Chapter 11.78 FISH AND WILDLIFE HABITAT CONSERVATION AREAS OVERLAY DISTRICT (FWOD)

Chapter 11.78
FISH AND WILDLIFE HABITAT CONSERVATION AREAS OVERLAY DISTRICT (FWOD)

Sections:

11.78.010 Designation and identification.

11.78.020 Exemptions.

11.78.030 General regulations.

11.78.040 Riparian habitat regulations.

11.78.050 Upland habitat regulations.

11.78.060 Habitat management and mitigation plan.

* Prior legislation: Resos. 2000-129; 2003-08; 2007-97; 2008-86; 2014-38 and 2017-119.

11.78.010 Designation and identification.

(1) Designation. All areas within the county meeting one or more of the following designations, as identified pursuant to subsection (2) of this section, are considered fish and wildlife habitat conservation areas and are subject to the provisions of this chapter.

(A) Areas where federal or state endangered, threatened, and sensitive species have a primary association;

(B) Habitats and species of local importance, as determined locally. Currently, the county has determined that mule deer and elk winter range and migration corridors are habitats of local importance;

(C) Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish or wildlife habitat. This does not include ponds deliberately designed and created from dry sites, such as canals, stormwater detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation;

(D) Waters of the state, as identified in subsection (2) of this section;

(E) Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity; and

(F) State natural area preserves, natural resource conservation areas, and state wildlife areas.

(2) Identification. The Chelan County community development department will maintain maps to provide information to the public and aid in the administration of this section; however, maps showing known critical areas are only for information and illustrative purposes. Sites that include fish and wildlife habitat conservation areas not mapped shall be subject to the provisions of this section. In the event of a conflict between the information shown on the maps and information shown as a result of field investigations, the latter shall prevail. Maps utilized by Chelan County to identify fish and wildlife habitat conservation areas include the following maps and map databases:

(A) The Washington State Department of Fish and Wildlife Priority Habitats and Species (PHS) and Wildlife Heritage Maps and Database, as amended;

(B) Washington State Department of Fish and Wildlife SalmonScape Map;

(D) Chelan County shoreline master program, as amended;

(E) DNR Stream Type Maps for Type S, F, Np, and Ns waters per criteria as set forth in WAC 222-16-031, Interim water typing system, as amended;

(3) Site Assessment. The administrator may require the applicant to conduct a site assessment to confirm the presence or absence of a fish and wildlife habitat conservation area. A site assessment must be performed by a qualified professional biologist. If the field investigation concludes that the site is not within and/or would not impact a fish and wildlife habitat conservation area or buffer, compliance with this chapter is not required.

(4) Agency Referral. Referral may be necessary to determine if compliance with this chapter is required. The administrator may request assistance from pertinent agencies, including but not limited to Washington State Department of Fish and Wildlife, to review the results of a site assessment, designation, or other information as requested. If agency assistance is desired, the administrator will mail a specific notice to those agencies. Agencies must submit written comments to the administrator not later than thirty days from the date of the mailing of the notice in order to receive consideration.

(5) Habitats and Species of Local Importance Designation.

(A) In order to nominate an area, species, or corridor to the category of locally important, an individual or organization must:

(i) Demonstrate a need for special consideration based on:

(a) Declining population;

(b) Sensitivity to habitat manipulation;

(d) Maintenance of connectivity between habitat areas.

(ii) Propose relevant management strategies considered effective and within the scope of this chapter;

(iii) Identify effects on property ownership and use; and

(iv) Provide a map showing the species or habitat location(s).

(B) Submitted proposals shall be reviewed by the county and may be forwarded to local, state, federal, and/or tribal agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies.

(C) If the proposal is found to be complete, accurate, and consistent with the purposes and intent of this chapter and the various goals and objectives of the Chelan County Comprehensive Plan, the Growth Management Act, the Shoreline Management Act, and the critical areas ordinance, the board of county commissioners will hold a public hearing to solicit comment. Approved nominations will then be processed as amendments to this ordinance in conformance with Chapter 14.13, in order to be considered as designated locally important habitats, species, or corridors, and if approved will be subject to the provisions of this chapter. (Res. 2021-54 (Att. A), 5/4/21).

