section, where applicable, to minimize the impacts of the land uses adjacent to the wetland or buffer, in addition to any other applicable requirements.

iii. If an applicant chooses not to apply the mitigation measures in subsection (F)(4) of this section, then a 33 percent increase in the width of all buffers is required.

4. Measures to Minimize Impacts to Wetlands – Required. The wetland buffer widths in the Wetland Buffer Requirements table in this section assume implementation of the following measures to minimize impacts from disturbances, where applicable to a specific proposal:

Mitigation for Disturbance 

Disturbance

Required Measures to Minimize Impacts

Lights

•    Direct lights away from wetland

Noise

•    Locate activity that generates noise away from wetland

•    If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source

•    For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10 feet heavily vegetated buffer strip immediately adjacent to the outer wetland buffer

Toxic Runoff

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

•    Establish covenants limiting use of pesticides within 150 feet of wetland

•    Apply integrated pest management

Stormwater Runoff

•    Retrofit stormwater detention and treatment for roads and existing adjacent development

•    Prevent channelized flow from lawns that directly enters the buffer

•    Use low impact development (LID) techniques (per City’s approved stormwater manual). Follow LID Minimum Requirement No. 8 (Wetlands Protection) for management of any stormwater discharging to a wetland

Change in Water Regime

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

Pets and Human Disturbance

•    Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the eco-region

•    Place wetland and its buffer in a separate tract or protect with a conservation easement

Dust

•    Use best management practices to control dust

Disruption of Corridors or Connections

•    Maintain connections to off-site areas that are undisturbed

•    Restore corridors or connections to off-site habitats by replanting

5. Building Setbacks from Wetland Buffers.

a. Unless otherwise provided, buildings and other structures shall be set back from the edge of the wetland buffer per the table in subsection (F)(3)(c) of this section, or from the edges of all critical areas, if no buffers are required.

b. The following may be allowed in the additional wetland building setback area:

i. Landscaping with a majority of native vegetation;

ii. Uncovered decks;

iii. Building overhangs, if such overhangs do not extend more than 24 inches into the setback area; and

iv. Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations, pursuant to City stormwater regulations.

6. Increased Wetland Buffer Widths.

a. An increase in the required buffer widths shall be provided, as determined by the Director, based on the recommendations of an experienced, qualified professional wetland scientist on a case-by-case basis when a larger buffer is necessary to protect wetland functions and values based on site-specific characteristics. This determination shall be based on one or more of the following criteria:

i. A larger buffer is needed to protect critical areas other than the wetland; or

ii. The buffer or adjacent uplands has a slope greater than 15 percent or is susceptible to erosion and standard erosion-control measures will not prevent adverse impacts to the wetland; or

iii. The wetland and/or buffer is occupied by a federally listed threatened or endangered species, a bald eagle nest, a great blue heron rookery, or a species of local importance; and it is determined that an increased buffer width is necessary to protect the species; or

iv. The existing buffer vegetation is considered inadequate because the buffer area has minimal vegetative cover or is composed of nonnative vegetation, lawn, or bare ground.

b. At the discretion of the Director, the buffer width may be increased to ensure that adequate functions of the buffer are provided or an applicant may be required to develop and implement a wetland buffer enhancement plan. Where a buffer enhancement planting plan is proposed, it shall, unless otherwise recommended by a qualified professional, include (as appropriate):

i. Removal of nonnative plants when nonnative or invasive plant species provide the dominant cover;

ii. Native plant planting densities of no less than three feet on center for shrubs and eight feet on center for trees; and

iii. A monitoring and maintenance plan to ensure success.

7. Wetland Buffer Width Modification.

a. The Director may allow modification of a standard wetland buffer width consistent with an approved critical areas report. Wetland buffers widths may be modified or reduced either by averaging buffer widths or by enhancing buffer quality when consistent with the criteria in this section. The activity or use shall be mitigated to achieve no net loss of wetland area or functions consistent with this section and other applicable provisions of this chapter. Wetland buffer averaging with enhancement shall be preferred over wetland buffer reduction with enhancement. Wetland buffer reduction shall only be approved by the Director when buffer averaging cannot be accomplished on site.

b. Buffer width averaging with buffer enhancement may be allowed where a qualified professional demonstrates to the Department that:

i. The wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation, and the wetland would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;

ii. That averaging will not reduce wetland functions or values;

iii. The total area contained within the buffer after averaging shall be no less in area than contained within the standard buffer prior to averaging;

iv. The required building setback shall not be included in the area used to calculate buffer averaging;

v. The buffer width is not reduced to less than 75 percent of the standard width or 30 feet; and

vi. The buffer averaging and enhancement plan provides evidence that wetland functions and values will be:

(A) Increased or retained through plan implementation for those wetlands where existing buffer vegetation is generally intact; or

(B) Increased through plan implementation for those wetlands where existing buffer vegetation is inadequate to protect the functions and values of the wetland.

c. Buffer Width Reductions through Buffer Enhancement. At the discretion of the Director, and only when buffer averaging cannot be accomplished on site, wetland buffer width reductions (or approval of standard buffer widths for wetlands where existing buffer conditions require increased buffer widths) may be granted concomitant to the development and implementation of a wetland buffer enhancement plan for Category III and IV wetlands only. Approval of a wetland buffer enhancement plan shall, at the discretion of the Director, allow for wetland buffer width reductions by no more than 25 percent of the standard width; provided, that:

i. The plan provides evidence that wetland functions and values will be:

(A) Increased or retained through plan implementation for those wetlands where existing buffer vegetation is generally intact; or

(B) Increased through plan implementation for those wetlands where existing buffer vegetation is inadequate to protect the functions and values of the wetland;

ii. The plan documents existing native plant densities and provides for increases in buffer native plant densities to no less than three feet on center for shrubs and eight feet on center for trees;

iii. The plan requires monitoring and maintenance to ensure success in accordance with MTMC 16.15.220; and

iv. The plan specifically documents methodology and provides performance standards including but not limited to:

(A) Percent vegetative cover;

(B) Percent invasive species cover;

(C) Species richness; and

(D) Amount of large woody debris.

G. Alteration of Wetlands. Alteration of wetlands or their established buffers may be permitted by the Department subject to provisions of MTMC 16.15.310 and the provisions of this section. No net loss of wetland functions and values may occur.

1. Category I Wetlands. Alterations of Category I wetlands shall be avoided, subject to the reasonable use provisions of this chapter.

2. Category II, and III Wetlands. Alteration and mitigation shall comply with the MTMC 16.15.310 and the mitigation requirements, pursuant to MTMC 16.15.210 through 16.15.240, as applicable. Where enhancement, restoration or creation is proposed, wetland mitigation ratios shall comply per subsection H of this section.

3. Class IV and Artificial Wetlands. As required, per the recommendations of a wetland report, unless the Director determines otherwise.

H. Wetland Mitigation Ratios.

1. Where wetland alterations are permitted by the Director, the applicant shall mitigate impacted areas of wetlands to compensate for losses. The mitigation shall be determined according to acreage, function, type, location, timing factors, and projected success of the mitigation. The ratios in the Wetland Mitigation Ratios table apply.

Wetland Mitigation Ratios

Category of Wetland

Creation, Restoration, or Reestablishment Ratio

Enhancement or Rehabilitation Ratios*

Square Feet of Mitigation Area: Square Feet of Wetland Area

Category I: Based on Total Score For Functions

4:1

8:1

Category I: Mature Forest

6:1

12:1

Category II: Based on Total Score For Functions

3:1

6:1

Category III (All)

2:1

4:1

Category IV (All)

1.25:1

2.5:1

*Ratios for rehabilitation and enhancement may be reduced when combined with 1:1 replacement through creation or reestablishment. See Table 1a, Wetland Mitigation in Washington State – Part 1, Version 1 (Publication No. 06-06-011a, March 2006, or as revised).

2. These ratios do not apply to mitigation actions resulting from unauthorized alterations; greater ratios shall apply in those cases. When credits from a certified bank are used, replacement ratios should be consistent with the requirements of the bank’s certification.

3. The Director may vary these standards when the applicant can demonstrate, and the Director agrees, that the variation will be roughly proportionate to the proposed loss or degradation of wetland area and/or functions. In no case shall the amount of mitigation be less than the area of affected wetland. The Director may, at his discretion, increase these standards where mitigation is to occur off site or in other appropriate circumstances.

I. Mitigation. Mitigation, when applicable or required, shall be implemented consistent with mitigation sections MTMC 16.15.210 through 16.15.240, and any other applicable mitigation provision in this section.

Mitigation projects should be completed prior to activities that will disturb wetlands. At the least, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.

J. Wetland Protection. Protective covenants shall be provided, pursuant to MTMC 16.15.250 and 16.15.270. (Ord. 2747 § 4, 2019; Ord. 2731 § 2 (Exh. A), 2018).

16.15.410 Streams.

A. Streams are those areas where surface waters produce a defined channel or bed. A defined channel or bed is an area which demonstrates clear evidence of the passage of water and includes, but is not limited to, bedrock channels, gravel beds, sand and silt beds, and defined-channel swales. The channel or bed need not contain water year-round. This definition is not intended to include artificially created irrigation ditches, canals, storm or surface water devices or other entirely artificial watercourses unless they are used by salmonids or created for the purposes of stream mitigation.

B. Classification and Rating of Streams. Streams shall be classified pursuant to WAC 222-16-030, Water typing system. When more than one stream type is present on a subject property (e.g., the stream changes character in short alternating segments), it will be classified according to the stream class present along the majority of the length within a given section. The stream class shall change at the point at which the majority of the length receives a different classification.

