Chapter 16.12 CRITICAL AREAS REGULATIONS (CAR)

Chapter 16.12
CRITICAL AREAS REGULATIONS (CAR)

Sections:

16.12.010 Purpose, intent and applicability.

16.12.020 Definitions.

16.12.030 Best available science.

16.12.040 Project review required.

16.12.060 Critical area markers, signs and fencing.

16.12.070 Notice on title.

16.12.080 Critical area tracts and designations on site plans.

16.12.090 Building setbacks.

16.12.100 Wetlands.

16.12.110 Critical aquifer recharge areas.

16.12.120 Habitat conservation areas.

16.12.130 Density/floor area calculations and transfer of density/floor area.

16.12.140 Frequently flooded areas.

16.12.150 Geologically hazardous areas.

16.12.160 Special consideration for anadromous fisheries.

16.12.170 Reasonable use allowance.

16.12.180 Lorenzan Creek setback requirement.

16.12.190 Application.

16.12.200 Unauthorized alterations and enforcement.

16.12.010 Purpose, intent and applicability.

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

(2) The CAO district (zone) consists of that area within 225 feet of critical areas located all or in part within the incorporated town limits, including wetlands (all areas which meet the definition of a “wetland”), critical aquifer recharge areas (as designated by Skagit County Code 14.24.310 and consistent with requirements of the Growth Management Act), frequently flooded areas (within Zone A as shown in the Federal Emergency Management Agency National Flood Insurance Program Map), geologically hazardous areas (as designated by the U.S. Geological Survey Soil Survey Map and the 1999 Skagit County Potential Landslide and Erosion Areas Map), habitat conservation areas (as designated by the Washington Department of Fish and Wildlife Habitats and Species Map), and anadromous fisheries (as designated by the Washington Department of Fish and Wildlife Habitats and Species Map). Any development proposed on a parcel of land within the CAO district shall be subject to project review as required in CMC 16.12.040 unless specifically exempted.

(3) Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, shoreline substantial development permits, HPA permits, Army Corps of Engineers Section 404 permits, NPDES permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.020 Definitions.

“Alteration” means any human-induced change in an existing condition of a critical area or its buffer. Alterations include, but are not limited to, grading, filling, channelizing, dredging, construction, compaction, excavation or any other activity that alters the character of the critical area.

“Anadromous fisheries” means endangered, threatened, rare, sensitive, or monitor species of anadromous fish, or resident fish species or species of local importance, that occupy an area proposed for development during life stages important to species survival.

“Applicant” means a person who files an application for a permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a lessee of the land, the person who would actually control and direct the proposed activity or the authorized agent of such a person.

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Sources of best available science are included in citations of recommended sources of best available science in CMC 16.12.030.

“Best management practices” means conservation practices or systems of practices and management measures that control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, and sediment; minimize adverse impacts to surface water and ground water flow, circulation patterns, and to the chemical, physical, and biological characteristics of wetlands; protect trees and vegetation designated to be retained during and following site construction; and provide standards for proper use of chemical herbicides within critical areas.

“Buffer” means an area required by this chapter that provides a natural vegetated zone surrounding a natural, restored or newly created critical area which serves as a buffer between the critical area and the adjacent developed area and as an integral part of the habitat ecosystem.

“Critical aquifer recharge areas” means areas designated by using criteria in WAC 365-190-100 that are determined to have a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-100.

“Development” means any activity upon the land consisting of construction or alteration of structures, earth movement, dredging, dumping, grading, filling, mining, removal of any sand, gravel, or minerals, driving of piles, drilling operations, bulk heading, clearing of vegetation, or other land disturbance. Development includes the storage or use of equipment or materials inconsistent with the existing use. Development also includes approvals issued by the town that bind land to specific patterns of use, including, but not limited to, subdivisions, short subdivisions, zone changes, conditional use permits, and binding site plans. Development does not include the following activities:

(a) Interior building improvements;

(b) Exterior structure maintenance activities, including painting and roofing;

(c) Routine landscape maintenance of established native vegetation, ornamental landscaping, such as lawn mowing, pruning and weeding;

(d) Maintenance of the following existing facilities that does not expand the affected area: septic tanks (routine cleaning), wells, individual utility service connections, and individual cemetery plots in established and approved cemeteries.

“Frequently flooded area” means an area within a floodplain subject to a one percent or greater chance of flooding in any given year.

“Functions and values” means the beneficial roles served by critical areas including, but not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical and archaeological and aesthetic value protection, and recreation. These beneficial roles are not listed in order of priority.

“Geologically hazardous area” means an area susceptible to erosion, sliding, earthquake or other geological event and thus not suited to siting of commercial, residential or industrial development consistent with public health or safety concerns.

“Habitat conservation area (HCA)” means habitat necessary for the survival of endangered, threatened, rare, sensitive, priority or monitor species.

“Hydrogeologic susceptibility” refers to the permeability of soils and underlying ground that protect a critical aquifer recharge area from contamination. A high susceptibility rating indicates very high permeability of soils and/or a shallow water table that is more likely to be impacted by a contaminant released on the surface.

“Mitigation” means a negotiated action involving the avoidance, reduction or compensation for possible adverse impact. Mitigation actions include the following, in order of preference:

(a) Avoiding the impacts altogether by not taking action;

(b) Reducing or eliminating impacts by preservation or maintenance;

(d) Rectifying impacts by repairing, rehabilitating or restoring;

(e) Compensating for impacts by in-kind replacement;

(f) Monitoring impacts by a planned evaluation process.

“Monitoring” means evaluating the impacts of development proposals on the biological, hydrological and geological clements of ecosystems and assessing the performance of required mitigation measures throughout the collection and analysis of data by various methods for the purpose of understanding and documenting changes in natural ecosystems and features, and includes gathering baseline data.

“Native vegetation” means plant species that are indigenous to the area in question.

“Priority habitat” means habitat type or elements with unique or significant value to one or more species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element (WAC 173-26-020(28)).

“Qualified professional” means a person or professional services firm contracted with the town with experience and trained personnel in a discipline applicable to the critical area in question. A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology or a related field, and two years of related work experience. A qualified professional for habitats, wetlands or anadromous fisheries must have a degree in biology or a related field and professional experience related to the subject species. A qualified professional for a frequently flooded area or geologically hazardous area must be a professional engineer or geologist licensed in the state of Washington. A qualified professional for critical aquifer recharge areas must be a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments. A qualified professional may include a consulting firm or agency which the town is contracting with to provide critical area review of projects.

“Restoration” means measures taken to restore an altered or damaged natural feature including:

(a) Active steps taken to restore damaged wetlands, streams, protected habitat, or their buffers to the functioning condition that existed prior to an unauthorized alteration;

(b) Actions performed to reestablish structural and functional characteristics of the critical area that have been lost by alteration, past management activities, or catastrophic events;

“SEPA” means the Washington State Environmental Policy Act, Chapter 43.21C RCW.

“Species, endangered” means any fish or wildlife species that is threatened with extinction throughout all or a significant portion of its range and is listed by the state or federal government as an endangered species.

“Species of local importance” means those species of local concern due to their population status or their sensitivity to habitat manipulation, or that are game species.

“Species, priority” means any fish or wildlife species requiring protective measures and/or management guidelines to ensure their persistence at genetically viable population levels as classified by the Washington Department of Fish and Wildlife, including endangered, threatened, sensitive, candidate and monitor species, and those of recreational, commercial, or tribal importance.

“Species, threatened” means any fish or wildlife species that is likely to become an endangered species within the foreseeable future through a significant portion of its range without cooperative management or removal of threats, and is listed by the state or federal government as a threatened species.

“Wetland” means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.030 Best available science.

The town has reviewed and incorporated best available science in the development of this chapter. The following sources, in the most updated version available on the date of the ordinance codified in this chapter, are considered the best available science for delineation of critical areas:

(1) Wetlands.

(a) Washington State Department of Ecology, U.S. Army Corps of Engineers Seattle District, and U.S. Environmental Protection Agency Region 10. March 2006. Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance (Version 1). Washington State Department of Ecology Publication No. 06-06-011a, Olympia, WA.

(b) Washington State Department of Ecology, U.S. Army Corps of Engineers Seattle District, and U.S. Environmental Protection Agency Region 10. March 2006. Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans (Version 1). Washington State Department of Ecology Publication No. 06-06-011b, Olympia, WA.

(c) Hruby, T. 2013. Update on Wetland Buffers: The State of the Science, Final Report. October 2013. Washington State Department of Ecology Publication No. 13-06-11 (see discussion that follows).

(d) Sheldon, D., T. Hruby, P. Johnson, K. Harper, A. McMillan, T. Granger, S. Stanley, and E. Stockdale. March 2005. Wetlands in Washington State – Volume 1: A Synthesis of the Science. Washington State Department of Ecology. Publication No. 05-06-006, Olympia, WA.

