Chapter 18.04
CRITICAL AREAS PROTECTION1
Sections:
18.04.030 Designation of critical areas.
18.04.040 Construction with other laws.
18.04.060 New permits required for activities in critical areas.
18.04.065 Critical areas report and mitigation.
18.04.067 Mitigation requirements.
18.04.070 Performance standards.
18.04.110 Administrative appeals.
18.04.120 Nonconforming activities.
18.04.010 Purpose.
The purpose of this chapter is to protect the functions and values of critical areas, and to protect the public health, safety, and welfare of the citizens of Waterville. Additionally, this chapter is intended to protect public and private property and natural ecosystems found within town limits. The town of Waterville finds that development in and/or near critical areas may pose a threat to public and private property, to natural ecosystems and to the public health, safety and welfare. This chapter aims to protect critical areas and to channel development to less ecologically sensitive areas. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992).
18.04.020 Definitions.
A. “Critical aquifer recharge areas” include areas with a critical recharging effect on aquifers used for potable water, including areas where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of the water, or is susceptible to reduced recharge.
B. “Critical areas” include the following areas and ecosystems:
1. Wetlands;
2. Areas with a critical recharging effect on aquifers used for potable water;
3. Fish and wildlife habitat conservation areas;
4. Frequently flooded areas; and
5. Geologically hazardous areas.
C. “Fish and wildlife habitat conservation areas” include:
1. Areas with which endangered, threatened, and sensitive species have primary association;
2. Habitats and species of local importance;
3. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish and wildlife habitat;
4. Waters of the state;
5. State natural area preserves and natural resource conservation areas;
6. Fish and wildlife habitat conservation areas does 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.
D. “Frequently flooded areas” include those flooded areas in the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program and other frequently flooded areas.
E. “Geologically hazardous area” means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns.
F. “Qualified professional, wetlands” means a professional wetland scientist with at least two years’ full-time work experience as a wetlands professional, including delineating wetlands using the federal manual and supplements, preparing wetlands reports, conducting function assessments, and developing and implementing mitigation plans.
G. “Wetland” or “wetlands” means an area that is 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, riparian areas, and other 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. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992).
18.04.030 Designation of critical areas.
A. The town of Waterville shall regulate all uses, activities and developments within, adjacent to, or likely to affect, one or more critical areas, as classified and designated in the town of Waterville comprehensive plan, consistent with best available science and provisions herein.
B. Critical areas regulated by this chapter include:
1. Wetlands are those areas, designated in accordance with the classification system set forth in the town of Waterville comprehensive plan. All areas within the town designated as wetlands on Map 5 in the map appendix to the comprehensive plan and in addition the identification of wetlands and delineation of their boundaries pursuant to this chapter shall be done in accordance with the approved federal wetland delineation manual and applicable regional supplements are hereby designated critical areas and are subject to the provisions of this title. Wetlands shall be rated according to the Washington State Department of Ecology wetland rating system found in the Washington State Wetland Rating System documents (Eastern Washington, Ecology Publication No. 04-16-15) or as revised by Ecology.
2. Critical aquifer recharge areas (CARAs) (WAC 365-190-030) have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water and are classified and designated in the town of Waterville comprehensive plan based on soil vulnerability rating and location within a wellhead protection area (see Map 6 in comprehensive plan map appendix).
3. Frequently flooded areas are those areas that have a one percent or greater chance of flooding in any given year. These areas may include, but are not limited to, streams (including intermittent ones), draws/ravines, rivers, wetlands, draws and the like. Map 7 in the map appendix to the comprehensive plan illustrates designated frequently flooded areas in the community.
4. Geologically hazardous areas are classified and designated in the town of Waterville comprehensive plan. Map 8 in the map appendix to the comprehensive plan designated those areas of Waterville that lie within a geologically hazardous area.
5. Fish and wildlife habitat conservation areas are classified and designated in the town of Waterville comprehensive plan. Map 9 in the map appendix to the comprehensive plan designates fish and wildlife habitat conservation areas in the community.
