Chapter 20.25
FISH AND WILDLIFE HABITAT CONSERVATION AREAS
Sections:
20.25.005 Description and purpose.
20.25.010 Classification and designation of fish and wildlife habitat conservation areas.
20.25.020 Designation of habitats and species of local importance.
20.25.050 Critical areas reports.
20.25.060 Performance standards – Approval of activities.
20.25.005 Description and purpose.
The intent of these regulations is to avoid impacts to streams, riparian habitat, anadromous fish, and wildlife conservation areas where such avoidance is feasible and reasonable. This chapter contains standards, guidelines, criteria and requirements intended to identify, evaluate and mitigate potential impacts to habitat conservation areas within the city and to enhance degraded habitat and streams in appropriate cases. In appropriate circumstances, impacts resulting from regulated activities may be minimized, rectified, reduced and/or compensated for, consistent with this chapter. (Ord. 1801 § 22, 2018).
20.25.010 Classification and designation of fish and wildlife habitat conservation areas.
While not all the following critical fish and wildlife habitat conservation areas are known to exist in the city, their designation here allows for future categorization for protection. The following categories shall be used for relevant development standards:
(1) Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association.
(a) Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) that are in danger of extinction or threatened to become endangered. The USFWS and NMFS should be consulted for current listing status.
(b) State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington Department of Fish and Wildlife (WDFW), that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The WDFW maintains the most current listing and should be consulted for current listing status.
(c) State priority habitats and areas associated with state priority species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species (PHS) are identified and listed by the WDFW;
(2) Areas of rare plant species or high-quality ecosystems identified by the Washington State Department of Natural Resources (WDNR) through the Natural Heritage Program under Chapter 79.70 RCW;
(3) State Natural Area Preserves and Natural Resource Conservation Areas. Natural area preserves and natural resource conservation areas are defined, established, and managed by the WDNR;
(4) Habitats and species of local importance, as identified by the city in accordance with OHMC 20.25.020;
(5) Commercial and recreational shellfish areas, including all public and private tidelands or bedlands suitable for shellfish harvest as well as shellfish protection districts established pursuant to Chapter 90.72 RCW;
(6) Geoduck concentration areas, including all public and private bedlands suitable for geoduck colonization;
(7) Kelp and eelgrass beds; herring, smelt, and other forage fish spawning areas;
(8) Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from upland areas for mitigation purposes;
(9) Waters of the state as defined in RCW 90.48.020 and include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and water courses in Washington.
(a) Stream types are established by the WDNR and classified in WAC 222-16-030 and include:
(i) 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.
(ii) Type F water means segments of natural waters other than Type S waters, which are within the bankfull width of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of one-half acre or greater at seasonal low water and which in any case contain fish habitat.
(iii) 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 waters that do not go dry any time of a year of normal rainfall.
(iv) Type Ns water means all segments of natural waters within the bankfull width of the 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. Type Ns waters must be physically connected by an above-ground channel system to Type S, F, or Np waters. (Ord. 1801 § 23, 2018; Ord. 1440 § 4, 2005).
20.25.020 Designation of habitats and species of local importance.
(1) Habitats and species of local importance are those identified for protection by the city. Habitats may include a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.
(2) The city shall accept and consider nominations for habitat areas and species to be designated as locally important on an annual basis. Habitats and species may be nominated for designation by any person.
(3) Habitats and species to be designated shall exhibit at least one of the criteria in subsections (3)(a) through (3)(c) of this section and shall meet the criteria in subsections (3)(d) through (3)(f) of this section.
(a) Local populations of native species are vulnerable or declining or are likely to become threatened or endangered based on existing or predictable threats;
(b) The species or habitat has recreational, commercial, game, tribal, or other special value;
(c) Long-term persistence of a species within the urban growth area of Oak Harbor is dependent on the protection, maintenance and/or restoration of the nominated habitat;
(d) Protection by county, state, or federal policies, laws, regulations, or nonregulatory tools is not adequate to prevent degradation of the species or habitat in the city; and
(e) Without protection, there is likelihood that the species or habitat will decline over the long term.
(f) Nominated areas must represent high-quality native habitat or habitat that either has a high potential to recover to a suitable condition and is of limited availability or provides landscape connectivity contributing to conservation of the designated species or habitat.
