Chapter 13.08


13.08.010    Authority, and relationship to other regulations.

13.08.020    Purpose—Goals—Policies.

13.08.030    Definitions.

13.08.040    Applicability and critical areas map.

13.08.050    Allowed uses.

13.08.070    Exemptions.

13.08.080    Reasonable use exception.

13.08.090    Amendments.

13.08.100    Critical area report.

13.08.110    Critical area report—Modifications to requirements.

13.08.120    General critical area protective measures.

13.08.150    Best available science.

13.08.160    Development standards.

13.08.170    Mitigation.

13.08.190    Application fees.

13.08.200    Bonds to ensure mitigation, maintenance and monitoring.

13.08.210    Critical area inspections.

13.08.230    Enforcement.

13.08.240    Severability.

13.08.250    Interpretation.

13.08.010 Authority, and relationship to other regulations.

(a)    RCW 36.70A.060 requires that local governments adopt development regulations to ensure the conservation of agricultural, forest and mineral resource lands and to adopt development regulations precluding land uses or development that is incompatible with critical areas designated under RCW 36.70A.170.

(b)    Relationship to Other Regulations.

(1)    These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city. Regulations specific to each type of critical area are found in Chapters 13.10, Critical Areas—Critical Aquifer Recharge Areas, 13.11, Critical Areas—Fish and Wildlife Habitat Conservation Areas, 13.12, Critical Areas—Frequently Flooded Areas, 13.13, Critical Areas—Geologically Hazardous Areas, and 13.14, Critical Areas—Wetlands.

(2)    Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

(3)    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.

(4)    Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Hydraulic Permit Act (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 permits, National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.020 Purpose—Goals—Policies.

(a)    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. Furthermore, the purpose is also to protect people, public and private property, and natural and/or balanced ecosystems, as required by the GMA.

(b)    This chapter implements the goals, policies, guidelines, and requirements of the Othello comprehensive plan and the GMA.

(c)    The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, ground water recharge and discharge, erosion control, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

(d)    This chapter protects environmentally sensitive resources in the city. The chapter protects environmentally sensitive resources by establishing minimum standards for development of properties that contain environmentally sensitive features and their buffers and thereby protecting the public health, safety, and welfare. These standards serve to preclude land uses and developments which are incompatible with critical areas by:

(1)    Protecting the public and public resources and facilities from injury, loss of life, or property damage due to flooding, erosion, landslides and steep slope failures, seismic events, tsunamis, or soil subsidence;

(2)    Avoiding public expenditures to address improper use or improper management of critical areas;

(3)    Preventing degradation of the natural environment;

(4)    Protecting unique, fragile, and valuable elements of the environment;

(5)    Including best available science (BAS) in developing policies and development regulations to protect the functions and values of critical areas;

(6)    Giving special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries;

(7)    Protecting the local renewable resources that the city’s economy is heavily dependent on through conservation and protective measures;

(8)    Alerting property owners, potential buyers or lessees, and others to the existence of and the development limitations of critical areas; and

(9)    Providing city officials with sufficient information to protect critical areas when approving, conditioning, or denying public or private development proposals.

(e)    This chapter is intended to protect critical areas and their buffers in accordance with the GMA through the application of the BAS, and in consultation with state and federal agencies and other qualified professionals.

(f)    This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of the city to make property unusable or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community.

(g)    The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.030 Definitions.

For the purposes of this chapter the definitions set forth in this chapter shall apply. Unless specifically defined in this chapter, or within the other chapters in this title specific to each type of critical area, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application.

“Alteration” means any human-induced change in an existing condition of a critical area or its buffer. Alterations include, but are not limited to, grading, filling, channelizing, dredging, clearing of vegetation, construction, compaction, excavation, or any other activity that changes the character of the critical area.

“Aquifer recharge areas” means areas that, due to the presence of certain soils, geology, and surface water, act to recharge ground water by percolation.

“Aquifers” refer to ground-water-bearing geologic formations that contain enough saturated permeable material to yield significant quantities of water to wells.

“Artificial wetlands intentionally created from nonwetland sites” are only those wetlands which, upon examination using best available science, are found to have all three of the following criteria:

(1)    The wetland is sustained by water that has been intentionally pumped or piped for irrigation or disposal and if the pumping or piped flow ceased, the wetland would naturally disappear.

(2)    The wetland was created by water that was intentionally applied to land for irrigation, disposal, or seeped from water in reservoirs, canals, drains, retention or treatment facilities.

(3)    The wetland did not exist prior to the United States Bureau of Reclamation Columbia Basin Irrigation Project.

“Best available science (BAS)” means information from research, inventory, monitoring, surveys, modeling, synthesis, expert opinion, and assessment that is used to designate, protect, or restore critical areas and that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. BAS is derived from a process that includes peer-reviewed literature, standard methods, logical conclusions and reasonable inferences, quantitative analysis, and documented references to produce reliable information.

“Best management practices (BMPs)” means the utilization of methods, techniques, or products which have been demonstrated to be the most effective and reliable in minimizing environmental impacts. BMPs encompass a variety of behavioral, procedural, and structural measures that reduce the amount of contaminants in stormwater runoff and in receiving waters and include conservation practices or systems of practices and management measures that:

(1)    Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, or sediment;

(2)    Minimize adverse impacts to surface water and ground water flow and circulation patterns and to the chemical, physical, and biological characteristics of wetlands;

(3)    Protect trees, vegetation and soils designated to be retained during and following site construction and use native plant species appropriate to the site for revegetation of disturbed areas; and

(4)    Provide standards for proper use of chemical herbicides within critical areas.

“Buffer management” means actions and practices conducted for the purpose of protection and enhancement of critical areas by moderating or eliminating adverse impacts from adjacent land(s) or areas to create a buffer from encroachment by urban growth areas.