C. All areas within the town designated in the comprehensive plan as one or more critical area are hereby designated critical areas and are subject to the provisions of this chapter. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006).
18.04.040 Construction with other laws.
A. Abrogation and Greater Restrictions. When this chapter imposes greater restrictions than other town codes or “civil” land arrangements, the provisions of this chapter shall prevail.
B. 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. The applicant is responsible for complying with these requirements, apart from the process established in this chapter. Where applicable the administrator will encourage use of information such as permit applications to other agencies or special studies prepared in response to other regulatory requirements to support documentation submitted for critical areas review.
C. Interpretation. The provisions of this chapter shall be liberally construed to serve the purposes of this chapter. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.030).
18.04.050 Permitting.
All applications for permits to conduct activities having a possible significant impact on critical areas that are located on or near a project site must identify the areas affected and make an estimate of the probable impact. The town of Waterville shall deny all requests for permits which would result in activities degrading a wetland or fish and/or wildlife habitat conservation area, which would put people or property in a position of unacceptable risk with respect to floods or geologic hazards, which would tend to aggravate geologic hazards, or which would harm critical recharging areas for aquifers. The town of Waterville may, however, grant permits which include mitigation measures, based on WMC 18.04.070, Performance standards, if the mitigation measures, limited to proposals for development in geologically hazardous areas or wetlands, adequately protect the critical area and people involved. In granting a permit that includes mitigation measures, best available science, which shall be determined utilizing the criteria set out in WAC 365-195-900 through 365-195-925, shall be used to develop and approve the mitigation measures. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.040).
18.04.060 New permits required for activities in critical areas.
The following activities shall require a critical areas permit if they are not already reviewed through a more general permit in which the applicant has reported a possible impact on a critical area:
A. In Wetlands. The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter or material of any kind; dumping, discharging, or filling with any material; the draining, flooding, or disturbing of the water level or water table; the driving of pilings; the placing of obstructions; the construction, reconstruction, or demolition or expansion of any structure; the destruction or alteration of wetlands vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland, or activities that result in a significant change of physical or chemical characteristics or wetland water sources, including quantity, or the introduction of pollutants.
B. In Critical Aquifer Recharge Areas. Any land use, agricultural activity, or other activity having significant potential to contaminate the water.
C. In Fish and Wildlife Habitat Conservation Areas. Any land use or other activity having the potential to significantly degrade the habitat or harm wildlife.
D. In Frequently Flooded Areas. Any land use or other activity likely to contribute to a significant increase in flood hazards or to place people/property in danger.
E. In Geologically Hazardous Areas. Any land use or other activity likely to contribute to a significant increase in geological hazards or to place people/property in danger. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.050).
18.04.065 Critical areas report and mitigation.
If the administrator determines that the site of a proposed development potentially includes, or is adjacent to, critical area(s), a critical areas report and mitigation plan may be required. The purpose of the critical areas report is to inform the administrator of the degree of impact that can be expected from the development and to establish the need for mitigation. The applicant shall 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. When mitigation is required, as detailed in WMC 18.04.067, the applicant shall submit for approval a mitigation plan as part of the critical areas report. The expense of preparing the critical areas and mitigation 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 areas report is required for proposals that are exempt from the provisions of this chapter as set forth in WMC 18.04.080.
C. Critical areas reports shall be completed by a qualified professional who is knowledgeable about the specific critical area(s) in question, and approved by the administrator.
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 storm water 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 if applicable;
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;
b. The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment; and
c. A discussion of the performance standards applicable to the critical area and proposed activity;
9. Financial guarantees to ensure compliance; and
10. 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. 812 § 1 (Exh. A), 2019).
18.04.067 Mitigation requirements.
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 enhance ecological function and conditions impacted or lost to the proposed development;
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 alteration of a critical area is unavoidable, mitigation is required. The applicant shall be directed by the administrator to submit for approval a mitigation plan as part of the critical areas 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, sizes, spacing, and density;
e. Measures to protect and maintain plants until established; and
f. Hydrologic and ground water reports.
