Chapter 25.105 CRITICAL AREAS

Chapter 25.105
CRITICAL AREAS

Sections:

25.105.010 Purpose.

25.105.020 General provisions.

25.105.030 Definitions.

25.105.040 Applicability.

25.105.050 Critical areas.

25.105.060 In-lieu fees.

25.105.070 Exemptions and exceptions.

25.105.080 Critical area permit submittal requirements.

25.105.090 Enforcement and procedures of this chapter.

25.105.100 Notice and financial securities.

25.105.110 Nonconformance.

25.105.120 Suspension – Revocation.

25.105.130 Amendments.

25.105.140 Severability.

25.105.150 Appeals.

25.105.160 Assessment relief.

25.105.170 Limitation of actions.

25.105.010 Purpose.

This chapter has been prepared to express the citizens of DuPont’s desire to preserve, restore, and protect critical areas within the city in compliance with the Washington State Growth Management Act (GMA). The GMA requires that critical areas within the city are to be protected by establishing protection standards for minimizing the impact of development of properties within and adjacent to critical areas. The goal of this chapter is to protect and improve the city of DuPont’s critical areas for the present and future generations. Wetlands, streams, geologically hazardous areas, aquifer recharge areas, and associated buffers together constitute environmentally critical areas that are of special concern to the city of DuPont.

The purposes of this chapter are to protect the public health, safety and welfare by preventing the adverse environmental impacts of development by:

(1) Preserving and protecting critical areas by regulating development adjacent to and within them and their buffers;

(2) Educating the public as to the long-term importance of environmentally critical areas and the responsibilities of the city to protect and preserve the natural environment for future generations;

(3) Directing a policy of no net loss of wetland and stream function, value, and area within the city;

(4) Preventing, to the extent practicable, adverse cumulative impacts to water quality, wetlands, stream corridors, and fish and wildlife habitats using best available science;

(5) Encouraging improvements to, and good stewardship of, surface water bodies and watercourses;

(6) Protecting the public from injury, loss of life, property damage or financial loss due to flooding, erosion, landslides, seismic events, soil subsidence or steep slope failures;

(7) Providing the city of DuPont with information necessary to approve, condition, or deny public or private development proposals;

(8) Alerting appraisers, assessors, owners, potential buyers, or lessees to the development limitations of critical areas while also providing city officials, officers and agents with sufficient information to adequately protect critical areas when approving, conditioning or denying;

(9) Providing predictability and consistency to the city of DuPont’s development review process;

(10) Implementing the policies of the State Environmental Policy Act, the Growth Management Act, Chapter 43.21C RCW, the city of DuPont comprehensive plan (adopted 2015 and as amended), and city-related plans and policies. (Ord. 18-1054 § 2 (Exh. A))

25.105.020 General provisions.

Regulated critical areas are defined in this chapter and include the following areas and ecosystems: wetlands, critical potable water aquifer recharge areas, fish and wildlife habitat conservation areas and geologically hazardous areas. Frequently flooded areas have been incorporated in the Wetlands and Fish and Wildlife Habitat Conservation Areas sections of this chapter. Critical areas shall also include their protective buffers as set forth in this chapter. The following general provisions will apply to the implementation of this chapter:

(1) Abrogation and Greater Restrictions. This chapter shall be so construed as to achieve its purposes without abrogating any existing regulations. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail.

(2) Interpretation. The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter.

(3) Compliance with this chapter shall constitute adequate mitigation of impacts to sensitive areas pursuant to the State Environmental Policy Act.

(4) This chapter addresses only the city’s critical areas – it does not designate any natural resource lands as defined by the Growth Management Act.

(5) Regulations in this chapter shall be implemented to protect the public health, safety, and welfare by:

(a) Providing special consideration to the conservation or protection measures necessary to preserve or enhance anadromous fish in accordance with RCW 36.70A.172(1).

(b) Applying the hierarchal ARC approach to development or alteration impacts in and adjacent to critical areas in order of preference – avoid, reduce, and compensate:

(i) Avoid adverse impact entirely, if reasonable;

(ii) Reduce adverse impacts, if avoidance is not reasonable:

(A) Minimizing or limiting the degree or magnitude of the development and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;

(B) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the development activity;

(iii) Compensating for unavoidable adverse critical area impacts by:

(A) Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment;

(B) Compensating for unavoidable impacts by replacing, enhancing, or providing substitute resources or environments.

(c) This chapter shall be applied to avoid publicly financed expenditures due to the misuse of critical areas which cause on-site or off-site impacts:

(i) Unnecessary maintenance and replacement of public facilities;

(ii) Public funding of mitigation for avoidable impacts. (Ord. 18-1054 § 2 (Exh. A))

25.105.030 Definitions.

For the purposes of this chapter the following definitions shall apply; these definitions shall be narrowly construed to protect critical areas and their buffers:

.005 Alteration. Means, with respect to critical areas, any human-induced action within critical areas or their buffers that impacts the existing condition of the area. Alteration includes, but is not limited to:

(a) Grading, filling, dredging, draining, channelizing, cutting, topping;

(b) Clearing, relocating, or removing vegetation or fauna;

(d) Human activity that impacts the existing topography, vegetation, hydrology, or wildlife habitat;

(e) Alteration does not include walking, passive recreation, nonvegetative or faunal litter removal, regular maintenance of existing trails, or similar activities.

