Section 40.445.080

40.445.080 Administration

A. Review Procedures. All applications for the reviews and permits identified in this chapter shall be reviewed in accordance with the procedures and processes described in Section 40.500.010(D) and Chapter 40.510 as identified in Table 40.445.080-1. Where more than one (1) application is submitted concurrently for a given development or action, and those applications are subject to different types of procedure, then all the applications are subject to the highest-number procedure that applies to any of the applications.

1. Permit Review Thresholds.

a. Level 1 Review. Level 1 reviews are subject to clear, objective and nondiscretionary standards or standards that require the exercise of professional judgment about technical issues, and that are exempt from SEPA review. The following permit applications are subject to Level 1 review:

(1) Permits associated with development authorized under Chapter 14.06;

(2) Permits associated with conversion of forest land under Section 40.260.080(B);

(3) Permits associated with uses authorized under Section 40.260.100(E) or (F);

(4) Requests proposing wetland buffer modifications only;

(5) Requests proposing less than one-tenth (0.10) acre of direct wetland impact or impact to habitat above the OHWM;

(6) Plan revisions that do not require reconsideration of a SEPA determination issued under Chapter 40.570 and are not associated with a Type III post-decision review pursuant to Section 40.520.060(E);

(7) Reasonable use assurances authorized under Section 40.445.050(B)(2); and

(8) Statements of exemption.

b. Level 2 Review. Level 2 reviews are subject to objective and subjective standards that require the exercise of limited discretion about nontechnical issues and about which there may be a limited public interest. The following permit applications are subject to Level 2 review:

(1) Requests proposing one-tenth (0.10) acre or more direct wetland or habitat impact;

(2) Requests proposing work below the OHWM of a nonwetland water of the state;

(3) Requests for minor exceptions pursuant to Section 40.445.050(A);

(4) Permits associated with conversion of forest land under Section 40.260.080(C)(3) that do not meet any Level I criteria;

(5) Plan revisions that require reconsideration of a SEPA determination issued under Chapter 40.570 or are associated with a Type III post-decision review pursuant to Section 40.520.060(E);

(6) Requests to establish mitigation banks or in-lieu fee programs;

(7) Reasonable use assurances subject to Section 40.445.050(B)(3); and

(8) Reasonable use assurances subject to Section 40.445.050(B)(4) that are authorized as an emergency action or implement a capital facilities plan adopted by a legislative body.

c. Level 3 Review. Level 3 reviews are subject to standards that require the exercise of substantial discretion and about which there may be a broad public interest that warrants a public hearing. The following permit applications are subject to Level 3 review:

(1) Reasonable use assurances that do not meet Level 1 or Level 2 criteria.

d. Final Review. Final review is conditionally required in preliminary land use decisions as necessary to resolve technical issues, secure financial assurances, and approve minor changes prior to final site plan, engineering construction plan, or plat approval.

Table 40.445.080-1 Review Processes
Application Request	Type I	Type II	Type III
Determination	X
Statement of exemption	X
Permit
Level 1 review	X
Level 2 review		X
Level 3 review			X
Final review	X
Programmatic permit1		X
Stewardship plan2
Existing agriculture	Optional
All others	X

1Refer to Section 40.445.080(F).

2Refer to Section 40.445.080(G).

2. Additional Notification. In addition to notices otherwise required pursuant to Chapter 40.500, notice of Type II and Type III wetland or habitat permit applications shall be given to federal and state agencies that have jurisdiction over, or an interest in, the affected wetlands or fish and wildlife habitat conservation areas.

3. Conservation Covenant Modifications. Modifications to conservation covenants shall be consistent with the standards of this chapter and will be processed subject to the following:

a. Modification to a covenant approved by a Type I decision shall be subject to a Type I review process.

b. Modification to a covenant approved by a Type II decision shall be subject to a Type I review process if the responsible official finds the requested change:

(1) Does not increase the potential adverse impact to wetlands, wetland buffers, or fish and wildlife habitat conservation areas;

(2) Does not involve an issue of broad public interest, based on the record of the decision; and

(3) Does not require further SEPA review.

c. Modification to a covenant approved by a Type II decision shall be subject to a Type II review process if it is not subject to Type I review.

d. Modification to a covenant approved by a Type III decision shall be subject to a Type I review process if the responsible official finds the modification:

(1) Provides an increased benefit to wetlands, wetland buffers, or fish and wildlife habitat conservation areas;

(2) Does not involve an issue of broad public interest, based on the record of the decision; and

(3) Does not require further SEPA review.