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 and be reflective of the functions being restored, but not for a period less than five years. For example, 10 years or more may be required to establish adequate reestablishment of forested and scrub-shrub wetlands.
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. 812 § 1 (Exh. A), 2019).
18.04.070 Performance standards.
The following general performance standards shall apply to activities permitted within critical areas or critical area buffers. Additional standards may be necessary based on site-specific considerations or proposed development impacts.
A. General Performance Standards. Areas of new permanent disturbance and all areas of temporary disturbance shall be mitigated and/or restored pursuant to a mitigation and restoration plan.
B. Wetland Areas.
1. Lights shall be directed away from the wetland.
2. Activities that generate noise shall be located away from the wetland, or noise impacts shall be minimized through design or insulation techniques.
3. Toxic runoff from new impervious surface area shall be directed away from wetlands.
4. Treated storm water runoff may be allowed into wetland buffers. Channelized flow should be prevented.
5. Use of pesticides, insecticides and fertilizers within 150 feet of wetland boundary shall be limited and follow best management practices (BMPs).
6. The outer edge of the wetland buffer shall be planted with dense native vegetation and/or fencing to limit pet and human disturbance.
7. To ensure long-term success of a project containing a wetland, a comprehensive wetland mitigation plan will be submitted to the town for its approval. Such plans will provide for sufficient monitoring and contingencies to ensure natural wetland persistence.
8. Proposals for restoration, creation or enhancement of wetlands will be coordinated with appropriate resource agencies providing recommendations to promote adequate design.
9. Activities or uses that would strip the shoreline of vegetative cover, cause substantial erosion or sedimentation, or significantly, adversely affect aquatic life will be prohibited.
10. On-site replacement of wetlands will be provided whenever practical. Where on-site replacement is not feasible or practical due to characteristics of the existing location, replacement will occur within the same watershed and proximity. If necessary, wetlands artificially created voluntarily may be used as mitigation.
11. Buffer Widths. Buffer widths are to be determined through the combination of the functional score, generated by the wetland classification system described in the comprehensive plan, and the proposed land use intensity. Guidelines for establishing high, moderate, and low intensity land uses are provided in Table 18.04.070(B)(1). The use of Table 18.04.070(B)(1) along with the town of Waterville zoning code’s development and performance standards as well as those set forth in this chapter shall be used as to establish the land use intensity. The following standard buffer widths in Table 18.04.070(B)(2) have been established in accordance with the Department of Ecology’s recommendations for Buffer Alternative 3 in Wetlands in Washington State, Volume 2: Managing and Protecting Wetlands (Publication No. 05-06-008) and are considered best available science to provide predictability in the regulation of wetlands.
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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 |
|---|---|
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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 |
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(A) |
Category I |
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High intensity |
300 feet |
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Low intensity |
200 feet |
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(B) |
Category II |
|
|
|
High intensity |
200 feet |
|
|
Low intensity |
100 feet |
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(C) |
Category III |
|
|
|
High intensity |
100 feet |
|
|
Low intensity |
50 feet |
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(D) |
Category IV |
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|
|
High intensity |
50 feet |
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Low intensity |
25 feet |
12. Wetland buffers will be retained in their natural conditions unless a portion of a wetland buffer is proposed to be used in a way that will not have an adverse impact on the wetland, or adequate mitigation cannot or will not be provided.
13. The integrity of the wetland will be maintained as a function of the buffer.
14. Construction of structural shoreline stabilization and flood control works will be minimized.
15. Wetland alteration will not cause significant adverse impacts to wetland ecosystems or surrounding areas, unless the impacts are unavoidable and necessary to the feasibility of the project. In such cases the resultant impacts will be offset through the deliberate restoration, creation, or enhancement of wetlands or other mitigation acceptable to the town.
16. Compliance with wetlands mitigation requirements set forth in Wetland Mitigation in Washington State, Part 1: Agency Policies and Guidance (Version 1, Ecology Publication No. 06-06-011a, March 2006) as revised.
