Chapter 18.10B
CRITICAL AREAS CODE – WETLANDS
Sections:
18.10B.020 Identification and rating.
18.10B.030 Regulated activities.
18.10B.040 Exemptions and allowed uses in wetlands.
18.10B.060 Critical area report for wetlands.
18.10B.070 Criteria for compensatory, location, and mitigation sequence.
18.10B.080 Unauthorized alterations and enforcement.
Appendix A Wetland definitions.
Prior legislation: Ord. 1020.
18.10B.010 Purpose.
The purposes of this chapter are to:
A. Recognize and protect the beneficial functions performed by many wetlands, which include, but are not limited to, providing food, breeding, nesting and/or rearing habitat for fish and wildlife; recharging and discharging groundwater; contributing to stream flow during low flow periods; stabilizing stream banks and shorelines; storing storm and flood waters to reduce flooding and erosion; and improving water quality through biofiltration, adsorption, retention and transformation of sediments, nutrients, and toxicants.
B. Regulate land use to avoid adverse effects on wetlands and maintain the functions and values of wetlands throughout Cashmere.
C. Establish review procedures for development proposals in and adjacent to wetlands. (Ord. 1172 § 2 (Exh. B), 2010).
18.10B.020 Identification and rating.
A. Identification and Delineation. Wetlands shall be identified and delineated by a qualified wetland professional in accordance with the Washington State Wetlands Identification and Delineation Manual (Washington Department of Ecology Publication No. 96-94, or as revised and approved by Ecology).
B. Rating. Wetlands shall be rated according to the Washington Department of Ecology wetland rating system, as set forth in the Washington State Wetland Rating System for Eastern Washington (Ecology Publication No. 04-06-015, or as revised and approved by Ecology), which contains the definitions and methods for determining if the criteria below are met.
1. Category I wetlands are: (a) wetlands that are identified by scientists of the Washington Natural Heritage Program/DNR as high quality wetlands; (b) bogs; (c) mature and old-growth forested wetlands over one-fourth acre with slow-growing trees; (d) forests with stands of aspen; and (e) wetlands that perform many functions very well (scores of 70 points or more). These wetlands are those that (a) represent a unique or rare wetland type; or (b) are more sensitive to disturbance than most wetlands; or (c) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or (d) provide a high level of function.
2. Category II wetlands are: (a) forested wetlands in the floodplains of rivers; (b) mature and old-growth forested wetlands over one-fourth acre with fast-growing trees; and (c) wetlands that perform functions well (scores between 51 and 69 points).
3. Category III wetlands are: wetlands with a moderate level of functions (scores between 30 and 50 points).
4. Category IV wetlands have the lowest level of functions (scores less than 30 points) and are often heavily disturbed. These are wetlands that we should be able to replace, and in some cases be able to improve. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions and also need to be protected.
C. Illegal Modifications. Wetland rating categories shall not change due to illegal modifications made by the applicant or with the applicant’s knowledge. (Ord. 1172 § 2 (Exh. B), 2010).
18.10B.030 Regulated activities.
A. For any regulated activity, a critical areas report (see CMC 18.10B.060) may be required to support the requested activity.
B. The following activities are regulated if they occur in a regulated wetland or its buffer:
1. The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;
2. The dumping of, discharging of, or filling with any material;
3. The draining, flooding, or disturbing the water level or water table;
4. Pile driving;
5. The placing of obstructions;
6. The construction, reconstruction, demolition, or expansion of any structure;
7. The destruction or alteration of wetland vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland;
8. “Class IV – general forest practices” under the authority of the “1992 Washington State Forest Practices Act Rules and Regulations,” WAC 222-12-030, or as thereafter amended;
9. Activities that result in:
a. A significant change of water temperature;
b. A significant change of physical or chemical characteristics of the sources of water to the wetland;
c. A significant change in the quantity, timing or duration of the water entering the wetland;
d. The introduction of pollutants. (Ord. 1172 § 2 (Exh. B), 2010).
18.10B.040 Exemptions and allowed uses in wetlands.