e. Modification to a covenant approved by a Type III decision shall be subject to a Type II review process if the responsible official finds the requested change in the decision:

(1) Does not increase the potential adverse impact to wetlands, wetland buffers, or fish and wildlife habitat conservation areas allowed by the covenant or SEPA determination; and

(2) Does not involve an issue of broad public interest, based on the record of the decision.

f. Modification to a covenant approved by a Type III decision shall be subject to a Type III review process if it is not subject to Type I or II review.

g. Modification requests submitted with other applications will be processed as specified in Section 40.500.010(D)(2).

h. Removal of covenants established pursuant to this chapter shall be granted by the county manager with consent from the Clark County council.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

B. Application Submittal Requirements.

1. Activity Form. The responsible official shall provide a wetland and habitat activity form that provides the required application information and a structured template to identify and address the relevant approval criteria.

2. Required Submittal Items.

a. Programmatic Permits. Applications for programmatic permits shall include a programmatic permit plan that consists of the following:

(1) A discussion of the purpose and need for the permit;

(2) A description of the scope of activities;

(3) Identification of the geographical area to be covered by the permit;

(4) The range of functions and values of wetlands potentially affected by the permit;

(5) Specific measures to be taken to avoid, minimize and mitigate impacts on functions and values, including:

(a) Procedures for identification of wetlands, wetland buffers, and fish and wildlife habitat conservation areas;

(b) Maintenance practices proposed to be used;

(d) Mitigation measures and assurances;

(e) Annual reporting to the responsible official that documents compliance with permit conditions and proposes any additional measures or adjustments to the approved programmatic permit plan;

(f) Procedures for timely reporting to the responsible official any specific wetland, wetland buffer, or fish and wildlife habitat unanticipated impacts resulting from permitted activities;

(g) Responding to any department requests for information about specific work or projects;

(h) Procedures for reporting and/or addressing activities outside the scope of the approved permit; and

(i) Training all employees, contractors and individuals under the supervision of the applicant who are involved in permitted work.

b. Stewardship Plans. Stewardship plans shall include the following:

(1) Mapping of existing structures, roads, driveways and known utilities, and property lines;

(2) Mapping of existing designated wetlands, wetland buffers, and fish and wildlife habitat conservation areas, and yards or cultivated areas;

(3) Identification of functions and values associated with wetlands, wetland buffers, and fish and wildlife habitat conservation areas;

(4) Mapping and written description of future activities on the site including time frame;

(5) Mapping of specific activities proposed in the plan; and

(6) Description of the best management practices proposed to protect the identified functions and values.

c. All Other Applications. Table 40.445.080-2 lists submittal requirements for complete applications. Items listed may be subject to minimum technical standards listed in this chapter and adopted technical manuals.

Table 40.445.080-2 Application Submittal Requirements for Nonpermits
Item	Statement of Exemption	Determination
Activity form	Required	Required
Additional property owner information	Required	Required
Site inventory or determination report	Optional	Optional
Development or building envelopes	Optional	Optional
Project maps, drawings, and plans	Required	Optional
Function assessment/wetland rating form	Optional	Optional
Wetland delineation report	Optional	Optional
Mitigation plan	NA	Optional

Table 40.445.080-3 Application Submittal Requirements for Permits
Item	Level 1	Level 2	Level 3	Final
Activity form	Required	Required	Required	Required
Additional property owner information	Required	Required	Required	Required
Site inventory or determination report	Optional*	Required	Required	NA
Project maps, drawings, and plans	Required	Required	Required	Required
Function assessment/wetland rating form	Optional*	Required	Required	NA
Wetland delineation report	Optional*	Required if present	Required if present	NA
Mitigation plan	Optional*	Required	Required	Required
Alternatives analysis	Optional*	Required	Required	NA
Regulatory takings or public interest analysis	Optional*	Required**	Required**	NA

*Optional if the applicant elects to delegate to the responsible official as noted in the activity form.

**Required only for reasonable use assurance requests.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

C. Determinations. Determinations issued by the responsible official shall, at a minimum, satisfy the requirements of Section 40.445.020(A)(2). A determination may also include the following: wetland ratings; acceptance of development envelopes, a habitat assessment, or wetland delineation; responses to specific questions provided in the application; feasibility of conceptual plans; recommended best management practices; and specific permit requirements. A wetland, habitat, or ordinary high water mark determination issued pursuant to this chapter shall be:

1. Binding on the responsible official and the applicant or permittee until it expires pursuant to Section 40.445.080(H)(2)(b); provided, that the responsible official may reconsider or revise a determination if the applicant or permittee provides new information prior to the expiration; and

2. Subject to appeal pursuant to Chapter 40.510 upon issuance or its application to a subsequent or concurrent permit or land use decision.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

D. Statements of Exemption.

1. Upon submittal of an application, the responsible official will provide a written statement of exemption for any proposed activity listed in Table 40.445.040-1 following the procedures in Section 40.445.080.