“Buffer or buffer zone” means the area contiguous with a critical area that maintains the functions and/or structural stability of the critical area.

“Candidate species” means a native species under review for possible listing as endangered, threatened, or sensitive. A species will be considered for candidate designation if sufficient scientific evidence suggests that its status may meet criteria defined for “endangered,” “threatened” or “sensitive.” Currently listed state threatened or state sensitive species may also be designated as state candidate species if their status is in question.

“Clearing” means the removal of vegetation or plant cover by manual, chemical, or mechanical means. Clearing includes, but is not limited to, actions such as cutting, felling, thinning, flooding, killing, poisoning, girdling, uprooting, or burning.

“Compensation” means actions necessary to replace project-induced critical area and buffer losses, including land acquisition, planning, construction plans, monitoring, and contingency actions.

“Conservation easement” means a legal agreement that the property owner enters into to restrict uses of the land. Such restrictions can include, but are not limited to, passive recreation uses such as trails or scientific uses and fences or other barriers to protect habitat. The easement is recorded on a property deed, runs with the land, and is legally binding on all present and future owners of the property, therefore, providing permanent or long-term protection.

“Council” means the council of the city of Othello.

“Critical aquifer recharge areas” (CARAs) are areas described in WAC 365-190-100(4)(b) that are determined to have a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(3).

“Critical areas” are defined under RCW 36.70A.030 and include the following areas and ecosystems:

(1)    Frequently flooded areas;

(2)    Areas with a critical recharging effect on aquifers used for potable water;

(3)    Geologically hazardous areas;

(4)    Fish and wildlife habitat conservation areas; and

(5)    Wetlands.

“Director” means the city of Othello community development director.

“Emergency” means an unanticipated and imminent threat to public health, safety, or the environment, requiring immediate action within a time too short to allow full compliance with the CAO.

“Endangered species” means any wildlife species native to the state of Washington that is seriously threatened with extinction throughout all or a significant portion of its range within the state (WAC 220-610-110).

“Enhancement” means the manipulation of the physical, chemical, or biological characteristics of a buffer, or wetland, or other area to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, floodwater retention, or wildlife habitat. Enhancement results in a change in buffer or wetland function(s) and can lead to a decline in other buffer or wetland functions, but does not result in a gain in buffer or wetland area. Examples are planting vegetation, controlling nonnative or invasive species, and modifying site elevations to alter hydroperiods.

“Environmental impacts” means the effects or consequences of actions on the natural and built environments. Environmental impacts include effects upon the elements of the environment listed in the State Environmental Policy Act (SEPA). Refer to WAC 197-11-600 and 197-11-444.

“Erosion” means the process whereby wind, rain, water, and other natural agents mobilize and transport particles.

“Feasible” means an action, such as a development project, mitigation, or preservation requirement, that meets all of the following conditions:

(1)    The action can be accomplished with technologies and methods that have been used in the past in similar circumstances, or studies or tests have demonstrated in similar circumstances that such approaches are currently available and likely to achieve the intended results;

(2)    The action provides a reasonable likelihood of achieving its intended purpose; and

(3)    The action does not physically preclude achieving the project’s primary intended legal use.

The burden of proving infeasibility is on the applicant. In determining an action’s infeasibility, the city may weigh the action’s relative public costs and public benefits, considered in the short- and long-term periods.

“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 habitats or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness.

Fish and wildlife habitat conservation areas do not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company (WAC 365-190-030(6)(a)).

“Floodplain” is synonymous with one-hundred-year floodplain. The land area that is susceptible to being inundated with a one percent chance of being equaled or exceeded in a given year. The limits of this area are based on flood regulation ordinance maps.

“Floodway” means the channel of a stream or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot (WAC 173-158-030).

“Frequently flooded areas” include lands in the floodplain subject to a one percent or greater chance of flooding in any given year. These areas include, but are not limited to, streams, rivers, lakes, coastal areas, wetlands and the like. The one-hundred-year floodplain designations of the National Flood Insurance Program delineate the presence of frequently flooded areas.

“Functions and values” means the services provided by critical areas to society, including, but not limited to, improving and maintaining water quality, providing fish and wildlife habitat, supporting terrestrial and aquatic food chains, reducing flooding and erosive flows, wave attenuation, historical or archaeological importance, educational opportunities, and recreation.

“Geologically hazardous areas” means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, need mitigation to be suited to the siting of commercial, residential, or industrial development to address public health or safety concerns.

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

“Ground water management program” means a comprehensive program designed to protect ground water quality, to assure ground water quantity, and to provide for efficient management of water resources while recognizing existing ground water rights and meeting future needs consistent with local and state objectives, policies and authorities within a designated ground water management area or sub-area developed pursuant to Chapter 173-100 WAC.

“Habitat” means the environment occupied by individuals of a particular species, population or community.

“Habitat conservation areas” means areas designated as fish and wildlife habitat conservation areas.

“Hazardous substances” means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical, or biological properties described in WAC 173-303-090 or 173-303-100.

“Impacts” means adverse effects of one thing upon another.

“Impervious surface” means any alterations to the surface of a soil that prevent or retard the entry of water into it compared to its undisturbed condition, or any reductions in infiltration that cause water to run off the surface in greater quantities or at an increased rate of flow compared to that present prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled macadam or other surfaces, which similarly impede the natural infiltration of stormwater.

“Infiltration” means the downward entry of water into the immediate surface of soil.

“Injection well(s)” include:

(1)    “Class I” means a well used to inject industrial, commercial, or municipal waste fluids beneath the lowermost formation containing, within one-quarter mile of the well bore, an underground source of drinking water.