(e) Granger, T., T. Hruby, A. McMillan, D, Peters, J. Rubey, D. Sheldon, S. Stanley, E. Stockdale. April 2005. Wetlands in Washington State – Volume 2: Guidance for Protecting and Managing Wetlands. Washington State Department of Ecology. Publication No. 05-06-008, Olympia, WA.

(f) Environmental Laboratory. (1987). “Corps of Engineers Wetlands Delineation Manual,” Technical Report Y-87-1, U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS.

(g) U.S. Army Corps of Engineers. 2010. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0), ed. J. S. Wakeley, R. W. Lichvar, and C. V. Noble. ERDC/EL TR-10-3. Vicksburg, MS: U.S. Army Engineer Research and Development Center.

(h) Hruby, T. (2014). Washington State Wetland Rating System for Western Washington: 2014 Update. (Publication No. 14-06-029). Olympia, WA: Washington Department of Ecology.

(i) Hruby, T., K. Harper, and S. Stanley (2009). Selecting Wetland Mitigation Sites Using a Watershed Approach. Washington State Department of Ecology Publication No. 09-06-032.

(2) Critical Aquifer Recharge Areas.

(a) Skagit County Code 14.24.310, Aquifer recharge areas designations.

(b) Skagit County hydrology map.

(c) “Critical Aquifer Recharge Areas,” guidance document available through Ecology as Publication No. 05-10-028. January 2005.

(3) Frequently Flooded Areas.

(a) Federal Emergency Management Agency Flood Insurance Program Map.

(4) Geologically Hazardous Areas.

(a) Skagit County landslide and erosion areas map.

(b) U.S. Geological Survey Soil Survey Map.

(5) Habitat Conservation Areas.

(a) Washington Department of Fish and Wildlife Priority Habitat and Species Map.

(6) Special Consideration for Anadromous Fisheries.

(a) Washington Department of Fish and Wildlife Priority Habitat and Species Map. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.040 Project review required.

(1) Land use or building permits for development within the CAO district shall be subject to review under provisions of this chapter unless specifically exempted in subsection (5) of this section.

(2) Applicants shall be required to submit a critical areas checklist, provided by the town, for review with their permit application that describes the project and proposed site and informs the town of any potential impacts on critical areas.

(3) For those projects determined by the town planner and/or building official likely to have a significant impact on a critical area(s), the applicant shall submit a technical report as part of the application. The technical report shall be prepared by a qualified professional(s) with demonstrated qualifications in the area of concern and shall apply best available science as part of its analysis. The town may require, at its discretion, an independent, third party review of any technical report in order to ensure its sufficiency. The applicant shall be responsible for the costs associated with this review. At a minimum, the technical report shall:

(a) Identify the precise limits of the critical area(s) and its function and resource values;

(b) Analyze the potential impacts of the proposed development on the critical area(s); and

(4) If the applicant has submitted a technical report to another jurisdiction as part of a county, state or federal permit application, SEPA or NEPA environmental review, the same technical report may be submitted to the town to fulfill this requirement. If the applicant has undergone critical areas review and has a current permit authorizing the proposed critical areas alteration from another jurisdiction including but not limited to the Army Corps of Engineers, Department of Ecology, or Washington Department of Fish and Wildlife, the town may waive the project review requirements under this section.

(5) The following activities shall be allowed in critical areas without a critical area review, provided they are conducted using best management practices and at a time and in a manner designed to minimize adverse impacts to the critical area. The town may require a critical areas permit to ensure the critical area is protected using best management practices.

(a) Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife;

(b) Outdoor recreational activities which do not involve disturbance of the resource or site, including but not limited to fishing, hunting, bird watching, hiking, horseback riding, and bicycling;

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

(d) Education, scientific research and use of nature trails;

(e) Site investigation work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities;

(f) Existing and ongoing agriculture activities, including farming, horticulture, aquaculture, irrigation, ranching or grazing of animals;

(g) Normal and routine maintenance of legally constructed irrigation and drainage ditches;

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

(i) Emergency construction necessary to protect life or property from immediate damage by the elements;

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

(k) Construction of serviceable structures that are 640 square feet or less (such as a garage, carport or storage shed) where the placement or building of the structure does not adversely impact the functions of the critical area or associated buffer;

(l) Clearing nonnative vegetation, invasive species or hazardous trees that do not adversely impact the functions of the critical area or associated buffer. Such activity shall require a critical areas permit from the town of Concrete;

(m) Replacement, operation, repair, modification, installation, or construction in existing developed utility corridors, an improved town street right-of-way or town-authorized private street of all electric facilities, lines, equipment, or appurtenances, not including substations;

(n) Relocation of public sewer local collection, public water local distribution, natural gas, cable communication or telephone facilities, lines, pipes, mains, equipment, or appurtenances, only when required by a local governmental agency that approves the new location of the facilities and only when all other alternative sites have been examined and determined to be infeasible; mitigation will be required. Local approval does not relieve the applicant of the need to obtain applicable state and federal permits (e.g., permits authorizing in-water work);

(o) Replacement, operation, repair, modification, installation, or construction of public sewer local collection, public water local distribution, natural gas, cable communication or telephone facilities, lines, pipes, mains, equipment, or appurtenances when such facilities are located within an improved public right-of-way or authorized private street;

(p) Maintenance, operation, repair, modification, or replacement of publicly improved streets as long as any such alteration does not involve the expansion of streets or related improvements into previously unimproved rights-of-way or portions of rights-of-way;

(q) Maintenance, operation, or repair of parks, trails and publicly improved recreation areas as long as any such alteration does not involve the expansion of improvements into previously unimproved areas or new clearing of native vegetation beyond routine pruning and related activities.

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

(a) Avoid impacts to the resources altogether.

(b) Minimize the impact by limiting the degree or magnitude of the action and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts.

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

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

(e) Compensate for the impact by replacing, enhancing or providing substitute resources or environments.

(f) Monitor the impact and take appropriate corrective measures.

(7) If a critical area within the incorporated town limits is subject to regulation by a county, state or federal agency (e.g., waters of the state), it is the responsibility of the applicant to satisfy environmental review and mitigation requirements of that agency.

(8) If a critical area on the property that is being developed in the town crosses a jurisdictional line, the town shall coordinate with Skagit County or the appropriate jurisdiction in the review of the project.

(9) Site Assessment Required. If, after the site visit, the town determines that the proposed activity area is within 225 feet, or within a distance otherwise specified in this chapter, of an area that may contain critical area indicators, or if the director determines that the proposed activity will adversely impact a critical area or its associated buffer, then a complete critical areas site assessment shall be required. Critical areas site assessments, as described in more detail in the various sections for each type of critical area, shall be submitted as part of a complete application for a development permit or other approval of land use activities having the potential to impact critical areas or their buffers, by a qualified expert.

(10) Development on Preexisting Lots.

(a) For development proposals and other land use activities that can adversely impact critical areas on preexisting lots, which are not part of a proposed land division or other form of multiple lot development, critical areas shall be identified on a scaled site plan showing the location of the critical area, structures (existing and proposed) and their distances from the critical area and lot lines to show relative location within the subject parcel(s). The project or activity shall be conditioned for critical area protection using best management practices.

(b) For development on preexisting lots, such as single-family residential or commercial building permits, within the CAO district that may impact critical areas, the applicant shall provide a habitat management plan incorporating best management practices to ensure that the development does not adversely impact the functions of the critical area. Such plan shall be submitted for review and approval by the town planner or designee. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008. Formerly 16.12.050]

16.12.060 Critical area markers, signs and fencing.

The common boundary between a critical area buffer and the abutting land must be permanently identified. One sign shall be posted per lot, every 150 feet of buffer, or as determined by the director. Suggested wording is as follows:

Protection of this natural area is in your care. Alteration or disturbance is prohibited by law.

[Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.070 Notice on title.

The owner of any property containing critical areas or buffers on which a development proposal is submitted or any property on which mitigation is established as a result of development, except a public right-of-way or the site of a permanent public facility, shall file a notice approved by the town with the county property records office. The required contents and form of the notice shall be determined by the director. The notice shall inform the public of the presence of critical areas, buffers or mitigation sites on the property, of the application of this chapter to the property and that limitations on actions in or affecting such critical areas or buffers may exist. The notice shall run with the land. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.080 Critical area tracts and designations on site plans.

(1) Critical area tracts shall be used to protect those critical areas and buffers listed below in development proposals for subdivisions, short subdivisions, planned unit developments or binding site plans and shall be recorded on all documents of title of record for all affected lots:

(a) All landslide hazard areas and buffers that are one acre or greater in size;

(b) All wetlands and buffers; and

(2) Any required critical area tract shall be established by one of the following methods or alternative determined by the town planner to reliably achieve the required protection:

(a) Conservation Easement. The permit holder shall, subject to the town’s approval, convey to the town or other public or nonprofit entity specified by the town a recorded easement for the protection of the critical area and/or its buffer.