A. The following wetlands are exempt from the buffer provisions contained in this chapter and the normal mitigation sequencing process in CMC 18.10B.070. They may be filled if impacts are fully mitigated based on provisions in CMC 18.10B.070. In order to verify the following conditions, a critical area report for wetlands meeting the requirements in CMC 18.10B.060 must be submitted.
1. All isolated Category III and IV wetlands less than 1,000 square feet that:
a. Are not associated with riparian areas or buffers;
b. Are not part of a wetland mosaic;
c. Do not contain habitat identified as essential for local populations of priority species identified by Washington Department of Fish and Wildlife or species of local importance;
d. Do not contain aspen stands.
B. Activities Allowed in Wetlands. The activities listed below are allowed in wetlands. These activities do not require submission of a critical area report, except where such activities result in a loss to the functions and values of a wetland or wetland buffer. These activities include:
1. Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class IV –general forest practice permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
2. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife that does not entail changing the structure or functions of the existing wetland.
3. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.
4. Drilling for utilities/utility corridors under a wetland, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column is disturbed.
5. Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments. All removed plant material shall be taken away from the site and appropriately disposed of.
6. Activities determined by the city as having minimal adverse impacts such as educational and scientific research activities, fishing, etc.
7. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way or easement; provided, that the maintenance or repair does not expand the footprint or use of the facility, right-of-way or easement.
8. Site study work such as surveys, soil logs, and other related activities necessary for the submittal of a land use application. (Ord. 1172 § 2 (Exh. B), 2010).
18.10B.050 Wetland buffers.
A. Buffer Requirements. The standard buffer widths in Table 18.10B.1 have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State wetland rating system for eastern Washington.
1. The use of the standard buffer widths requires the implementation of the measures in Table 18.10B.2, where applicable, to minimize the impacts of the adjacent land uses.
2. If an applicant chooses not to apply the mitigation measures in Table 18.10B.2, then a 33 percent increase in the width of all buffers is required. For example, a 75-foot buffer with the mitigation measures would be a 99.75-foot buffer without them (e.g., 75 ft x 1.33% = 99.75).
3. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the ecoregion. If the existing buffer is unvegetated or vegetated with invasive species that do not perform needed functions, the buffer should either be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.
4. Additional buffer widths may be required in addition to the standard buffer widths. For example, a Category I wetland scoring 32 points for habitat function would require a buffer of 150 feet (75 + 75).
|
Wetland Category |
Standard Buffer Width |
Additional Buffer Width If Wetland Scores 21 – 25 Habitat Points |
Additional Buffer Width If Wetland Scores 26 – 29 Habitat Points |
Additional Buffer Width If Wetland Scores 30 – 36 Habitat Points |
|---|---|---|---|---|
|
Category I – Based on total score |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category I – Forested |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category I – Bogs |
190 ft |
NA |
NA |
NA |
|
Category I – Natural heritage wetlands |
190 ft |
NA |
NA |
NA |
|
Category II – Based on score |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category II – Forested |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category III (all) |
60 ft |
Add 30 ft |
Add 60 ft |
NA |
|
Category IV (all) |
40 ft |
NA |
NA |
NA |
|
Disturbance |
Required Measures to Minimize Impacts |
|---|---|
|
Lights |
• Direct lights away from wetland |
|
Noise |
• Locate activity that generates noise away from wetland • If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source • For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10' heavily vegetated buffer strip immediately adjacent to the outer wetland buffer |
|
Toxic runoff |
• Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered • Establish covenants limiting use of pesticides within 150' of wetland • Apply integrated pest management |
|
Stormwater runoff |
• Retrofit stormwater detention and treatment for roads and existing adjacent development • Prevent channelized flow from lawns that directly enters the buffer • Use low intensity development techniques (per PSAT publication on LID techniques) |
|
Change in water regime |
• Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns |
|
Pets and human disturbance |
• Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion • Place wetland and its buffer in a separate tract or protect with a conservation easement |
|
Dust |
• Use best management/construction practices to control dust |
|
Disruption of corridors or connections |
• Maintain connections to off-site areas that are undisturbed • Restore corridors or connections to off-site habitats by replanting |
5. Buffer averaging to improve wetland protection may be permitted when all of the following conditions are met:
a. The wetland has significant differences in characteristics that affect its habitat functions, such as a wetland with a forested component adjacent to a degraded emergent component or a “dual-rated” wetland with a Category I area adjacent to a lower rated area.
b. The buffer is increased adjacent to the higher functioning area of habitat or more sensitive portion of the wetland and decreased adjacent to the lower functioning or less sensitive portion as demonstrated by a critical areas report from a qualified wetland professional.
c. The total area of the buffer after averaging is equal to the area required without averaging.