(2)    “Class II” means a well used to inject fluids:

(A)    Brought to the surface in connection with conventional oil or natural gas exploration or production and may be commingled with wastewaters from gas plants that are an integral part of production operations, unless those waters are classified as dangerous wastes at the time of injection;

(B)    For enhanced recovery of oil or natural gas; or

(C)    For storage of hydrocarbons that are liquid at standard temperature and pressure.

(3)    “Class III” means a well used for extraction of minerals, including but not limited to the injection of fluids for:

(A)    In-situ production of uranium or other metals that have not been conventionally mined;

(B)    Mining of sulfur by Frasch process; or

(C)    Solution mining of salts or potash.

(4)    “Class IV” means a well used to inject dangerous or radioactive waste fluids.

(5)    “Class V” means all injection wells not included in Class I, II, III, or IV.

“Local habitat area” means an area that contains sufficient food, water, or cover for native terrestrial or aquatic species that the city has identified in this chapter as being of significant local concern.

“Long-term commercial significance” means the capacity, productivity and soil composition of land for long-term commercial production, in consideration with the land’s proximity to population areas, and the possibility of more intense uses of the land.

“Major development” includes proposed development projects that are subject to objective and subjective standards that require the exercise of limited discretion about nontechnical issues and which may require a public hearing. Included within this type of development are subdivisions, conditional use permits, planned residential developments, shoreline substantial development permits and other similar applications.

“Minor development” includes proposed development projects that are subject to clear, objective and nondiscretionary standards that require the exercise of professional judgment about technical issues. Included within this type of development are single-family building permits, temporary use permits, boundary line adjustments, short subdivisions, home occupations, and accessory uses and/or structures.

“Mitigation” or “mitigation sequencing” means avoiding, reducing, or compensating for a proposal’s environmental impact(s). See WAC 197-11-768. Mitigation or mitigation sequencing means the following sequence of steps listed in order of priority, the first listed item being the top priority:

(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 during the life of the action;

(5)    Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or

(6)    Monitoring the impact and the compensation projects and taking appropriate corrective measures to achieve the identified goal.

“Monitoring” means evaluating the impacts of development proposals on the biological, hydrological, and geological elements of such systems, and assessing the performance of required mitigation measures through the collection and analysis of data by various methods for the purpose of understanding and documenting changes in natural ecosystems and features. Monitoring includes gathering baseline data.

“Native,” when referring to plants or plant communities, means those species or communities that are indigenous to the watershed, including extirpated species.

“Native species,” when referring to wildlife, means any wildlife species naturally occurring in Washington for purposes of breeding, resting, or foraging, excluding introduced species not historically found in this state (WAC 220-610-110).

“New construction” means structures for which the “start of construction” commenced on or after the effective date of the ordinance codified in this chapter.

“Person” means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or any agency of the state or local governmental unit however designated.

“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, with less of an impact to critical areas.

“Preservation” means the removal of a threat to, or preventing the decline of, wetland or other critical area conditions by an action in or near a wetland or other critical area. This term includes the purchase of land or easements, repairing water control structures or fences, or structural protection. Preservation does not result in a gain of wetland or other critical area acres but may result in a gain in functions over the long term.

“Primary association” means key habitat components that are critical to the life cycle of native wildlife species, i.e., nesting sites, wintering areas, and migration corridors. Loss of these values will result in fragmentation into sub-populations or extinction of populations from local areas.

“Priority habitat” means a habitat type with unique or significant value to one or more species. Per WAC 173-26-020, an area classified and mapped as priority habitat must have one or more of the following attributes:

(1)    Comparatively high fish or wildlife density;

(2)    Comparatively high fish or wildlife species diversity;

(3)    Fish spawning habitat;

(4)    Important wildlife habitat;

(5)    Important fish or wildlife seasonal range;

(6)    Important fish or wildlife movement corridor;

(7)    Rearing and foraging habitat;

(8)    Important marine mammal haul-out;

(9)    Refugia habitat;

(10)    Limited availability;

(11)    High vulnerability to habitat alteration;

(12)    Unique or dependent species; or

(13)    Shellfish bed.

A priority habitat may be described by a unique vegetation type or by a dominant plant species that is of primary importance to fish and wildlife (such as oak woodlands or eelgrass meadows). A priority habitat may also be described by a successional stage (such as old growth and mature forests). Alternatively, a priority habitat may consist of a specific habitat element (such as talus slopes, caves, and snags) of key value to fish and wildlife. A priority habitat may contain priority and/or nonpriority fish and wildlife.

“Priority habitats and species program” means Washington Department of Fish and Wildlife’s system of classifying habitats and associated species that are of specific concern due to population status and/or sensitivity to habitat manipulation.

“Priority species” means any fish or wildlife species requiring protective measures and/or management guidelines to ensure its persistence at genetically viable population levels as classified by the WDFW, including endangered, threatened, sensitive, candidate, and monitor species, and those of recreational, commercial, or tribal importance.

“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 must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology, or related field, and two years of related work experience.

(1)    A qualified professional for habitats or wetlands must have a degree in geology, hydrology, or biology and professional experience related to the subject species.

(2)    A qualified professional for a geological hazard must be a professional engineer or geologist licensed in the state of Washington.

(3)    A qualified professional for CARAs means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.

“Reasonable use” means a legal concept articulated by federal and state courts in regulatory taking cases.

“Regulated activities” include land clearing, grading, placement of fill or waste material, removal of protected native vegetation, construction, platting, zone changes, and other habitat-altering activities.

“Restoration” means actions performed to reestablish wetland functional characteristics and processes which have been lost by alterations, activities or catastrophic events within an area which no longer meets the definition of a wetland.

“Review authority” means the decision maker that issues the final land use order, not the appeal authority.