.010 Applicant. Means a person who files an application for a development permit under this code and who is either the owner of the land on which that proposed activity would be located, a contract vendee, a lessee of the land, the person who would actually control and direct the proposed activity, or the authorized agent of such a person.

.015 Aquifer recharge area. Means geological and soil formations with recharging areas influencing aquifers used for potable water where ground water is vulnerable to contamination.

.020 Best available science. Means current scientific information used in the process to designate, protect, or restore critical areas that is derived from a valid scientific process as defined by WAC 365-195-900.

.025 Best management practices (BMPs). Means conservation practices or systems of practices and management measures that:

(a) Avoid or control soil loss and protect water quality from degradation caused by nutrients, animal waste, toxins, and sediment; and

(b) Avoid or minimize adverse impacts to surface water and ground water flow, and circulation patterns; and

(d) Avoid or minimize adverse impacts to the chemical, physical, and biological characteristics of critical areas.

“BMPs” are those practices as defined by the State of Washington Department of Agriculture, Washington State Department of Ecology, Washington State Department of Health, Washington State Department of Fish and Wildlife, and other professional organizations.

.030 Buffer. Means an area on a landscape adjacent to any critical area which:

(a) Physically isolates the critical area from surrounding areas using distance, height, visual and/or sound barriers;

(b) Acts to minimize risk to the public from loss of life, well-being or property damage resulting from natural disasters associated with the critical area;

(d) Provides shading, input of organic debris and coarse sediments and room for variation and changes in natural critical area characteristics;

(e) Provides habitat for wildlife; and/or

(f) Provides protection from harmful intrusion.

These buffer functions protect the public from losses suffered when the functions and values of critical areas are degraded.

.035 Building pad. Means a portion of a lot which has been altered or designated to provide an acceptable location for a structure on a short plat, subdivision, or lot line revision or other development application.

.040 Classified species. Means endangered, threatened and priority species as defined by the State Department of Fish and Wildlife.

.045 Compensatory mitigation. Means replacing or rectifying a critical area impact or buffer loss. Compensatory mitigation can include, but is not limited to, restoration or creation of lost or impacted functional values. Enhancement of critical areas may be used for partial compensatory mitigation per the requirements of this chapter.

.050 Creation. Refers to a particular mitigation approach for wetland impact which involves the conversion of a persistent upland or shallow water area into a wetland by human activity. Of these, constructed wetlands, also referred to as treatment wetlands, are created for the primary purpose of contaminant or pollution removal from wastewater or runoff.

.055 Critical areas. For the purposes of this chapter, “critical areas” include aquifer recharge areas used for potable water, fish and wildlife habitat conservation areas, geologically hazardous areas, and wetlands. Under the GMA, critical areas are to be classified, designated, and protected. In designating and protecting critical areas, the city shall use the best available science, consistent with RCW 36.70A.172. As used in this chapter, the term “critical area” shall also encompass any required buffer or setback associated with that critical area. The Departments of Fish and Wildlife and Ecology, and various federal agencies, offer online mapping tools to help define general critical area locations and may be used for illustrative and informational purposes only.

.060 Critical drainage corridor or area. Means an area which has been determined (by the city of DuPont department of public works) to require more restrictive regulation than city-wide standards afford, to mitigate flooding, drainage, erosion, or sedimentation problems which have resulted or will result from the cumulative impacts of development and urbanization. A critical drainage corridor is characterized as a year-round or intermittent naturally flowing watercourse which exhibits but is not limited to one or more of the following characteristics:

(a) A stream or watercourse formed by nature or modified by humans;

(b) Generally consisting of a defined channel with a bed for a substantial portion of its length on the lot;

(d) Perched ponds, ravines, or other natural drainage features.

.065 Critical facility. Means a facility for which even a slight chance of being located within a hazard area would be too great. Critical facilities include, but are not limited to, schools, hospitals, police, fire, and emergency response installations which produce, use or store hazardous materials or hazardous waste.

.070 Critical habitat. Means habitat areas associated with endangered, threatened or priority species as defined by the State Department of Fish and Wildlife. These habitats, if altered, could reduce the likelihood that the species will maintain population levels, survive, and reproduce over the long term. Such habitat areas are documented regarding lists, categories, and definitions of species promulgated by the Washington State Department of Fish and Wildlife or by regulations adopted currently or thereafter by the U.S. Fish and Wildlife Service.

.075 Critical slope. Means any area with slopes of 40 percent or steeper that exceed a vertical height of 10 feet. Critical slope is determined by measuring the vertical rise over any 25-foot horizontal run for a specific area that results in a percentage of 40 or more. The critical slope hazard area includes the area of land that extends for 10 feet from the top and toe of the slope.

.080 Cumulative adverse impact. Is the impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

.090 DMC. DuPont Municipal Code.

.095 Delineation. Means a process used to locate and mark a critical area’s edge or boundary in the field. Delineations are valid for a period of three years from the date that the city approves the delineation report is complete and accurate.

.100 Development. Means any alteration, grading, filling, building, earth moving, etc., as well as any structure or utility building operations. Preliminary mapping and survey work that are completed using best management practices and result in insignificant disturbance of vegetation and soil are not considered to be development activity. Development shall not include selective pruning of trees and shrubs for safety and view protection and the removal of noxious weeds; provided, that no heavy equipment is utilized and disturbance of vegetation and soil is insignificant.