6. Averaging to allow reasonable use of a parcel may be permitted when all of the following are met:
a. There are no feasible alternatives to the site design that could be accomplished without buffer averaging.
b. The averaged buffer will not result in degradation of the wetland’s functions and values as demonstrated by a critical areas report from a qualified wetland professional.
c. The total buffer area after averaging is equal to the area required without averaging.
B. Measurement of Wetland Buffers. All buffers shall be measured perpendicular from the wetland boundary as surveyed in the field. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. Only fully vegetated buffers will be considered. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers or included in buffer area calculations.
C. Buffers on Mitigation Sites. All mitigation sites shall have buffers consistent with the buffer requirements of this chapter. Buffers shall be based on the expected or target category of the proposed wetland mitigation site.
D. Buffer Maintenance. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers shall be retained in an undisturbed or enhanced condition.
E. Impacts to Buffers. Requirements for the compensation for impacts to buffers are outlined in CMC 18.10B.070.
F. Overlapping Critical Area Buffers. If buffers for two contiguous critical areas overlap (such as buffers for a stream and a wetland), the wider buffer applies.
G. Allowed Buffer Uses. Low impact uses are allowed in buffers consistent with CMC 18.10B.030(B). In addition, the following are permitted within buffers:
1. Passive Recreation. Passive recreation facilities designed and in accordance with an approved critical area report, including pedestrian walkways and trails and wildlife viewing platforms.
2. Stormwater Management Facilities. Stormwater management facilities are limited to stormwater facilities within Category III and IV wetland buffers. Facilities may be allowed within the outer 25 percent of the buffer provided no other location is feasible and that it will not affect the hydroperiod of the wetland or adversely affect water quality.
3. Existing Structure(s) and Development(s). Lawfully existing structures built prior to the adoption of the ordinance codified in this chapter shall be exempt from the terms of this chapter. Expansion of existing legally permitted structure shall be allowed to expand/encroach 50 percent of structure footprint, and shall be parallel to structure or side away from critical area. Expansion shall be limited to a one expansion/encroachment.
4. Requests for building permits on property which is unplatted shall require a review under the terms of this chapter.
5. Activities Allowed in Wetlands. The activities listed below are allowed in wetlands. These activities do not require submission of a critical area report, except where such activities result in a loss to the functions and values of a wetland or wetland buffer. These activities include:
a. Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class IV – general forest practice permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
b. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife that does not entail changing the structure or functions of the existing wetland.
c. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.
d. Drilling for utilities/utility corridors under a wetland, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column is disturbed.
e. Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.
f. Educational and scientific research activities.
g. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way or easement; provided, that the maintenance or repair does not expand the footprint or use of the facility or right-of-way.
H. Signs and Fencing of Wetlands and Buffers.
1. Temporary Markers. The outer perimeter of the wetland 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 no unauthorized intrusion will occur. The marking is subject to inspection by the city 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. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner. Sign shall be no greater than four square feet in size.
2. Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the city may require the applicant to install permanent signs along the boundary of a wetland or buffer.
a. 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 50 feet, whichever is less, and must be maintained by the property owner in perpetuity. Sign shall not be greater than four square feet in size. The sign shall be worded as follows or with alternative language approved by the administrator:
Protected Wetland Area
Do Not Disturb
Contact City of Cashmere
Regarding Uses, Restrictions, and Opportunities for Stewardship
b. The provisions of subsection (H)(2)(a) of this section may be modified as necessary to assure protection of sensitive features or wildlife.