(4) A petition to nominate an area or a species to this category shall contain all of the following, using best available science:
(a) A statement demonstrating that nomination criteria are met;
(b) A proposal for whether specific habitat features should be protected (for example, nest sites, breeding areas, and nurseries), or whether the habitat or ecosystem is being nominated in its entirety;
(c) Proposed management strategies for the species or habitats. Where restoration of habitat is proposed, a conceptual plan for restoration must be provided as part of the nomination;
(d) Signatures of all petitioners.
(5) The director shall determine whether the nomination proposal is complete, and if complete, shall evaluate it according to the characteristics enumerated in subsection (3) of this section and make a recommendation to the planning commission based on those findings.
(6) The planning commission shall hold a public hearing for proposals found to be complete and make a recommendation to the city council based on the characteristics enumerated in subsection (3) of this section.
(7) Following the recommendation of the planning commission, the city council shall hold an additional public hearing and shall determine by ordinance whether the designation criteria in this section have been met. Designation of a habitat or species of local importance shall be by ordinance.
(8) Approved nominations shall be specified in OHMC 20.25.010 and shall be subject to the provisions of the critical areas regulations in this title. (Ord. 1440 § 4, 2005).
20.25.030 Mapping.
The following, in addition to critical areas maps available through the city, may be used as a guide for locating fish and wildlife habitat conservation areas:
(1) WDFW priority habitat and species maps;
(2) Maps developed by the Island County marine resources committee, including the location of eelgrass and forage fish spawning areas;
(3) Maps developed by the Salmon Recovery Technical and Citizens Committee, Island County Water Resources Inventory Area 6;
(4) WDNR Natural Heritage Program maps and mapping data;
(5) Washington State Department of Health inventory of shellfish harvest areas;
(6) WDNR official water type reference maps;
(7) WDNR Puget Sound intertidal habitat inventory maps;
(8) WDNR shore zone inventory;
(9) WDFW “SalmonScape” accessible at http://apps.wdfw.wa.gov/salmonscape/;
(10) Northwest Indian Fisheries Commission – “Statewide Washington Integrated Fish Distribution” accessible at http://geo.nwifc.org/SWIFD/; and
(11) WDFW “Land Use Planning For Salmon, Steelhead and Trout: A Land Use Planner’s Guide to Salmonid Habitat Protection and Recovery.” (Ord. 1801 § 24, 2018; Ord. 1440 § 4, 2005).
20.25.040 Riparian buffers.
(1) Standard Buffer Widths. Aquatic fish and wildlife habitat conservation areas shall be protected with vegetated buffers, which also provide riparian wildlife habitat. These buffers shall have the following standard widths, measured perpendicular from the ordinary high water mark of the water body:
(a) Type F streams: 100 feet throughout all reaches used by salmonids at any life stage at any time of the year, including reaches likely to be used by salmonids after foreseeable downstream restoration, as determined by the director;
(b) Type Np and Ns streams: 50 feet;
(c) Type S (including marine shorelines identified as fish and wildlife habitat conservation areas): 100 feet.
(2) Reductions for Lower Impact Land Uses. Buffer widths in subsection (1) of this section assume high-intensity land use is occurring adjacent to the water body, as is characteristic of an urban area. These widths may be reduced up to 25 percent if measures to minimize the impacts of the land use adjacent to the water body are applied, such as use of low impact development techniques, if feasible, retention of as much native vegetation and soils as possible, direction of noise and light away from the water body, and other measures that may be suggested by a qualified professional. Buffer widths may also be reduced up to 25 percent for lower impact land uses such as agriculture, at the discretion of the director and if best management practices are applied. If proposed future land uses are more intense, they are not eligible to maintain this reduction.
(3) Reductions for Restoration. Buffer widths may be reduced up to an additional 25 percent if the buffer is restored or enhanced from a preproject condition that is disturbed (e.g., dominated by invasive species), so that functions of the postproject buffer are equal or greater. The restoration plan must meet requirements in OHMC 20.12.100 for a mitigation plan and OHMC 20.25.050 for a critical areas report. This reduction may be added to reductions for lower impact land uses.
(4) Buffer Averaging. The director shall have the authority to average buffer widths on a case-by-case basis, where a qualified professional demonstrates to the director’s satisfaction that all of the following criteria are met:
(a) The total area contained in the buffer after averaging is no less than that contained within the buffer prior to averaging;
(b) Decreases in width are generally located where riparian functions may be less sensitive to adjacent land uses, and increases are generally located where riparian functions may be more sensitive to adjacent land uses, to achieve no net loss or a net gain in functions;
(c) The averaged buffer, at its narrowest point, shall never be less than 25 feet;
(d) The buffer has not been reduced in accordance with this section. Buffer averaging is not allowed if the buffer has been reduced; and
(e) There were no feasible alternatives to the site design without buffer averaging.
