Chapter 18.20
CRITICAL AREAS REGULATIONS

Sections:

18.20.010    Purpose.

18.20.020    Applicability.

18.20.030    Exemptions.

18.20.040    Public agency and utility exception.

18.20.050    Reasonable use exception.

18.20.060    Reference maps and materials.

18.20.070    Review process.

18.20.080    Critical areas report.

18.20.090    Mitigation requirements.

18.20.100    Agency review.

18.20.110    Surety/bonding.

18.20.120    Permit conditions.

18.20.130    Enforcement.

18.20.140    Aquifer recharge areas.

18.20.150    Fish and wildlife habitat conservation areas.

18.20.160    Wetlands.

18.20.170    Frequently flooded areas.

18.20.180    Geologically hazardous areas.

18.20.190    Composite critical areas map.

18.20.200    General provisions.

18.20.210    Definitions.

18.20.010 Purpose.

The purpose of this chapter is to regulate development in critical areas as required by the Growth Management Act, as it now exists or hereinafter amended, to protect these areas and their functions and values in a manner that also allows reasonable use of private property. This chapter is intended to:

(a)    Implement the Omak Comprehensive Plan and the requirements of the Growth Management Act;

(b)    Protect critical areas, in accordance with the Growth Management Act and through the application of best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals;

(c)    Protect the general public, resources and facilities from injury, loss of life, property damage or financial loss due to flooding, erosion, landslides, or steep slopes failure;

(d)    Protect unique, fragile and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats;

(e)    Prevent cumulative adverse environmental impacts to water quality and availability, wetlands, and fish and wildlife habitat;

(f)    Provide flexibility and attention to site specific characteristics, so as to ensure reasonable use of property;

(g)    Meet the requirements of the National Flood Insurance Program and maintain Omak as an eligible community for federal flood insurance benefits; and

(h)    Provide appropriate guidance and protection measures for addressing the needs and concerns associated with resource lands and critical areas that help define the quality of life in Omak. (Ord. 1776 §§ 1, 2, 2014; Ord. 1542 § 1 (part), 2005).

18.20.020 Applicability.

These critical area regulations shall apply as an overlay to zoning and other land use regulations established by the city. Critical areas lying within the jurisdiction of the city of Omak shoreline master program shall be regulated under the provisions of said SMP.

(a)    All land uses and/or development permit applications on all lots or parcels within the city that lie within critical areas as designated in the city of Omak comprehensive plan (see critical areas section and map appendix) shall comply with the provisions of this chapter. No action shall be taken by any person that results in any alteration of any critical area except as consistent with the purposes, objectives and intent of this chapter.

(b)    Where two or more types of critical areas overlap, requirements for development shall be consistent with the standards for each critical area. Where it is determined that a designated critical area is located within the jurisdiction of the city’s shoreline master program, the regulations contained in the shoreline master program shall apply. However, any standards found in this chapter may also be applied to a proposal as optional and/or supplemental items to the provisions of the shoreline master program (as it now exists or hereinafter amended). For designated critical areas outside of the shoreline jurisdiction, the provisions of this chapter shall apply.

(c)    These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination. (Ord. 1776 §§ 3—5, 2014; Ord. 1542 § 1 (part), 2005).

18.20.030 Exemptions.

The activities listed below are exempt from the provisions of this chapter. Exempt activities shall be conducted using all reasonable methods to avoid impacts to critical areas. Exemption from the chapter shall not be considered permission to degrade a critical area or ignore risks from natural hazards. Incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated at the responsible party’s expense.

(a)    Emergency construction necessary to protect life or property from immediate damage by the elements. An emergency is an unanticipated event or occurrence which poses an imminent threat to public health, safety, or the environment, and which requires immediate action within a time too short to allow full compliance. Once the threat to the public health, safety, or the environment has dissipated, the construction undertaken as a result of the previous emergency shall then be subject to and brought into full compliance with this title;

(b)    Normal maintenance or repair of existing buildings, structures, roads, utilities, levees, or drainage systems, provided the activity does not further alter, encroach upon, or increase impacts to critical areas or associated buffers;

(c)    Existing agricultural activities normal or necessary to general farming conducted according to industry-recognized best management practices including the raising of crops or the grazing of livestock;

(d)    Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, critical area impacts should be minimized and disturbed areas shall be immediately restored; and

(e)    Passive recreational activities, including, but not limited to: fishing, bird watching, hiking, hunting, boating, horseback riding, skiing, swimming, canoeing, and bicycling provided the activity does not alter the critical area or its buffer by changing existing topography, water conditions or water sources. (Ord. 1542 § 1 (part), 2005).

18.20.040 Public agency and utility exception.

(a)    If application of this title would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section. To qualify for an exception, the agency or utility must demonstrate the following:

(1)    That there is no other practical alternative to the proposed development which has less impact on critical areas;

(2)    The application of this title would unreasonably restrict the ability to provide utility services to the public;

(3)    That the proposed use does not pose a threat to the public health, safety or welfare;

(4)    That the proposal protects critical areas functions and values to the extent possible and provides for mitigation in accord with the provisions of this title; and

(5)    The proposal is consistent with other applicable regulations and standards.