11.78.020 Exemptions.

Activities exempt from the provisions of this chapter are specified in Section 11.77.040, including the following:

(1) Access/View Corridor.

(A) One access/view corridor allowed per parcel with administrator approval, provided:

(i) The access/view corridor is twenty-five feet or less in width;

(ii) That clearing is done in a manner that prevents erosion;

(iii) The access/view corridor shall be located to avoid and minimize impacts to native vegetation and in areas dominated with nonnative vegetation and/or invasive species;

(iv) That no pruning or removal of vegetation waterward of any ordinary high water mark occurs; and

(v) That the actions do not alter or degrade the critical areas or buffers or increase the risk of natural hazard in compliance with this chapter, as determined by the administrator. The administrator may require the applicant provide an assessment of potential impacts prepared by a qualified professional biologist to help make the determination.

(B) Access/view corridors that are determined by the administrator to degrade the critical areas or buffers or increase the risk of natural hazards shall be required to prepare a habitat management and mitigation plan.

(2) Modification of a legally constructed single-family residence; provided, that no new construction shall be closer to the critical area and does not increase the square footage of the primary residence to be modified by more than twenty-five percent of the existing square footage. (Res. 2021-54 (Att. A), 5/4/21).

11.78.030 General regulations.

Proposed activities or development shall be prohibited from fish and wildlife habitat conservation areas and their buffers, except in accordance with this chapter. Development within fish and wildlife habitat conservations areas or buffers shall be subject to the following standards:

(1) Development and clearing within a fish and wildlife habitat conservation area or an associated buffer shall protect the critical area functions and values of the existing habitat to the extent feasible. Site planning shall minimize disruption of existing topography and vegetation. Protection of existing topography and vegetation is to be provided by avoiding (the preferred alternative) or minimizing and mitigating impacts as specified in Section 11.77.080.

(2) Any limitations to site disturbance, such as clearing restrictions, imposed as a condition of development approval shall be marked in the field and approved by the county prior to undertaking the project.

(3) Building sites are encouraged to be located away from habitat conservation areas as feasibly as possible.

(4) Disturbed areas shall be revegetated with native vegetation within one growing season of project completion, or as prescribed by an approved habitat management and mitigation plan. (Res. 2021-54 (Att. A), 5/4/21).

11.78.040 Riparian habitat regulations.

(1) Riparian habitat includes those areas in or near waters of the state and their associated buffers.

(2) Unless otherwise allowed in this title, all structures and activities shall be located outside of riparian habitat and buffers. Activities and structures within the riparian habitat and buffers shall be required to submit a habitat management and mitigation plan pursuant to Section 11.78.060.

(3) Riparian Buffers.

(A) Riparian buffer areas shall be established for habitats that include aquatic and terrestrial ecosystems that mutually influence each other and that are located adjacent to waters of the state.

(i) Isolated Riparian Buffers. When impervious surfaces from previous development or flood control structures, such as levees, completely functionally isolate the riparian area from the watercourse, the riparian buffer shall extend from the ordinary high water mark (OHWM) to the impervious surfaces, or toe of the flood control structure.

(ii) Vegetation within the riparian buffer shall be maintained as riparian habitat. Noxious weeds in the riparian buffer should be controlled according to best management practices. The Chelan County noxious weed control board should be consulted for recommendations. Where riparian buffer vegetation disturbances have occurred, only revegetation with locally prescribed native vegetation is permitted, except as provided for in this section. Consultation with one of the following agencies is recommended: the WSU Cooperative Extension Service, the Cascadia Conservation District, the Washington State Department of Ecology, the Washington State Department of Fish and Wildlife, or the USDA—Natural Resources Conservation Service.

(iii) All riparian buffers shall be temporarily fenced between the construction activity and the riparian buffer as required by Section 11.77.050(3)(A).

(B) Required Riparian Buffer. The point of measurement for the riparian buffer begins at the ordinary high water mark on each bank and is measured horizontally from this point. No development, except as outlined in the provisions of this section, is allowed in this area. Buffer distances are shown in Table 1. High and low land use intensity is defined in Chapter 14.98.

