Chapter 11.77
CRITICAL AREAS OVERLAY DISTRICT GENERAL PROVISIONS AND ADMINISTRATION
Sections:
11.77.040 Exemption, exceptions, and allowed uses.
11.77.050 General regulations.
11.77.060 General critical areas report.
11.77.070 Mitigation sequencing.
11.77.080 Variance provisions.
11.77.090 Subdivision notation.
11.77.010 Purpose.
It is the purpose of this chapter to protect critical areas as required by the Growth Management Act. This chapter adopts regulations and establishes review procedures to assure the protection of critical areas and reduce the threat posed to the public health, safety, environment, and welfare of Chelan County residents when development occurs in and near critical areas.
The purposes of this chapter with regards to each critical area are to:
(1) Wetland Areas. 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 ground water; 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, and retention and transformation of sediments, nutrients, and toxicants. This protection is achieved by regulating land use to avoid adverse effects on wetlands and to maintain the functions and values that wetlands provide to society and the environment.
(2) Frequently Flooded Areas. To protect the important hydrologic functions of the county’s one hundred-year floodplains, which include floodways and floodway fringe areas, in order to protect human health and safety and minimize damage to property.
(3) Geologic Hazard Areas. Certain portions of the county are characterized by geologic hazards that may pose a risk to public and private property, human life and safety and the natural systems that make up the environment of the county. These lands are affected by natural processes that make them susceptible to landslides, erosion, earthquake, or snow avalanche. Some geological hazards can be reduced or mitigated by engineering, design, or modified construction so that risks to health and safety are acceptable. When technology cannot reduce risks to acceptable levels, building in geologically hazardous areas is best avoided.
(4) Fish and Wildlife Habitat Conservation Areas. To identify, protect, and maintain the present high quality of Chelan County’s fish and wildlife habitat conservation areas.
(5) Critical Aquifer Recharge Areas. The availability of good quality, potable water is essential to the citizens of Chelan County in order to maintain a high quality of life. Identification and protection of aquifer recharge areas that are highly susceptible to potential contamination risks is essential in maintaining the quality of available potable water supplies. This district is intended to identify and protect areas vulnerable to contamination and protect potable groundwater supplies by reducing the possibility of groundwater contamination. (Res. 2021-54 (Att. A), 5/4/21).
11.77.020 Applicability.
(1) The provisions of this chapter shall apply to development or actions that are within, likely to be within, or are adjacent to a critical area whose buffers may overlap the proposed action, whether or not a county development permit is required.
(2) The provisions of this chapter include the specific development regulations within:
(A) Chapter 11.78, Fish and Wildlife Habitat Conservation Areas Overlay District (FWOD);
(B) Chapter 11.80, Wetlands Overlay District (WOD);
(C) Chapter 11.82, Aquifer Recharge Areas Overlay District (AROD);
(D) Chapter 11.84, Frequently Flooded Areas Overlay District (FFOD); and
(E) Chapter 11.86, Geologically Hazardous Areas Overlay District (GHOD).
(3) In the event of any conflict between this title and regulations contained in any other zoning or development regulations, those regulations which provide greater protection of critical areas shall apply.
(4) Compliance with the provisions of this chapter does not constitute compliance with other county codes and permits and other state and federal permits that may be required. The applicant is responsible for complying with other requirements apart from the process established in this chapter.
(5) The provisions of this chapter shall not apply to lands which are subject to the provisions of the shoreline master program or existing agricultural activities which are part of an approved voluntary stewardship program stewardship plan, except for those agricultural activities subject to this chapter that are within a flood hazard area or critical aquifer recharge area. (Res. 2021-54 (Att. A), 5/4/21).
11.77.030 Administration.
(1) The director of Chelan County community development department or designee shall serve as the administrator to this chapter.
(2) Critical area review is required for all land uses, development activity, and alteration of any land, water, vegetation, structure or improvement in Chelan County that proposed land use action is within, likely to be within, or is adjacent to a critical area whose buffers may overlap the proposed action, regardless of whether or not a permit or authorization is required from the county.