(b)    A request for exception shall be submitted to the city with the application materials for the particular development proposal. The application shall be supplemented with an explanation as to how the public agency and utility exception criteria are satisfied. The administrator may require additional information or studies to supplement the exception request.

(c)    A reasonable use exception shall be processed according to the provisions of Chapter 18.52 of this title governing a Type II permit process. (Ord. 1542 § 1 (part), 2005).

18.20.050 Reasonable use exception.

(a)    If the application of this title would deny all reasonable use of the subject property, the property owner may apply for an exception pursuant to this section. To qualify for an exception, the applicant must demonstrate all of the following:

(1)    That no other reasonable use can be made of the property that will have a lesser adverse impact on the critical area and adjoining and neighboring lands;

(2)    That the proposed use does not pose a threat to the public health, safety or welfare;

(3)    Any alteration is the minimum necessary to allow reasonable use of the property; and

(4)    The inability of the proponent to derive reasonable use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter.

(b)    A request for a reasonable use exception shall be submitted to the city with the application materials for the particular development proposal. The application shall be supplemented with an explanation as to how the reasonable use exception criteria are satisfied. The city may require additional information or studies to supplement the reasonable use exception request.

(c)    A reasonable use exception shall be processed according to the provisions of Chapter 18.52 of this title governing a Type II permit process. (Ord. 1542 § 1 (part), 2005).

18.20.060 Reference maps and materials.

The city shall maintain reference maps and materials that provide information on the general locations of critical areas. Since boundaries are generalized, the application of this chapter and the actual type, extent and boundaries of critical areas shall be determined and governed by the classification section established for each critical area. In the event of any conflict between the critical area location or designation shown on the city’s maps and the criteria and standards established in this chapter, or the site-specific conditions, the criteria, standards and/or site-specific conditions shall prevail. Reference maps and inventories shall include, but are not limited to, the following:

(a)    Wetlands map, based upon U.S. Fish and Wildlife Service National Wetlands Inventory;

(b)    Fish and wildlife habitat area maps and management recommendations, based upon Washington Department of Fish and Wildlife Priority Habitats and Species data;

(c)    Soils maps, based upon soils survey prepared by the Natural Resources Conservation Service (2009);

(d)    Flood Insurance Rate Map Community Panel No. 530120 0001C, November 16, 1982;

(e)    City of Omak comprehensive plan and map appendix, as it now exists and hereinafter amended;

(f)    City of Omak shoreline master program, as it now exists and hereinafter amended;

(g)    Washington State Wetlands Rating System for Eastern Washington, as revised;

(h)    Aerial photos;

(i)    Management Recommendations for Washington’s Priority Habitats—Riparian, December 1997, as amended;

(j)    Priority Habitats and Species List, July 1999, as amended;

(k)    U.S. Army Corps of Engineers (2006), Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0), as amended;

(l)    Wetlands in Washington State—Volume 1: A Synthesis of the Science, Washington State Department of Ecology, Publication No. 05-06-006;

(m)    Wetlands in Washington State—Volume 2: Guidance for Protecting and Managing Wetlands, Washington State Department of Ecology, Publication No. 05-06-008; and

(n)    Approved special reports previously completed for a subject property that meet the criteria of best available science. (Ord. 1776 § 9, 2014; Ord. 1542 § 1 (part), 2005).

18.20.070 Review process.

All land use and building permits shall be reviewed by the building official for a determination whether the project/development requires that the applicant disclose activities within one hundred feet of a known or suspected critical area except in shoreline areas and associated wetlands where the distance would be two hundred feet. Such a determination must be made in writing and provided to the applicant with the requirement that the applicant disclose any activities planned for these areas. The provisions of this chapter shall be applied to any such proposals. The review process shall proceed as follows:

(a)    Preapplication Meeting/Site Visit. Upon receiving a land use or development proposal, the administrator shall schedule a preapplication meeting and/or site visit with the proponent for purposes of a preliminary determination whether the proposal is likely to result in impacts to the functions and values of critical areas or pose health and safety hazards. At this meeting, the administrator shall discuss the requirements of this chapter and other applicable regulations; provide critical areas maps and other available reference materials; outline the review and permitting processes; and, work with the proponent to identify any potential concerns with regards to critical areas. A fee in an amount defined in the adopted fee schedule is required for a preapplication/site visit.

(b)    Application and SEPA Checklist. For all nonexempt proposals, the proponent shall submit all relevant land use/development applications, together with a SEPA Checklist. The administrator may waive the requirement for a SEPA Checklist if the proposal is exempt under SEPA regulations and is unlikely to yield information useful in the review process.

(c)    Determination of Need for Critical Areas Report. Based upon the preapplication meeting, application materials, and the SEPA Checklist (unless waived), the administrator shall determine if there is cause to require a critical areas report. In addition, the administrator may use critical areas maps and reference materials, information and scientific opinions from appropriate agencies, or any reasonable evidence regarding the existence of critical area(s) on or adjacent to the site of the proposed activity. If no critical areas are found to exist, the administrator shall document this fact on the face of any permit to be issued.

(d)    Documentation and Notification. The administrator shall document the preapplication meeting and/or site visit, application and SEPA threshold determination, and any other steps or findings that inform the determination whether a critical areas report shall be required. The applicant shall receive notice of the determination and any findings that support it. (Ord. 1776 §§ 10—12, 2014; Ord. 1542 § 1 (part), 2005).