Table 1. Riparian Buffers Widths
Riparian Buffer Width (ft)
Stream Type	High Land Use Intensity (feet)	Low Land Use Intensity (feet)
Type S Waters	See County SMP	See County SMP
Type F Waters	200	150
Type Np Waters	150	100
Type Ns Waters	50	50

(C) Administrative Buffer Modifications. The administrator may allow a one-time administrative buffer modification using one of the following tools:

(i) Buffer Averaging. Riparian buffer widths may be modified by averaging the buffer widths, pursuant to an administrative modification. Riparian buffer width averaging shall be allowed only where the applicant demonstrates all of the following:

(a) That width averaging will not degrade the riparian habitat structure, functions and values; and

(b) The total area contained within the riparian buffer after averaging is no less than that contained within the riparian buffer width, outlined by the requirements of this chapter, prior to averaging; and

(c) The revised riparian buffer width shall not be less than seventy-five percent of the riparian buffer widths outlined within this chapter or be less than twenty-five feet, whichever is greater; and

(d) The newly incorporated area contained within the revised riparian buffer provides habitat structure, functions and values that are at least equal to, if not superior to, the area that is being replaced; and

(e) Failure to adjust the buffer would result in a hardship to the property owner; and

(f) The need for buffer width averaging is not due to the landowner’s own actions; and

(g) Only low intensity land uses would be located adjacent to areas where the buffer width is reduced, and that such low intensity land uses are guaranteed in perpetuity by covenant, deed restriction, easement or other legally binding mechanism; and

(h) Submission of a habitat management and mitigation plan, if required by the administrator, pursuant to Section 11.78.040, in support of the requested buffer width averaging.

(ii) Type I Buffer Modification. For those legally created lots, tracts, and parcels that satisfy the criteria outlined below, the administrator may allow a reduction to the standard buffer widths. The riparian buffer may be reduced to a maximum of twenty-five percent of the lot depth; provided, said riparian buffer is not less than twenty-five feet in width. The buffer reduction granted shall be the minimum necessary to afford relief to address hardship issues. All of the following criteria must be satisfied:

(a) The strict application of the bulk, dimensional or performance standards set forth in these requirements significantly interferes with reasonable use of the property;

(b) The hardship described in subsection (3)(C)(ii)(a) of this section is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of this title, and not, for example, from deed restrictions or the applicant’s own actions;

(c) There are no feasible alternatives to the site design that could be accomplished with the standard buffer averaging provisions above;

(d) The reduced buffer will not result in degradation of the riparian habitat functions and values as demonstrated by a habitat management and mitigation plan from a qualified professional biologist; and

(e) That the public interest will not suffer substantial detrimental effect.

(iii) Type II Buffer Modification. For those legally created lots, tracts, and parcels that satisfy the criteria outlined below, the administrator may allow a twenty-five percent reduction to the standard buffer width. All of the following criteria must be satisfied:

(a) There are no feasible alternatives to the site design that could be accomplished with the standard buffer averaging provisions above; and

(b) The reduced buffer will not result in degradation of the riparian habitat functions and values as demonstrated by a habitat management and mitigation plan from a qualified professional biologist; and

(D) Increased Buffer Area Width. Buffer widths shall be increased on a case-by-case basis as determined by the administrator when a larger buffer is necessary to protect habitat functions and values. This determination shall be supported by appropriate documentation showing that it is reasonably related to protection of the functions and values of the fish and wildlife habitat conservation area. The documentation must include but not be limited to the following criteria:

(i) The habitat is used by a state or federally listed plant or animal species or has essential or outstanding habitat for those species, or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees; or

(ii) The adjacent land is susceptible to severe erosion, and erosion-control measures will not effectively prevent adverse habitat impacts; or

(iii) The adjacent land has minimal vegetative cover or slopes greater than thirty percent.

(4) Specific Development Standards

(A) Bulkheads and Bank Stabilization.

(i) New bank stabilization and bulkheads may be placed following bank protection recommendations in the Washington State Integrated Streambank Protection Guidelines. Structure relocations and bioengineering alternatives to hard armoring should always be considered first.

(ii) The administrator shall require a habitat management and mitigation plan pursuant to Section 11.78.060 when bioengineering alternatives are not used.

(B) Roadways and Water Crossings.