(b) Protective Easement. The permit holder shall establish and record a permanent and irrevocable easement on the property title of a parcel or tract of land containing a critical area and/or its buffer created as a condition of a permit. Such protective easement shall be held by the current and future property owner, shall run with the land, and shall prohibit development, alteration, or disturbance within the easement except for purposes of habitat enhancement as part of an enhancement project which has received prior written approval from the town and from any other agency with jurisdiction over such activity.

(c) Tract and Deed Restriction. The permit holder shall establish and record a permanent and irrevocable deed restriction on the property title of any critical area management tract or tracts created as a condition of a permit. Such deed restriction(s) shall prohibit development, alteration, or disturbance within the tract except for purposes of habitat enhancement as part of an enhancement project which has received prior written approval from the town and from any other agency with jurisdiction over such activity. A covenant shall be placed on the tract restricting its separate sale. Each abutting lot owner or the homeowners’ association shall have an undivided interest in the tract. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.090 Building setbacks.

Unless otherwise provided, building setbacks shall be located not less than a distance of 10 feet from the edges of a required critical area buffer. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.100 Wetlands.

(1) Identification and Rating.

(a) Identification and Delineation. Identification of wetlands and delineation of their boundaries pursuant to this chapter shall be done in accordance with the approved federal wetland delineation manual and applicable regional supplement. All areas within the town meeting the wetland designation criteria in that procedure are hereby designated critical areas and are subject to the provisions of this chapter. Wetland delineations are valid for five years; after such date the town shall determine whether a revision or additional assessment is necessary.

(b) Rating. Wetlands shall be rated according to the Washington Department of Ecology wetland rating system, as set forth in the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029, or as revised and approved by Ecology), which contains the definitions and methods for determining whether the criteria below are met.

(i) Category I. Category I wetlands are: (A) relatively undisturbed estuarine wetlands larger than one acre; (B) wetlands of high conservation value that are identified by scientists of the Washington Natural Heritage Program/DNR; (C) bogs; (D) mature and old-growth forested wetlands larger than one acre; (E) wetlands in coastal lagoons; (F) interdunal wetlands that score eight or nine habitat points and are larger than one acre; and (G) wetlands that perform many functions well (scoring 23 points or more). These wetlands: (A) represent unique or rare wetland types; (B) are more sensitive to disturbance than most wetlands; (C) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or (D) provide a high level of functions.

(ii) Category II. Category II wetlands are: (A) estuarine wetlands smaller than one acre, or disturbed estuarine wetlands larger than one acre; (B) interdunal wetlands larger than one acre or those found in a mosaic of wetlands; or (C) wetlands with a moderately high level of functions (scoring between 20 and 22 points).

(iii) Category III. Category III wetlands are: (A) wetlands with a moderate level of functions (scoring between 16 and 19 points); (B) can often be adequately replaced with a well-planned mitigation project; and (C) interdunal wetlands between one-tenth and one acre. Wetlands scoring between 16 and 19 points generally have been disturbed in some ways and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.

(iv) Category IV. Category IV wetlands have the lowest levels of functions (scoring fewer than 16 points) and are often heavily disturbed. These are wetlands that we should be able to replace, or in some cases to improve. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions, and should be protected to some degree.

(c) Illegal Modifications. Wetland rating categories shall not change due to illegal modifications made by the applicant or with the applicant’s knowledge.

(2) Regulated Activities.

(a) For any regulated activity, a critical areas report (see CMC 16.12.040) may be required to support the requested activity.

(b) The following activities are regulated if they occur in a regulated wetland or its buffer:

(i) The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind.

(ii) The dumping of, discharging of, or filling with any material.

(iii) The draining, flooding, or disturbing of the water level or water table.

(iv) Pile driving.

(v) The placing of obstructions.

(vi) The construction, reconstruction, demolition, or expansion of any structure.

(vii) The destruction or alteration of wetland vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland.

(viii) “Class IV – General Forest Practices” under the authority of the “1992 Washington State Forest Practices Act Rules and Regulations,” WAC 222-12-030, or as thereafter amended.

(ix) Activities that result in:

(A) A significant change of water temperature.

(B) A significant change of physical or chemical characteristics of the sources of water to the wetland.

(D) The introduction of pollutants.

(i) Land that is located wholly within a wetland or its buffer may not be subdivided.

(ii) Land that is located partially within a wetland or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is:

(A) Located outside of the wetland and its buffer; and

(B) Meets the minimum lot size requirements of CMC Title 19.

(3) Exemptions and Allowed Uses in Wetlands.

(a) The following wetlands may be exempt from the requirement to avoid impacts (subsection (6)(a)(i) of this section), and they may be filled if the impacts are fully mitigated based on the remaining actions in subsections (6)(a)(ii) through (vi) of this section. If available, impacts should be mitigated through the purchase of credits from an in-lieu fee program or mitigation bank, consistent with the terms and conditions of the program or bank. In order to verify the following conditions, a critical area report for wetlands meeting the requirements in subsection (5) of this section must be submitted.

(i) All isolated Category IV wetlands less than 4,000 square feet that:

(A) Are not associated with riparian areas or their buffers;

(B) Are not associated with shorelines of the state or their associated buffers;

(D) Do not score five or more points for habitat function based on the 2014 update to the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029, or as revised and approved by Ecology);

(E) Do not contain a priority habitat or a priority area for a priority species identified by the Washington Department of Fish and Wildlife, do not contain federally listed species or their critical habitat, or species of local importance.

(ii) Wetlands less than 1,000 square feet that meet the above criteria and do not contain federally listed species or their critical habitat are exempt from the buffer provisions contained in this chapter.

(b) Activities Allowed in Wetlands. The activities listed below are allowed in wetlands. These activities do not require submission of a critical area report, except where such activities result in a loss of the functions and values of a wetland or wetland buffer. These activities include:

(i) Existing and ongoing agricultural activities; provided, that they implement applicable best management practices (BMPs) contained in the latest editions of the USDA Natural Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG); or develop a farm conservation plan in coordination with the local conservation district. BMPs and/or farm plans should address potential impacts to wetlands from livestock, nutrient and farm chemicals, soil erosion and sediment control and agricultural drainage infrastructure. BMPs and/or farm plans should ensure that ongoing agricultural activities minimize their effects on water quality, riparian ecology, salmonid populations, and wildlife habitat.

(ii) Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class IV – General Forest Practice Permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.

(iii) Conservation or preservation of soil, water, vegetation, fish, shellfish, and/or other wildlife that does not entail changing the structure or functions of the existing wetland.

(iv) The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.

(v) Drilling for utilities/utility corridors under a wetland, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column will be disturbed.

(vi) Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.

(vii) Educational and scientific research activities.

(viii) Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not expand the footprint of the facility or right-of-way.

(ix) Stormwater management facilities. A wetland or its buffer can be physically or hydrologically altered to meet the requirements of an LID, runoff treatment or flow control BMP if all of the following criteria are met:

(A) The wetland is classified as a Category IV or a Category III wetland with a habitat score of three to four points; and

(B) There will be “no net loss” of functions and values of the wetland; and

(D) The hydrologic functions of the wetland can be improved as outlined in questions 3, 4, 5 of Chart 4 and questions 2, 3, 4 of Chart 5 in the “Guide for Selecting Mitigation Sites Using a Watershed Approach,” (available here: http://www.ecy.wa.gov/biblio/0906032.html); or the wetland is part of a priority restoration plan that achieves restoration goals identified in a shoreline master program or other local or regional watershed plan; and

(E) The wetland lies in the natural routing of the runoff, and the discharge follows the natural routing; and

(F) All regulations regarding stormwater and wetland management are followed, including but not limited to local and state wetland and stormwater codes, manuals, and permits; and

(G) Modifications that alter the structure of a wetland or its soils will require permits. Existing functions and values that are lost would have to be compensated/replaced. Stormwater LID BMPs required as part of new and redevelopment projects can be considered within wetlands and their buffers. However, these areas may contain features that render LID BMPs infeasible. A site- specific characterization is required to determine if an LID BMP is feasible at the project site.

(4) Wetland Buffers.

(a) Buffer Requirements. The following buffer widths have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029, or as revised and approved by Ecology). The adjacent land use intensity is assumed to be high.

(i) For wetlands that score five points or more for habitat function, the buffers in Table 1 can be used if both of the following criteria are met:

(A) A relatively undisturbed, vegetated corridor at least 100 feet wide is protected between the wetland and any other priority habitats as defined by the Washington State Department of Fish and Wildlife. The latest definitions of priority habitats and their locations are available on the WDFW website.

The corridor must be protected for the entire distance between the wetland and the priority habitat by some type of legal protection such as a conservation easement.

Presence or absence of a nearby habitat must be confirmed by a qualified biologist. If no option for providing a corridor is available, Table 1 may be used with the required measures in Table 2 alone.

(B) The measures in Table 2 are implemented, where applicable, to minimize the impacts of the adjacent land uses.