(3) Pursuant to Section 14.08.010, applicants may request a preapplication meeting with the community development department and applicable state agencies to discuss proposed development proposals.
(4) Critical areas review shall be classified and processed in the manner delineated in Chapter 14.08 for the underlying development permit or approval being sought. When an applicant submits an application for any development proposal, the application shall indicate whether any critical areas or buffers are located on or within two hundred fifty feet of the development. If the applicant states there are no known critical areas, the county should review and confirm whether critical areas exist through office and/or site visit. If critical areas or buffers are present that may be impacted, the applicant shall be required to complete a critical areas report.
(5) All projects without an underlying development permit that are within, likely to be within, or are adjacent to a critical area whose buffers may overlap the proposed project shall submit a critical area determination application to the county to determine the necessary level of critical area review. The application shall indicate which critical areas or buffers are within two hundred fifty feet of the project. The county will decide if the project is likely to alter one or more critical areas. If alteration is likely to occur, the review for actions not subject to an underlying permit or approval shall be classified and processed as either a limited administrative review or full administrative review as defined in Section 14.10.020 or 14.10.030, at the discretion of the administrator. Projects requiring full administrative review with public notice generally include those projects that are not exempt from SEPA review.
(6) When sufficient information is not available to determine whether a critical area exists on a site based on critical area maps, development project files, or publicly available data (e.g., the WDFW PHS data, the National Wetland Inventory (NWI), etc.), or the applicant challenges the decision of the administrator that a critical area exists on the site, a field investigation or site assessment by a qualified professional may be necessary to confirm the existence, location, and classification of a critical area. The cost of a field investigation or site assessment is the responsibility of the applicant.
(7) Any change or alteration to a development action approved by the county under this title shall be processed as a new action; provided, that the administrator may approve minor changes or alterations deemed consistent with the provisions of this title and the findings and conclusions on the original application. (Res. 2021-54 (Att. A), 5/4/21).
11.77.040 Exemption, exceptions, and allowed uses.
(1) Exemptions. The following actions are exempt from critical areas review, provided the actions do not alter or degrade the critical areas or buffers or increase the risk of natural hazard in compliance with this chapter. Additional exemptions specific to each critical area are listed within each individual section. Water quality and erosion control BMPs for vegetation clearing and land grading, maintenance, and/or repair for exempt activities shall adhere to the Stormwater Management Manual for Eastern Washington, as revised, pursuant to Chapter 13.16. The granting of an exemption does not relieve the applicant from other applicable state, federal, and local laws and requirements.
(A) Emergency Actions.
(i) Emergency actions include those activities necessary to prevent an immediate threat to public health, safety, and welfare, or that post an immediate risk of damage to public and/or private property and require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this section.
(ii) Any emergency exemption granted shall incorporate, to the greatest extent practical and feasible but not inconsistent with the emergency situation, the standards and criteria required for nonemergency activities under this act that will address the emergency with the least possible impact to the critical area, and shall be limited in duration to the time required to complete the authorized emergency activity.
(iii) The administrator shall be notified of the emergency action within one working day of the action taking place. The administrator shall review the action taken to determine if the action taken was beyond the scope of this exemption, and if any restoration or mitigation is required.
(iv) Issuance of an emergency exemption under this section by the administrator does not preclude the necessity to obtain other necessary approvals from appropriate federal and state agencies.
(v) Protective structures shall be removed and the site restored and mitigated, and any permit which would have been required, absent an emergency, shall be obtained within thirty days of resolution of the emergency situation.
(vi) Where new permanent protective structures are deemed by the administrator to be the appropriate means to address the emergency situation, within thirty days of resolution of the emergency situation the new structure shall be evaluated for consistency with this chapter, and any permit which would have been required, absent an emergency, shall be obtained.
(B) Operation, maintenance, repair or improvements of existing structures or infrastructure, if the activity does not alter or increase impacts to critical areas and there is no increased risk to life or property.
(C) Passive outdoor activities including recreation, education, and scientific research activities that do not degrade critical areas, such as by altering topography or critical area functions. Passive outdoor activities may include fishing, hiking, horseback riding, swimming, and bird watching.