18.20.080 Critical areas report.

If the administrator determines that the site of a proposed development potentially includes, or is adjacent to, critical area(s), a critical areas report may be required. When required, the expense of preparing the critical areas report shall be borne by the applicant. The content, format and extent of the critical areas report shall be approved by the administrator.

(a)    The requirement for critical areas reports may be waived by the administrator if there is substantial evidence that:

(1)    There will be no alteration of the critical area(s) and/or the required buffer(s);

(2)    The proposal will not impact the critical area(s) in a manner contrary to the purpose, intent and requirements of this chapter and the comprehensive plan; and

(3)    The minimum standards of this chapter will be met.

(b)    No critical area report is required for proposals that are exempt from the provisions of this chapter as set forth in Section 18.20.030 of this chapter.

(c)    Critical area reports shall be completed by a qualified professional who is knowledgeable about the specific critical area(s) in question, and approved by the administrator.1

(d)    At a minimum, a required critical areas report shall contain the following information:

(1)    Applicant’s name and contact information; permits being sought, and description of the proposal;

(2)    A copy of the site plan for the development proposal, drawn to scale and showing:

(A)    Identified critical areas, buffers, and the development proposal with dimensions,

(B)    Limits of any areas to be cleared, and

(C)    A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;

(3)    The names and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

(4)    Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;

(5)    An assessment of the probable cumulative impacts to critical areas resulting from the proposed development of the site;

(6)    An analysis of site development alternatives;

(7)    A description of reasonable efforts made to apply mitigation sequencing to avoid, minimize, and mitigate impacts to critical areas;

(8)    A mitigation plan, as needed, in accordance with the mitigation requirements of this chapter, including, but not limited to:

(A)    The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area, and

(B)    The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

(9)    A discussion of the performance standards applicable to the critical area and proposed activity;

(10)    Financial guarantees to ensure compliance; and

(11)    Any additional information required for specific critical areas as listed in subsequent sections of this chapter.

(e)    The administrator may request any other information reasonably deemed necessary to understand impacts to critical areas. (Ord. 1776 § 13, 2014; Ord. 1542 § 1 (part), 2005).

18.20.090 Mitigation requirements.

The applicant shall, to the greatest extent possible, avoid all impacts that degrade the functions and values of critical areas. If alteration is unavoidable, all adverse impacts to critical areas and buffers resulting from the proposal shall be mitigated in accordance with an approved critical areas report and SEPA documents. Mitigation shall be on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

(a)    Mitigation Sequencing. Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for 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, such as project redesign, relocation, or timing, to avoid or reduce impacts;

(3)    Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

(4)    Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

(5)    Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

(6)    Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

(7)    Monitoring the hazard or other required mitigation and taking remedial action when necessary.

(b)    Mitigation Plan. When mitigation is required, the applicant shall submit for approval a mitigation plan as part of the critical area report. The mitigation plan shall include:

(1)    A written report identifying mitigation objectives, including:

(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 objectives; identification of critical area functions and values; and dates for beginning and completion of site compensation construction activities,

(B)    A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in critical areas mitigation, and    (C)    An analysis of the likelihood of success of the compensation project;

(2)    Measurable criteria for evaluating whether or not the objectives of the mitigation plan have been successfully attained and whether or not the requirements of this chapter have been met;

(3)    Written specifications and descriptions of the mitigation proposed, including, but not limited to:

(A)    The proposed construction sequence, timing, and duration,

(B)    Grading and excavation details,

(C)    Erosion and sediment control features,

(D)    A planting plan specifying plant species, quantities, locations, size, spacing and density, and

(E)    Measures to protect and maintain plants until established;

(4)    A program for monitoring construction of the compensation project, and for assessing the completed project and its effectiveness over time. The program shall include a schedule for site monitoring and methods to be used in evaluating whether performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met but not for a period less than five years;

(5)    Identify potential courses of action and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met. (Ord. 1542 § 1 (part), 2005).

18.20.100 Agency review.

In cases where the administrator does not have adequate knowledge or training to determine the sufficiency and accuracy of information contained within a critical area report or mitigation plan, said reports or plans shall be submitted to appropriate agencies for review and recommendations prior to acceptance by the city. (Ord. 1542 § 1 (part), 2005).

18.20.110 Surety/bonding.

If a development proposal is subject to mitigation, maintenance or monitoring plans, the city of Omak, in a form acceptable to the city attorney, may require an assurance device or surety. (Ord. 1542 § 1 (part), 2005).

18.20.120 Permit conditions.

Through the review process, the city of Omak shall have the authority to attach such conditions to the granting of any approval under this chapter as deemed necessary to alleviate adverse impacts to critical area(s) and to carry out the provisions of this chapter. Such conditions of approval may include, but are not limited to, the following:

(a)    Specification of allowable lot sizes;

(b)    Provisions for additional buffers relative to the intensity of a use or activity;

(c)    Requirements and/or restrictions on the construction, size, location, bulk and/or height, etc., of structure(s);

(d)    Dedication of necessary easements for utilities, conservation, open space, etc.;

(e)    Imposition of and filing with county auditor, easement agreements, sureties, deed restrictions, covenants, etc., on the future use and/or division of land;

(f)    Limitations on the removal of existing vegetation;

(g)    Additional measures to address issues such as erosion control, stormwater management, filling, grading, etc.;

(h)    Development of a mitigation plan to create, enhance, or restore damaged or degraded critical area(s) on-and/or off-site; and

(i)    Any monitoring and/or maintenance plans necessary to implement the provisions of this chapter. (Ord. 1542 § 1 (part), 2005).