(i) Proposed new roads within riparian buffers shall be avoided. If proposed new roads within the riparian buffer cannot be avoided, roads should be kept to a minimum and should not run parallel to the water body. Crossings, where necessary, shall cross riparian buffers at as near right angles as possible. Retaining walls may be used to avoid and minimize grading impacts for water crossings or buffer impacts for the roadway. If no alternative exists to placing a new roadway in the buffer, the administrator may require a habitat management and mitigation plan pursuant to Section 11.78.060.

(ii) Water crossings must be approved by the Washington State Department of Fish and Wildlife in accordance with RCW 77.55.021.

(C) Equestrian/pedestrian/bike trails and associated facilities may be permitted in riparian buffers after review of a site plan by the administrator but should be set back fifty feet from the ordinary high water mark if possible and shall be a maximum of fourteen feet in width. The administrator may require a habitat management and mitigation plan, pursuant to Section 11.78.060, to address riparian habitat impacts in consultation with the Washington State Department of Fish and Wildlife, the Washington State Department of Ecology, the Army Corps of Engineers or other agencies as appropriate.

(D) Wells, Tunnels, Utilities and On-Site Septic Systems.

(i) Where no other practical alternative exists to the excavation for and placement of wells, tunnels, utilities, or on-site septic systems in a riparian buffer, the administrator may require a habitat management and mitigation plan pursuant to Section 11.78.060, adequate to avoid degradation of the riparian habitat functions, structure and value.

(ii) Wells and on-site septic systems shall be in conformance with the Chelan-Douglas health district requirements. On-site septic systems located within one hundred feet of the ordinary high water mark require a health district waiver which will provide for additional health district and reclamation conditions for approval. (Res. 2021-54 (Att. A), 5/4/21).

11.78.050 Upland habitat regulations.

(1) Upland habitat conservation areas include those area where federal or state endangered, threatened, and sensitive species have a primary association or are within one thousand feet of a mapped point location, state natural area preserves, natural resource conservation areas, state wildlife areas, and habitats and species of local importance. In Chelan County, mule deer and elk winter range and migration corridors are habitats of local importance.

(2) While Chelan County has a large proportion of land owned by resource agencies who manage their land to provide upland habitat, large portions of privately-owned land are within designated upland habitat conservation areas.

(3) To aid in upland habitat protection, actions designated as major development, as defined in Chapter 14.98, located within the designated upland habitat conservation area shall be required to submit a habitat management and mitigation plan pursuant to Section 11.78.060.

(4) For actions designated as minor development, as defined in Chapter 14.98, a habitat management and mitigation plan is not required unless the administrator determines the action may alter or degrade the critical area or increase the risk of natural hazards. The administrator may require the applicant to provide an assessment of potential impacts prepared by a qualified professional biologist to help make the determination.

(5) The administrator may waive the requirement for a habitat management and mitigation plan where it is determined that there will be little to no impact to the upland habitat conservation area.

(6) Fences in Deer and Elk Migration Corridors.

(A) Appropriate fencing can protect deer and elk migration in the county while providing for the operation and protection of livestock or other agriculturally related land uses.

(B) The following uses of fencing within migration corridors shall considered major development:

(i) Fencing for directing wildlife migration that is longer than five thousand feet in one general direction.

(ii) Fencing for excluding wildlife if the fence restricts the migration of deer or elk.

(D) New and replacement fencing in deer and elk migration corridors shall conform to the following types:

(i) Type A Fence. Where fencing is proposed for development in deer or elk migration corridors, Type A fencing, or other fencing type approved by Washington State Department of Fish and Wildlife, shall be required. Type A fence shall consist of no more than four horizontal, well-stretched, evenly spaced wires, placed so that the top wire is no more than forty-two inches above the ground and the bottom wire is at least seventeen inches from the ground and all other wires at intervals evenly spaced no less than eight inches, sixteen inches and twenty-four inches below the top wire. If posts are set more than sixteen feet apart, the wires shall be supported by stays, placed not more than eight feet from each other or from the posts. All other fences as strong and as well calculated as the fence described above shall be allowed.

(ii) Type B Fence. Type B fence may be permitted for swimming pools, dog kennels, garden fences, corrals, horse pastures, sheep pastures, agricultural crops, and similar uses. Type B fence shall consist of braid mesh fabric or any other combination of materials that may create a continuous solid enclosure. Fence material shall be securely fastened to substantial posts. (Res. 2021-54 (Att. A), 5/4/21).