(ii) For wetlands that score three to four habitat points, only the measures in Table 2 are required for the use of Table 1.

(iii) If an applicant chooses not to apply the mitigation measures in Table 2, or is unable to provide a protected corridor where available, then Table 3 must be used.

(iv) The buffer widths in Table 1 and Table 3 assume that the buffer is vegetated with a native plant community appropriate for the ecoregion. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should either be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

Table 1: Wetland Buffer Requirements if Table 2 Is Implemented and Corridor Provided
	Buffer width (in feet) based on habitat score
Wetland Category	3 – 4	5	6 – 7	8 – 9
Category I: Based on total score	75	105	165	225
Category I: Bogs and wetlands of high conservation value	190			225
Category II: Based on score	75	105	165	225
Category III (all)	60	105	165	225
Category IV (all)	40

Table 2: Required Measures to Minimize Impacts to Wetlands

(measures are required if applicable to a specific proposal)
Disturbance	Required Measures to Minimize Impacts
Lights	•	Direct lights away from wetland
Noise	•	Locate activity that generates noise away from wetland
	•	If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source
	•	For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10-ft. heavily vegetated buffer strip immediately adjacent to the outer wetland buffer
Toxic runoff	•	Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered
	•	Establish covenants limiting use of pesticides within 150 ft. of wetland
	•	Apply integrated pest management
Stormwater runoff	•	Retrofit stormwater detention and treatment for roads and existing adjacent development
	•	Prevent channelized flow from lawns that directly enters the buffer
	•	Use low intensity development techniques (for more information refer to the drainage ordinance and manual)
Change in water regime	•	Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns
Pets and human disturbance	•	Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion
Pets and human disturbance	•	Place wetland and its buffer in a separate tract or protect with a conservation casement
Dust	•	Use best management practices to control dust

Table 3: Wetland Buffer Requirements

(if Table 2 is not implemented or corridor not provided)
	Buffer width (in feet) based on total score
Wetland Category	3 – 4	5	6 – 7	8 – 9
Category I: Based on total score	100	140	220	300
Category I: Bogs and wetlands of high conservation value	250			300
Category II: Based on score	100	140	220	300
Category III (all)	80	140	220	300
Category IV (all)	50

(v) Increased Wetland Buffer Area Width. Buffer widths shall be increased on a case-by-case basis as determined by the town planner when a larger buffer is necessary to protect wetland 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 wetland. The documentation must include but not be limited to the following criteria:

(A) The wetland 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

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

(vi) Buffer averaging to improve wetland protection may be permitted when all of the following conditions are met:

(A) The wetland has significant differences in characteristics that affect its habitat functions, such as a wetland with a forested component adjacent to a degraded emergent component or a “dualrated” wetland with a Category I area adjacent to a lower-rated area.

(B) The buffer is increased adjacent to the higher-functioning area of habitat or more-sensitive portion of the wetland and decreased adjacent to the lower-functioning or less-sensitive portion as demonstrated by a critical areas report from a qualified wetland professional.

(D) The buffer at its narrowest point is never less than either three-quarters of the required width or 75 feet for Category I and II, 50 feet for Category III, and 25 feet for Category IV, whichever is greater.

(vii) Averaging to allow reasonable use of a parcel may be permitted when all of the following are met:

(A) There are no feasible alternatives to the site design that could be accomplished without buffer averaging.

(B) The averaged buffer will not result in degradation of the wetland’s functions and values as demonstrated by a critical areas report from a qualified wetland professional.

(D) The buffer at its narrowest point is never less than either three-quarters of the required width or 75 feet for Category I and II, 50 feet for Category III and 25 feet for Category IV, whichever is greater.

(b) Measurement of Wetland Buffers. All buffers shall be measured perpendicular from the wetland boundary as surveyed in the field. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. Buffers must be fully vegetated in order to be included in buffer area calculations. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers or included in buffer area calculations.

(c) Buffers on Wetland Mitigation Sites. All wetland mitigation sites shall have buffers consistent with the buffer requirements of this chapter. Buffers shall be based on the expected or target category of the proposed wetland mitigation site.

(d) Buffer Maintenance. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers shall be retained in an undisturbed or enhanced condition. In the case of compensatory mitigation sites, removal of invasive nonnative weeds is required for the duration of the mitigation bond (subsection (6)(i)(ii)(A)(10) of this section).

(e) Impacts to Buffers. Requirements for the compensation for impacts to buffers are outlined in subsection (6) of this section.

(f) Overlapping Critical Area Buffers. If buffers for two contiguous critical areas overlap (such as buffers for a stream and a wetland), the wider buffer applies.

(g) Allowed Buffer Uses. The following uses may be allowed within a wetland buffer in accordance with the review procedures of this chapter, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent wetland:

(i) Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife.

(ii) Passive recreation facilities designed and in accordance with an approved critical area report, including:

(A) Walkways and trails; provided, that those pathways are limited to minor crossings having no adverse impact on water quality. They should be generally parallel to the perimeter of the wetland, located only in the outer 25 percent of the wetland buffer area, and located to avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width for pedestrian use only. Raised boardwalks utilizing nontreated pilings may be acceptable.

(B) Wildlife-viewing structures.

(iii) Educational and scientific research activities.

(iv) Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not increase the footprint or use of the facility or right-of-way.

(v) The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.

(vi) Drilling for utilities/utility corridors under a buffer, with entrance/exit portals located completely outside of the wetland buffer boundary; provided, that the drilling does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column would be disturbed.

(vii) Enhancement of a wetland buffer through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.

(viii) Repair and maintenance of nonconforming uses or structures, where legally established within the buffer, provided they do not increase the degree of nonconformity.

(5) Critical Area Report for Wetlands.

(a) If the town planner determines that the site of a proposed development includes, is likely to include, or is adjacent to a wetland, a wetland report, prepared by a qualified professional, shall be required. The expense of preparing the wetland report shall be borne by the applicant.

(b) Minimum Standards for Wetland Reports. The written report and the accompanying plan sheets shall contain the following information, at a minimum:

(i) The written report shall include at a minimum:

(A) The name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the wetland critical area report; a description of the proposal; identification of all the local, state, and/or federal wetland-related permit(s) required for the project; and a vicinity map for the project.

(B) A statement specifying the accuracy of the report and all assumptions made and relied upon.

(C) Documentation of any field work performed on the site, including field data sheets for delineations, rating system forms, baseline hydrologic data, etc.

(D) A description of the methodologies used to conduct the wetland delineations, wetland ratings, or impact analyses, including references.

(E) Identification and characterization of all critical areas, wetlands, water bodies, shorelines, floodplains, and buffers on or adjacent to the proposed project area. For areas off site of the project site, estimate conditions within 300 feet of the project boundaries using the best available information.

(F) For each wetland identified on site and within 300 feet of the project boundary, provide: the wetland rating, including a description of and score for each function, per wetland ratings (subsection (1)(b) of this section); required buffers; hydrogeomorphic classification; wetland acreage based on a professional survey from the field delineation (acreages for on-site portion or estimate entire wetland area including off-site portions); Cowardin classification of vegetation communities; habitat elements; soil conditions based on site assessment and/or soil survey information; and, to the extent possible, hydrologic information such as location and condition of inlets/outlets (if they can be legally accessed), estimated water depths within the wetland, and estimated hydroperiod patterns based on visual cues (e.g., algal mats, drift lines, flood debris, etc.). Provide acreage estimates, classifications, and ratings based on entire wetland complexes, not only the portion present on the proposed project site.

(G) A description of the proposed actions, including an estimation of acreages of impacts to wetlands and buffers based on the field delineation and survey and an analysis of site development alternatives, including a no-development alternative.

(H) An assessment of the probable cumulative impacts to the wetlands and buffers resulting from the proposed development.

(I) A description of reasonable efforts made to apply mitigation sequencing pursuant to mitigation sequencing (subsection (6)(a) of this section) to avoid, minimize, and mitigate impacts to critical areas.

(J) A discussion of measures, including avoidance, minimization, and compensation, proposed to preserve existing wetlands and restore any wetlands that were degraded prior to the current proposed land-use activity.

(K) A conservation strategy for habitat and native vegetation that addresses methods to protect and enhance on-site habitat and wetland functions.

(L) An evaluation of the functions of the wetland and its buffer. Include references for the method used and data sheets.

(ii) A copy of the site plan sheet(s) for the project must be included with the written report and must include, at a minimum:

(A) Maps (to scale) depicting delineated and surveyed wetland and required buffers on site, including buffers for off-site critical areas that extend onto the project site; the development proposal; other critical areas; grading and clearing limits; and areas of proposed impacts to wetlands and/or buffers (include square footage estimates).

(B) A depiction of the proposed stormwater management facilities and outlets (to scale) for the development, including estimated areas of intrusion into the buffers of any critical areas. The written report shall contain a discussion of the potential impacts to the wetland(s) associated with anticipated hydroperiod alterations from the project.