.105 Development proposal. Means a building permit, clearing and grading permit, shoreline permit, rezone, conditional use permit, variance, lot line revision, planned unit development, short and formal subdivision, street development permit, utility development permit, or any development subject to stormwater drainage requirements under DuPont ordinance.

.110 Diameter at breast height (d.b.h.). Means a tree’s trunk diameter in inches measured four and one-half feet above the ground. On multi-stemmed or trunked trees, where the diameter at four and one-half feet above grade is greater than at a lower point on the tree, d.b.h. shall be measured at the narrowest diameter below four and one-half feet. In such cases the height of the measurement should be noted. For leaning trees, diameter shall be measured four and one-half feet up the stem in the direction of the lean. On multi-trunked trees, where tree splits into several trunks close to ground level, the diameter shall be the diameter equivalent to the sum of each individual trunk measured according to the principals listed above.

.115 Director. Means the director of the city of DuPont department of community development or their designee.

.120 Enhancement. Means an action approved by the director and taken with the intention and probable effect of improving the condition and function of a critical area, such as improving environmental functions in an existing, viable critical area by means of increasing plant diversity, increasing wildlife habitat, installing environmentally compatible erosion controls, or removing nonindigenous plant and/or animal species. Enhancement of one function should not result in the degradation of other functions.

.125 Endangered species. Means any species which is in danger of extinction throughout all or a significant portion of its range.

.130 Erosion hazard area. Means those areas containing soils which, according to the USDA Soil Conservation Service, may experience severe to very severe erosion.

.135 Exotic species. Means plants or animals that are not native to the Puget Sound region.

.140 Fish and wildlife habitat conservation areas.

The following areas are defined as fish and wildlife habitat conservation areas and are identified under this chapter:

(a) Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association. Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Department of Fish and Wildlife;

(b) Lands and waters containing documented habitats for plant and animal species listed in the Washington Department of Fish and Wildlife’s Priority Habitats and Species Program List. Habitats and species of local significance may be added by action of the city council where the value and significance of such species locally can be established and sound scientific evidence can be presented to establish that the species’ existence is determined to be locally significant;

(c) Public and private tidelands or bedlands are regulated under the City of DuPont 2013 Shoreline Master Program (SMP), as amended;

(d) Streams and waters of the state (see WAC 190-080(5)(a)(vi)) that provide habitat to endangered or threatened species, or certain species that have been identified as being sensitive to habitat manipulation, as defined in WAC 222-16-030, Forest Practices Rules and Regulations; lakes, ponds and streams planted with game fish, including those planted under the auspices of a federal, state, local or tribal program; and waters which support priority fish species as identified by the Department of Fish and Wildlife.

.145 Frequently flooded areas. Means lands subject to a one percent or greater chance of flooding in any given year or are mapped as such by the Federal Emergency Management Agency or the National Flood Insurance Program, or areas identified by the public works department as critical drainage corridors, lakes, coastal areas, and wetlands.

.150 Functions. Means the beneficial roles served by critical areas including, but not limited to: water quality protection and enhancement of fish and wildlife habitat; food chain support; food storage, conveyance, and attenuation; ground water recharge and discharge; erosion control; wave attenuation; aesthetic value protection; and recreation.

.155 Geologically hazardous areas. Are susceptible to erosion, sliding or other potentially hazardous geological events. They pose a threat to the health and safety of citizens when used as sites for incompatible development. Geologically hazardous areas include erosion hazard areas, landslide hazard areas, steep slopes, and seismic hazard areas.

.160 Geotechnical engineer. Means a practicing geotechnical/civil engineer who has a valid Washington State engineering license and a valid certificate of registration in civil engineering, at least four years of professional employment as a geotechnical engineer with experience in landslide evaluation, and appropriate training and experience as specified in Chapter 18.43 RCW.

.165 Hillsides. The side of a hill which is sloped and lies between the foot and apex of the hill.

.170 Hydric soils. Means those soils which are saturated, flooded or ponded long enough during the growing season to reduce oxygen conditions, thereby influencing the growth of plants. The presence of hydric soil shall be determined following the criteria and methods described in the approved federal wetland delineation manual and applicable regional supplements adopted under WAC 173-22-080.

.175 Hydrophytic vegetation. Means plant life growing in water or soil that is at least periodically deficient in oxygen because of excessive water content.

.180 Impervious surfaces. Means areas or surfaces that cannot be easily penetrated by rain or surface water runoff. These areas include structures and roof projections, impervious decks, roads, driveways, and surfaces which substantially reduce and alter the natural filtration characteristics of the soil.

.185 Infill development. Means the development of a vacant or underutilized parcel or parcels that are similar in size and configuration to those found in the adjacent developed area. Infill development minimizes the need for new utilities and streets and supports the more efficient delivery of urban services through compact development patterns.

.190 In-lieu fee. An approved in-lieu fee program sells compensatory mitigation credits to permittees whose obligations to provide compensatory mitigation are then transferred to the in-lieu fee program sponsor, a governmental or nonprofit natural resource management entity.

.195 Lakes. A lake is a large body of water that is surrounded by land. The lake’s water can be fresh or, more rarely, salty. A lake is generally accepted as being bigger than a “pond.” In Washington State, lakes larger than 20 acres are commonly managed under the Shoreline Management Act.

.200 Landslide hazard areas. Means those areas potentially subject to risk of mass movement due to a combination of geologic, topographic, and hydrologic factors, including historic slope failures. These areas may be identified in the City of DuPont Comprehensive Plan, U.S. Geological Service Maps, the Department of Ecology Coastal Zone Atlas, or through site-specific indicators or conditions.