(D) 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 4—General Forest Practice Permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
(2) Allowed Uses. The following actions are allowed within the critical areas and buffers unless the action will result in a negative alteration to the critical area as determined by the administrator. These actions are subject to review by the county but do not require a critical area report, unless otherwise stated. All critical area standards apply to these actions. Water quality and erosion control BMPs for clearing and grading, maintenance, and/or repair for allowed uses shall adhere to the Stormwater Management Manual for Eastern Washington, as revised, pursuant to Chapter 13.16. The granting of an allowed use under this section does not relieve the applicant from other applicable state, federal, and local laws and requirements.
(A) Projects previously reviewed for critical areas impacts through a critical areas determination application or critical areas report within the previous five years, except for projects requiring a geotechnical report, which must be reviewed every three years. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits), and construction approvals (such as building permits), may not need to complete a new critical area review.
(B) Modification of legally established existing structures. Structural modifications or replacement of an existing legally constructed structure that does not alter or increase impacts to a critical area or buffer and does not increase risk to life or property.
(C) Activities within the improved right-of-way. Replacement, modification, installation, construction, or reconstruction of utility or transportation facilities, such as roads, lines, pipes, mains, equipment or appurtenances, but not including substations, when such facilities are located within the improved portion of an existing public right-of-way or a county authorized private roadway. These activities are allowed; provided, that the maintenance or repair does not expand the footprint of the facility or right-of-way or alter the functions of the critical area. These activities should provide the following when possible:
(i) The critical area and/or buffers widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and
(ii) Retention and replanting of native vegetation shall occur when possible along the right-of-way and resulting disturbance.
(D) Minor utility or transportation projects. Utility or transportation projects with minor or short-duration impacts to critical areas that have provided a critical area report and meet the following criteria, as determined by the administrator:
(i) The activity has no significant impact on the function or values of the critical area;
(ii) The activity is constructed with best management practices and additional restoration measures.
(iii) There is no practical alternative with less impact on the critical area; and
(iv) The activity involves the placement of a small utility or transportation facility (e.g., pole, street sign, etc.).
(E) Public and private pedestrian trails. Public and private pedestrian trails, except in wetlands, fish and wildlife habitat conservation areas, or their buffers, subject to the following:
(i) The trail surface must meet all other requirements including stormwater regulations outlined in Chapter 13.16;
(ii) Critical area and/or buffer widths must be increased, where possible, equal to the width of the trail corridor, including disturbed areas; and
(iii) Trails proposed in landslide or erosion hazard areas must be constructed so as to not increase the risk of landslide or erosion in accordance with an approved geotechnical report.
(F) Vegetation Removal.
(i) Minor Vegetation Removal. Selective removal of invasive, noxious and nonnative vegetation with hand labor and light hand equipment is permitted within a critical area and buffer. No other native vegetation shall be removed from a critical area or its buffer without approval of the administrator.
(ii) Removal of Hazard Trees. Removal of hazard trees that pose an imminent threat to public safety or pose an imminent risk of damage to public and/or private property is permitted within a critical area and buffer with the approval of the floodplain administrator, subject to the following:
(a) All vegetation cut (tree stems, branches, etc.) shall be left within wetland or fish and wildlife habitat conservation areas and buffers unless removal is warranted due to the potential for disease, or pest transmittal to other healthy vegetation, or safety and health hazards;
(b) The method by which the tree is removed should minimize intrusion into, and impacts to, the critical area and buffer; and
(c) Any critical area or buffer areas that are disturbed by tree removal must be restored, with any damaged vegetation replaced through replanting of similar native vegetation types and densities.
(iii) Disease or Insects. Measures to control or halt the spread of disease or damaging insects should be consistent with the state Forest Practices Act (Chapter 76.09 RCW); provided, that removed vegetation be replaced within one year in accordance with an approved restoration plan.