11.78.060 Habitat management and mitigation plan.

(1) A habitat management and mitigation plan for fish and wildlife habitat conservation areas shall be prepared by a qualified professional biologist when a development activity is proposed in a fish and wildlife habitat conservation area or buffer. The expense of preparing the habitat management and mitigation plan shall be borne by the applicant. The county may retain independent qualified consultants, at the expense of the applicant, to assist in review of plans and reports.

(2) In the case of bald eagles, if no other PHS habitat or species are present that require a habitat management and mitigation plan, an approved bald eagle management plan by the Washington State Department of Fish and Wildlife meeting the requirement and guidelines of the bald eagle protection rules (WAC 220-610-100, as amended) will satisfy the requirements for a habitat management and mitigation plan.

(3) Habitat management and mitigation plans must be prepared by a qualified professional biologist that includes written goals, objectives, performance standards, a monitoring and maintenance plan, and an adaptive management plan. Mitigation projects must be monitored and maintained for a period necessary to establish that performance standards have been met, as determined by the administrator.

(4) The habitat management and mitigation plan shall identify how impacts from the proposed project shall be mitigated, as well as the necessary monitoring and contingency actions for the continued maintenance of the habitat conservation area and any associated buffer.

(5) When an alteration to a critical area is proposed, the plan shall demonstrate that all reasonable efforts have been taken to mitigate impacts per the sequence in Section 11.77.100.

(6) The habitat management and mitigation plan shall demonstrate, when implemented, no net loss of ecological functions of the habitat conservation area and buffer.

(7) Restoration is required when the critical area or its buffer will be temporarily impacted during the construction of an approved development proposal. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan. A qualified professional biologist should determine whether restoration is possible before any temporary disturbance occurs. If it is determined that full restoration of ecological functions is not possible, the habitat management and mitigation plan shall include actions to fully compensate for the unavoidable impacts.

(8) Species specific mitigation, performance standards, monitoring, and adaptive management shall be based on species current best available science and/or WDFW or USFWS management recommendations.

(9) Mitigation should be guided by applicable watershed, fish recovery, sub-basin or other science-based plans. Any science used to guide mitigation actions, whether on site or off site, must meet the criteria and characteristics of best available science listed in WAC 365-195-905, or the state standards in effect at the time of application.

(10) Water quality and erosion control BMPs for mitigation area vegetation clearing and soil disturbing activities shall adhere to the Stormwater Management Manual for Eastern Washington, as revised, pursuant to Chapter 13.16.

(11) Mitigation ratios shall be used when impacts to critical areas or their buffers are unavoidable. Compensatory mitigation shall restore, create, rehabilitate or enhance to achieve equivalent or greater ecological functions. Mitigation shall be located according to the priorities for mitigation location and type, in the following sequential order of preference: on-site, in-kind; off-site, in-kind; on-site, out-of-kind; and off-site, out-of-kind and result in no net loss of ecological functions. If off-site mitigation measures are determined to be appropriate, offsite mitigation shall be located preferentially within the same watershed as the development, within Chelan County.

The on-site mitigation ratio (mitigation area: disturbed area) for impacts to critical areas shall be at a minimum ratio of 1:1. A ratio of 2:1 shall apply to off-site mitigation for impacts to critical areas. Mitigation for diverse, high quality habitat or off-site mitigation may require a higher level of mitigation. Mitigation and management plans shall evaluate the need for a higher mitigation ratio on a site by site basis, dependent upon the ecological functions and values provided by the habitat being impacted and the habitat available for mitigation. Recommendations by resource agencies in evaluating appropriate mitigation shall be encouraged.