The waters will be classified using the following criteria:

1. “Type S water” means all waters, within their bankfull width, as inventoried as “shorelines of the state” under Chapter 90.58 RCW and the rules promulgated pursuant to Chapter 90.58 RCW, including periodically inundated areas of their associated wetlands.

2. “Type F water” means segments of natural waters other than Type S waters, which are within the bankfull widths of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water and which in any case contain fish habitat or are described by one of the following four categories:

a. Waters which are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type F water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

b. Waters which are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type F water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The Department may allow additional harvest beyond the requirements of Type F water designation, provided the Department determines after a landowner-requested on-site assessment by the Department of Fish and Wildlife, Department of Ecology, the affected tribes and interested parties that:

i. The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and

ii. Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery;

c. Waters which are within a federal, state, local, or private campground having more than 10 camping units; provided, that the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement;

d. Riverine ponds, wall-based channels, and other channel features that are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria:

i. The site must be connected to a fish habitat stream and accessible during some period of the year; and

ii. The off-channel water must be accessible to fish.

3. “Type Np water” means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow.

4. “Type Ns water” means all segments of natural waters within the bankfull width of defined channels that are not Type S, F, or Np waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np water. Ns waters must be physically connected by an above-ground channel system to Type S, F, or Np waters.

C. Mapping. The approximate location of streams is shown on the adopted critical areas maps, pursuant to MTMC 16.15.080. The exact location and classification shall be determined through field investigation by a qualified professional applying the applicable manuals adopted by this chapter.

D. Stream Buffer Areas and Setbacks.

1. General Provisions. The establishment of buffers, buffer areas or setbacks shall be required for all development proposals and activities in or adjacent to critical areas. The purpose of the buffer shall be to protect the integrity, function and value of the subject critical area (wetlands, streams, and wildlife habitat areas), and/or to protect life, property and resources from risks associated with development on unstable or critical lands (geologic hazard areas, flood hazard areas, aquifer recharge). Buffers shall typically consist of an undisturbed area of native vegetation. No buildings or structures shall be allowed unless otherwise permitted by this chapter. If the site has previously been disturbed, the buffer area shall be revegetated, pursuant to an approved enhancement plan. Buffers shall be protected during construction by placing a temporary barricade, posting notice of the presence of the critical area, and implementing appropriate erosion and sedimentation controls. Restrictive covenants or conservation easements may be required to provide long-term preservation and protection of buffer areas.

2. Required Buffer Widths. Required buffer widths shall reflect the sensitivity of the particular critical area or the risks associated with development. In those circumstances permitted by these regulations, the type and intensity of human activity proposed to be conducted on or near the critical area should also be considered. Buildings shall be set back a minimum of 15 feet from the edge of the buffer. Buffers shall be measured as follows:

a. Stream Buffers. The buffer shall be measured from the ordinary high water mark. The following minimum buffers are established for streams:

Water Type

Description

Minimum Buffer Width (in Feet)

Additional Buffer for Threatened or Endangered Species (in Feet)

Building Setback (in Feet)

S

Shoreline of the state (Per RCW 90.58.030)

150

75

15

F

Defined channel and periodically inundated areas

100

50

15

Np

Perennial

50

0 (no anadromous fish)

15

Ns

Seasonal

Determined based on review of technical information

0 (no anadromous fish)

15

Intermittent streams

 

 

 

b. The buffer widths required in this section are minimums, except as provided below, and may be increased by the Department in response to site-specific conditions and based on the information submitted to characterize the functions and values of the stream.

c. A stream buffer width greater than the minimum may be required by the Department based on the findings of site-specific studies.

d. The applicant may propose to implement one or more enhancement measures, listed below, which may be considered in establishing buffer requirements under subsection (D)(2)(c) or (D)(2)(g) of this section:

i. Removal of fish barriers to restore accessibility to anadromous fish;

ii. Enhancement of fish habitat using log structures incorporated as part of a fish habitat enhancement plan;

iii. Landscaping outside the buffer area with native vegetation or a reduction in the amount of clearing outside the buffer area;

iv. Planting native vegetation within the buffer area, especially vegetation that would increase value for fish and wildlife, increase stream bank or slope stability, improve water quality, or provide aesthetic/recreational value;

v. Creating a surface channel where a stream was previously culverted or piped;

vi. Removing or modifying existing stream culverts (such as at road crossings) to improve fish passage and flow capabilities which are not detrimental to fish;

vii. Upgrading retention/detention facilities or other drainage facilities beyond required levels; or

viii. Similar measures determined applicable by the Department.

e. No structures or improvements shall be permitted within the stream buffer area, including buildings, decks, and docks, except as otherwise permitted under one of the following circumstances:

i. When the improvements are part of an approved enhancement, restoration or mitigation plan; or

ii. For construction of new public roads and utilities, and accessory structures, when no feasible alternative location exists; or

iii. Construction of foot trails, according to the following criteria:

(A) Constructed of permeable materials;

(B) Designed to minimize impact on the stream system;

(C) Of a maximum width of eight feet;

(D) Located within the outer half of the buffer, i.e., the portion of the buffer that is farther away from the stream; or

iv. Construction of footbridges; or

v. Construction of educational facilities, such as viewing platforms and informational signs.

f. The Department may permit stream buffer widths to be averaged for segments of Type S, F, Np and Ns streams based on the findings of the stream report, subject to the following criteria: stream functions will not be reduced; fish habitat will not be adversely affected; additional enhancement of habitat is provided in conjunction with the reduced buffer; the buffer is not reduced more than 25 percent in any location; and the total buffer area after averaging is not less than what would be contained in the standard buffer. For averaging purposes, stream buffer widths shall be calculated based only on the stream segment located on the parcel being developed.

g. Stream buffer width on a site with existing or prior commercial development that has a legal nonconforming buffer and is proposed for redevelopment with improvements that will increase the economic viability of the development, notwithstanding the provisions of MTMC 19.120.250, may be reduced by up to 25 percent if an applicant undertakes measures approved by the Department to enhance or restore the buffer; provided, that best available science indicates such measures are likely to enhance the functions and values of the wetland compared to existing conditions. The restoration or enhancement measures may include, but are not limited to, those measures listed in subsection (D)(2)(d) of this section.

h. Long-Term Protection of Streams and Buffers Required. A regulated stream and its associated buffer shall be protected by recording a notice on title, pursuant to MTMC 16.15.250, and can occur by one of the following methods: placing in a separate critical tract on which development is prohibited; protected by execution of an easement; dedicated to a conservation organization or land trust; or similarly preserved through a permanent protective mechanism acceptable to the City. The location and limitations associated with the stream and its buffer shall be shown on the face of the deed or plat applicable to the property and shall be recorded with Snohomish County.

E. Buffer Width Variances. A “minor critical area buffer width variance,” defined as up to and including 10 percent of the standard requirement per subsection D of this section, Stream Buffer Areas and Setbacks, may be granted by the Hearing Examiner, pursuant to MTMC 16.15.350, Variances, and the mitigation to achieve the proposed variance results in a higher functional system than mitigation would otherwise provide commensurate with the replacement ratios.

F. Critical Area Report Requirements – Streams.

1. The purpose of the report is to determine the physical and biological characteristics of streams on any site where regulated activities are proposed. The report will also be used by the City to determine the appropriate stream rating designation and buffering requirement for the stream. The information required for this report should be coordinated with the study and reporting requirements established for any other sensitive areas located on the site.

In addition to the general critical area report requirements of MTMC 16.15.200, critical area reports must meet the requirements of this section.

2. Stream banks (or stream centerline) should be flagged in the field by a qualified consultant. Field flagging must be distinguishable from other survey flagging on the site. The field flagging must be accompanied by a stream reconnaissance report. The report shall include the following information:

a. Vicinity map;

b. Site designated on a City of Mountlake Terrace stream inventory map;

c. Streams shall be located approximately on a site map at an appropriate engineering scale such that information shown is not cramped or illegible. Generally, a scale of one inch equals 40 feet or greater (such as one inch equals 20 feet) should be used. Existing features must be distinguished from proposed features. The map must show:

i. Site boundary property lines and roads;

ii. Internal property lines, rights-of-way, easements, etc.;

iii. Existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.;

iv. Contours at the smallest readily available intervals, preferably at five-foot intervals;

v. Approximate locations of all streams on the property;

vi. Hydrologic mapping showing patterns of water movement into, through, and out of the site area; and

vii. For large and/or complex projects, an air photo with overlays displaying the site boundaries and stream locations may be required. Generally, an orthophotograph at a scale of one inch equals 400 feet or greater (such as one inch equals 200 feet) should be used. If an orthophotograph is not available, the center of a small-scale (e.g., one inch equals 2,000 feet) aerial photograph enlarged to one inch equals 400 feet may be used.

d. The report must describe:

i. Locational information including legal description and address;

ii. All natural and manmade features within 150 feet of the site boundary;

iii. General site conditions including topography, acreage, and area hydrology;

iv. Specific descriptions of streams, including gradient and flow characteristics, stream bed condition, stream bank and slope stability, presence of fish or habitat for fish, presence of obstructions to fish movement, general water quality, and stream bank vegetation;

v. A summary of existing stream value for fisheries habitat; and

vi. A summary of proposed stream and buffer alterations, impacts, and the need for the alterations as proposed. Potential impacts may include but are not limited to vegetation removal, stream bed and stream bank alterations, alteration of fisheries habitat, changes in water quality, and increases in human intrusion. If alteration of a stream is proposed, a stream mitigation plan is required per this section.

G. Alteration or Development of Stream Areas.

1. General Provisions.

a. Alteration of a stream and/or its established buffer may be permitted by the Department subject to the provisions and criteria of this section.

b. Standards for mitigation of impacts are subject to subsection H of this section, and with mitigation for critical areas in general as identified in MTMC 16.15.210 through 16.15.240. The mitigation plan shall satisfy performance standards per subsectection I of this section, as applicable.