3. Fencing.
a. The applicant shall be required to install a permanent fence around the wetland or buffer when domestic grazing animals are present or may be introduced on site.
b. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat. (Ord. 1183 § 3, 2011; Ord. 1172 § 2 (Exh. B), 2010).
18.10B.060 Critical area report for wetlands.
A. If the administrator determines that the site of a proposed development includes, is likely to include, or is adjacent to a wetland, a wetland report, prepared by a qualified professional, shall be required. The expense of preparing the wetland report shall be borne by the applicant.
B. Minimum Standards for Wetland Reports. The written report and the accompanying plan sheets shall contain the following information, at a minimum:
1. The written report shall include at a minimum:
a. The name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the wetland critical area report; a description of the proposal; identification of all the local, state, and/or federal wetland-related permit(s) required for the project; and a vicinity map for the project;
b. A statement specifying the accuracy of the report and all assumptions made and relied upon;
c. Documentation of any fieldwork performed on the site, including field data sheets for delineations, function assessments, baseline hydrologic data, etc.;
d. A description of the methodologies used to conduct the wetland delineations, function assessments, or impact analyses including references;
e. Identification and characterization of all critical areas, wetlands, water bodies, shorelines, floodplains, and buffers on or adjacent to the proposed project area. For areas off site of the project site, estimate conditions within 300 feet of the project boundaries using the best available information;
f. For each wetland identified on site and within 300 feet of the project site provide: the wetland rating per CMC 18.10B.020(B) (wetland ratings); required buffers; hydrogeomorphic classification; wetland acreage based on a professional survey from the field delineation (acreages for on-site portion and entire wetland area including off-site portions); Cowardin classification of vegetation communities; habitat elements; soil conditions based on site assessment and/or soil survey information; and to the extent possible, hydrologic information such as location and condition of inlet/outlets (if they can be legally accessed), estimated water depths within the wetland, and estimated hydroperiod patterns based on visual cues (e.g., algal mats, drift lines, flood debris, etc.). Provide acreage estimates, classifications, and ratings based on entire wetland complexes, not only the portion present on the proposed project site;
g. A description of the proposed actions including an estimation of acreages of impacts to wetlands and buffers based on the field delineation and survey and an analysis of site development alternatives including a no-development alternative;
h. An assessment of the probable cumulative impacts to the wetlands and buffers resulting from the proposed development;
i. A description of reasonable efforts made to apply mitigation sequencing pursuant to CMC 18.10B.070(A) (mitigation sequencing) to avoid, minimize, and mitigate impacts to critical areas;
j. A discussion of measures, including avoidance, minimization, and compensation, proposed to preserve existing wetlands and restore any wetlands that were degraded prior to the current proposed land use activity;
k. A conservation strategy for habitat and native vegetation that addresses methods to protect and enhance on-site habitat and wetland functions; and
l. Evaluation of functions of the wetland and adjacent buffer using a functions assessment method recognized by local or state agency staff and including the reference for the method used and all data sheets.
2. A copy of the site plan sheet(s) for the project must be included with the written report and must include, at a minimum:
a. Maps (to scale) depicting delineated and surveyed wetland and required buffers on site, including buffers for off-site critical areas that extend onto the project site; the development proposal; other critical areas; grading and clearing limits; areas of proposed impacts to wetlands and/or buffers (include square footage estimates);
b. 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. (Ord. 1172 § 2 (Exh. B), 2010).
18.10B.070 Criteria for compensatory, location, and mitigation sequence.
A. 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:
1. Avoiding the impacts 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 affirmative steps, such as projects design, relocations, or timing, to avoid or reduce impacts;
3. Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time the hazard area through engineered or other methods;
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 preserving and maintenance operations during the life of the action;
6. Compensating for the impact to wetlands, critical aquifer 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. Mitigation for individual actions may include a combination of the above measures.
B. The applicant shall have a wetland specialist develop a plan that provides for construction, maintenance, monitoring, and contingencies of the replacement wetland. The plan should be prepared according to the guidance provided in Wetland Mitigation Plan (Version 1, Publication No. 06-06-011b, March 2006, as amended). In addition, the applicant and landowner shall meet the following criteria:
1. The restored, created, or enhanced wetland shall be as persistent as the wetland it replaces.
2. The applicant shall demonstrate sufficient capability to carry out the compensation projects.
3. The compensation area shall be provided with permanent protection and management to avoid further development or degradation and to provide for the long-term persistence of the compensation area as designated.