(12) The habitat management and mitigation plan shall be approved or denied in writing by the administrator. The administrator has the authority to determine the applicability of individual plan requirements and may waive plan requirements determined to be unnecessary on a case-by-case basis. The habitat management and mitigation plan shall contain a report including, but not limited to, the following information:

(A) Maps and figures shall illustrate:

(i) The location of the proposed site;

(ii) The width and length of all existing and proposed structures, utilities, roads, easements, wastewater and stormwater facilities, and adjacent land uses;

(iii) Location(s) of the identified species / habitat(s);

(iv) Locations of all water body OHWM, existing stream crossings, and existing in-water constructed features;

(v) Top and toe of any slopes twenty-five percent or greater occurring within twenty-five feet of a stream OHWM;

(vi) Special status species and habitats point, polygon, and/or buffers locations obtained from project field studies and/or agency data sets;

(vii) Location of the standard riparian buffer(s), recommended species buffer dimensions, and project proposed modified buffer dimensions allowable by Section 11.78.030(3); and

(viii) If direct impacts or probable indirect impacts to fish and wildlife habitat conservation areas or species may be anticipated, include:

(a) The location of proposed stream crossings, proposed stream or buffer modifications, recommended water type changes, or detailed explanation of proposed in-water work and timing;

(b) The location of identified species usage or habitat modifications in or adjacent to the proposed project area; and

(B) A report that provides an assessment of existing habitats:

(i) Identification of any species of local importance, priority species, or endangered, threatened, sensitive or candidate species that have a primary association with habitat in or adjacent to the project area;

(ii) Methodologies used to determine and characterize water body OHWM, fish and/or wildlife presence/absence surveys, mapping habitats of primary association, and PHS;

(iii) Delineation of water body OHWM and the WAC 222-16-031 water type classification;

(iv) Characterization of the water body dimensions, morphology, flow regime (i.e., perennial, seasonal, intermittent, or ephemeral), substrate, erosion potential, and floodplain capability;

(v) A detailed discussion of surface and subsurface hydrology both on and adjacent to the site where the review authority determines appropriate;

(vi) Detailed characterization of the identified species usage and/or habitat characteristics present in or adjacent to the project area;

(vii) A description of the vegetation in the habitat conservation area, on the overall project site and adjacent to the site;

(viii) Tabulated summary of quantities of identified species usage, water bodies, and priority habitats present in or adjacent to the project area; and

(ix) Developments that propose alterations to streams or stream buffers shall also include the following:

(a) In-water habitat conditions for fish and wildlife life history requirements,

(b) Characterization of riparian (streamside) corridor—vegetation species, composition, corridor width, and habitat functions;

(d) Downstream and upstream fish passage constraints.

(C) A description of the proposed project including the nature, density and intensity of the proposed development and the associated grading, structures, roads, easements, wastewater facilities, stormwater facilities, utilities, etc., in sufficient detail to allow analysis of such land use change upon the habitat conservation area;

(D) An assessment of direct and probable indirect project impacts to the identified species, water bodies, and/or PHS in the project area;

(E) A discussion of management recommendations identified by any federal, state, or local agency for the species or habitats in the project area;

(F) A detailed description of the proposed project’s effect on the habitat conservation area;

(G) Recommended buffers necessary for the protection of the identified species;

(H) A discussion of management recommendations identified by any federal, state, or local agency for the species or habitats in the project area; and

(I) A discussion of how the applicant will avoid, minimize, rectify, reduce, or eliminate impact over time, and compensate for the proposed activity. Mitigation measures within the plan may include, but are not limited to:

(i) Establishment of buffer areas;

(ii) Preservation of critically important plants and trees, preferably in consolidated areas;

(iii) Limitation of access to the habitat conservation area;

(iv) Seasonal restriction of construction activities;

(v) Directing lights away from the habitat conservation area and buffer;

(vi) Clustering of development and preservation of open space, if permitted by the underlying zoning district;

(vii) Post signs marking habitats or habitat buffer areas and boundaries to clearly indicate the location of the critical area pursuant to Section 11.77.060(4);

(viii) Use low impact development when appropriate;

(ix) Establish covenants prohibiting the use of pesticides within the buffer or habitat area;

(x) Implement integrated pest management programs;

(xi) Title notice or plat dedication warning statements;

(xii) Conservation easements;

(xiii) Preserve and introduce native plant species which serve as food and shelter from climatic extremes and predators and structure and cover for reproduction and rearing of young for critical wildlife;

(xiv) The use of native species or species recommended by the Washington State Department of Fish and Wildlife in the revegetation or landscaping of disturbed or developed areas and in any enhancement of habitat or buffers.