2. Relocation of a Stream.

a. Relocation of a Type S stream shall be prohibited.

b. Relocation of other streams may take place only when it is part of an approved mitigation or enhancement or restoration plan, will result in equal or better habitat and water quality, and will not diminish the flow capacity of the stream.

c. Relocation of a Type F, Np, or Ns stream exclusively to facilitate general site design shall not be permitted.

3. Stream Crossings.

a. Bridges shall be used to cross Type S streams. Boring/micro-tunneling may be considered for utility crossings if it would result in the same or lower impacts as bridging.

b. Culverts are allowable only under the following circumstances:

i. Only in Type F, Np, or Ns streams;

ii. When fish passage will not be impaired;

iii. When the following design criteria are met:

(A) Oversized culverts will be installed;

(B) Culverts will include gradient controls and creation of pools within the culvert for Type F streams;

(C) Gravel substrate will be placed in the bottom of the culvert to a minimum depth of one foot for Type F or Np streams;

iv. The applicant or successors shall, at all times, keep any culvert free of debris and sediment to allow free passage of water and, if applicable, fish.

c. The City may require that a culvert be removed from a stream as a condition of approval, unless the culvert is not detrimental to fish habitat or water quality, or removal would be a long-term detriment to fish or wildlife habitat or water quality.

H. Mitigation Requirements. Mitigation, when applicable or required, shall be implemented consistent with sections MTMC 16.15.210 through 16.15.240, and any other applicable mitigation provisions in this section, including the specific performance standards per subsection I of this section.

Mitigation projects should be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.

I. Performance Standards for Stream Mitigation Plans. The performance standards in this subsection shall be incorporated into performance standard requirements set forth in MTMC 16.15.230.

1. Use plants native to the Puget Lowlands. Nonnative, introduced plants or plants listed by the Washington State Department of Agriculture as noxious weeds (Chapter 16-750 WAC) shall not be used;

2. Use plants adapted to and appropriate for the proposed habitats and consider the ecological conditions known or expected to be present on the site;

3. Avoid planting significant areas of the site with species that have questionable potential for successful establishment, such as species with a narrow range of habitat tolerances;

4. Specify plants that are commercially available from native-plant nurseries or available from local sources; if collecting some or all native plants from donor sites, collect in accordance with ecologically accepted methods, such as those described in the Washington Native Plant Society’s Policy on Collection and Sale of Native Plants, that do not jeopardize the survival or integrity of donor plant populations;

5. Use perennial plants in preference to annual species;

6. Use plant species high in food and cover value for native fish and wildlife species that are known or likely to use the mitigation site (according to reference wetlands, published information, and professional judgment);

7. Install a temporary irrigation system and specify an irrigation schedule unless a sufficient naturally occurring source of water is demonstrated;

8. For stream substrate, at least one foot of clean inorganic and/or organic materials, such as cobble, gravel, sand, silt, clay, muck, or peat as appropriate shall be ensured. The stream substrate soils shall be free from solid, dangerous, or hazardous substances as defined by Chapter 70.105 RCW and implementing rules;

9. Confine temporary stockpiling of soils to upland areas. Unless otherwise approved by the Department, comply with all applicable best management practices for clearing, grading, and erosion control to protect any nearby surface waters from sediment and turbidity;

10. Show densities and placement of plants; these should be based on the ecological tolerances of species proposed for planting, as determined by a qualified professional;

11. Provide sufficient specifications and instructions to ensure proper placement diversity and spacing of seeds, tubers, bulbs, rhizomes, springs, plugs, and transplanted stock and other habitat features, to provide a high probability of success, and to reduce the likelihood of prolonged losses of stream functions from proposed development. Prepare contingency plans for all mitigation proposals;

12. Do not rely on fertilizers and herbicides to promote establishment of plantings; if fertilizers are used, they must be applied per manufacturer specifications to planting holes in organic or time-release forms, such as Osmocote® or comparable formulations, and never broadcast on the ground surface; if herbicides are used to control invasive species or noxious weeds and to help achieve performance standards, only those approved for use in aquatic ecosystems by the Washington Department of Ecology shall be used; herbicides shall only be used in conformance with all applicable laws and regulations and be applied per manufacturer specifications by an applicator licensed in the state of Washington;

13. Include the applicant’s mitigation plan qualified professional in the construction process to ensure the approved mitigation plan is completed as designed. At a minimum, the qualified professional’s participation will include site visits to inspect completed rough and final grading, installation of in-water or other habitat structures, and to verify the quality and quantity of native plant materials before and after installation; and

14. During construction, place temporary markers, signs and/or fencing around the perimeter of the critical area, where practical and applicable to particular critical areas.

J. Stream Protection. Protective covenants shall be provided, pursuant to MTMC 16.15.250 and 16.15.270. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.420 Wildlife habitat.

Wildlife corridors are needed to maintain connectivity, provide access to larger habitats, and allow wildlife populations to interbreed. In urban areas, where wildlife corridors and habitat areas are often small and/or isolated, such areas can still provide valuable habitat for more urban tolerant species including amphibians, fish, and birds, provide significant recreational opportunities, and provide important linkages in a highly fragmented landscape.

A. Applicability.

1. To promote consistent application of the standards and requirements of this chapter, wildlife habitats within the City of Mountlake Terrace shall be classified according to their characteristics, function and value, and/or their sensitivity to disturbance. Classification of wildlife habitat shall be determined by the Department based on consideration of the following factors and in the following order:

a. Consideration of the technical reports submitted by qualified professionals in connection with applications subject to these regulations;

b. Application of the criteria contained in this section; and

c. Maps adopted pursuant to this chapter, and Washington Department of Fish and Wildlife (WDFW) priority habitat maps.

2. Wildlife Habitat Classification. Wildlife habitat areas shall be classified as critical or secondary, according to the criteria in this section.

a. “Critical habitats” are those habitat areas which meet the definition of “secondary habitat” and meet any one of the following criteria:

i. Shown on WDFW priority habitat maps; or

ii. The documented presence of species or habitat listed by federal or state agencies as “endangered,” “threatened,” “candidate,” “sensitive” or “priority”; or

iii. The presence of unusual nesting or resting sites such as heron rookeries or raptor nesting trees; or

iv. Located in or adjacent to a “Category I wetland,” as defined in these regulations; or

v. Located in or adjacent to a “Type S stream,” as defined in these regulations.

b. “Secondary habitats” are habitats which are valuable to wildlife and support a wide variety of species due to their undisturbed nature, a diversity of plant species and structure, presence of water, or the area’s size, location or seasonal importance, and is not classified as a critical habitat.

B. Buffers and Setbacks from Wildlife Habitat.

1. General Provisions.

a. Buffer widths for critical habitat areas shall be determined by the Department based on consideration of the following factors:

i. Species recommendations of the WDFW, based on consideration of published species-specific information and consultation with the Department;

ii. Recommendations contained in the wildlife study submitted by a qualified professional, following the reporting requirements of these regulations; and

iii. The nature and intensity of land uses and activities occurring on the site and on adjacent sites. Buffers shall not be required for secondary habitat unless such habitat includes another regulated critical area for which a buffer is required by this chapter.

b. Wildlife habitat buffer widths may be modified by averaging buffer widths or by enhancing or restoring buffer quality, pursuant to scientific analysis that the functions and values of the wildlife habitat will be retained or enhanced.

c. Certain uses and activities which are consistent with the purpose and function of the habitat buffer, and do not detract from its integrity, may be permitted by the Department within the buffer depending on the sensitivity of the habitat area. Examples of uses and activities with minimal impact, which may be permitted in appropriate cases, include permeable pedestrian trails and viewing platforms, and utility easements; provided, that any impacts to the buffer resulting from permitted facilities shall be mitigated. When permitted, such facilities shall be located in the outer 10 feet of the buffer.

C. Critical Area Report Requirements – Wildlife Habitat. The purpose of the report is to determine the extent, function and value of wildlife habitat on any site where regulated activities are proposed. The report will also be used by the City to determine the sensitivity and appropriate classification of the habitat, appropriate buffering requirements, and potential impacts of proposed activities. The information required by this report should be coordinated with the study and reporting requirements for any other sensitive area located on the site.

1. The report shall include the following information:

a. Vicinity map;

b. A map showing:

i. Site boundary property lines and roads;

ii. Internal property lines, rights-of-way, easements, etc.;

iii. Existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.;

iv. Contours at the smallest readily available intervals, preferably at five-foot intervals;

v. For large and/or complex projects, an air photo with overlays displaying the site boundaries and wetland delineation may be required. Generally, an orthophotograph at a scale of one inch equals 400 feet or greater (such as one inch equals 200 feet) should be used. If an orthophotograph is not available, the center of a small scale (e.g., one inch equals 2,000 feet) aerial photograph enlarged to one inch equals 400 feet may be used;

vi. A map of vegetative cover types, reflecting the general boundaries of different plant communities on the site;

vii. A description of the species typically associated with the cover types, including an identification of any critical wildlife species that might expected to be found;

viii. The results of searches of DNR’s Natural Heritage and Non-Game Data System databases; and

ix. The result of searches of the WDFW Priority Habitat and Species database.

c. The report must describe:

i. Locational information including legal description and address;

ii. All natural and manmade features within 150 feet of the site boundary;

iii. General site conditions including topography, acreage, and water bodies or wetlands;

iv. Identification of any areas that have previously been disturbed or degraded by human activity or natural processes;

v. The layers, diversity and variety of habitat found on the site;

vi. Identification of edges between habitat types and any species commonly associated with that habitat;

vii. The location of any migration or movement corridors; and

viii. A narrative summary of existing habitat functions and values. The analysis shall use a habitat evaluation procedure or methodology approved by the department.

d. A summary of proposed habitat and buffer alterations, impacts and mitigation. Potential impacts may include but are not limited to clearing of vegetation, fragmentation of wildlife habitat, expected decreases in species diversity or quantity, changes in water quality, increases in human intrusion, and impacts on wetlands or water resources.

e. The level of detail contained in the report shall generally reflect the size and complexity of the proposal and the function and value of the habitat. The Department may require field studies in appropriate cases.