(5) Signage. Signs shall identify postproject riparian buffers as critical areas or native growth protection areas, in accordance with OHMC 20.12.140(2).
(6) Allowed Uses. The following uses may be permitted within a riparian buffer, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize negative impacts to the buffer and adjacent water body:
(a) Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife and designed consistent with the WDFW “Stream Habitat Restoration Guidelines” (2012).
(b) Passive recreation facilities consistent with an approved critical areas report, including:
(i) Wildlife-viewing structures; and
(ii) Walkways and trails, provided pathways minimize adverse impacts on water quality. They should generally be parallel to the perimeter of the water body, located in the outer 25 percent of the riparian buffer area, and avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width.
(c) Stream crossings, if necessary to provide access to property and if impacts are fully mitigated consistent with an approved critical areas report and the Washington State Department of Fish and Wildlife “Water Crossing Design Guidelines” (2013).
(d) Storm water management facilities, limited to approved low impact development techniques, may be allowed within the outer 25 percent of riparian buffers; provided, that:
(i) No other location with less impact is feasible; and
(ii) Mitigation for impacts is provided to achieve no net loss or a net gain in functions.
(e) Marine Shoreline Erosion Control Measures. New, replacement, or substantially improved marine shoreline erosion control measures may be permitted, consistent with all necessary state and federal permits and in accordance with an approved critical areas report that demonstrates the following:
(i) No feasible alternative would provide adequate protection to upland property;
(ii) Bioengineering or soft armoring shall be employed to the greatest extent feasible;
(iii) Mitigation measures shall ensure there is no net loss of the functions or values of intertidal or riparian habitat, allowing for off-site mitigation if necessary.
(f) Accepted erosion control measures may be found in the WDFW “Marine Shoreline Design Guidelines” (2014).
(g) Streambank Stabilization. Streambank stabilization to protect structures from future channel migration is not permitted except when achieved through bioengineering or soft armoring techniques in accordance with an approved critical areas report and all necessary state and federal permits.
(h) Streambank stabilization techniques may be found in the WDFW “Integrated Streambank Protection Guidelines” (2002).
(i) Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to the director’s review and approval of a critical areas report and all necessary state and federal permits. (Ord. 1801 §§ 25 – 28, 2018; Ord. 1440 § 4, 2005).
20.25.050 Critical areas reports.
If required by the director in accordance with OHMC 20.12.070(2), a critical areas report for fish and wildlife habitat conservation areas shall meet the requirements of this section.
(1) A critical areas report shall be required for all development within 300 feet of any stream or marine fish and wildlife habitat conservation area.
(2) At a minimum, the report shall contain the following:
(a) The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;
(b) A copy of the site plan for the development proposal including:
(i) A map to scale depicting fish and wildlife habitat conservation areas, wetlands, buffers, the development proposal, and any areas to be cleared or graded; and
(ii) A description of the proposed stormwater management plan for the development and consideration of impacts from drainage alterations.
(iii) The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site.
(3) Proposals shall be exempt from further report requirements under the following conditions:
(a) They are consistent with riparian buffer requirements in OHMC 20.25.040(1) or allowed uses in OHMC 20.25.040(6);
(b) They comply with Chapter 20.16 OHMC and will not affect other fish and wildlife habitat conservation areas, following criteria established by the director.
(4) Reports not exempt under subsection (3) of this section shall be prepared by a qualified professional in accordance with OHMC 20.02.020(54), with experience preparing reports for the relevant type of habitat, and including the requirements established in OHMC 20.12.070.
(5) Critical areas reports for fish and wildlife habitat conservation areas shall address the following geographic areas:
(a) The land parcel of the proposed activity;
(b) All fish and wildlife habitat conservation areas, including riparian buffers identified in OHMC 20.25.040(1), within 300 feet of the project area; and
(c) All wetlands and geologically sensitive areas within 300 feet of the project area.
(6) A critical areas report for a fish and wildlife habitat conservation area shall contain an assessment of habitats, including the following information at a minimum:
(a) A detailed description of vegetation throughout the areas identified in subsection (5) of this section;
(b) Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that have a primary association with habitat in these areas, and an assessment of potential project impacts on the species;
(c) A discussion of any federal, state, or local special management recommendations, including WDFW habitat management recommendations, that have been developed for habitats located in these areas or the species identified in subsection (6)(b) of this section.