C. Critical Aquifer Recharge Areas (CARAs).
1. Impervious coverage of the lot shall be minimized.
2. Best management practices shall be used during construction and operation or occupancy of any use which could potentially impact ground water quantity or quality.
3. All development shall comply with the requirements of the Eastern Washington Storm Water Management Manual (as revised).
4. Storage Tanks. All storage tanks proposed to be located in a critical aquifer recharge area must comply with local building code requirements and must conform to the following requirements:
a. Underground Tanks. All new underground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:
i. Prevent releases due to corrosion or structural failure for the operational life of the tank;
ii. Be protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substances; and
iii. Use material in the construction or lining of the tank that is compatible with the substance to be stored.
b. Aboveground Tanks. All new aboveground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:
i. Not allow the release of a hazardous substance to the ground, ground waters, or surface waters;
ii. Have a primary containment area enclosing or underlying the tank or part thereof; and
c. A secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks.
5. Hazardous Substances and Materials. All new facilities proposed for use or storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:
a. Prevent releases due to corrosion or structural failure;
b. Be protected against accidental release and stored in appropriate manner to prevent the release or threatened release of any stored substances;
6. Criteria. The following criteria are the minimum requirements to be considered when reviewing an application for development in areas potentially containing a critical aquifer or its recharge area:
a. Alternative site designs, phased development and/or groundwater quality monitoring may be required to reduce contaminant loading where site conditions indicate that the proposed action will potentially degrade groundwater quality.
b. Open space may be required in conjunction with development proposals overlaying areas that are highly susceptible to contamination of groundwater resources.
c. When it is necessary to abandon a well, the applicant shall ensure that it is abandoned according to the state Department of Ecology requirements.
D. Fish and Wildlife Habitat Conservation Areas.
1. Flora (plant life) and fauna (animal life) identified as protected shall be sheltered from construction activities using best management practices.
2. Replacement of any flora shall be maintained by the applicant for three years to establish viable plant life.
3. Criteria. The following criteria are the minimum requirements to be considered when reviewing an application for development in areas potentially containing fish and/or wildlife habitat conservation areas:
a. Whenever possible, the maximum amount of vegetation will be maintained in its natural state and will be disturbed only as minimally necessary for the development. Riparian vegetation will not be removed unless there are no other alternatives available. When it is necessary, only those areas of vegetation that are absolutely unavoidable may be cleared, but must be revegetated with natural riparian vegetation as soon as possible.
b. Revegetation of disturbed areas which reestablishes desirable native plants and/or plants that enhance applicable fish and wildlife populations will be, at a minimum, encouraged, as specified in the conditions for approval of the development. Said revegetation will be maintained in good growing conditions, as well as being kept free of noxious weeds.
c. When appropriate, fencing standards that protect wildlife, as well as providing for the operation and protection of a particular land use, may be part of the conditions placed on approval of a development application. Said standards will be agreed to by the applicant and the town, with recommendations from the WDFW.
d. Access restrictions may be necessary which protect fish and wildlife habitat conservation areas, particularly during critical times of the year. The access restrictions will be agreed to by the applicant and the town, with recommendations from the WDFW.
e. Particularly in instances where a development proposal involves more intense uses, all or part of the required open space (common and/or private) will be dedicated to fish and wildlife habitat conservation, based on the extent and importance of the habitat. The extent and location of said open space will be agreed to by the applicant and the town, with recommendations from the WDFW.
f. In certain instances, it may be necessary to provide vegetation screenings and to provide controls on domestic animals (particularly dogs) to protect the function of critical habitat areas by reducing the potential for harassment from people and/or domesticated animals.
g. Develop brochures, in cooperation with WDFW, which help to educate the citizens on the importance of different species and habitats, and which provide information and techniques on how people can coexist with those species and habitats.
E. Frequently Flooded Areas.
1. All structures and other improvements shall be located on the buildable portion of the site out of the area of flood hazard. Where necessary, residential buildings may be elevated.