D. Alteration of Wildlife Habitat Areas.

1. Critical Wildlife Habitat. Alterations of critical habitat shall be avoided, subject to the reasonable use provisions of this chapter.

2. Secondary Habitat. Alterations of secondary habitat may be permitted; provided, that the applicant mitigates adverse impacts consistent with the mitigation performance standards of subsection E of this section.

E. Mitigation of Wildlife Habitat. When applicable or required, mitigation plans for impacts to wildlife habitat shall be prepared and implemented consistent with MTMC 16.15.210 through 16.15.240, together with the standards in this section.

1. Preserve significant or existing native trees, preferably in stands or groups;

2. Wherever possible, retain and consolidate critical habitats into larger, unfragmented, contiguous blocks;

3. Use native plant species adapted to and appropriate for the proposed habitats, and consider the ecological conditions known or expected to be present on the site;

4. Avoid planting significant areas with species that have questionable potential for successful establishment, such as species with a narrow range of habitat tolerances;

5. Specify plants that are commercially available from native-plant nurseries or available from local sources; if collecting some or all native plants from donor sites, collect in accordance with ecologically accepted methods, such as those described in the Washington Native Plant Society’s Policy on Collection and Sale of Native Plants, that do not jeopardize the survival or integrity of donor plant populations;

6. Use perennial plants in preference to annual species;

7. Use plant species high in food and cover value for native fish and wildlife species that are known or likely to use the mitigation site (according to reference wetlands, published information, and professional judgment);

8. Install a temporary irrigation system and specify an irrigation schedule unless a sufficient naturally occurring source of water is demonstrated;

9. Confine temporary stockpiling of soils to upland areas. Unless otherwise approved by the department, comply with all applicable best management practices for clearing, grading, and erosion control to protect any nearby surface waters from sediment and turbidity;

10. Show densities and placement of plants; these should be based on the ecological tolerances of species proposed for planting, as determined by a qualified professional;

11. Provide sufficient specifications and instructions to ensure proper placement diversity and spacing of plant material, to provide a high probability of success;

12. Include the applicant’s mitigation plan qualified professional in the construction process to ensure the approved mitigation plan is completed as designed. At a minimum, the qualified professional’s participation will include site visits to inspect completed rough and final grading, installation of in-water or other habitat structures, and to verify the quality and quantity of native plant materials before and after installation;

13. Create habitat heterogeneity and structural diversity that emulates native plant communities described in Natural Vegetation of Oregon and Washington (Franklin, J.F. and C.T. Dyrness 1988) or other regionally recognized publications on native landscapes;

14. Remove and/or control any noxious weeds or exotic animals which are problematic to the critical habitat area; and

15. On completion of construction, any approved mitigation project must be signed off by the applicant’s qualified professional and approved by the Director. Signature will indicate that the construction has been completed as approved.

F. Wildlife Habitat Protection. Protective covenants shall be provided, pursuant to MTMC 16.15.250 and 16.15.270. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.430 Geologic hazard area.

A. Geologic Hazard Classifications. Geologic hazard areas shall be classified according to the criteria in this section.

1. Critical Erosion Hazard Areas. “Critical erosion hazard areas” are lands or areas underlain by soils identified by the U.S. Department of Agriculture Natural Resource Conservation Service, previously known as the Soil Conservation Service (SCS), as having “severe” or “very severe” erosion hazards. This includes the following group of soils when they occur on slopes of 15 percent or greater: Alderwood-Kitsap (AkF), Alderwood gravelly sandy loam (AgD), Kitsap silt loam (KpD), Everett (EvD) and Indianola (InD).

2. Landslide Hazard Areas. “Landslide hazard areas” are classified as “Class I,” “Class II,” “Class III” or “Class IV” as follows:

a. Class I/Low Hazard. Areas with slopes of 15 percent or less.

b. Class II/Moderate Hazard. Areas with slopes of between 15 percent and 40 percent and that are underlain by soils that consist largely of sand, gravel or glacial till.

c. Class III/High Hazard. Areas with slopes between 15 percent and 40 percent that are underlain by soils consisting largely of silt and clay.

d. Class IV/Very High Hazard. Areas with slopes steeper than 15 percent with mappable zones of emergent water (e.g., springs or ground water seepage), areas of known (mappable) landslide deposits regardless of slope, and all areas with slopes 40 percent or greater.

3. Seismic Hazard Areas. “Seismic hazard areas” are lands that, due to a combination of soil and ground water conditions, are subject to severe risk of ground shaking, subsidence or liquefaction of soils during earthquakes. These areas are typically underlain by soft or loose saturated soils (such as alluvium), have a shallow ground water table and are typically located on the floors of river valleys.

B. Buffer Areas and Setbacks.

1. Required buffer widths and setbacks shall reflect the sensitivity of the particular geologic hazard and the risks associated with development. The type and intensity of human activity proposed on, or near, the geologic hazard area should also be considered. In determining the appropriate buffer width, the Department shall consider the standards of this section and recommendations contained in any technical reports required by this chapter.

2. Minimum standards include:

a. Buffers shall be measured from the top and toe and along the sides of the geologically hazardous slope.

b. The minimum required buffers width from a critical geologic hazard shall be 30 feet. The buffer width may be increased when the geotechnical report recommends. The buffer width may also be reduced when the applicant demonstrates, through technical studies, that the reduction will still adequately protect the geologic hazard and the proposed development, in view of proposed engineering techniques.

c. Buildings and structures shall be set back a minimum of 15 additional feet from the edge of the buffer.

3. Buffers shall typically consist of an undisturbed area of native vegetation. No buildings or structures shall be allowed unless otherwise permitted by this chapter. If the site has previously been disturbed, the buffer area shall be revegetated, pursuant to an approved enhancement plan.

4. Buffers shall be protected during and after construction per MTMC 16.15.260, as applicable.

C. Alterations. Alteration of geologic hazard areas may be permitted by the Director, subject to the criteria of this section.

1. General Standard. The City may approve, condition or deny proposals for the alteration of geologic hazard areas based on the degree to which significant risks posed by critical hazard areas to public and private property and to public health and safety can be mitigated. The objective of mitigation measures shall be to render a site containing a critical geologic hazard site as safe as one not containing such hazard or one characterized by a low hazard. In appropriate cases, conditions may include limitations of proposed uses, modification of density, alteration of site layout and other appropriate changes to the proposal. Where potential impacts cannot be effectively mitigated, or where the risk to public health, safety and welfare, public or private property, or important natural resources is significant notwithstanding mitigation, the proposal shall be denied, unless permitted as a reasonable use exception under MTMC 16.15.360.

2. Class IV Landslide Hazard Areas. Alteration shall be prohibited in Class IV (very high) landslide hazard areas, subject to the reasonable use provisions of this chapter.

3. Critical Seismic Hazard Areas.

a. For one-story and two-story residential structures, the applicant shall conduct an evaluation of site response and liquefaction potential based on the performance of similar structures under similar foundation conditions; and

b. For all other proposals, the applicant shall conduct an evaluation of site response and liquefaction potential including sufficient subsurface exploration to provide a site coefficient (S) for use in the static lateral force procedure described in the International Building Code.

4. When development is permitted in geologic hazard areas by these regulations, an applicant and/or its qualified professional shall provide assurances which, at the City’s discretion, may include one or more of the following:

a. A letter from the geotechnical engineer and/or geologist who prepared the studies required by these regulations that risks of damage from the proposal, both on site and off site, are minimal subject to the conditions set forth in the report, that the proposal will not increase the risk of occurrence of the potential geologic hazard, and that measures to eliminate or reduce risks have been incorporated into its recommendations;

b. A letter from the applicant, or the owner of the property if not the applicant, stating an understanding and acceptance of any risk of injury or damage associated with development of the site and agreeing to notify any future purchasers of the site, portions of the site, or structures located on the site of the geologic hazard;

c. A legally enforceable hold harmless agreement, which shall be recorded as a covenant and noted on the face of the deed or plat, and executed in a form satisfactory to the City, acknowledging that the site is located in a geologic hazard area; the risks associated with development of such site; and a waiver and release of any and all claims of the owner(s), their directors, employees, successors or assigns against the City of Mountlake Terrace for any loss, damage or injury, whether direct or indirect, arising out of issuance of development permits for the proposal; and

d. Posting of a guarantee, bond, or other assurance device approved by the City, to cover the cost of monitoring, maintenance and any necessary corrective actions.

D. Critical Area Report Requirements – Geotechnical. In addition to the basic critical area report requirements, per MTMC 16.15.200, the technical information for an erosion hazard or landslide hazard area shall include the following information at a minimum:

1. Site Plan. The critical area report shall include a copy of the site plan for the proposal showing:

a. The height of slope, slope gradient, and cross-section of the project area;

b. The location of springs, seeps, or other surface expressions of ground water on or within 200 feet of the project area or that have potential to be affected by the proposal;

c. The location and description of surface water runoff features.