(13) Review comments by a habitat biologist from the Washington State Department of Fish and Wildlife may be required, as determined by the administrator. If review comments are desired, the administrator shall mail a written notice to the agency. Agencies shall have thirty days from the date of mailing of the notice to submit written comments to the county. The agencies shall respond in writing to the administrator with review comments or a request for additional time for review within thirty days from the date of notice. The administrator may grant an additional seven days for an agency to provide review comments.

(14) Conditions shall be imposed, as necessary, based on the measures identified in the habitat mitigation plan.

(15) Performance Standards. The following performance standards shall apply to compensatory mitigation projects:

(A) Mitigation planting survival will be ninety percent for the first year and eighty percent for the following years. The survival standard can be met by replanting dead plants to achieve the required survival rate.

(B) Mitigation construction shall be completed prior to granting of final occupancy, or the completion of final approval of any development activity for which mitigation measures have been required. Bonding according to the provisions of Section 11.77.050(1) for the cost of uncompleted activities is an acceptable alternative to completion where a contract to complete the work is in force.

(C) The monitoring period is determined by the administrator consistent with this section. Mitigation monitoring shall be required for a period necessary to establish that performance standards have been met. For mitigation containing exclusively herbaceous vegetation, where applicable, a minimum monitoring period of three years shall be prescribed or until performance criteria are met. For mitigation containing scrub-shrub vegetation, three to five years or until performance criteria are met. Monitoring shall be required for a minimum of five years, and potentially more years, when any of the following conditions apply:

(i) The project does not meet the performance standards identified in the mitigation plan.

(ii) The project does not provide adequate replacement for the functions and values of the impacted critical area.

(iii) The project results in unanticipated changes to hydrology of the impacted and/or mitigated critical area.

(iv) The project involves establishment of mixed scrub-shrub and forested plant communities, which require longer time for establishment.

(D) Where necessary, a permanent means of irrigation shall be installed for the mitigation plantings. The design shall meet the specific needs of riparian vegetation.

(E) Monitoring reports must include verification that the planting areas have less than twenty percent total nonnative, exotic, or invasive plant cover.

(F) Plants, wildlife, or fish species not indigenous to the region shall not be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.

(G) Exotic and invasive species may include any species on the state noxious weed list, or considered a noxious or problem weed by the Natural Conservation Services Department or local conservation districts.

(H) The monitoring period is determined by the administrator consistent with this section. Mitigation monitoring shall be required for a period necessary to establish that performance standards have been met. The length of time involved in monitoring and monitoring reports may be increased by the administrator for a development project on a case-by-case basis when longer monitoring time is necessary to establish or reestablish functions and values of the mitigation site.

(I) Monitoring reports shall be submitted to the administrator at site completion (as-built) and annually for up to three years following construction and every two years thereafter pursuant to the approved monitoring period. Monitoring reports shall be submitted by a qualified professional biologist. The biologist must verify that the conditions of approval and provisions in the fish and wildlife management and mitigation plan have been satisfied.

(J) For mitigation containing exclusively herbaceous vegetation a minimum monitoring period of one year may be prescribed or until performance criteria are met. For mitigation containing scrub-shrub vegetation, three to five years or until performance criteria are met. Monitoring shall be required for a minimum of five years, and potentially more years, when any of the following conditions apply:

(i) The project does not meet the performance standards identified in the mitigation plan.

(ii) The project does not provide adequate replacement for the functions and values of the impacted critical area.

(iii) The project results in unanticipated changes to hydrology of the impacted and/or mitigated critical area.

(iv) The project involves establishment of mixed scrub-shrub and forested plant communities, which require longer time for establishment.

(K) If the mitigation plan is not installed per the timeline defined in this section or monitoring reports indicate that mitigation is not achieving its goals in accordance with this section, the administrator may, based on the recommendations of a qualified professional, increase the required monitoring to annually for up to ten years after mitigation is installed.

Mitigation sites shall be maintained to ensure that the mitigation and management plan objectives are successful. Maintenance shall include corrective actions to rectify problems, including rigorous, as-needed elimination of undesirable plants, protection of shrubs and small trees from competition by grasses and herbaceous plants, and repair and replacement of any dead plants. (Res. 2021-54 (Att. A), 5/4/21).