.205 Low Impact Development Technical Guidance Manual for Puget Sound. Means the most current manual developed by the Puget Sound Action Team that describes environmentally friendly techniques to develop land and manage stormwater runoff.

.210 Mass wasting. Also known as slope movement or mass movement, is the geomorphic process by which soil, sand, and rock move downslope typically as a mass, largely under the force of gravity, but frequently affected by water and water content.

.215 Mitigation. Means a process used to reduce the severity of impacts from activities that potentially affect critical areas by the following means:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing 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;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(e) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or

(f) Monitoring the impact and taking appropriate corrective measures.

.220 Monitoring. Is defined as the establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor, compile, and analyze data on the condition of wetlands or other critical areas.

.225 Native vegetation. Means plant species which are indigenous to the Puget Sound region.

.230 Noxious weed. Means any plant which is invasive – for example, blackberries or nettles – and listed on the state noxious weed list in Chapter 16-750 WAC.

.235 Off-site compensation. Means to compensate for lost or degraded critical areas by creating or restoring these areas at or adjacent to the site on which the impacts were located.

.240 On-site compensation. Means to compensate for lost or degraded critical areas by creating or restoring similar critical areas at a location outside the immediate area of the impacted critical area.

.245 Out-of-kind mitigation. Means to compensate for lost or degraded critical areas by creating or enhancing critical areas whose characteristics do not closely approximate those destroyed or degraded by a development activity.

.250 Ordinary high water mark. (OHWM) as defined in the Shoreline Management Act (SMA) is a biological vegetation mark. Ecology’s rules include a default tidal or freshwater elevation line for locations where the OHWM cannot be found.

.255 Peer review. Means a review of a submitted critical areas report by a second practicing, licensed professional not associated with the original submittal selected and retained by the city. The second review must verify the adequacy of the information, the adequacy of the analysis, and the completeness of the original checklist. The cost for the peer review will be borne by the applicant.

.260 Pond. A body of standing water, either natural or artificial, that is smaller than a lake.

.265 Pond, perched. A pond or lake that is isolated above the ground water table by a layer of impervious soil such as rock or clay.

.270 Practicable alternative. Means an alternative available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and having less impacts to critical areas. It may include using an area not owned by the applicant which can reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed development.

.275 Pretreatment facilities. See “Wetlands, constructed.”

.280 Procedures manual. Means a document that may be prepared by the director, which outlines the process for determining whether critical areas are present on a lot as well as specific application and procedural details for permitting, site development and other requirements as described in this chapter.

.285 Qualified critical area consultant. Means a person who has the qualifications specified below to conduct critical areas studies pursuant to this chapter, and to make recommendations for critical area mitigation. For areas of potential geologic instability, the qualified critical areas consultant shall be an engineering geologist with a Washington specialty license in engineering geology as specified in Chapter 18.220 RCW or geotechnical engineer; provided, that:

(a) An engineering geologist may provide a study including interpretation, evaluation, analysis, and application of geological information and data and may predict potential or likely changes in types and rates of surficial geologic processes due to proposed changes to a location, and mitigation measures, provided it does not contain specific engineering design; and

(b) Engineering geologists may not provide engineering recommendations or design recommendations, but may contribute to a complete geotechnical report that is co-sealed by a geotechnical engineer.

(c) For wetlands the qualified consultant shall possess, at a minimum, a Bachelor of Science or Bachelor of Arts or equivalent degree in hydrology, soil science, botany, ecology, or related field, and have at least two years of full-time work experience as a wetlands professional including delineating wetlands using state or federal manuals, preparing wetland reports, conducting function assessments, and developing and implementing mitigation plans.

.290 Rehabilitation. Means actions to return a critical area to a state in which its stability, functions and values are improved to more closely approach its unimpacted state. This definition is closely aligned with restoration (DMC 25.105.030.305).

.295 Repair. Means activities that restore the character, size, or scope of a project only to the previously authorized condition.

.300 Reports and surveys. Means required documents prepared by a professional to delineate areas and make recommendations for critical area delineations and related regulations. Examples of these reports and surveys include, but are not limited to:

(a) Site inventory and/or survey;

(b) Application and site construction plan;

(d) Site mitigation plan;

(e) Stormwater management plan.

.305 Restoration. Means actions to bring a critical area to a state in which its stability, functions and values approximate its unaltered state.

.310 Retention/detention facility. Means a drainage facility designed either to:

(a) Retain runoff for a considerable length of time and release via evaporation, plant transpiration, and/or infiltration into the ground; or

(b) To detain runoff for a short period of time, and release to an associated surface/stormwater system at a rate not exceeding predevelopment (historical) flows.

.315 Seismic hazard areas. Includes areas subject to severe risk of damage because of seismic induced ground shaking, slope failure, settlement, soil liquefaction or surface faulting. Ground shaking is a primary risk, followed by slope failure. Soils on slopes greater than 40 percent that are expected to be seasonally or perpetually saturated pose a specific risk of settlement, movement, or liquefaction. When saturated, these soils tend to be cohesionless and are unsuitable for foundations.

.320 Setback. Means the distance specified by these regulations between a structure and a buffer, property line, road, etc.