(iv) Fire Protection. Property owners with legally established existing structures may request fire protection measures which are recommended through an adopted wildfire protection plan or from the Washington Department of Natural Resources, Cascadia Conservation District, or other similar group/agency. These provisions are intended to support fire suppression protection and shall not be used for the development of trails or yard areas. A critical area report may be required. The administrator shall review the proposal based on:
(a) The ability of the proposal to reduce fire risk and/or fire spread for the site and the surrounding properties;
(b) The inability to alter the critical area buffer through averaging;
(c) The vegetation removal is the minimum necessary to achieve defensible space or fuels reduction; and
(d) The impact to the vegetation and habitat function which may require mitigation to ensure no-net-loss.
(G) Chemical Applications. The application of herbicides, pesticides, fertilizers, or other hazardous substances, if necessary, as approved by the county. Provided, their use should be restricted in accordance with state Department of Fish and Wildlife Priority Habitat and Species and other management recommendations and the regulations of the state Department of Ecology, Department of Agriculture and the U.S. Environmental Protection Agency.
(H) Minor Site Investigation Work. Work necessary for land use permit submittals, such as surveys, soil logs, percolation tests, and other related activities, where such work does not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area should be minimized and disturbed areas immediately restored.
(I) Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers.
(3) Public Agency and Utility Exception (PAUE).
(A) If the application of these regulations will prohibit a development proposal from a public agency or utility, the public agency or utility may apply for an exception. The exception shall be processed as a full administrative review pursuant to Section 14.10.030. The public agency or utility shall provide the administrator with a critical areas report and mitigation plan, if necessary, and all other project related documents such as identified permits from other agencies, special studies, and SEPA documents.
(B) The administrator shall review the application based on all of the following criteria:
(i) There is no other practical alternative to the proposed development with less impact on the critical area;
(ii) The proposal minimizes the impact on the critical area;
(iii) The application of this chapter would unreasonably restrict the ability of the public agency or utility to provide services to the public;
(iv) The proposal does not pose an unreasonable threat to the public health, safety or welfare;
(v) The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and
(vi) The proposal is consistent with other applicable regulations and standards.
(C) The administrator shall prepare a decision based upon review of the submitted application and the proposal’s ability to comply with the criteria in subsection (3)(B) of this section.
(4) Reasonable Use Exception.
(A) Nothing in this chapter is intended to preclude reasonable use of property, or to effect a taking in violation of the U.S. Constitution, the state of Washington Constitution and substantive due process. If the application of this chapter would deny all reasonable economic use of the subject property, the property owner may apply for an exception pursuant to this section. The reasonable use exception shall be processed pursuant to Chapter 11.98. The application for a reasonable use exception shall include a critical areas report and mitigation plan, if necessary, and all other project related documents such as permits from other agencies, special studies, and SEPA documents.
(B) In addition to the criteria listed in Section 11.98.020(5), the board of county commissioners shall review the application based on all of the following criteria:
(i) No other reasonable economic use of the property has less impact on the critical area;
(ii) The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;
(iii) 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 this regulation, or its predecessor; and
(iv) The proposal will result in no net loss of critical area functions and values consistent with the best available science.
(C) The board of county commissioners shall make a final decision based upon review of the submitted application and the proposal’s ability to comply with the criteria in subsection (4)(B) of this section. (Res. 2021-54 (Att. A), 5/4/21).
11.77.050 General regulations.
(1) Financial Guarantee. The administrator may require a financial guarantee ensuring fulfillment of the mitigation project, monitoring program, and any contingency measures authorized by this title. The guarantee shall be in accordance with the following:
(A) The financial guarantee shall be in a form of a performance assurance surety bond, performance bond, assignment of funds, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the county attorney.
(B) The financial guarantee shall be at one hundred fifty percent of the cost of uncompleted actions or the estimated cost of restoring the functions and values of the critical area, whichever is greater. The surety shall be based on estimated cost of the mitigation activity including but not limited to clearing and grading, plant materials, plant installation, irrigation, weed management, monitoring, adaptive management, and other costs.
(C) The financial guarantee shall remain in effect until the county determines, in writing, that the standards bonded for have been met. The financial guarantee shall be held by the county for a minimum of the length of the time specified for monitoring in the plan and shall be released after a request by the applicant and a final inspection, but may be held for longer periods when necessary.
