Chapter 18.34
CRITICAL AREAS OVERLAY (CAO) DISTRICT

Sections:

18.34.010  Purpose, intent and applicability.

18.34.020  Permitted, conditional and prohibited uses.

18.34.030  Project review required.

18.34.040  Wetlands.

18.34.050  Aquifer protection areas.

18.34.060  Critical wildlife habitat.

18.34.070  Frequently flooded areas.

18.34.080  List of resource lands.

18.34.090  Data maps.

18.34.100  Relief.

18.34.010 Purpose, intent and applicability.

The purpose of this chapter is to designate, classify and protect the functions and values of critical areas in a manner consistent with state law while allowing for reasonable use of private property.  By adopting this chapter, the town of Wilbur acknowledges that critical areas provide a variety of important biological and physical functions that benefit the community and its residents or may pose a threat to human safety or property.

The critical area overlay zone consists of that area within two hundred feet of designated wetlands (as designated in the national wetlands inventory), aquifer recharge areas, critical wildlife habitat (as identified by the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Washington Department of Fish and Wildlife, the Department of Natural Resources and the Washington Conservation Commission), frequently flooded areas (within Zone A as shown on National Flood Insurance Program maps) or geologically hazardous areas (as identified by the U.S. Geological Survey and the Department of Natural Resources).  Any development proposed on a parcel of land within the critical area overlay zone shall be subject to project review as required in this chapter unless specifically exempted.  (Ord. 413 §4, 2003)

18.34.020 Permitted, conditional and prohibited uses.

Uses allowed by right or by conditional use permit or uses altogether prohibited in the critical areas overlay zone shall be the same as those listed in the underlying zoning district.  (Ord. 413 §5, 2003)

18.34.030 Project review required.

A.  Land use or building permits for clearing or development activities within the critical areas overlay zone shall be subject to review under provisions of this chapter unless specifically exempted in subsection C of this section.

B.  For those projects determined by the town clerk or designee likely to have an impact to the critical areas, the applicant shall submit a technical study identifying the precise limits of the critical area and its function and resource value as part of the application.  The study shall be prepared by experts with demonstrated qualifications in the area of concern and shall apply best available science as part of its analysis.

C.  The following activities shall be allowed in critical areas without a critical areas permit provided they are conducted using best management practices and at a time and in a manner designed to minimize adverse impacts to the critical area:

1.  Conservation or preservation of soil, water, vegetation, fish, shellfish and other wildlife;

2.  Outdoor recreational activities which do not involve disturbance of the resource or site area, including fishing, hunting, bird watching, hiking, horseback riding and bicycling;

3.  Harvesting wild crops in a manner that is not injurious to the natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops or alteration of the resource by changing existing topography, vegetation, water conditions or water sources;

4.  Education, scientific research and use of nature trails;

5.  Existing and ongoing agriculture activities, including farming, horticulture, aquaculture, irrigation, ranching or grazing of animals;

6.  Normal and routine maintenance of legally constructed irrigation and drainage ditches;

7.  Normal and routine maintenance, repair or operation of existing serviceable structures, facilities or improved areas, not including expansion, change in character or scope or construction of a maintenance road;

8.  Minor modification (such as construction of a patio, balcony or second story) of existing serviceable structures where the modification does not adversely impact the functions of the critical area.

D.  The town requires applicants to demonstrate that development on a site determined to have critical areas will protect the resource by taking one of the following steps (listed in order of preference):

1.  Avoid impacts to the resource altogether.

2.  Minimize the impact 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.  Rectify the impact by repairing, rehabilitating or restoring the affected environment to the conditions existing at the time of the initiation of the project.

4.  Reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action.

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

E.  If a critical resource is on the property that is being developed in the town and crosses a jurisdictional line, the town of Wilbur shall coordinate with Lincoln County in the review of the project.  (Ord. 413 §6, 2003)

18.34.040 Wetlands.

A.  The existence of a wetland and the location of its boundary shall be determined by the applicant through the performance of a field investigation applying a methodology acceptable to the U.S. Army Corps of Engineers or Washington Department of Ecology.  Qualified professionals shall perform wetland determinations and delineations using the acceptable methodology.

B.  A wetland containing features satisfying the criteria of more than one of the following categories shall be classified in the highest applicable category.  A wetland can be classified into more than one category when distinct areas that clearly meet the criteria of separate categories exist.