2. Utilities shall be located above the base flood elevation (BFE), preferably three or more feet.
3. All new construction and substantial improvements shall be constructed using flood-resistant materials and using methods and practices that minimize flood damage.
4. All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.
5. No rise in the BFE shall be allowed. Post and piling techniques are preferred and are presumed to produce no increase in the BFE.
6. Modification of stream channels shall be avoided.
7. All development with identified frequently flooded areas shall comply with the requirements of Chapter 15.24 WMC.
F. Geologically Hazardous Areas.
1. 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.
2. Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation.
3. The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties.
4. Development shall be designed to minimize impervious surfaces within the critical area and critical area buffer.
5. Criteria. The following criteria are the minimum requirements to be considered when reviewing an application for development in areas potentially containing a geologic hazard area:
a. Development projects will be evaluated to determine:
i. Whether the project is proposed to be located in a geologic hazard area;
ii. The project’s potential impact on geologic hazard areas; and
iii. The potential impact of geologic hazards on the proposed project.
b. Applications for development within or in close proximity of a geologically hazardous area will include preliminary information to assist the town in determining the need for any specialized reports from a geologist or geotechnical engineer. Review criteria will be established to assist staff in making said determination.
c. An erosion control plan will be submitted by the applicant of a development where grading and filling is proposed, and shall be approved as part of the overall review and approval process.
d. All proposed development projects located within a geologic hazard area, or which have the potential to adversely affect the stability of one of these areas, will be required to provide studies performed by qualified consultants describing the existing nature of the hazard and necessary safety precautions.
e. Projects proposed within geologic hazard areas will be required to submit a letter from the geotechnical engineer and/or geologist who prepared the required technical study, stating that the risk of damage from the project, both on-site and off-site, is minimal; the proposal will not increase the risk of occurrence of the hazard; and the proposal has incorporated measures to eliminate or reduce the risk of damage due to the hazard.
f. Development proposals that involve altering land in areas identified, through the review process, as landslide hazard areas or their buffers must demonstrate the status of landslide hazards in the area and whether the project can be as safely developed as if it were not in a landslide hazard area.
g. Any new residential land division that is determined to be in a geologically hazardous area will have a note placed on the face of the plat and on the title report stating that the hazard is present. Said note will be approved by the town attorney.
h. Clearing, grading or filling of sloped sites will have an approved erosion control plan that meets established requirements.
6. All authorized clearing for roads, utilities, etc., should be limited to the minimum necessary to accomplish engineering design. Alterations should meet the following requirements:
a. Clearing, grading or filling of sloped sites containing erosion hazard areas should be limited by weather conditions and an approved erosion control plan.
b. All clearing shall be marked in the field for inspection and approval prior to alteration of the site.
c. The face of cut and fill on slopes shall be prepared and maintained to control against erosion.
7. The following protection elements should be applied during town review of proposed development projects within geologically hazardous areas:
a. Construction methods should be utilized which minimize risks to structures and which do not increase the risk to the site, or to adjacent properties and their structures, from the geologic hazard.
b. Site planning shall minimize disruption of existing topography and natural vegetation, and shall incorporate opportunities for phased clearing.
c. Impervious surface coverage shall be minimized.
d. Disturbed areas shall be replanted as soon as feasible, in accordance with an approved revegetation plan, where appropriate.
e. Clearing and grading schedule shall consider limitations based on seasonal weather conditions.
f. Temporary erosion and sedimentation controls shall be utilized.
g. Conceptual and detailed drainage plans shall be prepared for projects affecting large areas of geologic hazard, with storm water detention standards based upon the technical studies required under this document.
h. Any limitations to site disturbance, such as clearing restrictions, imposed as a condition of development approval shall be marked in the field and approved by the town prior to undertaking the project.
i. A monitoring program shall be prepared for construction activities occurring in critical geologic hazard areas.
j. Development shall not increase instability or create a hazard to the site or adjacent properties, or result in a significant increase in sedimentation or erosion.
k. Discourage excessive grading of property being developed as a building site for residential, commercial, or industrial uses.