(6) Compensatory Mitigation.

(a) Mitigation Sequencing. Before impacting any wetland or its buffer, an applicant shall demonstrate that the following actions have been taken. Actions are listed in the order of preference:

(i) Avoid the impact altogether by not taking a certain action or parts of an action.

(ii) Minimize impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts.

(iii) Rectify the impact by repairing, rehabilitating, or restoring the affected environment.

(iv) Reduce or eliminate the impact over time by preservation and maintenance operations.

(v) Compensate for the impact by replacing, enhancing, or providing substitute resources or environments.

(vi) Monitor the required compensation and take remedial or corrective measures when necessary.

(b) Requirements for Compensatory Mitigation.

(i) Compensatory mitigation for alterations to wetlands shall be used only for impacts that cannot be avoided or minimized and shall achieve equivalent or greater biologic functions. Compensatory mitigation plans shall be consistent with Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans – Version 1, (Ecology Publication No. 06-06-011b, Olympia, WA, March 2006, or as revised), and Selecting Wetland Mitigation Sites Using a Watershed Approach (Western Washington) (Publication No. 09-06-32, Olympia, WA, December 2009).

(ii) Mitigation ratios shall be consistent with subsection (6)(h) of this section.

(c) Compensating for Lost or Affected Functions. Compensatory mitigation shall address the functions affected by the proposed project, with an intention to achieve functional equivalency or improvement of functions. The goal shall be for the compensatory mitigation to provide similar wetland functions as those lost, except when either:

(i) The lost wetland provides minimal functions, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal Washington State watershed assessment plan or protocol; or

(ii) Out-of-kind replacement of wetland type or functions will best meet watershed goals formally identified by the town, such as replacement of historically diminished wetland types.

(d) Approaches to Compensatory Mitigation. Mitigation for lost or diminished wetland and buffer functions shall rely on the approaches listed below:

(i) Wetland Mitigation Banks. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the mitigation bank instrument. Use of credits from a wetland mitigation bank certified under Chapter 173-700 WAC is allowed if:

(A) The approval authority determines that it would provide appropriate compensation for the proposed impacts;

(B) The impact site is located in the service area of the bank; and

(C) The proposed use of credits is consistent with the terms and conditions of the certified mitigation. Replacement ratios for projects using bank credits is consistent with replacement ratios specified in the certified mitigation bank instrument.

(ii) In-Lieu Fee Mitigation. Credits from an approved in-lieu fee program may be used when all of the following apply:

(A) The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.

(B) The proposed use of credits is consistent with the terms and conditions of the approved in-lieu fee program instrument.

(C) Projects using in-lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified wetland professional using the credit assessment method specified in the approved instrument for the in-lieu fee program.

(D) The impacts are located within the service area specified in the approved in-lieu fee instrument.

(iii) Permittee-Responsible Mitigation. In this situation, the permittee performs the mitigation after the permit is issued and is ultimately responsible for implementation and success of the mitigation. Permittee-responsible mitigation may occur at the site of the permitted impacts or at an off-site location within the same watershed. Permittee-responsible mitigation shall be used only if the applicant’s qualified wetland professional demonstrates to the approval authority’s satisfaction that the proposed approach is ecologically preferable to use of a bank or ILF program, consistent with the criteria in this section.

(e) Types of Compensatory Mitigation. Mitigation for lost or diminished wetland and buffer functions shall rely on a type listed below in order of preference. A lower-preference form of mitigation shall be used only if the applicant’s qualified wetland professional demonstrates to the approval authority’s satisfaction that all higher-ranked types of mitigation are not viable, consistent with the criteria in this section.

(i) Restoration. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former or degraded wetland. For the purpose of tracking net gains in wetland acres, restoration is divided into:

(A) Reestablishment. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. Reestablishment results in a gain in wetland acres (and functions). Activities could include removing fill material, plugging ditches, or breaking drain tiles.

(B) Rehabilitation. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland.

(ii) Establishment (Creation). The manipulation of the physical, chemical, or biological characteristics of a site to develop a wetland on an upland or deepwater site where a wetland did not previously exist. Establishment results in a gain in wetland acres. Activities typically involve excavation of upland soils to elevations that will produce a wetland hydroperiod, create hydric soils, and support the growth of hydrophytic plant species.

(A) If a site is not available for wetland restoration to compensate for expected wetland and/or buffer impacts, the approval authority may authorize creation of a wetland and buffer upon demonstration by the applicant’s qualified wetland professional that:

(1) The hydrology and soil conditions at the proposed mitigation site are conducive for sustaining the proposed wetland and that creation of a wetland at the site will not likely cause hydrologic problems elsewhere;

(2) Adjacent land uses and site conditions do not jeopardize the viability of the proposed wetland and buffer (e.g., due to the presence of invasive plants or noxious weeds, stormwater runoff, noise, light, or other impacts); and

(3) The proposed wetland and buffer will eventually be self-sustaining with little or no long-term maintenance.

(iii) Enhancement. The manipulation of the physical, chemical, or biological characteristics of a wetland site to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, flood water retention, or wildlife habitat. Enhancement results in a change in some wetland functions and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities. Applicants proposing to enhance wetlands or associated buffers shall demonstrate how the proposed enhancement will increase the wetland’s/buffer’s functions, how this increase in function will adequately compensate for the impacts, and how existing wetland functions at the mitigation site will be protected.

(iv) Protection/Maintenance (Preservation). Removing a threat to, or preventing the decline of, wetland conditions by an action in or near a wetland. This includes the purchase of land or easements, or repairing water control structures or fences. This term also includes activities commonly associated with the term “preservation.” Preservation does not result in a gain of wetland acres. Permanent protection of a Category I or II wetland and associated buffer at risk of degradation can be used only if:

(A) The approval authority determines that the proposed preservation is the best mitigation option;

(B) The proposed preservation site is under threat of undesirable ecological change due to permitted, planned, or likely actions that will not be adequately mitigated under existing regulations;

(C) The area proposed for preservation is of high quality or critical for the health of the watershed or basin due to its location. Some of the following features may be indicative of high quality sites:

(1) Category I or II wetland rating (using the wetland rating system for western Washington);

(2) Rare or irreplaceable wetland type (for example, bogs, mature forested wetlands, estuarine wetlands) or aquatic habitat that is rare or a limited resource in the area;

(3) The presence of habitat for priority or locally important wildlife species;

(4) Provides biological and/or hydrological connectivity;

(5) Priority sites in an adopted watershed plan.

(D) Permanent preservation of the wetland and buffer will be provided through a conservation easement or tract held by an appropriate natural land resource manager, such as a land trust.

(E) The approval authority may approve other legal and administrative mechanisms in lieu of a conservation easement if it determines they are adequate to protect the site.

(F) Ratios for preservation in combination with other forms of mitigation generally range from 10:1 to 20:1, as determined on a case-by-case basis, depending on the quality of the wetlands being impacted and the quality of the wetlands being preserved. Ratios for preservation as the sole means of mitigation generally start at 20:1.

(f) Location of Compensatory Mitigation. Compensatory mitigation actions shall generally be conducted within the same subdrainage basin and on the site of the alteration except when the applicant can demonstrate that off-site mitigation is ecologically preferable. The following criteria will be evaluated when determining whether the proposal is ecologically preferable. When considering off-site mitigation, preference should be given to using alternative mitigation, such as a mitigation bank, an inlieu fee program, or advance mitigation.

(i) There are no reasonable opportunities on site or within the subdrainage basin (e.g., on-site options would require elimination of high-functioning upland habitat), or opportunities on site or within the subdrainage basin do not have a high likelihood of success based on a determination of the capacity of the site to compensate for the impacts. Considerations should include: anticipated replacement ratios for wetland mitigation; buffer conditions and required widths; available water to maintain anticipated hydrogeomorphic classes of wetlands when restored; proposed flood storage capacity; and potential to mitigate riparian fish and wildlife impacts (such as connectivity);

(ii) On-site mitigation would require elimination of high quality upland habitat.

(iii) Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the altered wetland.

(iv) Off-site locations shall be in the same subdrainage basin unless:

(A) Established watershed goals for water quality, flood storage or conveyance, habitat, or other wetland functions have been established by the town and strongly justify location of mitigation at another site;

(B) Credits from a state-certified wetland mitigation bank are used as compensation, and the use of credits is consistent with the terms of the certified bank instrument; or

(v) The design for the compensatory mitigation project needs to be appropriate for its location (i.e., position in the landscape). Therefore, compensatory mitigation should not result in the creation, restoration, or enhancement of an atypical wetland.

(g) Timing of Compensatory Mitigation. It is preferred that compensatory mitigation projects be completed prior to activities that will impact wetlands. At the least, compensatory mitigation shall be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.