“Sensitive species” means any wildlife species native to the state of Washington that is vulnerable or declining, and is likely to become endangered or threatened in a significant portion of its ranges within the state, without cooperative management or removal of threats (WAC 220-610-110).

“SEPA” means State Environmental Policy Act, Chapter 43.21C RCW and Chapter 197-11 WAC.

“Sole source aquifer” means an aquifer designated by EPA as the sole or principal source of drinking water for a given aquifer service area; that is, an aquifer which is needed to supply fifty percent or more of the drinking water for that area and for which there is no reasonably available alternative source should the aquifer become contaminated.

“Start of construction” means the date the building permit was issued, provided the actual start of construction, placement of a manufactured home on a foundation or other permanent construction beyond the stage of excavation was within one hundred eighty days of the permit date.

(1)    The “actual start” means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation, or the placement of a manufactured home on a foundation.

(2)    Permanent construction does not include:

(A)    Land preparation, such as clearing, grading and filling;

(B)    Installation of streets and/or walkways;

(C)    Excavation for a basement, footings, piers, or foundation or the erection of temporary forms;

(D)    Construction of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.

“Threatened species” means any wildlife species native to the state of Washington that is likely to become an endangered species within the foreseeable future throughout a significant portion of its ranges within the state without cooperative management or the removal of threats (WAC 220-610-110).

“Utility line” means pipe, conduit, cable, irrigation canal, drain, storage or retention pond, or other similar facility by which services are conveyed to the public or individual recipients. Such services shall include, but are not limited to, water supply, sanitary sewer, irrigation, power, gas, stormwater, and communications.

“Wellhead protection area” means the surface and subsurface area surrounding a water well or well field supplying a public water system, through which contaminants are reasonably likely to move toward and reach such water well or well field.

“Wetland” or “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 created to mitigate conversion of wetlands.

“Wetland delineation” means the flagging or staking in the field of the edges of the wetland by a qualified consultant or their representative, in accordance with the approved Federal Wetland Delineation Manual and applicable regional supplement. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.040 Applicability and critical areas map.

(a)    Applicability.

(1)    The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

(2)    When the requirements of this chapter are more stringent than those of other Othello codes and regulations, the requirements of this chapter shall apply.

(3)    Where a site contains two or more critical areas, the site shall meet the minimum standards and requirements for each identified critical area as set forth in this chapter.

(4)    The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the best available science (BAS) and the provisions herein. The city shall not approve any zoning code amendment, zoning variance, land use permit, building permit, site improvement permit, short subdivision, major subdivision, or otherwise issue any authorization to alter the condition of any land or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, if the proposed activity does not comply with the requirements of this chapter.

(b)    Jurisdiction—Critical Areas. Critical areas potentially located within the city and regulated by this title include:

(1)    Critical aquifer recharge areas;

(2)    Fish and wildlife habitat conservation areas;

(3)    Frequently flooded areas;

(4)    Geologically hazardous areas; and

(5)    Wetlands.

(c)    Buffers. Critical areas include the protective buffer areas to lands identified as critical areas.

(d)    Areas Adjacent to Critical Areas Are Subject to Regulation. Areas adjacent to critical areas other than CARAs shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this chapter and ensure protection of the functions and values of critical areas. “Adjacent” shall mean any activity located:

(1)    On a site immediately adjoining a critical area;

(2)    A distance equal to or less than the required critical area buffer width and building setback;

(3)    A distance equal to or less than six hundred sixty feet from a bald eagle nest;

(4)    A distance equal to or less than three hundred feet upland from a stream, wetland, or water body; or

(5)    Within the floodway, floodplain, or channel migration zone.

(e)    Reference Maps and Inventories. The distribution of critical areas within the city are described and displayed in reference materials. These reference materials are intended for general information only and do not depict site-specific designations. These reference materials include but are not limited to the following:

(1)    Maps.

(A)    Any maps created through a critical areas review process;

(B)    WDFW priority habitats and species maps, as amended;

(C)    USGS quadrangle maps;

(D)    Flood insurance rate maps (FEMA), as amended;

(E)    Flood boundary and floodway maps (FEMA), as amended;

(F)    Aerial photographs;

(G)    USFWS National Wetlands Inventory maps, as amended;

(H)    Columbia Basin Ground Water Management Area maps, as amended;

(I)    Columbia Basin Irrigation Project topography and retracement maps from 1939 to 1943 and from 1960, as well as other preconstruction and construction maps developed for the project;

(J)    Previously completed maps in the vicinity of a permit application;

(K)    Geological hazard area maps, as listed in Section 13.13.030;

(L)    Washington State Department of Health Source Water Assessment Program (SWAP) Mapping Application.

(2)    Documents.

(A)    Flood Insurance Study for Adams County, Washington and Incorporated Areas, dated January 16, 2009, with accompanying digital flood insurance rate maps, as amended;

(B)    City of Othello comprehensive plan, as amended;

(C)    Natural Resources Conservation Service Soil Survey for Adams County;

(D)    The 1987 Federal (Corps of Engineers) Wetland Delineation Manual and Regional Supplements in accordance with WAC 173-22-035;

(E)    Washington State Wetlands Rating System for Eastern Washington (Revised, Publication No. 14-06-030, October 2014), as revised;

(F)    Management Recommendations for Washington’s Priority Habitats and Species (WDFW) as amended;

(G)    Management Recommendations for Washington’s Priority Habitats—Wetlands (WDFW) as amended;

(H)    Previously completed special reports conducted in the vicinity of a permit application;

(I)    Columbia Basin Ground Water Management Area Plan, as amended.

(f)    Use of Existing Procedures and Laws. The following laws and procedures shall be used to implement this chapter:

(1)    Othello Municipal Code. Development activity regulated by Title 16, Subdivisions, and Title 17, Zoning, that will occur within a protected critical area or critical area buffer shall comply with the provisions of this chapter.