2. A statement of exemption is a decision subject to appeal in accordance with Section 40.510.010(E) and may include conditions that must be met in order to comply with Section 40.445.040(A) or conclude that the proposed activity requires a permit.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

E. Permit Approvals

1. Preliminary Land Use Approval.

a. Findings. A decision preliminarily approving or denying a permit shall be supported by findings of fact relating to the feasibility of meeting the standards of this chapter.

b. Conditions. A decision preliminarily approving a permit shall incorporate at least the following as conditions:

(1) The approved preliminary mitigation plan pursuant to Section 40.445.070(G);

(2) Applicable conditions provided for in Section 40.445.030(B)(2); and

(3) Posting of performance and maintenance assurances for compensatory mitigation.

2. Construction Authorization. The responsible official shall issue final approval of all permits authorizing commencement of the activity permitted therein upon:

a. Approval of a final mitigation plan pursuant to Section 40.445.070(G);

b. Installation and approval of field markings as required by Section 40.445.030(B)(2)(a); and

c. The posting of a performance assurance, if conditioned in the permit, that conforms to Section 40.445.070(H).

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

F. Programmatic Permits. The responsible official may issue programmatic permits for routine maintenance and operations of utilities and public facilities or ecological enhancement programs within wetlands, wetland buffers, and fish and wildlife habit conservation areas. Programmatic permits only authorize activities specifically identified in and limited to the permit approval and conditions.

1. Findings. A decision approving or denying a programmatic wetland permit shall be supported by findings of fact relating to the standards and requirements of this chapter.

2. Approval Conditions. Approval of a programmatic wetland permit shall incorporate at least the following as conditions:

a. The approved programmatic permit plan;

b. Annual reporting requirements; and

c. A provision stating the duration of the permit.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

G. Stewardship Plans. The responsible official may authorize ongoing activities conducted in accordance with best management practices specified in a recorded stewardship plan.

1. The responsible official shall work cooperatively with interested property owners to establish and record a notice of stewardship plan.

2. Stewardship plans shall be approved under criteria in Section 40.445.030.

3. Notice of stewardship plans shall be recorded and shall run with the land unless and until a request for revocation or modification has been submitted by the property owner and approved by the county. The county shall approve all such requests unless there are any uncompleted mitigation measures which were agreed to in the stewardship plan as necessary to mitigate for impacts to wetlands, wetland buffers, or fish and wildlife habitat conservation areas undertaken pursuant to the plan.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

H. Decision Timelines.

1. Decisions issued concurrently with a land use approval follow the timeline for the application that specifies the application type pursuant to Section 40.500.010(D)(2) or as stated in the decision.

2. All other decisions shall be subject to the following timelines:

a. Statements of exemption shall be valid for six (6) months or as long as:

(1) The action is authorized by a county permit; or

(2) The exemptions referenced in the decision remain unchanged in Section 40.445.040.

b. Determinations shall be valid for:

(1) Five (5) years from the date of issuance. The responsible official may reissue a determination upon written request from the applicant, unless site conditions, best available science, or the designation and protection standards in this chapter have changed since issuance of the determination. Reissuance requests may be subject to review fees and must be received prior to expiration; and

(2) Actions authorized by a county permit are vested to the determination in effect at the time of permit issuance.

c. Permits shall be valid for three (3) years from the date of issuance. The responsible official may issue a single one (1) year extension upon written request from the applicant. Extension requests must be received prior to expiration.

d. Programmatic permits shall be valid for at least five (5) years or as stated in the permit. The responsible official may renew permits upon written request from the permittee subject to the following:

(1) Renewal requests must be received prior to expiration.

(2) The responsible official may require additional information to support the renewal request and revise, remove, or add conditions and performance standards.

(3) The responsible official may temporarily extend the original permit if the review of the renewal request extends beyond the expiration date.

e. Stewardship plans shall be valid as long as the terms of the plan are met.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

I. Completion of Compensatory Mitigation.

1. Permit and Mitigation Plan Revisions. Changes to approved permits or compensatory mitigation plans shall be subject to review and approval by the responsible official as follows:

a. Revisions shall be submitted for approval prior to expiration of the permit (refer to Section 40.445.080(H));

b. Review and approval of revisions under this chapter does not waive other permit modification, plan revision, post-decision review, or plat alteration requirements of this title or Title 14; and

c. The responsible official may allow minor revisions to the compensatory mitigation plan to be submitted for approval in the as-built report.