(D) Public development proposals shall be relieved from having to comply with the financial guarantee requirements of this section if public funds have previously been committed for mitigation, maintenance, or monitoring.
(2) Inspection and Right of Entry. The administrator may inspect any development activity or mitigation site to enforce the provisions of this chapter. The applicant consents to entry upon the site by the administrator during regular business hours for the purposes of making reasonable inspections to verify information provided by the applicant and to verify that work is being performed in accordance with the approved plans, permits, and requirements of this chapter.
(3) Marking and/or Fencing.
(A) Temporary Markers or Fencing. The outer perimeter of a critical area or buffer, whichever is greater, and the clearing limits identified by an approved permit or authorization shall be marked or fenced in the field in a manner approved by the administrator to prevent unauthorized intrusion and to protect the critical area and buffer from construction activities. Fencing shall be a highly visible and durable protective barrier. The marking or fencing is subject to inspection by the administrator prior to the commencement of permitted land clearing or construction activities and shall be maintained throughout land clearing and construction and shall not be removed until directed by the administrator, or until permanent signs and/or fencing, if required, are in place.
(B) Permanent Markers. The administrator may require, as a condition of any permit or variance, that the perimeter of the critical area or buffer, whichever is greater, be permanently identified. If required, this identification shall include permanent metal signs affixed to nontreated wood or metal posts. Sign content and spacing shall be determined by the administrator as necessary to meet the purposes of this section.
(i) 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 regular intervals to assure visibility, or one per lot if the lot is less than fifty feet wide, and must be maintained by the property owner or homeowners association in perpetuity. The signs shall be worded as follows or with alternative language approved by the administrator:
Protected [specify type] Critical Area
Do Not Disturb
Contact Chelan County Community Development Department Regarding Uses, Restrictions, and Opportunities for Stewardship
(ii) The provisions of subsection (3)(B)(i) of this section may be modified as necessary to assure protection of sensitive features or wildlife.
(C) Permanent Fencing. The administrator shall require permanent fencing where there is a substantial likelihood of intrusion into the critical area or buffer with the development proposal or when domestic grazing animals are present or may be introduced on site. The administrator may also require such fencing when, subsequent to approval of the development proposal, intrusions result in damage to critical areas. Fencing installed as part of a proposed activity or as required in this subsection shall be designed and constructed in a manner that does not interfere with species movements, including fish runs, and shall be constructed in a manner that minimizes impacts to the critical area and buffer functions.
(4) Buffers.
(A) All buffers shall be measured horizontal to and perpendicular from the critical area boundary. The width of the buffer shall be determined according to the requirements of this title and the findings of a critical areas report.
(B) When a road, railroad, levee, other improvement or vertical separation, such as a naturally formed cliff or bluff, completely functionally isolates the buffer from the critical area, the regulated critical area buffer shall not extend beyond the edge of the road, railroad, levee, other improvement, or vertical separation closest to the critical area. Whether a buffer is functionally isolated shall be determined by the administrator subject to a critical area report and review.
(C) If buffers for two or more critical areas (regardless of type) are contiguous with or contained within one another, the widest buffer width shall apply. Standard buffer dimension modifications and maximum intrusion distances shall apply to each individual critical area.
(D) Buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the critical area functions and values. If the vegetation or protection area is inadequate, the administrator may require an increase in the buffer width or additional native plantings within the buffer width. This determination shall be supported by appropriate documentation showing that it is reasonably related to protection of the functions and values of the critical area.
(5) Construction Stormwater. Water quality and erosion control best management practices for vegetation clearing, land grading, and soil disturbing activities shall adhere to the Stormwater Management Manual for Eastern Washington, as revised, pursuant to Chapter 13.16. (Res. 2021-54 (Att. A), 5/4/21).
11.77.060 General critical areas report.
(1) If the administrator determines that the parcel(s) of a proposed land use action is within, likely to be within, or is adjacent to a critical area whose buffers may overlap the proposed action, a critical areas report prepared by a qualified professional specific to each critical area shall be required. The expense of preparing the critical area report shall be borne by the applicant.
(2) The county may retain independent qualified consultants, at the expense of the applicant, to assist in review of critical area reports.