4. Mitigation planting survival shall be 100 percent for the first year. Any vegetation that does not survive the first year must be replaced consistent with the mitigation planting scheme. The survival rate for successive years shall be at least 80 percent.
5. Mitigation must be installed no later than the next growing season after completion of site improvements, unless otherwise approved by the city.
6. Where necessary, a permanent means of irrigation shall be installed for the mitigation planting that is designed by a professional experienced in the design and installation of irrigation systems. The design shall meet the specific needs of the wetland, riparian and shrub steppe vegetation, as may be applicable.
C. In cases in which it is determined that compensatory mitigation is appropriate, the following shall apply:
1. Compensatory mitigation shall be provided on site, except where on-site mitigation is not scientifically feasible or practical due to physical features of the site. The burden of proof shall be on the applicant to demonstrate that mitigation cannot be provided on site.
2. Mitigation projects shall be concurrent with other activities on the site, unless a phased schedule is agreed upon between the city and the applicant.
D. Wetland Replacement Criteria. Where wetlands are altered, the applicant shall meet the minimum requirements of this section. When it is proposed to alter or eliminate a wetland, the applicant shall be required to replace the affected wetland. A reduction in overall wetland area is allowed if approved by the city. If off-site mitigation measures are determined to be appropriate, off-site mitigation shall be located in the same watershed as the development, within Cashmere or Chelan County. The recommended ratios for replacement and/or compensation for Type I, II, III, and IV are as follows:
|
Category and Type of Wetland |
Creation or Reestablishment |
Rehabilitation |
Enhancement |
Preservation |
|---|---|---|---|---|
|
Category I – Bog, natural heritage site |
Not considered possible |
6:1 |
Case-by-case |
10:1 |
|
Category I – Mature forested |
6:1 |
12:1 |
24:1 |
24:1 |
|
Category I – Based on functions |
4:1 |
8:1 |
16:1 |
20:1 |
|
Category II – Based on functions |
3:1 |
6:1 |
12:1 |
20:1 |
|
Category III |
2:1 |
4:1 |
8:1 |
15:1 |
|
Category IV |
1.5:1 |
3:1 |
6:1 |
10:1 |
E. Surety/Bonding. If a development proposal is subject to mitigation, maintenance or monitoring plans, the city of Cashmere, in a form acceptable to the city attorney, shall require an assurance device or surety. (Ord. 1183 § 4, 2011; Ord. 1172 § 2 (Exh. B), 2010).
18.10B.080 Unauthorized alterations and enforcement.
A. When a wetland or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a “stop-work” order to cease all ongoing development work and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.
B. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by city. Such a plan shall be prepared by a qualified professional using the currently accepted scientific principles and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The city shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.
C. Minimum Performance Standards for Restoration. The following minimum performance standards shall be met for the restoration of a wetland; provided, that if the violator can demonstrate that greater functions and habitat values can be obtained, these standards may be modified:
1. The historic structure, functions, and values of the affected wetland shall be restored, including water quality and habitat functions;
2. The historic soil types and configuration shall be restored to the extent practicable;
3. The wetland and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and
4. Information demonstrating compliance with other applicable provisions of this chapter shall be submitted to the city.
D. Site Investigations. The city is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The city shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.
E. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty may be assessed at a maximum rate of $250.00 per day per violation.
If the wetland affected cannot be restored, monies collected as penalties shall be deposited in a dedicated account for the preservation or restoration of landscape processes and functions in the watershed in which the affected wetland is located. The city may coordinate its preservation or restoration activities with other city or county in the watershed to optimize the effectiveness of the restoration action. (Ord. 1172 § 2 (Exh. B), 2010).
Appendix A Wetland definitions.
“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 (vegetation), construction, compaction, excavation, or any other activity that changes the character of the critical area.