.325 Significant vegetation. Means any tree with a diameter of six inches or more at breast height, native “understory” vegetation from four to 10 feet in height, and any species listed in the Washington State Department of Wildlife Priority Habitats and Species Program Report.

.330 Site. Means the entire lot, series of lots or parcels on which a development is located or proposed to be located, including contiguous undeveloped lots or parcels under common ownership of the applicants, or the client(s) represented by the applicant.

.335 Slope. Means an inclined ground surface, the inclination of which is expressed as a ratio (percentage) of vertical distance to horizontal distance by the following formula:

Vertical distance/Horizontal distance x 100 = % slope

.340 Species of local significance. Means those species that are of local concern due to their population status or their sensitivity to habitat manipulation or that are game species.

.345 Steep slope. As used in this chapter means a geologically hazardous area exhibiting all three of the following characteristics:

(a) Slopes steeper than 15 percent;

(b) Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and

.350 Stormwater Management Manual. Means the 2012 Department of Ecology Stormwater Management Manual for Western Washington and as amended.

.355 Swale. Means a shallow drainage conveyance facility with relatively gentle side slopes, and generally flow depths of less than one foot.

.360 Terrestrial habitats and species. Terrestrial habitats are entirely located on land, as compared with aquatic habitat, which is entirely in the water. Terrestrial species are those animals that reside and rely on the terrestrial (land-based habitats). Some species share terrestrial and aquatic habitats for varying life cycles or stages. Waterfowl and amphibians are good examples.

.365 Threatened species. Means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

.370 Top of slope and toe of slope. The “top of slope” is a distinct, topographical break in slope that separates slopes inclined at less than 40 percent from slopes 40 percent or steeper. When no distinct break exists, the top of slope is the uppermost limits of the area where the ground surface drops 10 feet or more vertically within a horizontal distance of 25 feet. The “toe of slope” is a distinct topographical break in slope that separates slopes inclined at less than 40 percent from slopes 40 percent or steeper. When no distinct break exists, the toe of slope of a steep slope is the lowermost limit of the area where the ground surface drops 10 feet or more vertically within a horizontal distance of 25 feet.

.375 Utilities. Means conduits, lines, and facilities used to distribute, collect, transmit, or control electrical power, natural gas, petroleum products, information (telecommunications), water, and sewage.

.380 Wetland classification. For the purposes of general inventory, wetlands are defined by the criteria defined in the approved federal wetland delineation manual and applicable regional supplements, adopted under WAC 173-22-080 as amended.

.385 Wetlands, constructed, or constructed wetlands. Means intentional construction of a wetland on an area that was previously nonwetland for purposes of wetlands mitigation, wastewater or stormwater treatment, and managed as such.

.390 Wetland or wetlands. Means those areas that are inundated or saturated by ground or surface 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 bogs, swamps, marshes, ponds, 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 because of construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from non-wetland areas created to compensate for wetland impacts, including conversion of wetlands to mitigate (RCW 36.70A.030(20)).

.395 Wetland edge. Means the boundary of a wetland as delineated based on the definitions contained in the Washington State Wetland Identification and Delineation Manual (Ecology Publication No. 96-94, adopted under WAC 173-22-080).

.400 Wetland hydrology. Means the characteristics of water movement on, over and through a wetland system; the science dealing with the properties, distribution, and circulation of water through a wetland.

.405 Wetlands, isolated, or isolated wetlands. Means wetlands that meet the following criteria:

(a) Are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream; and

(b) Have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water; and

.410 Wetland rating. The rating for a wetland is as defined in the Washington State Wetlands Rating System for Western Washington – 2014 Update (Ecology Publication No. 14-06-029, October 2014, as amended). (Ord. 18-1054 § 2 (Exh. A))

25.105.040 Applicability.

(1) This chapter establishes regulations for the protection of properties which contain or are adjacent to critical areas. Critical areas are those which are now or may in the future be identified under the provisions of this chapter. The provisions of this chapter apply to development projects and actions undertaken by individuals and private or public entities. Actions may include, but are not limited to, landscaping and planting of exotic or ornamental vegetation; erection of garden structures such as sheds, fences, gazebos, etc.; clearing or alteration of existing natural vegetation; habitat enhancement or restoration; other alteration of property within or adjacent to a critical area; or any submitted development project.

(2) Conflicting Provisions. The regulations in this chapter do not abrogate the DuPont Municipal Code but do supersede any conflicting regulations in the DuPont Municipal Code. If more than one regulation applies to the subject property, then the regulation that provides the greatest protection to critical areas applies. For properties within jurisdiction of the Shoreline Management Act, the regulations of the City of DuPont Shoreline Master Program supersede any conflict in regulation in this chapter.

(3) Other Jurisdictions. Nothing in these regulations eliminates or otherwise affects the responsibility of the applicant or property owner to comply with applicable local, state, and federal laws regulating development activities in critical areas, as herein defined.

(4) SEPA Compliance. Nothing in these regulations or the decisions made pursuant to these regulations affects the authority of the city to review, condition, and deny projects under the State Environmental Policy Act, Chapter 43.21C RCW. (Ord. 18-1054 § 2 (Exh. A))

25.105.050 Critical areas.

Within the jurisdiction of the city of DuPont, there are four critical area categories known to exist: wetlands and lakes; fish and wildlife habitat conservation areas; landslide and erosion hazard areas; and aquifer recharge areas. This section provides: descriptions and requirements for critical area identification and delineation; required buffers for critical areas; required mitigation sequence and measures if development or alteration impacts are unavoidable in or adjacent to a critical area; and requirements for management and protection of critical areas.