(d) A detailed discussion of the direct and indirect potential cumulative impacts on habitat from development of the site, including potential impacts to water quality;
(e) Documentation of any fieldwork performed on the site, and a description of the methodologies used to conduct habitat assessments and impact analyses, including references and all assumptions made or relied upon;
(f) An analysis of site development alternatives, including a no development alternative;
(g) A discussion of proposed mitigation, consistent with OHMC 20.12.090, Mitigation sequencing, and OHMC 20.12.100, Mitigation plan requirements; and
(h) A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.
(7) When appropriate, due to the type of habitat or species present or the project area conditions, the director may also require the habitat management plan to include:
(a) An evaluation by an independent qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate;
(b) A request for consultation with the WDFW or the local Native American Indian tribe or other appropriate agency; and
(c) Detailed surface and subsurface hydrologic features both on and adjacent to the site.
(8) Unless otherwise provided, a critical areas report may be supplemented by or composed of, in whole or in part, any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the director. (Ord. 1801 §§ 29 – 33, 2018; Ord. 1440 § 4, 2005).
20.25.060 Performance standards – Approval of activities.
(1) Approval of Activities. The director shall condition approval of activities allowed within or adjacent to a habitat conservation area, or its buffers, as necessary to minimize or mitigate any potential adverse impacts. Conditions shall be based on the best available science and may include, but are not limited to, the following:
(a) Establishment of buffer zones;
(b) Preservation or restoration of critically important vegetation and/or habitat features such as snags and downed wood;
(c) Preservation or restoration of contiguous wildlife habitat corridors, to minimize the isolating effects of development on habitat areas;
(d) Limitation of access to the habitat area, including fencing to deter unauthorized access;
(e) Seasonal restriction of construction activities;
(f) Establishment of a duration and timetable for periodic review of mitigation activities; and
(g) Requirement of a performance bond, when necessary, to ensure completion and success of proposed mitigation.
(2) Nonindigenous Species. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.
(3) Mitigation and Contiguous Corridors. Mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical area report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.
(4) Mitigation and Equivalent or Greater Biological Functions. Mitigation for alterations to habitat conservation areas shall achieve equivalent or greater biologic and hydrologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve equivalency or improvement on a per function basis.
(5) Approvals and the Best Available Science. Any approval of alterations or impacts to a habitat conservation area shall be supported by the best available science.
(6) Establishment of Buffers.
(a) The director shall require the establishment of buffer areas for activities adjacent to habitat conservation areas when needed to protect habitat conservation areas. Buffers shall consist of an undisturbed area of native vegetation or areas identified for restoration established to protect the integrity, functions, and values of the affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby.
(b) Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply. Larger buffers may be required and activities may be further restricted during the specified season.
(c) All land and shoreline uses, development, occupancy, and critical area resource management of any kind shall comply with the provisions of the City of Oak Harbor Shoreline Master Program (SMP).
(7) Endangered, Threatened, and Sensitive Species.
(a) No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association, unless a management plan consistent with applicable state or federal agency regulations or guidance is provided. Appropriate management measures shall be included in a critical areas report for review by the city. The city may require a consultation with the respective agency prior to approval.
(b) Nesting bald eagles and bald eagle habitat shall be protected consistent with the USFWS Bald Eagle Management Guidelines, or the state or federal regulations in place at the time of application. Whenever activities are proposed adjacent to a verified nest territory or communal roost, a bald eagle habitat management plan shall be developed. Activities are adjacent to managed bald eagle sites when they are within 660 feet of a nest or within 1,000 feet of a great blue heron colony; or within distances determined by the director for other fish and wildlife habitat conservation areas. Proposed activities which may affect oak trees must comply with Chapter 20.16 OHMC.
(8) Anadromous and Resident Fish.
(a) All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:
(i) Activities shall be timed to occur only during the allowable work window as designated by the WDFW for the applicable species;
(ii) An alternate alignment or location for the activity is not feasible;
(iii) The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas;
(iv) Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques, according to an approved critical area report; and
(v) Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report.
(b) Structures that prevent the migration of fish shall not be allowed in the portion of water bodies currently, historically, or potentially used by fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed. (Ord. 1801 § 34, 2018; Ord. 1440 § 4, 2005).