2. Hazards Analysis. The hazards analysis component of the critical area report shall specifically include:

a. A description of the extent and type of vegetative cover;

b. A description of subsurface conditions based on data from site-specific explorations;

c. Descriptions of surface and ground water conditions, public and private sewage disposal systems, fills and excavations, and all structural improvements;

d. An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure;

e. An estimate of the bluff retreat rate that recognizes and reflects potential catastrophic events such as seismic activity or a 100-year storm event;

f. Consideration of the run-out hazard of landslide debris and/or the impacts of landslide run-out on down-slope properties;

g. A study of slope stability including an analysis of proposed cuts, fills, and other site grading;

h. Recommendations for building siting limitations;

i. An analysis of proposed surface and subsurface drainage, and the vulnerability of the site to erosion; and

j. The location and description of surface water runoff features.

3. Geotechnical Engineering Report. The technical information for a project within a landslide hazard area shall include a geotechnical engineering report prepared by a licensed engineer that presents engineering recommendations for the following:

a. Parameters for design of site improvements including appropriate foundations and retaining structures. These should include allowable load and resistance capacities for bearing and lateral loads, installation considerations, and estimates of settlement performance;

b. Recommendations for drainage and subdrainage improvements;

c. Earthwork recommendations including clearing and site preparation criteria, fill placement and compaction criteria, temporary and permanent slope inclinations and protection, and temporary excavation support, if necessary; and

d. Mitigation of adverse site conditions including slope stabilization measures and seismically unstable soils, if appropriate.

4. Erosion and Sediment Control Plan. For any development proposal on a site containing an erosion hazard area, an erosion and sediment control plan shall be required. The erosion and sediment control plan shall be prepared in compliance with requirements set forth in the City codes, regulations and standards.

5. Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge, and/or recycling of water prepared in accordance with City codes, regulations and standards. The drainage plan should consider on-site septic system disposal volumes where the additional volume will affect the erosion or landslide hazard area.

6. Mitigation Plans. Hazard and environmental mitigation plans for erosion and landslide hazard areas shall include the location and methods of drainage, surface water management, locations and methods of erosion control, a vegetation management and/or replanting plan, and/or other means for maintaining long-term soil stability.

7. Monitoring Surface Waters. If the Director determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the City.

8. Seismic Hazard Areas. In addition to the basic geologic report requirements, a critical area report for a seismic hazard area shall also meet the following requirements:

a. The site map shall show all known and mapped faults within 200 feet of the project area or that have potential to be affected by the proposal.

b. The hazards analysis shall include a complete discussion of the potential impacts of seismic activity on the site (for example, forces generated and fault displacement).

c. A geotechnical engineering report shall evaluate the physical properties of the subsurface soils, especially the thickness of unconsolidated deposits and their liquefaction potential. If it is determined that the site is subject to liquefaction, mitigation measures appropriate to the scale of the development shall be recommended and implemented.

d. For one- and two-story single-family structures, conduct an evaluation of site response and liquefaction potential based on the performance of similar structures under similar foundation conditions.

e. For all other proposals, conduct an evaluation of site response and liquefaction potential including sufficient subsurface exploration to provide a site coefficient (S) for use in the static lateral force procedure described in the Uniform Building Code.

9. Aquifer Recharge Areas. When present, add the information listed in the Aquifer Recharge Reporting Requirements to the geotechnical report.

E. Mitigation Planning. The applicable standards in MTMC 16.15.210 through 16.15.240 shall be incorporated into mitigation plans submitted to the Director to address impacts to geologic hazard areas. Mitigation plans shall contain sufficient information and detail to analyze impacts and alternatives. The following shall be reflected in proposals within geologic hazard areas, at a minimum:

1. A geotechnical study shall be prepared to identify and evaluate potential hazards and to formulate mitigation measures;

2. Construction methods will reduce or not adversely affect geologic hazards;

3. Site planning shall minimize disruption of existing topography and natural vegetation;

4. Impervious surface coverage shall be minimized;

5. Disturbed areas shall be replanted as soon as feasible, pursuant to an approved landscape plan;

6. Clearing and grading shall be limited to the period of May 1st to October 1st unless the geotechnical report specifically addresses measures necessary to perform clearing and grading during other portions of the year;

7. Use of retaining walls that allow maintenance of existing natural slope areas are preferred over graded slopes;

8. Temporary erosion and sedimentation controls, pursuant to an approved plan, shall be implemented during construction;

9. A master drainage plan shall be prepared for large projects as required by the City Engineer;

10. Development shall not increase instability or create a hazard to the site or adjacent properties, or result in a significant increase in sedimentation or erosion;

11. Any other information and analysis, as determined by the Department, to be relevant to incorporate into mitigation plans.

F. Mitigation, when applicable or required, shall be implemented consistent with MTMC 16.15.210, mitigation sequencing, MTMC 16.15.220, mitigation plan, MTMC 16.15.230, performance standards, and MTMC 16.15.240, maintenance and monitoring plan, and any other applicable mitigation provisions in this section, and any specific standards per this section.

G. Geologic Hazard Protection. Protective covenants or conservation easements may, per MTMC 16.15.270, be required to provide long-term preservation and protection. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.440 Flood hazard areas.

A. Purpose and Applicability. The purpose of the regulating activities and structures in flood hazard areas is to protect the integrity, function, and value of the floodway and associated critical areas, and to protect life, property and resources from risks associated with development in flood hazard areas.

B. Location and Designation of Flood Hazard Areas.

1. Flood areas within the City of Mountlake Terrace shall be designated according to the latest version of Federal Emergency Management Agency (FEMA) and Flood Insurance Rate Maps (FIRM) maps. FEMA and FIRM maps prevail over floodways shown on the City’s critical area maps, adopted pursuant to MTMC 16.15.080.

2. No specific buffer widths apply to flood hazard areas. However, buffer widths and building setbacks from the edge of other, underlying critical area buffers, such as wetlands, streams, and geologic hazards, shall apply consistent with the applicable sections of this chapter.

3. Redesignation of a floodway designation shall occur only through property owner or proponent application to FEMA for a letter of map amendment (LOMA), per FEMA filing requirements. Documentation thereof shall be provided prior to initiating any uses, actions, or activities, except as otherwise exempt per this chapter and consistent with subsection C of this section.

C. Allowed Activities and Standards.

1. No structure or land within a designated floodway shall hereafter be constructed, reconstructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. The most restrictive nonconformance provisions of City code, MTMC 19.120.250, and FEMA, apply.

2. Construction or reconstruction of residential structures is prohibited within designated floodways, except as provided for in WAC 173-158-070. New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated two feet or more above the base flood elevation (BFE).

3. Any development in flood hazard areas is subject to the provisions of Chapter 15.05 MTMC and any applicable City stormwater standards.

4. Critical Facilities. Construction of new critical facilities shall only be permissible within the 100-year floodplain if no feasible alternative site is available. Critical facilities constructed within the FEMA defined special flood hazard area shall have the lowest floor elevated at least three feet above base flood elevation (BFE) or to the height of the 500-year flood, whichever is higher. Access to and from the critical facility should also be elevated to or above the height of the base flood elevation above. Flood proofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters.

5. Because of the potential hazard to life and property, development as defined in this chapter shall be prohibited on lands designated as flood hazard areas with the following exemptions, subject to meeting the applicable requirements of this chapter:

a. Trails and recreational improvements for public access to water bodies consistent with the City Comprehensive Plan, Recreation, Parks and Open Space Plan, and the City Shoreline Master Program, as applicable.

b. Emergencies and exemptions per MTMC 16.15.100 and 16.15.110, and reasonable use exceptions per MTMC 16.15.360.

c. Public activities and improvements approved by the City, determined to be in the public’s best interest.

6. Elevation Certificate Following Construction. Following construction of a structure in the floodplain, the applicant shall obtain an elevation certificate that records the elevation of the lowest floor. The elevation certificate shall be completed by a surveyor or engineer licensed in the state of Washington and shall be submitted to the City and recorded per MTMC 16.15.250, Notice on title.

D. Variances – Additional Considerations for Frequently Flooded Areas.

1. Additional Variance Considerations. In review of variance requests for activities within frequently flooded areas, the Hearing Examiner shall consider all technical evaluations, relevant factors, and standards specified in this chapter and general variance criteria per MTMC 16.15.350, and:

a. The danger to life and property due to flooding, erosion damage, or materials swept onto other lands during flood events;

b. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the proposed use;

c. The importance of the services provided by the proposed use to the community;

d. The necessity to the proposed use of a waterfront location, where applicable, and the availability of alternative locations for the proposed use that are not subject to flooding or erosion damage;

e. The safety of access to the property in times of flood for ordinary and emergency vehicles;

f. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and

g. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems and streets and bridges.

2. Variances shall only be issued upon a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, nuisances, fraud on or victimization of the public, or conflict with existing laws or ordinances. Unavoidable impacts to floodplain functions and values shall be mitigated in accordance with MTMC 16.15.210, mitigation sequencing.

E. Mitigation, when applicable or required, shall be implemented consistent with MTMC 16.15.210, mitigation sequencing, MTMC 16.15.220, mitigation plan, MTMC 16.15.230, performance standards, and MTMC 16.15.240, maintenance and monitoring plan, and any other applicable mitigation provisions in this section, and any specific standards, per this section.

F. Flood Hazard Area Protection. Protective covenants shall be provided, pursuant to MTMC 16.15.250 and 16.15.270. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.450 Aquifer recharge areas.