(1) Wetlands and Lakes. Wetland and lake ecosystems in the city of DuPont support a diverse, unique, and rich group of plant and animal life. Habitat is especially productive at the interface between land and water ecosystems. This interface fluctuates seasonally based on hydrologic conditions and is subject to localized flooding at times which accentuates the function and importance of assigned buffers. Some species require wetland habitats for breeding, nesting, rearing of young, and feeding. Wetlands in DuPont also have a positive effect on water quality downstream or in aquifers by removing pollutants through the processes of sediment trapping, nutrient removal, and chemical detoxification. Wetlands also regulate the flow, retention, and release of stormwater to surface and ground water systems. Eleven of the 14 wetlands historically identified in DuPont appear to be hydrologically connected to ground water sources. Development in or adjacent to wetlands can, therefore, result in: increased soil erosion and sedimentation of downstream water bodies; degraded water quality in streams and aquifers; loss of wildlife habitat; loss of ground water discharge and recharge areas; loss of stormwater retention and detention capacity. Development or alterations in or adjacent to, or in close enough proximity as determined by the director to, wetlands, lakes, and their riparian buffers must incorporate the ARC mitigation sequencing during the planning process. DuPont encourages impact avoidance as the preferred alternative to any proposal.

(a) Wetland Categories.

(i) 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 city 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 which time the director may determine whether a revision or additional assessment is necessary.

(ii) Wetlands shall be rated according to the Washington State Department of Ecology wetland rating system, as set forth in the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 04-06-029, or as revised and approved by Ecology), which contains the definitions, methods and criteria for determining a wetland’s categorization as Category I, II, III or IV.

(iii) Wetland rating categories shall not change due to illegal modifications.

(b) Wetland Buffers.

(i) A buffer shall be established adjacent to designated wetland areas. The purpose of the buffer area shall be to protect the integrity, functions, and values of the wetland area. Buffer widths shall be appropriate for the sensitivity of the wetland and for the risks associated with land use development. The following standard buffers have been established in accordance with the best available science (codified at WAC 365-195-900 through 365-195-925). They are based on the category of wetland and the combined function score as determined by a qualified wetland professional.

(A) Category I, 200 feet.

(B) Category II, 100 feet.

(D) Category IV, 50 feet.

(ii) Increased buffer widths may be required by the city on a case-by-case basis when necessary to protect wetlands functions and values. This determination shall be supported by a critical area report or other appropriate documentation showing that it is reasonably related to protection of the functions and values of the wetland, or when:

(A) The buffer is within 25 feet of the top or toe of a slope that is greater than 30 percent; or

(B) The slope is susceptible to erosion and standard best management practices (BMPs) and erosion-control measures will not prevent adverse impacts to the wetland.

(iii) Buffer width averaging may be allowed by the city in accordance with an approved critical area report; provided, that all of the following criteria are met:

(A) It will not reduce protection to wetlands;

(B) The total area contained in the buffer after averaging on the development proposal site does not decrease;

(D) The critical area report shall describe the current functions and values of the wetland and its buffer, and the measures that will be taken to ensure that there is no loss of wetland function due to averaging.

(iv) Reduced buffers may be allowed, with enhancements, in accordance with an approved critical area report provided:

(A) The existing condition of the buffer is degraded; and

(B) Additional protection to the wetland is provided through the implementation of a buffer enhancement plan.

(v) Buffer enhancement may include, but is not limited to:

(A) Planting native vegetation that would increase value for fish and wildlife habitat, improve water quality, or provide aesthetic or recreational value;

(B) Enhancement of wildlife habitat by incorporating structures that are likely to be used by wildlife, including wood duck boxes, bat boxes, nesting platforms, snags, rootwads, stumps, birdhouses, and nesting areas;

(i) Wetland enhancement, rehabilitation, or restoration or activities that contribute to the enhancement, rehabilitation, or restoration of DuPont’s wetlands and their associated stream complexes may be allowed if accomplished according to a plan, approved by the director, for its design, implementation, maintenance and monitoring prepared by a civil engineer and a qualified biologist and carried out under the direct supervision of a qualified biologist.

(ii) Invasive species removal not involving mechanical methods or chemicals.

(iii) Garbage, litter, and trash removal completed by use of hand tools.

(iv) Hazard tree removal when deemed necessary by a certified arborist.

(v) Passive recreation activities (such as bird watching, hiking, canoeing, and other similar activities).

(vi) Alteration of other wetlands (other than Class I wetlands) when it can be demonstrated by the applicant through a wetlands analysis report and mitigation plan that the mitigation requirements of subsections (1)(d) and (e) of this section can be met.

(d) Wetland Mitigation. Other than alterations allowed under subsection (1)(c) of this section, alterations of other wetlands are allowed only when the applicant can meet the mitigation standards of this subsection.

(i) Requirements for Compensatory Wetland Mitigation.

(A) Compensatory mitigation for alterations to wetlands shall be used only:

(I) When impacts cannot be addressed by avoidance of impact;

(II) And shall achieve equivalent or greater biological functions resulting in no net loss of wetland function.

(B) Compensatory mitigation plans shall be consistent with this chapter and Wetland Mitigation in Washington State, Part 2: Developing Mitigation Plans, Version 1 (Ecology Publication No. 06-06-011b) or as amended, and Selecting Wetland Mitigation Sites Using a Watershed Approach (Western Washington) (Publication No. 09-06-32, Olympia, WA, December 2009).