(2)    The State Environmental Policy Act (SEPA), Chapter 43.21C RCW and Chapter 197-11 WAC. Development activity that is likely to have a significant adverse impact upon identified critical areas regulated by this chapter shall not be categorically exempt from SEPA review and shall demonstrate compliance with this chapter.

(g)    State and Federal Agency Review. Regulated activities subject to this chapter shall be routed to appropriate state and federal agencies for review and comment as required through the SEPA review process.

(h)    Applicability by Activity. The level of review required for uses or activities is established under this chapter.

(1)    Exempt (E). Activities or uses that are exempt require no review and do not need to meet the standards of this chapter.

(2)    Review Required (RR). Activities and uses that are categorized as “review required” must comply with the standards of this chapter but no special report is needed. Determination of compliance with this chapter shall be determined through the review process required for the underlying development permit application.

(3)    Critical Area Report (CAR). For activities where a critical area report is required, the applicant must submit a report consistent with this chapter and with the underlying development application and will submit additional application fees consistent with the adopted fee schedule.

(4)    The director shall have the discretion to determine whether the proposed activity may adversely impact protected critical areas and/or their buffers and shall assign the appropriate level of review, exempt, review required, or critical areas report. The decision of the director may be appealed to the hearing examiner. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.050 Allowed uses.

(a)    Approval Required. Unless the requirements of this chapter are met, Othello shall not grant any approval or permission to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement regulated through the following: building permit, commercial or residential; binding site plan; franchise right-of-way construction permit; site development permit; right-of-way permit; shoreline permits; short subdivision; use permits; subdivision; utility permits; or any subsequently adopted permit or required approval not expressly exempted by this chapter.

(b)    Compliance with Federal or State Requirements. Compliance with these regulations does not remove an applicant’s obligation to comply with applicable provisions of any other federal, state, or local law or regulation.

(c)    Review Process. The uses listed in this section may be approved, subject to a review process, if the proposed development activity meets the standards in Section 13.08.160, Development standards, and Section 13.08.170, Mitigation.

(d)    Allowed Uses. The city may allow the following uses on critical areas and within buffer areas subject to the review and mitigation requirements of this chapter:

(1)    Pervious trails for nonmotorized uses;

(2)    Below- or above-ground public utilities, facilities and improvements, initiated by the city, where necessary to serve development consistent with the Othello comprehensive plan, including: streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, domestic water systems, storm and sanitary sewer systems, open space, and parks and recreational facilities, anticipated in the capital facilities plan, where there is no other reasonable alternative, based on topographic and environmental conditions, as determined by the director;

(3)    Removal of diseased or dangerous trees, as determined by the city public works director, or the removal of invasive or nuisance plants;

(4)    Construction, replacement, or alteration of a single-family dwelling unit in a residential zoning district on a legal lot of record created prior to the effective date of the ordinance codified in this chapter so long as the replacement or expansion conforms to the height regulations, lot coverage and dimension standards and other design provisions for the zone in which the residence is located. The dwelling unit shall be used solely for single-family purposes. Approval is subject to a review process. The city may modify underlying zoning district dimensional standards applicable by up to a fifty percent adjustment, if necessary to protect critical areas. Any expansion of an existing dwelling unit shall occur only on the upland side of the dwelling; the expansion shall be limited to twenty-five percent of the existing footprint or one thousand square feet, whichever is smaller; and the expansion shall be allowed only within the wetland buffer, not within the wetland itself;

(5)    Existing agricultural practices on lands used continuously for agricultural purposes since December 31, 2006. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.070 Exemptions.

(a)    Exempt Activities in All Critical Areas. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements.

To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. 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.

(1)    Emergencies. Emergency activities 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 requirements of this chapter. 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. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Following the emergency, appropriate mitigation shall be implemented and permanent activities, installations or impacts are subject to review and compliance with the applicable standards.

(A)    Authorization. Notwithstanding the provisions of this chapter, the director may issue a temporary emergency permit prospectively or, in the case of imminent threats to public health, safety or welfare, retroactively, where the anticipated threat or loss may occur before a permit can be issued or modified under the procedures otherwise required by the applicable laws.

(B)    Prior to issuing an emergency permit, the director shall issue a finding that extraordinary circumstances exist and that the potential threat to public health, safety or welfare from the emergency situation is clearly significant and substantial.

(C)    Conditions. Any emergency permit granted shall incorporate, to the greatest extent practicable and feasible but not inconsistent with the emergency situation, the standards and criteria required for nonemergency activities and shall:

(i)    Be limited in duration to the time required to complete the authorized emergency activity, not to exceed ninety days; and

(ii)    Require, within this ninety-day period, the restoration of any wetland altered as a result of the emergency activity, except that if more than the ninety days from the issuance of the emergency permit is required to complete restoration, the emergency permit may be extended to complete this restoration.

(D)    Notice. Notice of issuance of an emergency permit shall be published in a newspaper having general circulation in the city of Othello not later than ten days after issuance of such permit.

(E)    Termination. The emergency permit may be terminated at any time without process upon a determination by the city that the action is no longer necessary to protect human health or the environment.

(2)    Repair. Repair or replacement of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees or drainage systems, including operation and maintenance of existing facilities, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed maintenance or repair.

(3)    Activities within the Improved Public Right-of-Way or Recorded Easement. 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 recorded easement, or a city-authorized private roadway, except those private activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater.

(4)    Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary; provided, that their use shall be restricted in accordance with Department of Fish and Wildlife management recommendations and the regulations of the Department of Ecology, Department of Agriculture, and the U.S. Environmental Protection Agency.

(5)    Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored.

(6)    Boundary Markers. Construction or modification of boundary markers or fences.