18.20.130 Enforcement.

Violation of the provisions of this chapter, or failure to comply with any of its requirements, shall be subject to enforcement actions by the city of Omak that are authorized in the zoning ordinance, subdivision ordinance, shoreline master program or any other land use regulation of the city of Omak. The city attorney, when authorized by the mayor and council, shall seek penalties, remedies, injunctions and other legal sanctions necessary for the enforcement of this chapter. In addition to costs allowed by these regulations, the prevailing party in an enforcement action may, at the court’s discretion, be allowed interest and reasonable attorney’s fees. The city attorney shall seek such costs, interest, and the reasonable attorney’s fees on behalf of the city of Omak when the city is the party.

(1)    Administrative, Technical and Procedural Violations. Because of their nature, the following are civil infractions:

(A)    Noncompliance. Any person who fails to conform to the terms of a permit issued under this title or who undertakes work or use of an improvement without first obtaining any permit required under this title or fails to comply with a cease-and-desist order issued under these regulations shall also be subject to a civil penalty subject to the provisions of Chapter 1.16. Each permit violation or each day of continued work and/or use without a required permit shall constitute a separate violation.

(B)    Aiding and Abetting. Any person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have committed a violation for the purposes of the civil penalty.

(2)    Violator Liabilities—Damages, Attorney’s Fees/Costs. Any person subject to the regulatory provisions of this title who violates any provision thereof or permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to a safe and stable condition.

(3)    Violations Declared a Public Nuisance. All violations of this title are hereby declared a public nuisance and may be abated in a manner as prescribed by Chapter 14.16. (Ord. 1776 §§ 14, 15, 2014; Ord. 1542 § 1 (part), 2005).

18.20.140 Aquifer recharge areas.

(a)    Classification. Aquifer recharge areas are classified in accordance with the provisions of the comprehensive plan and are based on the potential for contaminants to enter the aquifer using data from the most current NRCS soil survey for Okanogan County and the Colville Indian Reservation.

(b)    Designation. No aquifer recharge areas are known to have been mapped within the city or surrounding planning area. Therefore, aquifer recharge areas in Omak shall be designated based on potential using the classification provisions in the comprehensive plan. Because the designation focuses on areas where recharge potential exists, protections shall be broad enough to preserve essential aquifer recharge functions and values. Maps A6 and A7 in the map appendix to the comprehensive plan designate potential aquifer recharge areas.

(c)    Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to aquifer recharge areas:

(1)    Development activities within an aquifer recharge area shall be designed, developed and operated in a manner that will not potentially degrade groundwater resources nor adversely effect the recharging of the aquifer.

(2)    A hydrogeologic study and/or ongoing monitoring may be required to assess impacts of development activities on groundwater resources.

(3)    All proposed activities within aquifer recharge areas must comply with the water source protection requirements of the Federal Environmental Protection Agency, State Department of Health and the Okanogan County Health District.

(4)    On-site stormwater facilities shall be designed and installed in all aquifer recharge areas, so as to provide both detention and treatment of all runoff associated with the development consistent with the “Stormwater Management Manual for Eastern Washington” as it now exists or hereinafter amended.

(5)    All development occurring within aquifer recharge areas shall be required to connect to city sewer and water, and on-site sewage disposal shall be prohibited.

(6)    Landfills, junkyards/salvage yards, mining, wood treatment facilities, or any other activity that could impair the recharge of critical aquifer recharge areas. Such activities may be permitted in areas with high or moderate recharge potential in accord with applicable zoning regulations, providing the applicant can satisfactorily demonstrate that potential negative impacts to groundwater can be prevented.

(7)    All storage tanks, whether above or underground shall be required to be constructed so as to be protected against corrosion for the operational life of the tank, to prevent any release of hazardous substances to the ground, ground waters, or surface waters, and to utilize appropriate containment methods.

(8)    Any agricultural activities conducted within aquifer recharge areas shall incorporate best management practices concerning waste disposal, fertilizer/pesticide/herbicide use, and stream corridor management. If necessary applicants shall seek technical assistance from the Okanogan County Conservation District or the WSU Cooperative Extension Office.

(9)    Application of pesticides, herbicides and fertilizers within aquifer recharge areas shall comply with timing and rates specified on product packaging.

(10)    Vehicle repair and servicing activities must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Floor drains shall include an oil/water separator. Chemicals used in the process of vehicle repair and servicing must be stored in a manner that protects them from weather and provides containment should leaks occur. (Ord. 1776 §§ 16—19, 2014; Ord. 1542 § 1 (part), 2005).

18.20.150 Fish and wildlife habitat conservation areas.

(a)    Classification. Fish and wildlife habitat conservation areas are classified in accordance with the provisions of the comprehensive plan and are based on data from the Department of Fish and Wildlife Priority Habitats and Species Program (PHS). “Priority habitats” 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 habitat and species (PHS) maps prepared in cooperation with Okanogan County based on WDFW data depict general locations of habitat conservation areas. However, because species populations and habitat systems are dynamic, site review shall be required to verify designation as a habitat conservation area.