(C) A performance bond or other approved financial surety is required before any project permits are issued. The purpose of the financial surety is to hold an applicant accountable for implementing the mitigation and monitoring plans. The release of financial surety is contingent on satisfactory completion of the proposed mitigation construction and monitoring by the applicant.

(D) Mitigation ratios shall be consistent with subsection (1)(d)(vii) of this section.

(ii) 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:

(A) 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

(B) Out-of-kind replacement will best meet formally identified regional goals, such as replacement of historically diminished wetland types or salmon habitat.

(iii) Preference of Mitigation Actions. Mitigation for lost or diminished wetland and buffer functions shall rely on the types below in the following order of preference:

(A) Restoration (reestablishment and rehabilitation) of wetlands.

(I) The goal of reestablishment is returning natural or historic functions to a former wetland.

(II) The goal of rehabilitation is repairing natural or historic functions of a degraded wetland.

(B) Creation (establishment) of wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative species or noxious weeds.

This should be attempted only when there is an adequate source of water and it can be shown that the surface and subsurface hydrologic regime is conducive to the wetland community that is anticipated in the design.

Enhancement should be part of a mitigation package that includes replacing the altered area and meeting appropriate ratio requirements. Applicants proposing to enhance wetlands or associated buffers shall demonstrate:

(I) How the proposed enhancement will increase the wetland’s/buffer’s functions and values;

(II) How this increase in function will adequately compensate for the impacts; and

(III) How other existing wetland functions and values at the mitigation site will be protected.

(D) Preservation of high quality, at-risk wetlands as compensation is generally acceptable when done in combination with restoration, creation, or enhancement; provided, that a minimum of 1:1 acreage replacement is provided by re-establishment or creation. 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 altered and the quality of the wetlands being preserved.

(iv) Location of Compensatory Mitigation. Mitigation actions shall be conducted within the same subdrainage basin and on the site of the development or alteration except when all of the following apply:

(A) There are no reasonable on-site or in subdrainage basin opportunities, or on-site and in subdrainage basin opportunities do not have a high likelihood of success due to development pressures, adjacent land uses, or on-site buffers or connectivity are inadequate;

(B) On-site mitigation would require elimination of high quality upland habitat;

(v) Off-site locations shall be in the same subdrainage basin and in the same water resource inventory area (WRIA) unless:

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

(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;

(C) If compensatory wetland or wetland buffer mitigation is proposed off site, a signed statement of consent is required from owners of all affected properties. This statement shall be submitted to the city and a notice recorded with the Pierce County assessor prior to approval of a compensatory mitigation plan.

(vi) Timing of Compensatory Mitigation. Mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development causing the wetland alteration. Construction of mitigation projects shall be timed to reduce impacts to existing wildlife and flora.

(vii) Wetland Mitigation Ratios. In the following table the first number indicates the acreage of replacement wetlands and the second number indicates the acreage of wetlands altered:

Category and Wetland Type	Creation	Rehabilitation	Enhancement
Category I	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

(e) Wetland Out-of-Kind Mitigation. Out-of-kind mitigation is allowed when the impacts from a proposal can be mitigated in a manner that achieves a higher watershed function. In such instances, a habitat management and restoration plan will be required to address the proposed mitigation benefits and compensatory results of out-of-kind mitigation.

(2) Fish and Wildlife Habitat Conservation Areas. The Washington State Department of Fish and Wildlife defines, identifies and maps priority habitat and species and prepares management recommendations for them. Priority habitat types found in urban growth areas like DuPont include wetlands, critical drainage corridors, marine bluffs, and urban natural open space. Fish and wildlife habitat conservation areas are defined in DMC 25.105.030.140 and are consistent with state agency definitions. Some of these areas, especially wetlands and critical drainage corridors, provide excellent animal and bird habitat areas. This section outlines techniques for the city to use in evaluating land uses and protecting habitat areas which may be adversely impacted by these uses. These regulations are intended to provide reasonable measures to protect and conserve the habitat of fish and wildlife species and thereby maintain or increase their populations within DuPont.

(a) Stream and Stream Buffer Alterations.

(i) If alterations to or development in streams and stream buffers are not reasonably avoidable, alterations or development may be allowed only if the following requirements are met:

(A) Alterations may only be permitted if based upon a study meeting the necessary requirements as determined and approved by the director;

(B) The applicant shall notify affected communities and native tribes of proposed alteration(s) prior to any alteration if the stream is in a flood hazard area. The applicant shall submit evidence of such notification to the Federal Emergency Management Agency;

(C) There shall be no introduction of any plant or wildlife which is not indigenous to the state into any stream or buffer unless authorized by a state or federal permit or approval by the city;

(D) Unavoidable impacts to streams and stream functions shall be mitigated to achieve no net loss of stream function.

(ii) Utilities may be allowed in stream buffers if:

(A) No practical alternative location is available;

(B) The utility corridor meets any additional requirements set forth in administrative rules and this chapter including, but not limited to, requirements for installation, replacement of vegetation and maintenance;

(D) Joint use of an approved sewer utility corridor by other utilities may be allowed.