(i) The administrator may authorize a one-time temporary delay in completing construction or installation of the compensatory mitigation when the applicant provides a written explanation from a qualified wetland professional as to the rationale for the delay. An appropriate rationale would include identification of the environmental conditions that could produce a high probability of failure or significant construction difficulties (e.g., project delay lapses past a fisheries window, or installing plants should be delayed until the dormant season to ensure greater survival of installed materials). The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety, or general welfare of the public. The request for the temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the compensatory mitigation plan. The justification must be verified and approved by the town.

(h) Wetland Mitigation Ratios.

Category and Type of Wetland	Creation or Reestablishment	Rehabilitation	Enhancement
Category I: Bog, natural heritage site	Not considered possible	Case by case	Case by case
Category I: Mature forested	6:1	12:1	24:1
Category I: Based on functions	4:1	8:1	16:1
Category II	3:1	6:1	12:1
Category III	2:1	4:1	8:1
Category IV	1.5:1	3:1	6:1

(i) Compensatory Mitigation Plan. When a project involves wetland and/or buffer impacts, a compensatory mitigation plan prepared by a qualified professional shall be required, meeting the following minimum standards:

(i) Wetland Critical Area Report. A critical area report for wetlands must accompany or be included in the compensatory mitigation plan and include the minimum parameters described in Minimum Standards for Wetland Reports (subsection (5)(b) of this section).

(ii) Compensatory Mitigation Report. The report must include a written report and plan sheets that contain, at a minimum, the following clements:

(A) The written report must contain, at a minimum:

(1) The name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the compensatory mitigation report; a description of the proposal; a summary of the impacts and proposed compensation concept; identification of all the local, state, and/or federal wetland-related permit(s) required for the project; and a vicinity map for the project.

(2) Description of how the project design has been modified to avoid, minimize, or reduce adverse impacts to wetlands.

(3) Description of the existing wetland and buffer areas proposed to be altered. Include acreage (or square footage), water regime, vegetation, soils, landscape position, surrounding land uses, and functions. Also describe impacts in terms of acreage by Cowardin classification, hydrogeomorphic classification, and wetland rating, based on wetland ratings (subsection (1)(b) of this section).

(4) Description of the compensatory mitigation site, including location and rationale for selection. Include an assessment of existing conditions, acreage (or square footage) of wetlands and uplands, water regime, sources of water, vegetation, soils, landscape position, surrounding land uses, and functions. Estimate future conditions in this location if the compensation actions are not undertaken (i.e., how would this site progress through natural succession?).

(5) Surface and subsurface hydrologic conditions, including an analysis of existing and proposed hydrologic regimes for enhanced, created, or restored compensatory mitigation areas. Include illustrations of how data for existing hydrologic conditions were used to determine the estimates of future hydrologic conditions.

(6) A description of the proposed actions for compensation of wetland and upland areas affected by the project. Include overall goals of the proposed mitigation, including a description of the targeted functions, hydrogeomorphic classification, and categories of wetlands.

(7) A description of the proposed mitigation construction activities and timing of activities.

(8) Performance standards (measurable standards for years post-installation) for upland and wetland communities, a monitoring schedule, and a maintenance schedule and actions proposed by year.

(9) A discussion of ongoing management practices that will protect wetlands after the development project has been implemented, including proposed monitoring and maintenance programs (for remaining wetlands and compensatory mitigation wetlands).

(10) A bond estimate for the entire compensatory mitigation project, including the following elements: site preparation, plant materials, construction materials, installation oversight, maintenance twice per year for up to five years, annual monitoring field work and reporting, and contingency actions for a maximum of the total required number of years for monitoring.

(11) Proof of establishment of notice on title for the wetlands and buffers on the project site, including the compensatory mitigation areas.

(B) The scaled plan sheets for the compensatory mitigation must contain, at a minimum:

(1) Surveyed edges of the existing wetland and buffers, proposed areas of wetland and/or buffer impacts, location of proposed wetland and/or buffer compensation actions.

(2) Existing topography, ground-proofed, at two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed in the compensation area(s). Also include existing cross-sections (estimated one-foot intervals) of wetland areas on the development site that are proposed to be altered and for the proposed areas of wetland or buffer compensation.

(3) Conditions expected from the proposed actions on site, including future hydrogeomorphic types, vegetation community types by dominant species (wetland and upland), and future water regimes.

(4) Required wetland buffers for existing wetlands and proposed compensation areas. Also identify any zones where buffers are proposed to be reduced or enlarged outside of the standards identified in this chapter.

(5) A planting plan for the compensation area, including all species by proposed community type and water regime, size and type of plant material to be installed, spacing of plants, typical clustering patterns, total number of each species by community type, and timing of installation.

(j) Buffer Mitigation Ratios. Impacts to buffers shall be mitigated at a minimum 1:1 ratio. Compensatory buffer mitigation shall replace those buffer functions lost from development.

(k) Protection of the Mitigation Site. The mitigation area and any associated buffer shall be located in a critical area tract or a conservation easement consistent with CMC 16.12.080.

(l) Monitoring. Mitigation monitoring shall be required for a period necessary to establish that performance standards have been met, but not for a period less than five years. If a scrub-shrub or forested vegetation community is proposed, monitoring may be required for 10 years or more. The project mitigation plan shall include monitoring clements that ensure certainty of success for the project’s natural resource values and functions. If the mitigation goals are not obtained within the initial five-year period, the applicant remains responsible for restoration of the natural resource values and functions until the mitigation goals agreed to in the mitigation plan are achieved. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.110 Critical aquifer recharge areas.

(1) Classification and Designation.

(a) Critical aquifer recharge areas are those land areas that contain hydrogeologic conditions that facilitate aquifer recharge and/or transmission of contaminants to an underlying aquifer. Critical aquifer recharge areas under this section may be established based on general criteria, specifically designated due to special circumstances, or based on scientific studies and mapping efforts. Factors considered in the identification of critical aquifer recharge areas include depth to water table, presence of highly permeable soils (specifically Group A hydrologic soils), presence of flat terrain, and the presence of more permeable surficial geology. Critical aquifer recharge areas may be placed in one of the following categories:

(i) Category I Critical Aquifer Recharge Areas. Category I critical aquifer recharge areas are those areas where potential for certain land use activities to adversely affect ground water is high. Category I critical aquifer recharge areas include:

(A) Areas inside the five-year time-of-travel zone for Group A water system wells, calculated in accordance with the Washington State Source Water Assessment Program.

(B) Ten-year time-of-travel zones in wellhead protection areas are included as critical aquifer recharge when a well draws its water from an aquifer that is at or above sea level and is without an overlying protective impermeable layer.

(None are identified in Concrete at this time. Future designations may occur.)

(ii) Category II Critical Aquifer Recharge Areas. Category II critical aquifer recharge areas are areas that provide recharge to aquifers that currently are or potentially will become potable water supplies and are vulnerable to contamination based on the type of land use activity. These include the following:

(A) Highly Permeable Soils (Group A Hydrologic Soils). The general location and characteristics of Group A hydrologic soils in the town are given in the Soils Survey Skagit County by the U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS). The soil survey information is available at the community and economic development department.

(B) Areas above Shallow Principal Aquifers. Surface areas above shallow, principal aquifer(s) that are not separated from the underlying aquifers by an impermeable layer that provides adequate protection to preclude the proposed land use from contaminating the shallow aquifer(s) below are considered aquifer recharge areas of concern.

(iii) When any portion of the proposed project area is located partly within a Category I area, the proposed project shall be subject to the level of scrutiny provided for a Category I area.

(2) Development Standards.

(a) Allowed Activities. Standards for development shall be in accordance with the provisions below and the requirements of other underlying town regulations. The following activities are allowed in critical aquifer recharge areas and do not require submission of a hydrogeologic assessment:

(i) Construction of structures and improvements, including additions, resulting in less than five percent or 2,500 square feet (whichever is greater) total site impervious surface area that does not result in a change of use or increase the use of a hazardous substance.

(ii) Development and improvement of parks, recreation facilities, open space, or conservation areas resulting in less than five percent total site impervious surface area that does not increase the use of a hazardous substance.

(iii) On-site domestic septic systems releasing less than 14,500 gallons of effluent per day and that are limited to a maximum density of one system per one acre.

(iv) Residential Use of Pesticides and Nutrients. Application of household pesticides, herbicides, and fertilizers that does not exceed times and rates specified on the packaging.

(v) Residential storage or use of petroleum and petroleum products.

(vi) Activities that have a potential contamination source below threshold amounts as set forth in applicable statutes of the Revised Code of Washington or local regulations. The purpose of this clause is to allow for small-scale and residential activities thought to have no significant impact to critical aquifer recharge areas.