(b)    Designation. Fish and wildlife conservation areas are designated in accordance with the provisions of the comprehensive plan. Map A8 in the map appendix to the comprehensive plan designates fish and wildlife habitat conservation areas.

(c)    Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to fish and wildlife habitat conservation areas:

(1)    Habitat Assessment. Critical area reports for fish and wildlife habitat conservation areas shall include a habitat assessment to evaluate the presence or absence of a critical species or habitat.

(2)    All projects shall comply with the applicable federal, state and local regulations regarding the species and habitats identified to upon a site.

(3)    The Washington State Department of Fish and Wildlife priority habitat and species management recommendations shall be consulted in developing specific measures to protect a specific project site.

(4)    When needed to protect the functions and values of habitat conservation areas, the administrator shall require the establishment of buffer areas for activities in or adjacent to such areas. Buffers shall consist of an undisturbed area of native vegetation, or areas identified for restoration. Buffer widths shall reflect the classification and sensitivity of the habitat and the intensity of activity proposed, and shall be consistent with the management recommendations issued by the State Department of Fish and Wildlife and other management recommendations that meet the criteria of best available science.

(5)    Any approved alteration or development shall be required to minimize impacts to native vegetation. Where disturbance is unavoidable, the applicant shall restore the area to the extent possible using native plants appropriate to the site. New plantings shall be monitored and maintained in good growing condition and kept free of invasive weeds until well established upon the site.

(6)    Within riparian habitat conservation areas, vegetation shall not be removed unless no other alternative exists. In such cases, clearing shall be limited to those areas necessary and disturbed areas shall be replanted with site-appropriate native riparian vegetation.

(7)    Access to habitat conservation areas or buffers may be restricted in accord with the findings of a critical areas report, mitigation report, priority habitats and species management recommendations or other best available science. Access restrictions may include fencing and signs, as needed to ensure protection of habitat functions and values. Restrictions may be seasonal in nature.

(8)    Subdivision of lands within habitat conservation areas shall be subject to the following:

(A)    Uplands: Chapter 17.32 and any conditions established through review under Sections 18.20.080 and 18.20.090;

(B)    Riparian: Chapter 17.32 and any conditions established through review under Sections 18.20.080 and 18.20.090 and the city’s shoreline master program as it now exists or hereinafter amended.

(9)    All activities, uses and alterations proposed to be located in or adjacent to water bodies used by anadromous fish shall give special consideration to the preservation and enhancement of associated habitats. (Ord. 1776 §§ 20—23, 2014; Ord. 1542 § 1 (part), 2005).

18.20.160 Wetlands.

(a)    Classification. Wetlands in Omak and its urban growth area shall be classified in accordance with the provisions of the comprehensive plan using the Washington State Wetlands Rating System for Eastern Washington.

(b)    Designation. Wetlands in Omak and its UGA are designated using the provisions of the comprehensive plan. To date, there has been no wetlands mapping done specifically for the Omak area. To remedy this, the city should pursue an accurate accounting of all wetlands in its planning area based on the Washington State Wetlands Rating System for Eastern Washington and the definition in Section 18.20.210.

However, until funding is obtained to conduct a comprehensive inventory of wetlands, the National Wetlands Inventory (NWI) maps are used as a basis for designation. The NWI maps, along with other supportive documentation, shall be used to review development proposals, but because the National Wetlands Inventory was done at such a broad scale, local verification according to the classification criteria shall be part of the standard process for identifying and designating wetlands. Map A9 in the map appendix to the comprehensive plan designates wetlands.

(c)    Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to wetland areas:

(1)    Activities and uses shall be prohibited from wetlands or wetland buffers unless the applicant can show that the proposed activity will not degrade the functions and values of the wetland or other critical areas, or as otherwise provided in this chapter. The following table describes the level of impact expected from different land uses:

Types of proposed land use that can result in high, moderate, and low levels of impacts to adjacent wetlands. Level of impact from proposed change in land use

Types of land use based on common zoning designations

High

• Commercial

• Urban

• Industrial

• Institutional

• Retail sales

• Residential (more than 1 du/acre)

• Conversion to high intensity agriculture (dairies, nurseries, greenhouses, growing and harvesting crops requiring annual tillage and raising and maintaining animals)

• High intensity recreation (golf courses, ball fields, etc.)

• Hobby farms

Moderate

• Residential (1 du/acre or less)

• Moderate intensity open space (parks with biking, jogging, etc.)

• Conversion to moderate intensity agriculture (orchards, hay fields, etc.)

• Paved trails

• Building of logging roads

• Utility corridor or right-of-way shared by several utilities and including access/maintenance road

Low

• Forestry (cutting of trees only)

• Low intensity open space (hiking, birdwatching, preservation of natural resources, etc.)