(3) In addition to the requirements specified under each critical area, the written report and the accompanying figures, maps, and plan sheets shall contain the following information, at a minimum:
(A) A site map or set of maps of the project area, including:
(i) Reference streets and tax parcel property lines (noting the source of the geographic data such as land survey, county GIS data, etc.);
(ii) Existing and proposed project-related tracts, easements, rights-of-way, utility corridors, internal property/lot lines, and trail corridors;
(iii) Existing and proposed final contour lines (at the smallest readily available intervals, preferably two-foot or better) if proposing land contour alterations;
(iv) Existing and proposed built features of the project including structures, fences, roads, impervious surfaces, utilities, mechanical facilities, landscaping, and other built modifications to the existing land conditions;
(v) Existing and proposed locations of stormwater management and discharge features;
(vi) Project construction, land disturbance, and clearing limits;
(vii) Temporary erosion and sediment control best management practices for all vegetation and soil disturbance areas, including utility corridors, stormwater discharge points, and critical areas mitigation sites;
(viii) All delineated and surveyed critical areas, and their classification, occurring within or adjacent to the proposed project area or tax parcel(s);
(ix) Standard buffers, proposed buffer modifications with area measurements, and building setback limits for critical areas illustrated in subsection (3)(A)(viii) of this section;
(x) All existing and/or proposed critical areas mitigation sites; and
(xi) Location of existing and/or proposed critical area tracts and/or easements.
(B) A written report, including:
(i) The name and contact information of the landowner and applicant/agent (if different than the landowner);
(ii) The name, qualifications, and contact information for the primary author(s) of the critical area report;
(iii) Location information (parcel number(s), address(es), parcel acreages)
(iv) Narrative of the proposed action and all project-related elements including, but not limited to, utility corridor improvements, stormwater discharge points, grazing and habitat changes, proposed mitigation, and/or other physical activities that will alter the critical areas existing habitat and functions.
(v) Identification of all local, state, and/or federal permit(s) or regulatory review(s) required for the project;
(vi) Vicinity map for the project;
(vii) Description of the project area and surrounding landscape existing conditions;
(viii) Description of the methodologies and techniques used to identify, delineate, and characterize critical areas, special status species, and the impacts analysis, and the dates of and who conducted the field studies;
(ix) A statement specifying the accuracy of the report and all assumptions made and relied upon;
(x) Identification and characterization of all critical areas and buffers existing conditions, functions and values, including any functionally isolated conditions on or adjacent to the proposed project area;
(xi) Documentation of any fieldwork performed on the site, including field data sheets for delineations, rating system forms, baseline hydrologic data, etc; and
(xii) Tabulated area quantities of each critical area(s) and associated buffers present in or adjacent to the proposed project area(s), and if proposed, the area quantities of proposed impacts and proposed mitigation for each critical area impacted.
(C) The administrator may waive selected components of the report or accept an alternative form of the required information if the administrator determines that sufficient detail will be provided to determine whether all applicable criteria and standards have been met. The administrator may consult with resource agencies prior to making a decision. (Res. 2021-54 (Att. A), 5/4/21).
11.77.070 Mitigation sequencing.
Development proposals affecting critical areas and/or special status species shall demonstrate that reasonable efforts have been examined with the intent to avoid and prevent impacts to the functions and values of the critical area or species. When an alteration to a critical area is proposed that is known or expected to have adverse impacts to a critical area and/or special status species, the alteration shall be avoided, minimized or compensated for in the following order of preference:
(1) Avoid the impact altogether by not taking a certain action or parts of an action.
(2) Minimize impacts by limiting the degree, magnitude, and duration 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.
(4) Reduce or eliminate the impact over time by preservation and maintenance operations.
(5) Compensate for the impact by replacing, enhancing, or providing substitute resources or environments.
(6) Monitor the required compensation and take remedial or corrective measures when necessary. (Res. 2021-54 (Att. A), 5/4/21).