G. Additional Considerations.
1. Site-specific considerations may warrant additional performance standards, to be determined during the permit process, to ensure the protection of critical areas.
2. Development-specific considerations may warrant additional performance standards based on level of impact to critical areas. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006).
18.04.080 Exemptions.
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:
A. Emergencies. 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 exemption for emergencies shall not eliminate the need for later mitigation to offset the impacts of emergency activity. Once the immediate threat has been addressed, any adverse impacts on critical areas should be minimized and mitigated. Restoration, rehabilitation, or replacement of a critical area damaged or altered by emergency activities must be initiated within one year of the date of the emergency and be completed in a timely manner;
B. Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, 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 operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species; and
C. Passive Outdoor Activities. Recreation, education and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006).
18.04.090 Reasonable use.
A. Where the provisions of this chapter would prevent all reasonable use of those properties completely encumbered by critical areas, the property owner may apply for a reasonable use exception as provided below. All of the following criteria shall apply where a reasonable use exception is requested:
1. The application of this chapter would deny all reasonable economic use of the property;
2. No other reasonable economic use of the property has less impact on the critical area;
3. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;
4. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor;
5. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
6. The proposal will result in no net loss of critical area functions and values consistent with the best available science; or
7. The proposal is consistent with other applicable regulations and standards.
B. The responsibility of proving the presence of the above criteria shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.
C. A request for a reasonable use exception shall be made to the town of Waterville and shall be processed according to the provisions in WMC 14.08.050, Quasi-judicial review of applications. The request shall include a critical areas report, including a 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. The town shall prepare a recommendation to the town’s hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria identified above.
D. The town hearing examiner shall review and decide upon the request for reasonable use. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with the reasonable use exception criteria identified above. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006).
18.04.100 Penalties.
Carrying out an activity requiring a permit under this chapter with knowledge that a proposed activity requires a permit shall make the violator liable for a civil penalty of up to $500.00. The unknowing failure to seek a permit makes the violator liable for a civil penalty up to $250.00. The town shall process violations of this chapter in accordance with the procedures identified in Chapter 14.90 WMC, Enforcement. Parties aggrieved by activities requiring a permit carried on without a permit can bring civil action to enforce the penalty provisions and the court shall order the defendant to pay the plaintiff’s attorney fees if the action is successful. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.060).
18.04.110 Administrative appeals.
Any aggrieved person dissatisfied with a permitting decision may appeal the decision in accordance with the procedures identified in Chapter 14.10 WMC, Appeals. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.070).
18.04.120 Nonconforming activities.
A regulated activity that was approved prior to the passage of the ordinance codified in this chapter and to which significant economic resources have been committed pursuant to such approval but which does not conform to this chapter may be continued subject to the following:
A. No such activity shall be expanded, changed, enlarged, or altered in any way that increases the extent of its nonconformity without a permit issued pursuant to the provisions of this chapter.
B. Except for cases of discontinuance as part of a normal agricultural activity, if a nonconforming activity is discontinued for 12 consecutive months, any resumption of the activity shall conform to this chapter.
C. If a nonconforming use or activity is destroyed by human activities or an act of God, it shall not be resumed except in conformity with the provisions of this chapter.
D. Activities or adjuncts thereof that are or become nuisances shall not be entitled to continue as nonconforming activities. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.080).
18.04.130 Severability.
If any clause, sentence, paragraph, section or part of this chapter or the application thereof to any person or circumstances shall be adjudged 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 and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances and to this end the provisions of each clause, sentence, paragraph, section or part of this law are hereby declared to be severable. (Ord. 812 § 1 (Exh. A), 2019; Ord. 672 § 1, 2006; Ord. 513 § 1, 1992. Formerly 18.04.090).
Section 2 of Ord. 513 provides: “The resource lands and critical areas policy plan attached to [Ordinance 513] is hereby adopted by the City of Waterville and incorporated herein by this reference as if set forth in full.”