(b) Prohibited Activities. The following activities and uses are prohibited in Category I critical aquifer recharge areas:

(i) Landfills, including hazardous or dangerous waste, municipal solid waste, special waste, and wood waste;

(ii) Underground Injection Wells. Wells which meet the requirements of Chapters 173-218 and 173-200 WAC with the exception of 5B22, 5D2, 5G30, 5W12, 5W32, 5R21, and 5S23;

(iii) Commercial mining and washing of metals, hard rock, sand, and gravel;

(iv) Chemical wood preservation and/or treatment facilities;

(v) Storage, processing, or disposal of radioactive substances;

(vi) Commercial activities that are not connected to an available sanitary sewer system;

(vii) Use or storage of pesticides listed as “state restricted use pesticides” by Chapter 16-228 WAC;

(viii) Oil and gas drilling as defined in WAC 332-12-450 and Chapter 173-218 WAC;

(ix) Underground storage of hazardous substances as regulated by Chapter 173-360 WAC;

(x) Use, storage, treatment, or production of perchloroethylene (PCE), other than in closed-loop systems that do not involve any discharge of PCE;

(xi) Petroleum refining, reprocessing, storage, and petroleum-product pipelines;

(xii) Electroplating/metal finishing;

(xiii) Activities that would significantly reduce the recharge to aquifers currently or potentially used as a potable water source; and

(xiv) Activities that would significantly reduce the recharge to aquifers that are a source of significant base flow to a regulated stream.

(3) Allowed Uses with Performance Standards.

(a) General Requirements. Any activity not specifically exempted through subsection (2) of this section as allowed or prohibited may be permitted in a critical aquifer recharge area if all of the following criteria are met (a list of specific uses with a potential threat to ground water can be found in subsection (3)(b) of this section):

(i) Hydrogeologic Assessment.

(A) For Category I aquifer recharge areas the applicant must show through a hydrogeologic assessment that the proposed activity will not cause significant impact to aquifer quality or recharge. The hydrogeologic assessment will be evaluated and treated as a special use review and be reviewed by the department, the health district, affected tribes, and affected water purveyors. An incompatible activity can be denied permit approval by the director.

(B) For Category II aquifer recharge areas a hydrogeologic assessment may be required. The scope of the report shall be based on site-specific conditions. The hydrogeologic assessment will be evaluated and treated as a special use review and be reviewed by the department, the health district, affected tribes, and affected water purveyors. An incompatible activity can be denied permit approval by the director. The need for additional information will be determined by the department, the health district, and the affected water purveyor. Based on the report, controls, mitigation, and/or other requirements will be established as a prerequisite for the development proposal being approved.

(C) A hydrogeologic assessment shall be prepared in accordance with the content and submittal requirements of MVMC 15.40.120(C); unless the director waives particular report requirements based on site-specific conditions.

(ii) The proposed activity must comply with the source water protection requirements and recommendations of the U.S. Environmental Protection Agency, Washington State Department of Health, Washington Department of Ecology, and the Skagit County health district.

(iii) The applicant must explore low impact development site design alternatives and implement them where economically feasible. Low impact development techniques in the most current edition of the Puget Sound Action Team Low Impact Development Technical Guidance Manual for Puget Sound can include, but are not limited to:

(A) Rainwater harvesting;

(B) Reverse slope sidewalks;

(D) Bioretention areas (rain gardens); and

(E) Pervious pavement.

(b) Potential Threats to Ground Water. Specific uses with potential threats to ground water can include, but are not limited to, the following. Uses meeting the listed performance standards may be allowed if the criteria of this section are met.

(i) Anything that is not exempt per subsection (2) of this section.

(ii) All storage tanks proposed to be located in a critical aquifer recharge area must comply with local building code requirements and must conform to the following requirements:

(A) All new above-ground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

(1) Not allow the release of a hazardous substance to the ground, ground water, or surface waters;

(2) Have a primary containment area enclosing or underlying the tank or part thereof; and

(3) A secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks.

(iii) Vehicle Repair and Servicing.

(A) Vehicle repair and servicing must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Chemicals used in the process of vehicle repair and servicing must be stored in a manner that protects them from weather and provides containment should leaks occur.

(B) No dry wells shall be allowed in critical aquifer recharge areas on sites used for vehicle repair and servicing. Dry wells existing on the site prior to facility establishment must be abandoned using techniques approved by the Department of Ecology prior to commencement of the proposed activity.

(iv) Water reuse projects for reclaimed water must be in accordance with the adopted water or sewer comprehensive plans that have been approved by the Departments of Ecology and Health.

(A) Use of reclaimed water for surface percolation must meet the ground water recharge criteria given in RCW 90.46.010(10) and 90.46.080(1). The State Department of Ecology may establish additional discharge limits in accordance with RCW 90.46.080(2).

(B) Direct injection must be in accordance with the standards developed by authority of RCW 90.46.042.

(v) Automobile washers as defined in Chapter 173-216 WAC.

(vi) Chemical treatment storage and disposal facilities as defined in WAC 173-303-182.

(vii) Hazardous waste generators, including, but not limited to: boat repair shops, biological research facilities, dry cleaners, furniture stripping, motor vehicle service garages, photographic processing, printing and publishing shops, medical and dental facilities, etc., as defined in Chapter 173-303 WAC.

(viii) Junk yards and salvage yards as defined in Chapter 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Vehicle Recycler Facilities (DOE Publication Number 94-146).

(ix) On-site sewage systems (large scale) as defined in Chapter 173-240 WAC.

(x) On-site sewage systems (less than 14,500 gallons/day) as defined in Chapter 246-272 WAC.

(xi) Pesticide storage and use as defined in Chapters 15.54 and 17.21 RCW.

(xii) Sawmills as defined in Chapters 173-303 and 173-304 WAC, DOE Publication Number 95-53, Best Management Practices to Prevent Stormwater Pollution at Log Yards.

(xiii) Solid waste handling and recycling facilities as defined in Chapter 173-304 WAC.

(xiv) Wastewater application to land surface as defined in Chapters 173-216 and 173-200 WAC, and DOE Land Application Guidelines, Best Management Practices for Irrigated Agriculture.

(xv) New impervious surface area exceeding 20,000 square feet.

(xvi) Beneficial use of biosolids as defined in Chapter 173-308 WAC.

(xvii) Golf courses, provided:

(A) Fertilizer use is not above agronomic rates;

(B) Pesticides are managed and applied by properly licensed personnel, and use of all pesticides is approved by the affected water utility;

(xviii) Noncommercial gravel and sand mining, provided the extraction of materials remains no less than 10 feet above the level of the aquifer.

(c) In areas designated as high susceptibility for aquifer contamination, all uses shall be connected to the town’s sewer system to prevent possible contamination of the aquifer by septic system leaks. No new uses on a septic system are permitted in high susceptibility areas of critical aquifer recharge.

(d) Impervious surfaces shall be minimized within the critical aquifer recharge areas to protect the aquifer from contamination by storm runoff.

(e) Best management practices shall be followed by commercial and industrial uses located in the critical aquifer recharge areas to ensure that potential contaminants do not reach the aquifer.

(f) If the proposed development involves the use of any hazardous materials or substances regulated by the county, state or federal government, a spill prevention and emergency response plan shall be prepared and submitted for review and approval by the town and fire district.

(g) Affected Agency Review. The town will notify Skagit County health district and will request them to comment during the preliminary phases of the town’s review process on all proposed projects defined in subsections (3)(a) and (b) of this section.

(h) Inspection. Town personnel may inspect, at reasonable times, upon presentation of credentials, as part of its wellhead protection program any activity that is known to manage or potentially manage hazardous materials. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.120 Habitat conservation areas.

(1) The applicant for development in the CAO district that may impact habitat conservation areas shall provide a habitat management plan which identifies critical areas within the project area, prepared by a qualified professional with knowledge of the species in question, for evaluation by local, state, and federal agencies.

(2) The habitat management plan shall address the project area of the proposed activity, all habitat conservation areas, and shall recommend appropriate buffers to protect the critical area.

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

(a) A detailed description of vegetation on and adjacent to the project area;

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

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

(d) A detailed discussion of the potential impact on habitat by the project, including potential impact to water quality;

(e) A discussion of mitigation measures proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity;

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

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

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

Water Type Riparian Buffer
S (Shorelines)	200 feet
F (Fish)	100 feet
NP (Nonfish perennial) NS (Nonfish seasonal)	50 feet

Water Type Riparian Buffer

S (Shorelines)

200 feet

F (Fish)

100 feet

NP (Nonfish perennial)

NS (Nonfish seasonal)

50 feet

Once buffers are established, they shall not be altered except as allowed in this subsection. Riparian buffers not currently meeting the minimum standards shall be restored; provided, that such restoration does not conflict with other provisions of this chapter. In implementing buffer widths other than the standard riparian buffers identified above, the town may provide opportunity for review and comment from appropriate federal, state or tribal natural resource agencies to ensure the use of best available science. These comments shall be included in the public record along with the basis and rationale for requirement or approval of any such nonstandard buffers.