11.77.080 Variance provisions.
If the application of this chapter would cause undue or unnecessary hardship for use of the subject property, the property owner may apply for a variance pursuant to this section. The variance shall be processed pursuant to Chapter 11.95. The application for a variance shall include a critical areas report and mitigation plan, if necessary, and all other project related documents such as permits from other agencies, special studies, and SEPA documents.
(1) In addition to all of the evaluation criteria within Section 11.95.030, a variance shall not be granted unless it can be shown that all of the following conditions exist:
(A) Significant impacts to the critical area and buffer functions as stated in Section 11.06.020 would be mitigated by the applicant by addressing with conditions of approval where practical; and
(B) Impacts to critical areas and their buffers cannot be lessened through location or design changes to the proposed use.
(2) The hearing examiner shall make a final decision based upon review of the submitted application and the proposal’s ability to comply with the criteria in subsection (1) of this section. The hearing examiner may approve, approve with conditions, or deny a request for a variance. (Res. 2021-54 (Att. A), 5/4/21).
11.77.090 Subdivision notation.
In the event the applicant is dividing property through the short subdivision, major subdivision, cluster subdivision, binding site plan, plat alteration or amendment process, a notation shall appear on the face of the final plat mylar referencing the requirements of this chapter, as amended. The boundaries of the critical area, buffer, one percent chance floodplain, and floodway shall also be shown on the face of the final plat. (Res. 2021-54 (Att. A), 5/4/21).
11.77.100 Noncompliance.
(1) When a critical area or its buffer has been altered in violation of this chapter, all ongoing activity shall stop and the critical area shall be restored. The administrator shall have the authority to issue a “stop-work” order pursuant to Title 16 to cease all ongoing activity and order restoration, rehabilitation, replacement, or other measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter. Activity shall not resume until such time as the violation has been corrected and the county determines that the same or similar violation is not likely to reoccur.
(2) If the county determines that a plan for restoration or other measures is required, all activity shall remain stopped until a plan is prepared and approved by the administrator. 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 (3) of this section. The administrator may, at the applicant or other responsible party’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.
(3) Minimum Performance Standards. All of the following minimum performance standards shall be met for the restoration or other required measures of a critical area:
(A) The historic structure, functions, and values of the affected critical area shall be restored, including water quality and habitat functions.
(B) The historic soil types and configuration shall be restored to the extent practicable.
(C) The critical area 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.
(D) Information demonstrating compliance with other applicable provisions of this chapter shall be submitted to the administrator.
(E) All provisions for public health and safety have been addressed.
(4) Site Investigations. The administrator is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The administrator shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.
(5) Penalties. Civil fines for violations of these provisions shall be pursuant to Chapter 16.16. If the wetland or fish and wildlife habitat area 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 county may coordinate its preservation or restoration activities with other agencies in the watershed to optimize the effectiveness of the restoration action. (Res. 2021-54 (Att. A), 5/4/21).
11.77.110 Incentives.
(1) The county encourages such mechanisms as the open space tax program, conservation easements and donations to land trusts, in order to provide taxation relief upon compliance with these regulations.
(2) Chelan County has adopted a public benefit rating system, which is a voluntary tax incentive program that allows landowners a reduced tax assessment of their land in return for a defined public benefit. There are federal income tax advantages that can be realized by an individual or estate, for gifts of real property for conservation purposes to local governments or nonprofit organizations such as land trusts. The specific rules on federal income tax deductions can be found in Section 170 of the Internal Revenue Code.
(3) Chelan County encourages citizens to work with the Chelan County natural resource department to develop and implement voluntary habitat restoration projects and practices on their property. (Res. 2021-54 (Att. A), 5/4/21).
11.77.120 Education.
(1) A variety of educational materials are available through the Chelan County natural resource department for private landowners. Chelan County recognizes and encourages community-based educational and service organizations to participate in programs which rehabilitate and/or maintain the quality of streams and other environmentally sensitive areas.
(2) Applicants have the opportunity of scheduling a preapplication conference through the Chelan County community development department to discuss pending development proposals with applicable reviewing agencies.
(3) Chelan County supports and encourages training and educational opportunities for staff to facilitate the implementation of this section. (Res. 2021-54 (Att. A), 5/4/21).