(7)    Construction and modifications to existing structures that do not increase the footprint of the structure.

(8)    The removal of the following vegetation with hand labor and light equipment, and vegetation removal that is a hazard to electrical power lines with handheld and walk-beside equipment such as mowers and weed eaters in compliance with the provisions contained in the ANSI A300 (Part 1) guidelines, including, but not limited to:

(A)    Invasive nonnative weeds.

(B)    Emergency or hazard tree removal conducted so that habitat impacts are minimized.

(C)    Public improvement projects located within existing impervious surface areas.

(D)    Public agency and utility exemption.

(b)    Exemption Review Process. The director shall review the exemption to verify that it complies with this chapter and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the department and the proponent notified. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter. Determinations shall be subject to appeal pursuant to Chapter 19.11.

(c)    Exempt Activities Shall Minimize Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential adverse impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. 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. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.080 Reasonable use exception.

(a)    General Requirements.

(1)    The standards and requirements of these regulations are not intended, and shall not be construed or applied in a manner, to deny all reasonable use of private property. If an applicant demonstrates that strict application of these standards would deny all reasonable use of a property, development may be permitted subject to appropriate conditions.

(2)    If the application of this chapter would deny all reasonable use of a legal lot, development may be allowed that is consistent with the general purposes of this chapter and the public interest. Nothing in this chapter is intended to preclude all reasonable use of property.

(3)    The director shall prepare and maintain application forms necessary to implement this section.

(b)    Application Requirements.

(1)    Preliminary Review. The provisions for conducting a preliminary review of a proposed reasonable use exception are set forth in subsection (c) of this section.

(2)    Regulations—General Provisions—Application Filing.

(A)    Reasonable use exception applications shall be reviewed for completeness in accordance with city submittal standards pursuant to Section 19.07.050.

(B)    An applicant for a development proposal may file a request for a reasonable use exception which shall include the following information:

(i)    A description of the areas of the site which are critical areas or within setbacks required under this chapter;

(ii)    A description of the amount of the site which is within setbacks required by other standards of Title 17;

(iii)    A description of the proposed development, including a site plan;

(iv)    An analysis of the impact that the amount of development described in subsection (b)(2)(B)(iii) of this section would have on the critical area(s);

(v)    An analysis of whether any other reasonable use is possible that would result in less impact on the critical area(s) and associated buffer(s);

(vi)    A design of the proposal so that the amount of development proposed as reasonable use will have the least impact practicable on the critical area(s);

(vii)    An analysis of the modifications needed to the standards of this chapter to accommodate the proposed development;

(viii)    A description of any modifications needed to the required front, side, and rear setbacks; building height; and buffer widths to provide for a reasonable use of the site while providing greater protection to the critical area(s);

(ix)    A 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 (SEPA, Chapter 43.21C RCW); and

(x)    Such other information as the city determines is reasonably necessary to evaluate the issue of reasonable use as it relates to the proposed development.

(c)    Public Review.

(1)    The city shall process a request for a reasonable use exception as a conditional use permit procedure pursuant to Section 17.05.050.

(2)    The city shall forward a copy of a request for reasonable use exception to the state and federal agencies with jurisdiction over the resource at issue and to all property owners within three hundred feet of the subject property.

(3)    The city shall provide public notice of the request for reasonable use exception pursuant to Section 19.07.080.

(4)    An aggrieved party shall appeal a final decision of a request for reasonable use exception pursuant to Chapter 19.11.

(d)    Reasonable Use Exception Decision Criteria. An application for relief from strict application of these standards shall demonstrate that all of the following criteria are met:

(1)    No other reasonable use of the property has less impact on the critical area or its buffer.

(2)    There is no feasible and reasonable on-site alternative to the activities proposed, considering possible changes in site layout, reductions in density and similar factors, that would allow a reasonable and economically viable use with fewer adverse impacts;

(3)    The proposed activities, as conditioned, will result in the minimum possible impacts to affected critical areas;

(4)    All reasonable mitigation measures have been implemented or assured;

(5)    The inability to derive reasonable use is not the result of the applicant’s actions or that of a previous property owner, such as by segregating or dividing the property and creating an undevelopable condition;

(6)    The applicant shall demonstrate that the use would not cause a hazard to life, health, or property; and

(7)    The proposal is consistent with other applicable regulations and standards. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.090 Amendments.

The provisions of this chapter may be amended from time to time, through a public review and hearing process that includes at least one public hearing by the city planning commission and at least one public meeting by the city council. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.100 Critical area report.

(a)    Preparation by Qualified Professional. If required by the director in accordance with Section 13.08.040(h), the applicant shall submit a critical area report prepared by a qualified professional as defined herein.

(b)    Incorporating of BAS. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical area report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

(c)    Minimum Report Contents. At a minimum, the report shall contain the following items. In the event the following items have been addressed in reports or permit applications required by other agencies, the director may accept the permit or study from another agency in whole or part as meeting the requirements below.

(1)    The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

(2)    A copy of the site plan for the development proposal including:

(A)    A vicinity map;

(B)    A map to scale depicting delineated and surveyed critical areas, required buffers including buffers for off-site critical areas that extend onto the project site, the development proposal, any areas to be cleared and areas of proposed impacts to critical areas and/or buffers (include square footage estimates); and

(C)    A depiction of the proposed stormwater management facilities and outlets (to scale) for the development, including estimated areas of intrusion into the buffers of any critical areas. The written report shall contain a discussion of the potential impacts to the wetland(s) associated with anticipated hydroperiod alterations from the project.