(a) Increasing Buffer Widths. The town has the authority to increase the standard buffer widths on a case-by-case basis, or to establish nonriparian buffer widths, when such buffers are necessary to protect priority fish or wildlife (e.g., great blue heron nesting colonies, osprey or cavity nesting ducks). This determination shall be supported by appropriate documentation from the Departments of Ecology and Fish and Wildlife, showing that the increased buffer width is reasonably related to the protection of the fish and/or wildlife using the HCA.

(b) Decreasing Buffer Widths. Decreasing standard buffers will be allowed by the town council only if the applicant demonstrates that all of the following criteria are met:

(i) A decrease is necessary to accomplish the purposes of the proposal and no reasonable alternative is available;

(ii) Decreasing width will not adversely affect the fish and wildlife habitat functions and values;

(iii) If a portion of a buffer is to be reduced, the remaining buffer area will be enhanced, using native vegetation, artificial habitat features, vegetative screening and/or barrier fencing as appropriate to improve the functional attributes of the buffer and to provide equivalent or better protection for fish and wildlife habitat functions and values;

(iv) The buffer width shall not be reduced below 50 percent of the standard buffer width unless the town council determines that no other reasonable alternative exists and that no net loss of HCA riparian functional values will result, based on a functional assessment provided by the applicant utilizing a methodology approved by the town.

(6) Allowed Uses in HCAs or Buffers.

(a) Docks. Docks designed to facilitate low impact uses, such as education and/or private, non commercial recreation may be permitted within fish and wildlife HCAs under the following conditions:

(i) The activity will have minimum adverse impact to the fish and wildlife habitat conservation area;

(ii) The activity will not significantly degrade surface or ground water;

(iii) The intrusion into the fish and wildlife habitat conservation area and its buffers is mitigated; and

(iv) The director may provide opportunity for review and comment by federal, state and tribal natural resource agencies.

(b) Limited park or recreational access to a fish and wildlife habitat area or its required buffer; provided, that all of the following are satisfied:

(i) The access is part of a public park or a recreational resort development that is dependent on the access for its location and recreational function;

(ii) The access is limited to the minimum necessary to accomplish the recreational function;

(iii) The access and the balance of the development are consistent with other requirements of the Concrete Municipal Code and the Skagit County shoreline management master program; and

(iv) The proponent obtains a written approval from the town council for the limited access and associated mitigation.

(c) Low impact uses and activities which are consistent with the purpose and function of the habitat buffer and do not detract from its integrity may be permitted within the buffer depending on the sensitivity of the habitat involved; provided, that such activity shall not result in a decrease in riparian functional values and shall not prevent or inhibit the buffer’s recovery to at least prealtered condition or function. Examples of uses and activities which may be permitted in appropriate cases include removal of noxious vegetation, pedestrian trails, viewing platforms, and stormwater management facilities such as grass-lined swales and wet ponds or stormwater wetlands.

(d) In the riparian buffer, removal of hazardous, diseased or dead trees and vegetation when necessary to control fire, or to halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 75.09 RCW, or when the removal is necessary to avoid a hazard such as landslides that pose a threat to existing structures may be permitted with prior written approval. Any removed tree or vegetation shall be replaced with appropriate species. Replacement shall be performed consistent with accepted restoration standards for riparian areas within one calendar year. The director may approve alternative tree species to promote fish and wildlife habitat.

Prior to commencement of tree or vegetation removal anchor replacement, the landowner must obtain written approval from the director. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.130 Density/floor area calculations and transfer of density/floor area.

(1) An owner of a site or property in the R residential zoning district containing critical areas shall be entitled to transfer the residential density attributable to the critical area(s), including buffers, on the property to the unconstrained portion of the same property subject to compliance to the requirements of this code for residential planned unit developments and cluster subdivisions.

(2) An owner of a site or property in the airport land use district, CL commercial/light industry district, TC town center district, I industrial district, P public lands district and O-S open space zoning districts containing critical areas shall be entitled to transfer the floor area attributable to the critical area(s) including buffers to the unconstrained portion of the same property subject to the requirements of the dimensional and density requirements within the applicable zoning district. Parking for the transferred floor area may be reduced to provide and ensure economic use of the property. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.140 Frequently flooded areas.

Development in areas of special flood hazards shall comply with Chapter 15.08 CMC, Floodplain Management. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.150 Geologically hazardous areas.

(1) A minimum 50-foot buffer shall be established from the boundary of an identified geological hazard, including landslide hazard areas, seismic hazard areas, mine hazard areas, landfills or steep slope areas (40 percent or greater), except as specified in this section. The buffer may be increased as deemed necessary to protect public health, safety and welfare, based on information contained in a geotechnical report prepared by a qualified professional submitted by the applicant.

(2) Buffers may be decreased in size, provided the geotechnical report substantiates the following findings:

(a) The proposed development will not create a hazard to the subject property, surrounding properties or rights-of-way, erosion or sedimentation to off-site properties or bodies of water;

(b) The proposal uses construction techniques that minimize destruction of existing topography and natural vegetation;

(3) The following activities are allowed in geologically hazardous areas, provided they do not create a hazard to the subject property or surrounding properties, do not increase erosion or sedimentation, do not compromise the stability of the slope, and utilize techniques to minimize the destruction of existing topography and natural vegetation:

(a) Additions to existing residences that are 640 square feet or less.

(b) Installation of fences.

(c) Removal of vegetation may be permitted only when necessary to protect the public health, safety, and general welfare. Significant trees and shrubs removed shall be replaced with similar species at a location approved by the town. Such activities shall require a critical areas permit by the town of Concrete.

(d) Activities identified in CMC 16.12.040(5). [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.160 Special consideration for anadromous fisheries.

(1) The applicant for development proposed in the CAO district that may impact anadromous fisheries shall provide an anadromous fisheries protection plan prepared by a qualified professional with knowledge of the species in question. If the applicant must submit a habitat management plan, these reports and mitigation plans may be combined.

(2) The anadromous fisheries protection plan shall be based on best available science and best management practices and shall be designed to protect and enhance anadromous fisheries resources and shall include, at a minimum:

(a) A detailed description of the landscape and vegetation on and adjacent to the project area;

(b) Identification of any endangered, threatened, rare, sensitive, or monitor species of anadromous fish, or resident fish species or species of local importance that are known to occur on or adjacent to the proposed site, and a detailed description of those species’ life cycles and limiting factors;

(c) A discussion of any federal, state or local special management recommendations have been developed for salmonid recovery or anadromous fish species or habitats located on or adjacent to the project area;

(d) A detailed description of the potential impact on anadromous fisheries by the project, particularly with regard to life stages important to species survival;

(e) A discussion of conservation or protection measures proposed to preserve and enhance existing habitat and restore any habitat that was degraded prior to development;

(f) A discussion of continuing management practices that will protect and enhance anadromous fisheries and associated habitat after the project site has been developed, including proposed monitoring and maintenance programs. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.170 Reasonable use allowance.

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

(1) There is no other reasonable use or feasible alternative to the proposed development with less impact on the critical area;

(2) The proposed development does not pose a threat to the public health, safety and welfare on or off of the subject property;

(3) Any alterations permitted to the requirements of this chapter shall be the minimum necessary to allow for reasonable use of the property;

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

(5) The proposal mitigates the impact on the critical area to the maximum extent possible;

(6) Reasonable use of property shall generally be described as one dwelling unit per legal lot of record, or one equivalent residential unit for commercial and industrial uses per legal lot of record;

(7) The town may assist applicants in providing the information required in this section;

(8) Appeals. The applicant may appeal a decision of the town planner and/or building official on a reasonable use allowance application to the town council. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.180 Lorenzan Creek setback requirement.

This chapter incorporates by reference the settlement agreement between the town of Concrete, State of Washington Department of Fish and Wildlife, and the State of Washington Department of Ecology, Exhibit B, of Shorelines Hearing Board Case No. 98-18. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.190 Application.

This chapter shall apply to all development activities and land use approvals required by the town of Concrete for which a complete application is filed and fee paid after the effective date of the ordinance codified in this chapter. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]

16.12.200 Unauthorized alterations and enforcement.

(1) When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop, and the critical area shall be restored. The town shall have the authority to issue a “stop work” order to cease all ongoing development work and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

(2) Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by the town. 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 town planner shall, at the applicant or other responsible party’s expense, seek expert advice in determining the adequacy of the plan.

(3) Restorations. Restoration shall include, but not be limited to, the replacement of all improperly removed ground cover with species similar to those which were removed or other approved species such that the biological and habitat values will be replaced to the greatest extent possible. Studies by qualified experts shall be conducted to determine the conditions that were likely to exist on the lot prior to the illegal alteration. Restoration shall also include installation and maintenance of interim and emergency erosion control measures until such time as the restored site complies with town requirements.

(4) Enforcement of this chapter is as described in Chapter 19.84 CMC, contained in the zoning code. [Ord. 784 § 3 (Exh. A), 2018; Ord. 776 § 3 (Exh. A), 2017; Ord. 631 § 1, 2008]