A. Classification – Aquifer Recharge Areas. Aquifer recharge areas, if identified, shall be classified as “low,” “medium” and “high” significance based on the soil and ground water conditions and risks to potable water and to surface water during periods of low hydrology. Aquifer recharge areas shall be rated as having high, moderate, or low susceptibility based on soil permeability, geologic matrix, infiltration, and depth to water as determined by the criteria established by the state Department of Ecology. Classification depends on the combined effects of hydrogeological susceptibility to contamination and contaminant loading potential, as follows:

1. High significance – uplands and sloping areas underlain predominantly by sand and gravel, and valley floors underlain by relatively coarse alluvium.

2. Medium significance – valley floors underlain by relatively fine-grained alluvial soils.

3. Low significance recharge areas – uplands and sloping areas underlain by silt, clay or glacial till.

B. Allowed Activities. The following activities are allowed in critical aquifer recharge areas, if identified, pursuant to exempt activities per MTMC 16.15.100 and do not require submission of a critical area report, unless otherwise indicated, or if regulated per MTMC 16.15.090:

1. Development and improvement of parks, recreation facilities, open space, or conservation areas resulting in less than five percent total site impervious surface area, that do not increase the use of a hazardous substance.

2. Construction of structures and improvements, including additions, resulting in less than five percent or 2,500 square feet (whichever is greater) total site impervious surface area that does not result in a change of use or increase the use of a hazardous substance.

C. Mapping. There are no known or mapped aquifer recharge areas in the City. Any aquifer recharge areas will be added on the map at such time as they are identified and delineated.

D. Alteration or Development of Aquifer Recharge Areas – Standards and Criteria.

1. Alteration of critical areas and/or their established buffers may be permitted by the Department subject to the criteria of this section. Standards for mitigation of impacts to critical areas are identified in MTMC 16.15.310.

2. Medium or Low Significance Recharge Areas. Development within “medium or low significance aquifer recharge areas,” as those terms are defined in this section, shall implement the mitigation standards contained in MTMC 16.15.210 and 16.15.220.

3. The following land uses and activities shall be avoided in critical (high significance) aquifer recharge areas:

a. Land uses and activities that involve the use, storage, transport or disposal of regulated quantities of chemicals, substances or materials that are toxic, dangerous or hazardous, as those terms are defined by state regulations (per WAC 173-303-070 through 173-303-100, and Chapter 173-342 WAC);

b. On-site sewage disposal systems;

c. Underground or outdoor storage of chemicals;

d. Petroleum pipelines; and

e. Solid waste landfills.

E. Reporting Requirements. Applications for activities where an aquifer recharge area is present shall prepare a critical area report consistent with the geologic hazard area reporting requirements per MTMC 16.15.430, together with the following additional information:

1. A characterization of the affected aquifer system and a description of subsurface soil types (between the surface and the uppermost significant aquifer);

2. Description of proposed uses and activities;

3. Identification of the type and quantities of any dangerous or hazardous chemicals or substances that will be used, stored, transported or disposed of on the site;

4. Proposed methods of storing any of the above substances, including containment methods;

5. An emergency response plan for dealing with any spills; and

6. Proposed best management practices (BMPs) for controlling surface water runoff.

F. Mitigation Planning.

1. The mitigation and performance standards in this section and the standards in MTMC 16.15.210 through 16.15.240 shall be incorporated into mitigation plans to address impacts to aquifer recharge areas. Mitigation plans shall contain detailed critical area information as required by the Department to analyze impacts and alternatives.

2. Development within “low significance aquifer recharge areas” shall implement best management practices for water quality as approved by the City.

3. Development within “high and medium significance aquifer recharge areas,” as those terms are defined in this section, shall implement the following measures:

a. Underground storage of chemicals, substances or materials that are toxic, hazardous or dangerous is prohibited;

b. Any chemicals, substances or materials that are toxic, hazardous or dangerous as defined by state law (per WAC 173-303-070 through 173-303-100 and Chapter 173-342 WAC) should be segregated and stored in receptacles or containers that meet state and federal standards;

c. Storage containers should be located in a designated, secured area that is paved and able to contain leaks and spills, and surrounded by a dike;

d. Secondary containment devices should be constructed around storage areas to retard the spread of any spills and a monitoring system should be implemented;

e. A written operations plan should be developed, including procedures for loading/unloading liquids and for training of employees in proper materials handling;

f. An emergency response/spill clean-up plan shall be prepared and employees properly trained in reacting to accidental spills;

g. The tanks should include overfill protection systems and positive controls on outlets to prevent uncontrolled discharges;

h. Development should be clustered and impervious surfaces limited where possible;

i. No waste liquids or chemicals of any kind shall be discharged to storm sewers; and

j. All development shall implement best management practices for water quality, as approved by the Department, such as biofiltration swales and use of oil-water separators, and BMPs appropriate to the particular use proposed.

4. On completion of construction, any approved mitigation project must be signed off by the applicant’s qualified professional and approved by the Department. Signature will indicate that the construction has been completed as approved.

G. Aquifer Recharge Area Protection. Protective covenants shall be provided, pursuant to MTMC 16.15.250 and 16.15.270. (Ord. 2731 § 2 (Exh. A), 2018).

16.15.500 Definitions.

For the purposes of this chapter, the following definitions shall apply:

“Alteration” means any human induced change to, addition to, or modification of an existing condition, structure, or use of a critical area or its buffer. Alterations include, but are not limited to, grading, filling, channelizing, dredging, clearing (vegetation), construction, compaction, excavation, or any other activity that changes the character of the critical area.

“Anadromous fish” means fish, such as wild salmon, that spawn and rear in fresh water and mature in the marine environment.

“Applicant” means any person, party, firm, corporation, or other entity which applies for a development proposal, permit or approval subject to review under this chapter.

“Application” means the completed form or forms and all accompanying documents, exhibits, and fees required of an applicant for review and approval to conduct an activity or use as required and permitted in this chapter.

“Aquifer” means, generally, any water-bearing soil or rock unit. Specifically, a body of soil or rock that contains sufficient saturated permeable material to conduct ground water and yield economically significant quantities of ground water to wells or springs.

“Aquifer recharge area” means an area where, due to permeable soils, water infiltrates from the surface to ground water aquifers.

“Aquifer susceptibility” means the ease with which contaminants can move from the land surface to the aquifer based solely on the types of surface and subsurface materials in the area.

“Aquifer vulnerability” means the combined effect of aquifer susceptibility and contaminant loading potential; it includes hydrogeologic, land use and other factors that affect the potential for ground water contamination.

“Artificially created wetland” means wetlands created from nonwetland sites through purposeful, legally authorized human action, such as irrigation and drainage ditches, grass-lined swales, canals, retention or detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities.

“Base flood” or “100-year flood” means a flood having a one percent chance of being equaled or exceeded in any given year, also referred to as the “100-year flood.” The base flood is determined for existing conditions, and is shown on Flood Insurance Rate Maps (FIRM), current version; unless a more complete basin plan including projected flows under future developed conditions has been completed and adopted by the City of Mountlake Terrace, in which case these future flow projections shall be used. In areas where the flood insurance study for the City includes detailed base flood calculations, those calculations may be used.

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Sources of the best available science are included in Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas published by the Washington State Department of Community, Trade and Economic Development.

“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:

1. Controls soil loss and reduces water quality degradation caused by high concentrations of nutrients, animal waste, toxins, and sediment;

2. Minimizes adverse impacts to surface water and ground water flow and circulation patterns, and to the chemical, physical, and biological characteristics of wetlands;

3. Protects trees and vegetation designated to be retained during and following site construction, and uses native plant species appropriate to the site for revegetation of disturbed areas; and

4. Provides standards for proper use of chemical herbicides within critical areas.

“Buffer, critical area” means that area which surrounds and helps protect the functions and values of critical areas from adverse impacts, minimizes public safety risks, and/or may provide wildlife habitat integrally related to the critical area.

“Building setback” means an area that is the outermost portion of a critical area buffer and that may provide a transition between the primary portion of the critical area buffer and the potential location of a building.

“City” means the City of Mountlake Terrace.

“Clearing” means the removal of timber, brush, grass, ground cover or other vegetative matter from a site which exposes the earth’s surface of the site, or any actions which disturb the existing ground surface.

“Comprehensive Plan” means the City of Mountlake Terrace Comprehensive Plan as now adopted or hereafter amended.

“Conservation easement” means a legal agreement that the property owner enters into to restrict uses of the land, providing permanent or long-term protection that is granted to the City or a nonprofit entity (e.g., land trust) to enable the City to protect a critical area and associated buffer from use and development that is inconsistent with this chapter.

“Contaminant loading potential” means the availability within an aquifer recharge area of any potential physical, chemical, biological, or radiological substance that enters the hydrological cycle and may cause a deleterious effect on ground water resources.

“Creation” means the purposeful and legally authorized construction or forming of a wetland or stream from an upland (nonwetland or dry) site through artificial means. See also “Mitigation, compensatory.”

“Critical aquifer recharge areas” means areas where an aquifer that is a source of drinking water is both highly susceptible and vulnerable to contamination. High significance/high susceptibility recharge areas – generally uplands and sloping areas underlain predominantly by sand and gravel, and valley floors underlain by relatively coarse alluvium – are considered to be critical recharge areas unless site-specific information demonstrates little or no contaminant loading potential.

“Critical area report” means a report prepared by a “qualified professional” (as that term is defined in this section) to determine the presence, type, class, size, function and/or value of an area and mitigation and monitoring of impacts subject to these regulations.

“Critical area tract” means land held in private ownership and retained in an open condition in perpetuity for the protection of critical areas.

“Critical areas” means any of the following areas or ecosystems: wetlands, critical aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas, and as defined in Chapter 36.70A RCW and this chapter.

“Critical erosion hazard areas” means lands or areas underlain by soils identified by the U.S. Department of Agriculture Natural Resource Conservation Service as having “severe” or “very severe” erosion hazards.