“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, that is, derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Examples of best available science are included in Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas published by the Washington State Department of Community, Trade and Economic Development.
“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:
1. Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, or sediment;
2. Minimize adverse impacts to surface water and groundwater 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.
“Bog” means a low nutrient, acidic wetland with organic soils and characteristic bog plants, which is sensitive to disturbance and impossible to recreate through compensatory mitigation.
“Buffer” or “buffer zone” means the area contiguous with a critical area that maintains the functions and/or structural stability of the critical area.
“Clearing” means the removal of brush, grass, groundcover, or other vegetative matter from a site which exposes the surface of the site.
“Compensatory mitigation” means mitigation for wetland losses or impacts resulting from alteration of wetlands and/or their buffers. It includes but is not limited to, creation, enhancement, and restoration.
“Creation” means the manipulation of the physical, chemical, or biological characteristics to develop a wetland on an upland or deepwater site, where a wetland did not previously exist. Creation results in a gain in wetland acreage [and function]. [A typical action is the excavation of upland soils to elevations that will produce a wetland hydroperiod and hydric soils, and support the growth of hydrophytic plant species.]
“Critical areas” include any of the following areas or ecosystems: critical aquifer recharge areas, fish and wildlife habitat conservation areas, geologically hazardous areas, and wetlands, as defined in Chapter 36.70A RCW and this chapter.
“Cumulative impacts or effects” means the combined, incremental effects of human activity on ecological or critical areas’ functions and values. Cumulative impacts result when the effects of an action are added to or interact with the effects of other actions in a particular place and within a particular time. It is the combination of these effects, and any resulting environmental degradation, that should be the focus of cumulative impact analysis and changes to policies and permitting decisions.
“Developable area” means a site or portion of a site that may be used as the location of development, in accordance with the rules of this chapter.
“Development” means a land use consisting of the construction or exterior alteration of structures; grading, dredging, drilling, or dumping; filling; removal of sand, gravel, or minerals; bulk heading; driving of pilings; or any project of a temporary or permanent nature which modifies structures, land, or shorelines and which does not fall within the allowable exemptions contained in the city code.
“Enhancement” means the manipulation of the physical, chemical, or biological characteristics of a wetland 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 wetland function(s) and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres. Examples are planting vegetation, controlling nonnative or invasive species, and modifying site elevations to alter hydroperiods.
“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.
“Growth Management Act” means Chapter 36.70A RCW, as amended.
“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.
“Historic condition” means condition of the land including flora, fauna, soil, topography, and hydrology that existed before the area and vicinity were developed or altered by Euro-American settlement, or in some cases before any human habitation occurred.
“Impervious surface” means any alterations to the surface of a soil that prevents or retards 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 than that present prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, lawns, 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.
“In-kind compensation” means to replace critical areas with substitute areas whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity.
“Infiltration” means the downward entry of water into the immediate surface of soil.
“Isolated wetlands” means those wetlands that are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream and have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water, including other wetlands.
“Mature forested wetland” means a wetland where at least one acre of the wetland surface is covered by woody vegetation greater than 20 feet in height with a crown cover of at least 30 percent and where at least eight trees per acre are 80 to 200 years old or have average diameters (dbh) exceeding 21 inches (53 centimeters) measured from the uphill side of the tree trunk at four and one-half feet up from the ground.
“Mitigation” means avoiding, minimizing, or compensating for adverse critical areas impacts. Mitigation, in the following sequential order of preference, is:
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, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;
4. Minimizing or eliminating a 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, 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.
Mitigation for individual actions may include a combination of the above measures.
“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, including gathering baseline data.
“Native vegetation” means plant species that occur naturally in a particular region or environment and were not introduced by human activities.
“Off-site compensation” means to replace critical areas away from the site on which a critical area has been impacted.
“On-site compensation” means to replace critical areas at or adjacent to the site on which a critical area has been impacted.
“Ordinary high water mark” means that mark which is found by examining the bed and banks of water bodies and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, that the soil has a character distinct from that of the abutting upland in respect to vegetation.
“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, and has less impacts to critical areas.