• Unpaved trails

• Utility corridor without a maintenance road and little or no vegetation management

(2)    Buffer Widths. The following standard buffer widths have been established in accord with best available science to provide predictability in the regulation of wetlands:

(A)

Category I

 

 

 

High intensity

 

300 feet

 

Low intensity

 

200 feet

(B)

Category II

 

 

 

High intensity

 

200 feet

 

Low intensity

 

100 feet

(C)

Category III

 

 

 

High intensity

 

100 feet

 

Low intensity

 

50 feet

(D)

Category IV

 

 

 

High intensity

 

50 feet

 

Low intensity

 

25 feet

The standard buffer widths shall be applied unless the administrator determines through a scientifically supportable method that a greater or lesser buffer width would serve to protect the functions and values of a particular wetland. The standard buffer widths may not be reduced by more than twenty-five percent. Greater buffer widths or rehabilitation of an inadequate plant community may be required where necessary to ensure development does not result in adverse impacts to wetlands.

(3)    Revise to state explicitly the acceptable methods for delineating buffers on the ground. A good example of how this might be handled is in subsection (c)(9) of this section.

Measurement and Delineation of Wetland Buffers. All buffers shall be measured on a horizontal plane from the wetland boundary as surveyed in the field. The width of the wetland buffer shall be determined according to the wetland category and the proposed land use. The same buffer widths and measurement criteria shall apply to any wetland created, restored, or enhanced as compensation for approved wetland alterations. Buffers shall be clearly marked on the ground and the administrator may require temporary or permanent signs and/or fencing along the perimeter of a wetland or buffer in order to protect the functions and values of the wetland, or to minimize future impacts or encroachment upon the wetland or buffer.

(4)    Wetland Buffer Width Averaging. The administrator may allow averaging of wetland buffer widths in accordance with an approved critical areas report, provided the following conditions are met:

(A)    There will be no reduction in wetland functions and values;

(B)    The wetland contains variations in sensitivity due to physical characteristics or the character of the buffer varies in slope, soils, or vegetation such that the wetland would benefit from a wider buffer in some areas and a narrower buffer in other places; and

(C)    The total area contained in the buffer area is no less than would have otherwise been applied under a constant buffer width.

(5)    Where other critical areas coincide with wetlands, buffers shall be configured so as to protect aggregate functions and values. Particular consideration shall be given to habitat connectivity.

(6)    Wetland buffer zones shall be retained in their natural condition. Where buffer disturbances are unavoidable during adjacent construction, re-vegetation with native plant materials will be required.

(7)    The following activities shall be allowed within wetland buffers:

(A)    Conservation or restoration activities aimed at protecting soil, water, vegetation or wildlife;

(B)    Passive recreation, including walkways or trails located in the outer twenty-five percent of the buffer area, wildlife viewing structures, and fishing access areas, provided these are designed and approved as part of an overall site development plan;

(C)    Educational and scientific research activities; and

(D)    Normal and routine maintenance and repair of any existing public or private facilities provided appropriate measures are undertaken to minimize impacts to the wetland and its buffer and that disturbed areas are restored to a natural condition.

(8)    Stormwater management facilities shall be allowed within the outer twenty-five percent of a wetland buffer provided there is no other feasible location and that the location of such facilities will not adversely impact the functions and values of the wetland.

(9)    As a condition of any permit or authorization pursuant to this chapter, the administrator may require temporary or permanent signs and/or fencing along the perimeter of a wetland or buffer in order to protect the functions and values of the wetland, or to minimize future impacts or encroachment upon the wetland or buffer.

(10)    Wetland alteration proposals shall be approved only if no alternative is available. If alteration is unavoidable, all adverse impacts shall be mitigated as set forth in an approved critical areas report and mitigation plan.

(11)    Mitigation shall achieve equivalent or greater biological functions as existed in the wetland prior to mitigation.

(12)    When possible, mitigation shall be on-site and sufficient to maintain the functions and values of the wetland and buffer areas. If on-site mitigation is not feasible, then the applicant shall demonstrate that the site is the nearest that can reasonably achieve the goals of mitigation with high likelihood of success.

(13)    Mitigation actions that require compensation by replacing, enhancing or substitution shall occur in the following order of preference:

(A)    Restoring, replacing or enhancing the wetland on the site of the project;

(B)    Restoring, replacing or enhancing degraded wetlands in the same sub-basin;

(C)    Creating wetlands on upland sites that were former wetlands or that are disturbed upland sites;

(D)    Preserving high quality wetlands that are under imminent threat.

(14)    The following ratios apply to the creation, restoration or preservation of wetlands that is in-kind, on site, the same category, timed prior to or concurrent with alteration, and has a high probability of success:

Category and Type of Wetland

Creation or Re-Establishment

Rehabilitation

Enhancement

(A) Category I

6:1

12:1

24:1

(B) Category II

3:1

6:1

12:1

(C) Category III

2:1

4:1

8:1

(D) Category IV

1.5:1

3:1

6:1

These ratios do not apply to remedial actions resulting from unauthorized alterations.

(15)    The mitigation ratio may be increased if the administrator identifies that:

(A)    Uncertainty exists as to the probable success of the proposed restoration or creation;

(B)    A significant time period will elapse between impact and replication of wetland functions;

(C)    Proposed mitigation will result in a lower category of wetland or reduced functions relative to the wetland being impacted; or

(D)    The impact was due to an unauthorized action.