Wetland Category

Description

Category I Wetland

Documented habitat for federal- or state-listed endangered or threatened fish, animal or plant species, or

Documented natural heritage wetland sites or high-quality native wetland communities that qualify as natural heritage wetland sites, or

Regionally rare native wetland communities with irreplaceable ecological functions, or

Documented wetlands of exceptional local significance.

Category II Wetland

Documented habitats for state-listed sensitive plant, fish or animal species, or

Wetlands that contain plant, fish or animal species listed as priority species by the Department of Fish and Wildlife, or

Wetland types with significant functions that may not be adequately replicated through creation or restoration, or

Wetlands possessing significant habitat value based on a score of twenty-two or more points in the habitat rating system, or

Documented wetlands of local significance.

Category III Wetland

Those that do not satisfy Category I, II, or IV criteria and with a habitat value rating of twenty-one or less.

Category IV Wetland

Hydrologically isolated wetlands that are less than or equal to one acre in size, have only one wetland class and are dominated (greater than eighty percent cover) by a single nonnative plant species, or

Hydrologically isolated wetlands that are less than or equal to two acres in size, have only one wetland class and greater than ninety percent cover of nonnative plant species.

C.  Development near wetlands shall observe the following setbacks from the edge of the wetland.  No development or activity shall occur within the required setbacks unless the applicant can demonstrate that the proposed use or activity will not degrade the functions and values of the wetland and other critical areas according to the evaluation criteria from subsection E of this section.  In no case shall any development or activity be permitted closer to the edge of the wetland than within one-half of the required setback.

Wetland Category

Setback

Category I Wetland

200 feet

Category II Wetland

100 feet

Category III Wetland

50 feet

Category IV Wetland

25 feet

D.  Buffer zones may be increased if the town council finds, on a case-by-case basis and based upon best available science, at least one of the following applies:

1.  A larger buffer is necessary to maintain viable populations of existing species; or

2.  The wetlands are used by species proposed or listed by the federal government or the state as endangered, threatened, rare, sensitive or being monitored as habitat for those species or has unusual nesting or resting sites; or

3.  The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts, or

4.  The adjacent land has minimal vegetative cover or slopes greater than twenty-five percent.

E.  Buffer zones may be decreased to no less than twenty-five feet if the town council finds, on a case-by-case basis and based upon best available science, that all of the following apply:

1.  The critical area report provides a sound rationale for a reduced buffer; and

2.  The existing buffer area is well-vegetated with native species and has less than ten percent slopes; and

3.  No direct or indirect, short-term or long-term adverse impact to the wetland will result from the proposed activity.

F.  Wetland buffer areas may be used for conservation and restoration activities, passive recreation (including trails, wildlife viewing structures and fishing access areas) and stormwater management facilities.

G.  If activities result in the loss or degradation of a regulated wetland or buffer, a mitigation or enhancement plan prepared by a qualified expert shall be submitted for review and approval by the town.  Any mitigation or replacement wetland shall be located in the same watershed as the impacted wetland(s) of the same category and shall comply with the following ratios (new wetland area to that impacted by the proposal):

Wetland Category

Mitigation Ratio

Category I Wetland

3:1

Category II Wetland

1.5:1

Category III Wetland

1:1

Category IV Wetland

1:1

(Ord. 413 §7, 2003)

18.34.050 Aquifer protection areas.

A.  In areas designated as having high susceptibility for aquifer contamination, all uses shall be connected to the town's sewer system.  No new uses on a septic system are permitted in high-susceptibility areas of critical aquifer recharge.

B.  For uses locating within the critical aquifer recharge area and requiring site plan review, a disclosure form indicating activities and hazardous materials that will be used shall be provided for review and approval.

C.  Impervious surfaces shall be minimized within the critical aquifer recharge areas.

D.  Best management practices as defined by state and federal regulations shall be followed by commercial and industrial uses located in the critical aquifer recharge areas to ensure that potential contaminants do not reach the aquifer.

E.  A spill prevention and emergency response plan shall be prepared and submitted for review and approval by the town and fire district.  (Ord. 413 §8, 2003)

18.34.060 Critical wildlife habitat.

A.  The applicant for development proposed in the critical areas overlay zone that may impact habitat conservation areas shall provide a habitat management plan, prepared by a qualified expert in the species in question, for evaluation by local, state and federal agencies.