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

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

(F)    A statement specifying the accuracy of the report, and all assumptions made and relied upon;

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

(H)    An analysis of site development alternatives including a no development alternative;

(I)    A description of reasonable efforts made to apply mitigation sequencing pursuant to Section 13.08.170(b) to avoid, minimize, and mitigate impacts to critical areas;

(J)    Plans for adequate mitigation, as needed, to offset any impacts, in accordance with Section 13.08.170(e), including, but not limited to:

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

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

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

(iv)    Financial guarantees to ensure compliance; and

(v)    Any additional information required for the critical area as specified in the corresponding chapter of this title.

(d)    Unless otherwise provided, a critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the director. (Ord. 1505 § 1 (part), 2018).

13.08.110 Critical area report—Modifications to requirements.

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

(1)    The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

(2)    The proposed activity will affect only a limited part of the subject site.

(b)    Modifications to Required Contents. The applicant may consult with the director prior to or during preparation of the critical area report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to address the potential critical area impacts and required mitigation adequately.

(c)    Additional Information Requirements. The director may require additional information to be included in the critical area report when determined to be necessary to the review of the proposed activity in accordance with this chapter. Additional information that may be required, includes, but is not limited to:

(1)    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;

(2)    Grading and drainage plans; and

(3)    Information specific to the type, location, and nature of the critical area. (Ord. 1505 § 1 (part), 2018).

13.08.120 General critical area protective measures.

(a)    Protection of Critical Areas.

(1)    Any action taken pursuant to this chapter shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with Section 13.08.170 to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts, before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas.

(b)    Critical Area Markers and Signs. This subsection is not applicable to CARAs.

(1)    Temporary Markers. The outer perimeter of the critical area buffer and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary “clearing limits” fencing in such a way as to ensure that unauthorized intrusion will not occur. The marking is subject to inspection by the director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

(2)    Fencing. Fencing installed as part of a proposed activity or as required in this section shall be designed not to interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat.

(3)    Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the director may require the applicant to install permanent signs along the boundary of a critical area or buffer.

(4)    Permanent Signs—Specifications. Permanent signs shall be made of an enamel-coated metal face and attached to a metal post or another nontreated material of equal durability. Signs must be posted at an interval of one per lot or every fifty feet, whichever is less, and must be maintained by the property owner in perpetuity. The signs shall be worded as follows or with alternative language approved by the director:

Protected Area

Do Not Disturb

Contact the city of Othello

Regarding Uses, Restrictions, and Opportunities for Stewardship

(5)    The provisions of subsection (a)(1) of this section may be modified as necessary to assure protection of sensitive features or wildlife.

(c)    Notice on Title. This subsection is not applicable to CARAs.

(1)    In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county auditor according to the direction of the city. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.

(2)    This notice on title shall not be required for a development proposal by a public agency or public or private utility:

(A)    Within a recorded easement or right-of-way;

(B)    Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

(C)    On the site of a permanent public facility.

(3)    The applicant shall submit proof that the notice has been filed for public record before the city approves any permit.

(d)    Critical Area Tracts.

(1)    Critical area tracts shall be used in development proposals for major subdivisions, short subdivisions, master planned developments, and binding site plans, to delineate and protect those contiguous critical areas and buffers listed below that total five thousand or more square feet:

(A)    All landslide hazard areas and buffers;

(B)    All wetlands and buffers;

(C)    All habitat conservation areas; and

(D)    All other lands to be protected from alterations as conditioned by project approval.

(2)    Critical area tracts shall be recorded on all documents of title of record for all affected lots.

(3)    Critical area tracts shall be designated on the face of the plat or recorded as a drawing in a format approved by the city attorney. The designation shall include the following restriction:

(A)    An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

(B)    The right of the city to enforce the terms of the restriction.

(4)    The city may require that any required 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 homeowners’ association or other legal entity.

(e)    Building Setbacks. This subsection is not applicable to CARAs.

(1)    Unless otherwise provided, buildings and other structures shall be set back a distance of fifteen feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. The following may be allowed in the building setback area:

(A)    Landscaping;

(B)    Uncovered decks;

(C)    Building overhangs, if such overhangs do not extend more than eighteen inches into the setback area; and

(D)    Impervious ground surfaces, such as driveways and patios, if such improvements are subject to water quality regulations as adopted in the Stormwater Management Manual for Eastern Washington, current edition, prepared by Ecology. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018).

13.08.150 Best available science.

(a)    Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance wetland and wildlife habitat.

(b)    Best available science is that scientific information applicable to the critical area prepared by local, state or federal natural resource agencies, a qualified scientific professional or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.

(c)    Herrera Environmental Consultants prepared a Summary of Best Available Science report (Herrera, 2016) for the city, which included a synthesis of BAS current as of the date of the final report which is consistent with criteria established in WAC 365-195-900 through 365-195-925.

(d)    Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area, leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the city shall:

(1)    Take a precautionary or a no-risk approach that strictly limits development activities until the uncertainty is sufficiently resolved; and

(2)    Require an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.160 Development standards.

Within critical areas other than CARAs, the city shall prohibit soil excavation, grading, removal of native vegetation species, draining, intentional burning, planting of invasive or nuisance vegetation, placement of structures and new construction on critical areas unless otherwise authorized in this chapter. Development within CARAs is regulated in Chapter 13.10.

(a)    Applicability. These development standards apply to uses on critical areas and within buffers unless otherwise exempted in this chapter.

(b)    Performance Standards. In order to approve application for development on lands subject to this chapter, the director shall find that the following standards have been met:

(1)    All reasonable alternatives for locating the development activity in such a way so as to avoid critical areas have been considered and the development activity will be located in the least environmentally sensitive area as practicable and the purpose of this chapter is fulfilled.

(2)    The city has approved the vegetation removal methods and the removal of native plants has been avoided, to the extent practicable.

(3)    All adverse impacts to all affected critical areas and buffers are either avoided or fully mitigated.