(16)    The administrator may decrease the mitigation ratio where:

(A)    Documentation by a qualified wetlands specialist demonstrates that the proposed mitigation actions have a very high likelihood of success;

(B)    Documentation by a qualified wetlands specialist demonstrates that the proposed mitigation actions will provide functions and values greater than the wetland being impacted; or

(C)    The proposed mitigation actions are conducted in advance of the impact and have been shown to be successful.

(17)    The long or short subdivision of lands that include wetlands is subject to the following:

(A)    Land that is located wholly within a wetland or its buffer may not be subdivided.

(B)    Land that is located partially within a wetland 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 meets minimum lot size requirements.

(C)    Access roads and utilities serving the proposed subdivision may be permitted within the wetland and associated buffers only if the city determines that no other feasible alternative exists.

(18)    The administrator may allow greater density of development outside of wetland areas and associated buffers as an incentive, provided:

(A)    A high level of protection for on-site resources is provided and demonstrated in an approved critical areas report and mitigation plan;

(B)    A showing of good and sufficient cause;

(C)    A determination that failure to grant the increase in density would result in exceptional hardship to the applicant. (Ord. 1776 §§ 24—27, 2014; Ord. 1542 § 1 (part), 2005).

18.20.170 Frequently flooded areas.

(a)    Classification. Frequently flooded areas in Omak and its UGA are classified based on the provisions of the comprehensive plan using the flood insurance rate map prepared by the Federal Emergency Management Agency.

(b)    Designation. The city of Omak designates those areas of special flood hazard indicated in the flood hazard boundary map/flood insurance rate map and flood boundary/floodway map, together with the accompanying Flood Insurance Study for Community Number 530120 0001C, November 16, 1982. Since flood hazards are not necessarily constrained to those areas detailed in the flood insurance study and maps, the mapping for the areas of local concern should be accomplished as information becomes available. Map A10 in the map appendix to the comprehensive plan designates frequently flooded areas.

(c)    Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to frequently flooded areas:

(1)    All development within Class I and Class II frequently flooded areas shall be reviewed under and subject to the requirements of Chapter 14.28 of the Omak Municipal Code.

(2)    Where frequently flooded areas coincide with other designated critical areas, critical areas reports and mitigation plans shall address any combined functions and values.

(3)    Structures shall be located outside of frequently flooded areas except where no alternative location exists.

(4)    Following construction of a structure within the floodplain where base flood elevation is provided, 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 for recording.

(5)    Fill and grading in the floodplain shall only occur upon a determination by a qualified professional that the fill or grading will not block side channels, inhibit channel migration, increase flood hazards to others, or be placed within a defined channel migration zone, whether or not the city has delineated such zones as of the time of application.

(6)    Subdivision in frequently flooded areas is subject to the following:

(A)    All lots created shall have adequate building space outside flood hazard areas, including the floodway, one hundred-year floodplain, and channel migration zones and protect the functions and values of frequently flooded areas;

(B)    Plat maps shall indicate floodway, one hundred-year floodplain and channel migration zones;

(C)    Subdivisions shall be designed to minimize or eliminate the potential for flood damage; and

(D)    Subdivisions shall provide for stormwater drainage, in accordance with city standards, so as to reduce exposure to flood hazards. (Ord. 1776 §§ 28, 29, 2014; Ord. 1542 § 1 (part), 2005).

18.20.180 Geologically hazardous areas.

(a)    Classification. Geologically hazardous areas in Omak and its UGA are classified based on the provisions of the comprehensive plan. Known geologically hazardous areas within the city of Omak consist of erosion hazard areas, including steep slopes. As more information is obtained that demonstrates the existence of other types and/or areas of geologically hazardous areas, these types and/or areas shall be classified and protected in accordance with the provisions of this chapter.

(b)    Designations. Geologically hazardous areas are designated in the comprehensive plan based on the classification system. Map A11 in the comprehensive plan designates geologically hazardous areas.

(c)    Standards. In addition to the general provisions of this chapter and the requirements of the underlying zone, the following minimum standards shall apply to development activities within and adjacent to geologic hazard areas:

(1)    Critical areas reports for a geologically hazardous areas shall include a geotechnical analysis completed by a qualified professional with expertise in the particular hazard(s) present in a given critical area.

(2)    Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

(A)    Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;

(B)    Will not adversely impact other critical areas;

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

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

(3)    Critical areas reports and mitigation plans for geologically hazardous areas shall establish buffer widths as needed to eliminate or minimize risks of property damage, death, or injury resulting from development of the hazard area. Where established, buffers shall be maintained between all permitted uses and activities and the designated geologically hazardous area(s).

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

(5)    Structures and improvements shall be clustered to avoid geologically hazardous areas and other critical areas.

(6)    Development and activities located within landslide or erosion hazard areas shall provide for long-term slope stability, and design shall incorporate the following standards:

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

(B)    Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

(C)    The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;

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

(E)    Development shall be designed to minimize impervious lot coverage.

(7)    Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available.

(8)    Subdivision of lands in erosion, landslide, and mine hazard areas is subject to the following:

(A)    Land that is located wholly within erosion, landslide or mine hazard area or its buffer may not be subdivided. Land that is located partially within an erosion, landslide or mine hazard area or its buffer may be divided provided that each resulting lot has sufficient buildable area outside of, and will not affect, the geologic hazard area.