“Preservation” means the removal of a threat to, or preventing the decline of, wetland conditions by an action in or near a wetland. 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 acres but may result in a gain in functions over the long term.
“Prior converted croplands (PCCs)” are defined in federal law as wetlands that were drained, dredged, filled, leveled or otherwise manipulated, including the removal of woody vegetation, before December 23, 1985, to enable production of an agricultural commodity, and that: (1) have had an agricultural commodity planted or produced at least once prior to December 23, 1985; (2) do not have standing water for more than 14 consecutive days during the growing season; and (3) have not since been abandoned.
“Project area” means all areas within 50 feet of the area proposed to be disturbed, altered, or used by the proposed activity or the construction of any proposed structures. When the action binds the land, such as a subdivision, short subdivision, binding site plan, planned unit development, or rezone, the project area shall include the entire parcel, at a minimum.
“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. 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 have at least five years of related work experience.
1. A qualified professional for wetlands must be a professional wetland scientist with at least two years of full-time work experience as a wetlands professional, including delineating wetlands using the state or federal manuals, preparing wetlands reports, conducting function assessments, and developing and implementing mitigation plans.
2. A qualified professional for habitat must have a degree in biology or a related degree and professional experience related to the subject species.
3. A qualified professional for a geological hazard must be a professional engineer or geologist, licensed in the state of Washington.
4. A qualified professional for critical aquifer recharge areas means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.
“Reestablishment” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. Reestablishment results in rebuilding a former wetland and results in a gain in wetland acres and functions. Activities could include removing fill, plugging ditches, or breaking drain tiles.
“Rehabilitation” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions and processes of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or returning tidal influence to a wetland.
“Repair” or “maintenance” means an activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.
“Restoration” means measures taken to restore an altered or damaged natural feature including:
1. Active steps taken to restore damaged wetlands, streams, protected habitat, or their buffers to the functioning condition that existed prior to an unauthorized alteration; and
2. Actions performed to reestablish structural and functional characteristics of the critical area that have been lost by alteration, past management activities, or catastrophic events.
“SEPA” means Washington State Environmental Policy Act, Chapter 43.21C RCW.
“Soil survey” means the most recent soil survey for the local area or county by the National Resources Conservation Service, U.S. Department of Agriculture.
“Species” means any group of animals classified as a species or subspecies as commonly accepted by the scientific community.
“Species, endangered” 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 232-12-297(2.4)).
“Species, priority” means any fish or wildlife species requiring protective measures and/or management guidelines to ensure their persistence at genetically viable population levels as classified by the Washington Department of Fish and Wildlife, including endangered, threatened, sensitive, candidate and monitor species, and those of recreational, commercial, or tribal importance.
“Species, sensitive” means any wildlife species native to the state of Washington that is vulnerable or declining and is likely to become endangered or threatened throughout a significant portion of its range within the state without cooperative management or removal of threats (WAC 232-12-297(2.6)).
“Species, threatened” 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 range within the state without cooperative management or removal of threats (WAC 232-12-297(2.5)).
“Stream” means an area where open surface water produces a defined channel or bed, not including irrigation ditches, canals, storm or surface water runoff devices or other entirely artificial watercourses, unless they are used by salmonids or are used to convey a watercourse naturally occurring prior to construction. A channel or bed need not contain water year-round, provided there is evidence of at least intermittent flow during years of normal rainfall.
“Unavoidable impacts” means adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.
“Washington Administration Code (WAC)” means administrative guidelines implementing the Growth Management Act, Chapters 365-190 and 365-195 WAC, as amended.
“Wetlands” means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.
“Wetland mitigation bank” means a site where wetlands are restored, created, enhanced, or, in exceptional circumstances, preserved expressly for the purpose of providing advance mitigation to compensate for future, permitted impacts to similar resources.
“Wetland mosaic” means an area with a concentration of multiple small wetlands, in which each patch of wetland is less than one acre; on average, patches are less than 100 feet from each other; and areas delineated as vegetated wetland are more than 50 percent of the total area of the entire mosaic, including uplands and open water. (Ord. 1183 § 5, 2011; Ord. 1172 § 2 (Exh. B), 2010).