(4)    The plan minimizes cuts and fills.

(5)    The director has reviewed and approved an erosion control plan, grading plan, and vegetation removal and replanting plan prior to construction activity.

(6)    All activities have received applicable state and federal permits, and comply with SEPA requirements if the lead agency makes a threshold determination of significance (DS), or a mitigated determination of nonsignificance (MDNS).

(7)    Compliance with this chapter does not constitute compliance with state and federal environmental standards. The applicant shall be responsible for demonstrating such compliance.

(c)    Review Process.

(1)    The review process shall be the type specified in Chapter 19.09 for each particular land use action unless otherwise specified in this chapter.

(2)    Applications to develop on critical areas or their buffers shall not be subject to review if, within a one-year period, the cumulative impact on critical areas is:

(A)    Disturbance of less than ten cubic feet of soil; or

(B)    An activity, the fair market cost of which is less than five hundred dollars. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.170 Mitigation.

(a)    Mitigation Requirements—Generally. Per WAC 365-196-830, compensatory mitigation is applicable only to geohazard areas and wetlands, and not to other types of critical areas; therefore, this section is applicable only to geohazard areas and wetlands.

(1)    The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to critical areas and buffers resulting from a development proposal shall be mitigated using BAS in accordance with an approved critical area report and SEPA documents, to result in no net loss of critical area functions and values.

(2)    Mitigation shall be in-kind and 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.

(3)    Mitigation shall not be implemented until after city approval of a critical area report, which includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical area report.

(b)    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 sequential order of preference. Mitigation for individual actions may include a combination of the below measures.

(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 during the life of the action;

(5)    Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or

(6)    Monitoring the impact and the compensation projects and taking appropriate corrective measures.

(c)    Innovative Mitigation. The city may encourage, facilitate, and approve innovative mitigation projects that are based on the BAS. Advance mitigation or mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

(1)    Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

(2)    The group demonstrates the organizational and fiscal capability to act cooperatively;

(3)    The group demonstrates that long-term management of the habitat area will be provided; and

(4)    There is a clear potential for success of the proposed mitigation at the identified mitigation site.

Conducting mitigation as part of a cooperative process does not reduce or eliminate the required replacement ratios. Chapter 173-700 WAC and Chapter 90.84 RCW provide state rules and laws on wetland mitigation banks.

(d)    Mitigation Plan Approval. City approval of a mitigation plan is a prerequisite for approval of any development activities in critical areas.

(1)    The applicant shall submit a written request describing the extent and nature of the proposed development activity on critical areas and buffers. The request shall include boundary locations of all critical areas and attendant buffers.

(2)    The application for development shall include a mitigation plan prepared in compliance with this section. Wetland mitigation plans shall be developed utilizing the guidelines found in the most recent version of Wetland Mitigation in Washington State, Part 1, Agency Policies and Guidance (Version 1, Publication No. 06-06-011a, March 2006) and Wetland Mitigation in Washington State, Part 2, Developing Mitigation Plans (Version 1, Publication No. 06-06-011b, March 2006) or subsequent guidance.

(3)    The city may require the applicant to prepare special reports evaluating potential adverse impacts upon critical areas and potential mitigation measures as part of the land use application process. These reports may include, but are not limited to, the following: stormwater management plan; hydrology, geology, and soils report; grading and erosion control plan; native vegetation report; fish and wildlife assessment and impact report; water quality report; wetlands delineation; and other reports determined necessary by the city.

(4)    The city shall consult with state and federal resource management agencies and, in order to protect wildlife habitat or natural resource values, shall attach such conditions as may be necessary to effectively mitigate identified adverse impacts of the proposed development activity.

(5)    The city may request third-party peer review of an application by qualified professionals and may incorporate recommendations from such third-party reports in findings approving or denying the application.

(6)    All reports recommending mitigation shall include provisions for monitoring of programs and replacement of improvements, on an annual basis, consistent with report recommendations and at one-, three-, five- and seven-year intervals.

(7)    The city may require replacement mitigation to be established and functional prior to project construction.

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

(1)    Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed, 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 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 BAS 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; and

(C)    An analysis of the likelihood of success of the compensation project.

(2)    Performance Standards. The mitigation plan shall include 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.

(3)    Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

(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.

These written specifications shall be accompanied by 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 outcome.

(4)    Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring, and how the monitoring data will be evaluated to determine if the 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. Scrub-shrub or forested vegetation communities may require ten years or more to reach eighty percent canopy closure.

(5)    Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

(6)    Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with Section 13.08.200. (Ord. 1551 § 1 (part), 2020: Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.190 Application fees.

(a)    At the time of application for land use review or critical areas review, the applicant shall pay a critical areas review fee, adopted by the city council, from time to time, by resolution.

(b)    Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.200 Bonds to ensure mitigation, maintenance and monitoring.

(a)    When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

(b)    The bond shall be in the amount of one hundred twenty-five 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, and the cost of maintenance and monitoring for a ten-year period.

(c)    The bond shall be in the form of an assignment of savings account, surety bond, performance bond, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney or other method acceptable to the director.

(d)    Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of ten years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

(e)    Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

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

(g)    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 thirty 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 by the city code or any other law.

(h)    Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.210 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.230 Enforcement.

This chapter shall be enforced in the same manner as provided in Title 17 for the enforcement of the zoning code. (Ord. 1505 § 1 (part), 2018: Ord. 1291 § 1 (part), 2009: Ord. 1288 § 1 (part), 2009).

13.08.240 Severability.

If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. (Ord. 1505 § 1 (part), 2018).

13.08.250 Interpretation.

In the interpretation and application of the ordinance codified in this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of the ordinance codified in this chapter, and shall be deemed to neither limit nor repeal any other provision under state statute. (Ord. 1505 § 1 (part), 2018).