B.  The habitat management plan shall be based on best available science and best management practices and shall be designed to achieve specific habitat objectives and shall include, at a minimum:

1.  A detailed description of vegetation on and adjacent to the project area;

2.  Identification of any species of local importance, priority species, or endangered, threatened, sensitive or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;

3.  A discussion of any federal, state or local special management recommendations, including Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

4.  A detailed discussion of the potential impact on habitat by the project, including potential impact to water quality;

5.  A discussion of measures, including avoidance, minimization and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity;

6.  A discussion of continuing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.

C.  A habitat conservation area may be altered only if the proposed alteration of the habitat or the mitigation proposed does not degrade the functions and values of the habitat.

D.  No plant, wildlife or fish species not indigenous to the region shall be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.

E.  The habitat management plan shall address the project area of the proposed activity, all habitat conservation areas and recommended buffers within three hundred feet of the project area and all other critical areas within three hundred feet of the project area.  (Ord. 413 §9, 2003)

18.34.070 Frequently flooded areas.

Applicants for development within frequently flooded areas shall comply with provisions of Chapter 18.36 of the Wilbur Municipal Code.  (Ord. 413 §10, 2003)

18.34.080 List of resource lands.

The incorporated area of the town of Wilbur hereby identifies the following resource lands, and references the appropriate data map(s):

A.  Agricultural lands:  Map C;

B.  Forest lands:  Map C;

C.  Mineral resource lands:  Map C.  (Ord. 413 §11, 2003)

18.34.090 Data maps.

A.  Resource lands and critical areas are hereby designated on a series of data maps maintained at the town of Wilbur.  These maps contain the best available graphic depiction of resource lands and critical areas and will be continuously updated as reliable data becomes available.  These maps are for information and illustrative purposes only and are not regulatory in nature.

B.  The resource lands and critical areas data maps are intended to alert the development community, appraisers, and current to prospective property owners of a potential encounter with a use or development limiting factor based on the natural systems.  The presence of a critical area or resource designation on the data maps is sufficient foundation for the town clerk-treasurer/designee to order an analysis of the factor(s) identified prior to acceptance of a development application as being complete and ready for processing under the town zoning ordinance, platting and subdivision ordinance, and the short plat and short subdivision ordinance or any other regulatory authority, i.e., shorelines management, SEPA, etc.

C.  Interpretation of Data Maps.

1.  The town clerk-treasurer/designee is hereby declared the administrator of this chapter for the purpose of interpreting data maps.  An affected property owner or other party withstanding has a right to appeal the administrative determination to the town hearing examiner using the same procedure for zoning appeals founding the town zoning ordinance, platting and subdivision ordinance and the short plat and short subdivision ordinance.

2.  The data maps are to be used as a general guide to the location and extent of resource lands and critical areas.  Resource lands and critical areas indicated on the data maps are presumed to exist in the locations shown and are protected under all the provisions of this chapter.  The exact location of resource lands and critical areas shall be determined by the applicant as a result of field investigations performed by qualified professionals using the definitions found in this chapter.  All development applications are required to show the boundary(s) of all resource lands and critical areas on a scaled drawing prior to the development application being considered “complete” for processing purposes.

D.  Application of Data Maps.  The conclusion by the town clerk-treasurer/designee that a parcel of land or a part of a parcel of land that is the subject of a proposed development application is within the boundary(s) of one or more critical areas or resource lands as shown on the data maps, shall serve as cause for additional investigation and analysis to be conducted by the applicant.  The site-specific analysis shall be limited to those resource lands and critical areas indicated on the data maps.  In the event of multiple designations, each subject matter will be addressed independently and collectively for the purpose of determining development limitations and appropriate mitigating measures by the town of Wilbur.  (Ord. 413 §12, 2003)

18.34.100 Relief.

If application of the requirements of this chapter would deny all reasonable economic use of the lot, development will be permitted if the applicant demonstrates all of the following to the satisfaction of the town as part of the critical area permit in addition to demonstrating all of the findings required of variances from provisions of the zoning ordinance:

A.  There is no other reasonable use or feasible alternative to the proposed development with less impact on the critical area.

B.  The proposed development does not pose a threat to the public health, safety and welfare on or off of the subject property.

C.  Any alterations permitted to the requirements of this chapter shall be the minimum necessary to allow for reasonable use of the property.

D.  The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line and creating the undevelopable condition after the effective date of the ordinance codified in this chapter.

E.  The proposal mitigates the impact on the critical area to the maximum extent possible.  (Ord. 413 §13, 2003)