“Critical facility” means a facility for which even a slight chance of flooding, inundation, or impact from a hazard event might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire, and emergency response installations, and installations that produce, use, or store hazardous materials or hazardous waste.

“Critical geologic hazard areas” means lands or areas subject to high or severe risks of geologic hazard, including critical erosion hazard areas, critical landslide hazard areas, and critical seismic hazard areas.

“Critical habitat” means habitat areas associated with threatened, endangered, sensitive, monitor or priority species of plants or wildlife and which, if altered, could reduce the likelihood that the species will maintain and reproduce over the long term. Such areas are identified herein with reference to lists, categories and definitions of species promulgated by the Washington Department of Fish and Wildlife (Nongame Data System Special Animal Species) as identified in WAC 232-12-011 or 232-12-014; in the priority habitat and species (PHS) program of the Department of Fish and Wildlife; or by rules and regulations adopted currently or hereafter by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

“Critical landslide hazard areas” means lands or areas where there is a high (Class III) or very high (Class IV) risk of landslide due to a combination of slope, soil permeability and water.

“Critical seismic hazard areas” means lands or areas where there is a high risk of seismic events and damage.

“Department” means the City of Mountlake Terrace Community and Economic Development Department, or successor agency, unless the context indicates otherwise.

“Development” means any human-made change to real estate including, but not limited to, buildings or other structures, grading, dredging, filling, paving, mining, excavation, drilling, or storage of equipment and materials, or any other activity of a temporary or permanent nature which results in the removal of vegetation or in the alteration of natural site characteristics.

“Director” means the Director of the City of Mountlake Terrace Community and Economic Development Department, or his/her designee.

“Earth/earth material” means naturally occurring rock, soil, stone, sediment, or a combination thereof.

“Emergency” means that there exists an immediate threat to public health, safety, or welfare, or that the circumstances pose an immediate risk of damage to private property and require remedial or preventative action in a time frame too short to allow for compliance with the standard procedural requirements of this chapter.

“Enhancement” means the improvement of an existing viable wetland, stream or habitat area or the buffers established for such areas, through such measures as increasing plant diversity, increasing wildlife habitat, installing environmentally compatible erosion controls, increasing structural diversity or removing plant or animal species that are not indigenous to the area. Enhancement also includes actions performed to improve the quality of an existing degraded wetland, stream or habitat area. See also “Restoration.”

“Erosion” means a process whereby wind, rain, water and other natural agents mobilize and transport soil particles.

“Erosion control” means on-site and off-site control measures needed to control conveyance or deposition of earth, turbidity or pollutants during development, construction, or restoration. Erosion control may be temporary or permanent.

“Erosion hazard areas” means lands or areas that, based on a combination of slope inclination and the characteristics of the underlying soils, are susceptible to varying degrees of risk of erosion. These include, but are not limited to, those identified by the U.S. Department of Agriculture Natural Resource Conservation Service Soil Classification System, with a water erosion hazard of “severe” or “high.”

“Excavation” means the removal or displacement of earth material by human or mechanical means.

“Exotic” means any species of plant or animal that is foreign and not indigenous to the Mountlake Terrace area.

“Fill/fill material” means a deposit of earth material placed by human or mechanical means.

“Filling” means the act of transporting or placing (by any manner or mechanism) fill material from, to, or on any surface water body or wetland, soil surface, sediment surface, or other fill material.

“Fish and wildlife habitat conservation” means land management for maintaining populations of species in suitable habitats within their natural geographic distribution so that the habitat available is sufficient to support viable populations over the long term and isolated subpopulations are not created. This does not mean maintaining all individuals of all species at all times, but it does mean not degrading or reducing populations or habitats so that they are no longer viable over the long term.

“Fish and wildlife habitat conservation areas” means areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness.

“Flood fringe” means that portion of the floodplain outside of the floodway which is generally covered by flood waters during the base flood; it is generally associated with shallow, slower moving water rather than rapidly flowing water.

“Flood hazard areas” means those areas subject to inundation by the base flood. A flood hazard area consists of the floodplain, flood fringe, and floodway.

“Flood Insurance Rate Map (FIRM)” means the official map prepared as part of (but published separately from) the Flood Insurance Rate Study on which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the applicable risk premium zones.

“Flood or flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland waters and/or the unusual and rapid accumulation of runoff of surface waters from any source.

“Flood protection elevation” means the elevation that is one foot above the base flood elevation.

“Floodplain” means the total area adjoining a river, stream, watercourse, or lake subject to inundation by the base flood.

“Floodplain, 100-year,” “100-year floodplain” or “flood hazard areas” means those lands which are subject to a one percent or greater chance of flooding in any year.

“Floodway” means the channel of the stream or river and that portion of the adjoining floodplain which is necessary to contain and discharge the base flood flow without increasing the base flood elevation more than one foot. It is generally associated with rapidly flowing water.

“Frequently flooded areas” are lands in the floodplain subject to a one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance, and attenuation functions, as determined by the Director in accordance with WAC 365-190-080(3). Classifications of frequently flooded areas include, at a minimum, the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program (NFIP).

“Functions and values” or “functions” means the beneficial roles served by critical areas including, but not limited to, water quality protection and enhancement; fish and wildlife habitat; food chain support; flood storage, conveyance and attenuation; ground water recharge and discharge; erosion control; wave attenuation; protection from hazards; historical, archaeological, and aesthetic value protection; educational opportunities; and recreation.

“Geologic hazard areas” means those areas that because of their susceptibility to erosion, landsliding, earthquake, volcanic lahar, liquefaction or other geological events, may not be suited to siting commercial, residential or industrial development consistent with public health or safety concerns.

“Grading” means any excavating, filling, clearing, leveling, or contouring or any combination thereof of the ground surface by human or mechanical means.

“Habitat management” means management of land and its associated resources/features to maintain species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created. This does not imply maintaining all habitat or individuals of all species in all cases.

“Habitats and species areas of local importance” means habitats the City may identify, classify and designate as locally important habitats and species.

“Habitats of local importance” means habitats designated as fish and wildlife habitat conservation areas to include those areas found to be locally important by the city (WAC 365-190-030(6)(b)).

“Hazard areas” means areas designated as frequently flooded areas or geologically hazardous areas due to potential for erosion, landslide, seismic activity, mine collapse, or other geological condition.

“Hazard tree” means a tree that is dead, unstable, diseased to the point of hazard, has tree limbs or trunks that are demonstrably cracked, leaning toward overhead utility lines, structures or site improvements, or are uprooted by flooding, heavy winds or storm events that may constitute a hazard requiring cutting in whole or part, pose a threat to public safety, or pose an imminent risk of damage to private property.

“High impact land use” means land uses which are likely to have significant adverse impacts to critical areas because of the intensity of the use, levels of human activity, use of machinery or chemicals, site design or arrangement of buildings and structures. High impact land uses include, but are not limited to, active recreation, residential, institutional, commercial, and industrial land uses.

“Hydrologically isolated” means wetlands which: (1) have no surface water connection to a lake, river, or stream during any part of the year; (2) are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream; and (3) have no contiguous hydric soil between the wetland and any lake, river, or stream. May also be a pond excavated from uplands with no surface water connection to a stream, lake, or other wetland.

“In-kind mitigation” or “in-kind compensation” means to replace a critical area whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity.

“Intentionally created streams” means streams created through purposeful human action, such as irrigation and drainage ditches, grass-lined swales, and canals. This definition does not include stream modifications performed, pursuant to City authorization, such as changes or redirection of stream channels.

“Landslide” means episodic downslope movement of a mass of soil or rock.

“Landslide hazard areas” means areas that, due to a combination of geologic, topographic, and/ or hydrologic factors, are considered to be susceptible, in varying degrees of risk, to landsliding.

“Low impact land use” means land uses which are not likely to have significant adverse impacts to critical areas because of the intensity of the use, levels of human activity, use of machinery or chemicals, site design or arrangement of buildings and structures. Depending on the specific context, examples of low impact land uses may include utility facilities and passive recreation.

“Mitigation” or “compensatory mitigation” means to replace project or activity-induced losses or impacts to critical area or buffers, and includes, but is not limited to, restoration, creation, enhancement or preservation. (See also separate definitions.)

1. Restoration – Actions performed to reestablish wetland, stream or other critical area functional characteristics and processes that have been lost by alterations, activities, or catastrophic events within an area that no longer meets the definition of that critical area.

2. Creation – Actions performed to intentionally establish a wetland, stream or other critical area at a site where it did not formerly exist.

3. Enhancement – Actions performed to improve the condition of existing degraded wetland, stream or other critical area so that the functions they provide are of a higher quality.

4. Preservation – Actions taken to ensure the permanent protection of existing, high-quality wetland, stream or other critical area.

Mitigation Bank. See “Wetlands mitigation bank.”

“Mitigation, off-site” or “off-site mitigation” means to replace a critical area, buffer and functions, on a site or in an area other than the site impacted by an allowable use or activity.

“Mitigation, on-site” or “on-site mitigation or compensation” means to replace critical areas at or adjacent to the site on which a critical area has been impacted.

“Mitigation, out-of-kind” or “out-of-kind mitigation” means to replace a critical area, buffer and their functions away from the site on which a critical area has been impacted with a substitute critical area, buffer or function whose characteristics do not closely approximate those adversely affected, destroyed or degraded by an allowable use or activity.

“Mitigation sequencing” means to consider and/or perform mitigation actions in a priority or sequential order from avoidance to compensation, as defined by this chapter.

“Monitoring” means the collection and analysis of data by various methods for the purposes of understanding and documenting changes in natural ecosystems and features, and includes gathering baseline data, evaluating the impacts of development proposals on the biological, hydrologic and geologic elements of such systems and assessing the performance of required mitigation measures.