2. As-Built Acceptance. The responsible official shall accept completion of approved compensatory mitigation actions and initiate the maintenance period upon:

a. Submittal and approval of an as-built report pursuant to Section 40.445.070(J) that demonstrates all compensatory mitigation actions have been completed;

b. The posting of a maintenance assurance that conforms to Section 40.445.070(G).

3. Maintenance and Monitoring.

a. Applicants shall submit monitoring reports in accordance with the approved reporting schedule pursuance to Section 40.445.030(B)(5)(b). Reports shall be due to the responsible official in the fall or early winter following the growing season of the year monitoring is scheduled.

b. The responsible official shall review monitoring reports, which may require a field inspection, and issue an inspection report identifying performance deficiencies and recommended corrective actions.

c. The responsible official may extend the maintenance period and require additional reporting as necessary to correct performance deficiencies.

d. The responsible official shall accept completion of the maintenance and monitoring period upon submittal and approval of a monitoring report plan for the final year in the approved reporting schedule pursuant to Section 40.445.070(J);

4. Release of Financial Assurances.

a. Performance Assurance. Upon request, the responsible official shall release the performance assurance when the following conditions are met:

(1) Completion of construction and planting specified in the approved compensatory mitigation plan;

(2) Submittal of an as-built report documenting changes to the compensatory mitigation plan that occurred during construction;

(3) Inspection of the completed site(s); and

(4) Provision of any required maintenance assurance.

b. Maintenance Assurance. Upon request, the responsible official shall release the maintenance assurance when the following conditions are met:

(1) Completion of the specified monitoring and maintenance program;

(2) Submittal of a final monitoring report finding that the goals and objectives of the compensatory mitigation plan have been met as demonstrated through:

(a) Compliance with the specific performance standards established in the wetland permit; or

(b) Functional assessment of the mitigation site(s); and

c. Incremental Release of Financial Assurances. The responsible official may release financial assurances incrementally only if specific milestones and associated costs are specified in the compensatory mitigation plan and the approved financial assurance estimate or instrument.

d. Transfers. The responsible official may release financial assurances at any time if equivalent assurances are provided by the original or a new permit holder.

5. Forfeiture of Financial Assurances. If the permit holder defaults on the obligation to perform or maintain compensatory mitigation in accordance with the approved wetland permit, the responsible official may declare the corresponding financial assurance forfeit pursuant to the following process:

a. The responsible official shall, by registered mail, notify the wetland permit holder/agent that is signatory to the financial assurance and the financial assurance holder of nonperformance with the terms of the approved wetlands permit;

b. The written notification shall cite a reasonable time for the permit holder, or legal successor, to comply with provisions of the permit and state the county’s intent to forfeit the financial assurance should the required work not be completed in a timely manner;

c. If the required work is not completed timely, the county shall declare the assurance forfeit;

d. Upon forfeiture of a financial assurance, the proceeds thereof shall be utilized either to correct the deficiencies which resulted in forfeiture or, if such correction is deemed by the responsible official to be impractical or ineffective, to perform other ecological restoration, purchase mitigation bank or ILF credits, or contribute to ecological enhancement and restoration projects sponsored by a public agency.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

J. Revocation of Permits. In addition to other remedies provided for elsewhere in this chapter, the responsible official may suspend or revoke permit(s) issued in accordance with this chapter and associated development permits, pursuant to the provisions of Title 32, if the applicant or permittee has not complied with any or all of the conditions or limitations set forth in the permit, has exceeded the scope of work set forth in the permit, or has failed to undertake the project in the manner set forth in the permit.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)

K. Unauthorized Activities. At such time as a violation of this chapter has been determined, enforcement action shall be commenced in accordance with the enforcement provisions of Title 32, and may also include the following:

1. All development work on sites that have been cited or issued an administrative notice and order under Title 32 or have been otherwise documented by the responsible official for activities in violation of this chapter may be stopped until a restoration plan is prepared and approved under a permit pursuant to this chapter or a settlement agreement under Title 32.

2. Compensatory mitigation requirements may be increased by the responsible official when all or some portion of the unauthorized activity cannot be permitted under this chapter or functions and values cannot be restored in place.

(Amended: Ord. 2023-03-01; Ord. 2024-03-01)