(B)    Access roads and utilities within identified erosion, landslide or mine hazard areas and associated buffers are prohibited. (Ord. 1776 §§ 30, 31, 2014; Ord. 1542 § 1 (part), 2005).

18.20.190 Composite critical areas map.

The composite critical areas map displays critical areas in Omak and its urban growth area based on the critical areas designations in Section 18.20.140 through 18.20.180 and on the data described in Section 18.20.060 of this chapter. (Ord. 1542 § 1 (part), 2005).

18.20.200 General provisions.

In the event of any conflict between these regulations and any other regulations, that which provides greater protection to the critical area(s) shall apply. The provisions contained herein shall be the minimum requirements and shall be liberally interpreted to serve the purposes of this chapter. The presence of any known critical areas on or within two hundred fifty feet of property that is the subject of a development permit shall be identified by the applicant in the application materials submitted to the city. (Ord. 1776 § 6, 2014).

18.20.210 Definitions.

“Aquifer recharge areas” means an area with a critical recharging effect on aquifers used for potable water where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of the water.

“Best available science” means the 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; for when used within the SMP, the most current, accurate, and complete scientific and technical information available (WAC 173-26-201(2)(a)).

“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:

(1) Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxins, and sediment.

(2) Minimize adverse impacts to surface water and ground water flow, circulation pattern, and to the chemical, physical, and biological characteristics of waters, wetlands, and other fish and wildlife habitats.

(3) Control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw material.

“Critical areas” include the following areas and ecosystems, as designated by the city of Omak: wetlands; areas with a critical recharging effect on aquifers used for potable water; aquatic, riparian, upland and wetland fish and wildlife habitat conservation areas; frequently flooded areas; channel migration zones; and geologically hazardous areas.

“Critical areas report” means a report prepared by a qualified professional required by the city that inventories and analyzes the development impacts of a proposed action on a critical area.

“Fish and wildlife habitat conservation areas” means the habitats of priority species, priority habitats, and habitats of local importance for fish and wildlife that include a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, movement corridors, and areas of limited availability or high vulnerability to alteration, such as cliffs, talus, and wetlands.

“Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year, and includes but is not limited to streams, rivers, lakes, coastal areas, wetlands and the like.

“Function” 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; groundwater recharge and discharge; erosion control; and aesthetic value protection and recreation.

“Geologically hazardous areas” means:

(1) Any area designated as a geologically hazardous area by the local government with jurisdiction; or

(2) Any other area that is not suited to siting commercial, residential, or industrial development consistent with public health or safety concerns, because of the area’s susceptibility to erosion, sliding, earthquake, or other geological events, including but not limited to:

(A) Channel migration zones;

(B) Erosion hazard areas: areas that contain soil types, according to Soil Conservation Service’s soil classification system, that may experience severe to very severe erosion;

(C) Landslide hazard areas: areas that have the potential of risk of mass movement resulting from a combination of geologic, topographic, and hydrologic factors;

(D) Seismic hazard areas: areas that are subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, or soil liquefaction;

(E) Mine hazard areas: areas that are directly underlain by, adjacent to, or affected by mine workings such as adits, tunnels, drifts, or air shafts;

(F) Volcanic hazard areas: areas subject to pyroclastic flows, lava flows, and inundation by debris flows, mud flows, or related flooding resulting from volcanic activity.

“Mine hazard areas” means areas underlain by, adjacent to, or affected by, mine workings such as adits, gangways, tunnels, drifts or air shafts.

“Mineral lands” means lands designated as mineral resource lands, as required by the Growth Management Act, RCW 36.70A.170.

“Mitigation” means avoiding, minimizing, rectifying, reducing, compensating for, and/or monitoring an impact as defined in Washington State’s SMP rules, WAC 173-26-201(2)(e).

“Native vegetation” means vegetation comprised of plant species that are indigenous to an area.

“Priority habitat” means a habitat type with unique or significant value to one or more species and designated as priority habitat by the Washington Department of Fish and Wildlife.

“Qualified professional” means a person with experience and training in the pertinent scientific discipline, and who is a qualified scientific expert with expertise appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4). A qualified professional will have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology or related field, and have at least two years of related work experience. A geologist must have a state license.

“Resource lands” means agricultural, mineral, and forest lands that have long-term commercial significance with regard to growing capacity, productivity, and soil composition, in consideration with the land’s proximity to population areas, and the possibility of more intense use of the land.

“Restoration” means improving, enhancing or re-establishing a once viable and now degraded critical area to a state in which its stability functions and values approach its unaltered state.

“Riparian area” means those transitional areas between terrestrial and aquatic ecosystems and are distinguished by gradients in biophysical conditions, ecological processes, and biota. They are areas through which surface and subsurface hydrology connect water bodies with their adjacent uplands. They include those portions of terrestrial ecosystems that significantly influence exchanges of energy and matter with aquatic ecosystems (i.e., a zone of influence). Riparian areas are adjacent to perennial, intermittent, and ephemeral (with existing riparian vegetation) streams, lakes, and estuarine-marine shorelines.

“Seismic hazard areas” means areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, or soil liquefaction.

“Wetlands” 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 may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. (Ord. 1776 § 8, 2014).


1

Part of the qualifications include an appropriate state license if professional licensing is required by the state (e.g., engineers, land surveyor, etc.).