“MTMC” means Mountlake Terrace Municipal Code.

“Native vegetation” means vegetation existing on a site or plant species which are or were indigenous to the area in question.

“No net loss” means that permitted uses in critical areas shall be designed and conducted in a manner consistent with WAC 197-11-768 to avoid, minimize and/or mitigate, insofar as practical, any resultant damage to the ecology and environment of the critical area. It may also encompass restoration of ecological functions necessary to sustain critical areas.

The concept of “net” as used herein, recognizes that any development has potential or actual, short-term or long-term impacts and that through application of appropriate development standards and employment of mitigation measures in accordance with the mitigation sequence, those impacts will be addressed in a manner necessary to assure that the end result will not diminish the critical area resources and functions as they currently exist.

“Permit, critical area” means any authorization to proceed with an activity, action, or use in a critical area or buffer. An authorization may consist of an approved land use, building, or other type of construction, permit.

“Priority habitat” means a habitat type or elements “with unique or significant value to one or more species as classified by the state Department of Fish and Wildlife. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element.

“Priority species, state” or “state priority species” means those species that are so identified by the Washington Department of Fish and Wildlife due to their population status and their sensitivity to habitat manipulation. Priority species include those which are state-listed endangered, threatened, sensitive and candidate species; animal aggregations considered vulnerable; vulnerable species of recreational, commercial or tribal importance; as well as other species of concern and game species.

Qualified Professional. For purposes of this chapter, “qualified professional” shall mean a person who has attained a degree from an accredited college or university in the subject matter necessary to evaluate the critical area in question (e.g., biology, ecology or horticulture/arboriculture for wetlands, streams and wildlife habitat and significant vegetation, geology and/or civil engineering for geologic hazards and aquifer recharge areas), and/or who is professionally trained and/or certified or licensed by the state of Washington to practice in the scientific disciplines necessary to identify, evaluate, manage and mitigate impacts to the critical area in question and who has at least two years of experience in the relevant discipline.

“Recreation” means an active or passive enjoyable outdoor leisure activity.

1. Active recreation – Outdoor recreational activity that may require development of facilities, and can have a high impact on critical areas, such as larger group activities, organized sports, playground activities, and the use of motorized equipment.

2. Passive recreation – Nonconsumptive recreation, education, and scientific research activities that are smaller scale with low impact to critical areas including, but not limited to, interpretive field trips, fishing, hiking, canoeing, kayaking, and bird or wildlife watching.

“Redevelopment” means development of a site that contains or has contained real estate improvements such as, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, or excavation.

“Regulated activity” means activities that have a potential to significantly impact a critical area that is subject to the provisions of this chapter. Regulated activities generally include but are not limited to any filling, dredging, dumping or stockpiling, draining, excavation, flooding, clearing or grading, construction or reconstruction, driving pilings, obstructing, shading, clearing or harvesting.

“Restoration” means to reestablish critical area functional values and characteristics, to its unaltered state, prior to being destroyed or degraded by past alterations activities, past management activities, or catastrophic events, as closely as possible. Commonly applies, but is not limited to, to active steps taken to restore damaged wetlands, streams, protected habitat, or their buffers to the functioning condition that existed prior to an unauthorized alteration. (See also “Mitigation, compensatory” and “Enhancement.”)

“Riparian habitat” means areas adjacent to aquatic systems with flowing water that contain elements of both aquatic and terrestrial ecosystems that mutually influence each other.

“Secondary habitat” means areas that offer less diversity of animal and plant species than priority habitat but that are important for performing the essential functions of habitat.

“Seismic hazard areas” means areas that, due to a combination of soil and ground water conditions, are subject to risk of damage as a result of earthquake-induced ground shaking, slope failure, subsidence or liquefaction of soils.

“Significant tree” means a healthy evergreen or deciduous tree, eight inches in diameter or greater, measured four feet above existing grade. The Director may authorize the exclusion of any tree which, for reasons of health, age, or site development, is not desirable to retain, or require retention of trees which are unique or unnecessary to remove to accomplish the activity.

“Site” means the location containing a regulated critical area and on which a regulated activity is proposed. The location may be a parcel or portion thereof, or any combination of contiguous parcels where a proposed activity may impact a critical area.

“Slope” means an inclination of the earth’s surface expressed as the ratio of horizontal distance to vertical distance.

“Slope, steep” means a slope of 40 percent or more within a vertical elevation change of at least 10 feet. For the purpose of this definition, a slope is delineated by establishing the “toe” and “top” of slope, as defined by this section, and is measured by averaging the inclination over at least 10 feet of elevation difference. See “Critical landslide hazard areas.”

“Streams” means those areas where surface waters produce a defined channel or bed. A “defined channel or bed” is an area which demonstrates clear evidence of the passage of water and includes, but is not limited to, bedrock channels, gravel beds, sand and silt beds, and defined-channel swales. The channel or bed need not contain water year-round. This definition is not intended to include artificially created irrigation ditches, canals, storm or surface water devices or other entirely artificial watercourses unless they are used by salmonids or created for the purposes of stream mitigation.

“Structural diversity, vegetative” means the relative degree of diversity or complexity of vegetation in a wildlife habitat area as indicated by the stratification or layering of different plant communities (e.g., ground cover, shrub layer and tree canopy); the variety of plant species; and the spacing or pattern of vegetation.

“Substantial improvement” means any repair, reconstruction or improvement the cost of which, during any three-year period, is more than 50 percent of the market value of the structure either:

1. Before the improvement is started; or

2. Before the damage occurred if the structure damaged is being replaced. An improvement occurs when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not the alteration affects the external dimensions of the structure. Substantial improvement does not include:

a. An improvement undertaken solely to comply with existing state or local health, sanitary or safety code specifications which are necessary to assure safe conditions; or

b. Alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places.

“Substrate” means the soil, sediment, decomposing organic matter or combination of those located on the bottom surface of the wetland, lake, stream or river.

“Toe” or “toe of slope” means a distinct topographic break in slope that separates slopes inclined at less than 40 percent from slopes inclined at 40 percent or more. Where no distinct break exists, the “toe” of a slope is the lowermost limit of the area where the ground surface drops 10 feet or more vertically within a horizontal distance of 25 feet.

“Top” or “top of slope” means a distinct topographic break in slope that separates slopes inclined at less than 40 percent from slopes inclined at 40 percent or more. Where no distinct break exists, the “top” of a slope is the uppermost limit of the area where the ground surface drops 10 feet or more vertically within a horizontal distance of 25 feet.

Tree, Hazard. See “Hazard tree.”

Tree, Significant. See “Significant tree.”

“Utility” includes natural gas, electric, telephone and telecommunications, cable communications, water, sewer, or storm drainage and their respective facilities, lines, pipes, mains, equipment and appurtenances.

“Variance” means an adjustment in the application of the specific provisions of this chapter to a particular piece of property which, because of a unique physical character or condition, is deprived of privileges commonly enjoyed by other properties in similar circumstances.

“Water-dependent use” means a principal use which can only exist when the land/water interface provides biological or physical conditions necessary for the use.

“Wetland” or “wetlands areas” means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street or highway. Wetlands include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands.

Wetland Class. The U.S. Fish and Wildlife Service wetland classification scheme uses a hierarchy of systems, subsystems, classes and subclasses to describe wetland types (refer to USFWS, December 1979, “Classification of Wetlands and Deepwater Habitats of the United States” for a complete explanation of the wetland classification scheme). Eleven class names are used to describe wetland and deepwater habitat types. These include: forested wetland, scrub-shrub wetland, emergent wetland, moss-lichen wetland, unconsolidated shore, aquatic bed, unconsolidated bottom, rock bottom, rocky shore, streambed, and reef.

Wetland Classification. Wetland classifications shall incorporate the Washington State Wetlands Rating System for Western Washington (Department of Ecology 2014 Update Publication No. 14-06-029 or as revised).

“Wetland delineation manual” or “wetland delineation methodology” means the manual and methodology used to identify wetlands in the field, as described in the U.S. Army Corps of Engineers Wetlands Delineation Manual (1987) and applicable regional supplements. Use of this manual is required by RCW 36.70A.175 and 90.58.380.

“Wetland impact assessment report” means a report prepared by a “qualified professional” as that term is defined in this section that identifies, characterizes and analyzes potential impacts to wetlands consistent with applicable provisions of these regulations. A wetland impact assessment may be combined with and include a formal wetland delineation.

“Wetlands mitigation bank” means a site where wetlands are restored, created, enhanced, or in exceptional circumstances, preserved, expressly for the purpose of providing compensatory mitigation in advance of unavoidable impacts to wetlands or other aquatic resources are typically unknown at the time of certification to compensate for future, permitted impacts to similar resources.

Wetland Subclass. Twenty-eight subclass names are used in the USFWS wetland classification scheme to distinguish between different types of wetland classes. Subclass names include, but are not limited to, the following: persistent, nonpersistent, broad-leaved deciduous, needle-leaved deciduous, broad-leaved evergreen, needle-leaved evergreen, dead. The classification system is fully described in Cowardin et al., “Classification of Wetlands and Deepwater Habitats of the United States U.S. Fish and Wildlife Service, Washington, DC, 1979.”

“Wildlife habitat” means areas including naturally occurring ponds that provide food, protective cover, nesting, loafing, breeding or movement for fish and wildlife and with which individual species have a primary association.

“Wildlife report” means a report prepared by a qualified professional that evaluates plant communities and wildlife functions and values on a site, consistent with the format and requirements established by this chapter. (Ord. 2747 § 5, 2019; Ord. 2731 § 2 (Exh. A), 2018).