(iii) The following surface water management activities and facilities may be allowed in stream buffers as follows:

(A) Surface water discharge to a stream from a detention facility, presettlement pond or other surface water management activity or facility may be allowed if the discharge is in compliance with the Surface Water Design Manual;

(B) Public and private trails may be allowed in the stream buffers only upon adoption of administrative rules consistent with the following:

(I) The trail surface shall not be made of impervious materials, except that public trails may be made of impervious materials if required to comply with the Americans with Disabilities Act (ADA); or to provide for emergency access to remote areas; and

(II) Buffers shall be expanded, where practicable, equal to the width of the trail corridor including disturbed areas.

(iv) Stream crossings may be allowed if:

(A) Road crossings use bridges or other construction techniques which do not disturb the stream bed or bank, except that bottomless culverts or other appropriate methods demonstrated to provide fisheries protection may be used if the applicant demonstrates that such methods and their implementation will pose no harm to the stream or inhibit migration of fish;

(B) Stream crossings are constructed during the summer low flow and are timed to avoid stream disturbance during periods when use is critical to salmonids;

(C) Crossings do not occur over salmonid spawning areas unless the city determines that no other possible crossing site exists;

(D) Bridge piers or abutments are not placed within the FEMA floodway or the ordinary high water mark;

(E) Crossings do not diminish the flood-carrying capacity of the stream;

(F) Underground utility crossings are laterally drilled and located at a depth of four feet below the maximum depth of the scour for the base flood predicted by a civil engineer licensed by the state of Washington; and

(G) Crossings are minimized and serve multiple purposes and properties whenever possible.

(v) For any stream alteration allowed by this section, the applicant shall demonstrate, based on information provided by a civil engineer and/or a qualified biologist, that:

(A) The equivalent base flood storage volume and function will be maintained;

(B) There will be no adverse impact to local ground water;

(D) There will be no interbasin transfer of water;

(E) There will be no adverse hydrologic disruption of surface water flow regimes;

(F) Requirements set out in the mitigation plan are met;

(G) The relocation conforms to other applicable laws; and

(H) All approved stream alteration work will be carried out under the direct supervision of a qualified biologist.

(b) Stream enhancement, rehabilitation, or restoration may be allowed if accomplished according to an approved plan by the director, for its design, implementation, maintenance and monitoring prepared by a civil engineer and a qualified biologist and carried out under the direct supervision of a qualified biologist pursuant to provisions.

(i) Mitigation shall be required when a stream or its buffer is altered in violation of law or without any specific permission or approval by the city. A mitigation plan to offset impacts shall demonstrate that:

(A) The stream has been degraded and will not be further degraded by the enhancement, rehabilitation, or restoration activity;

(B) The enhancement, rehabilitation, or restoration will reliably and demonstrably improve the water quality and fish and wildlife habitat of the stream;

(C) The enhancement, rehabilitation, or restoration will have no lasting, significant, adverse impact on any stream functions; and

(D) The enhancement, rehabilitation, or restoration will assist in stabilizing the stream channel.

(ii) The following minimum requirements shall be met for the enhancement, rehabilitation, or restoration of a stream:

(A) All approved stream work shall be carried out under the direct supervision of a qualified biologist;

(B) Basin analysis shall be performed to determine hydrologic conditions;

(C) The natural channel dimensions shall be replicated including their depth, width, length and gradient at the original location, and the original horizontal alignment (meander lengths) shall be replaced;

(D) The bottom shall be restored with identical or similar materials;

(E) The bank and buffer configuration shall be restored to its original condition;

(F) The channel, bank and buffer areas shall be replanted with vegetation native to the city which replicates the original vegetation in species, sizes and densities; and

(G) The original biologic functions of the stream shall be recreated to the extent possible.

(iii) The requirements in subsection (2)(c)(ii) of this section may be modified if the applicant demonstrates to the satisfaction of the director that a greater biological function can otherwise be obtained.

(iv) Replacement or enhancement shall be required when a stream or buffer is altered pursuant to an approved development proposal or study meeting the necessary requirements as determined by the director. There shall be no net loss of stream functions on a development proposal site and no impact on stream functions above or below the site due to approved alterations.

(v) The requirements which apply to the restoration of streams in subsection (2)(c)(ii) of this section shall also apply to the relocation of streams, unless the applicant demonstrates to the satisfaction of the director that a greater biological function can be obtained by modifying these requirements.

(vi) Replacement or enhancement for approved stream alterations shall be accomplished in streams and on the site unless the applicant demonstrates to the satisfaction of the director:

(A) Enhancement or replacement on the site is not possible;

(B) The off-site location is in the same drainage subbasin as the original stream; and

(vii) Surface water management or flood control alterations shall not be considered “enhancement” unless other functions are simultaneously improved.

(d) Performance Standards Applicable to Development in Fish and Wildlife Habitats.

(i) Development activities allowed in fish and wildlife habitat conservation areas shall be consistent with the species located there, and shall be regulated additionally by restrictions defined in applicable federal, state and local regulations regarding the species and their habitat.

(ii) Habitat conservation areas identified in required habitat management plans are to be conserved for the management and maintenance of fish and wildlife habitat. Habitat conservation areas may overlap with other identified critical areas. Likely areas of overlap include critical drainage corridors, geologically hazardous areas, and wetlands.

(iii) When habitat areas overlap with other critical areas, all the performance standards established for the overlying critical area(s) shall apply. If multiple critical areas overlap in an area, the most restrictive conditions shall apply.

(iv) Habitat management plans required under this section shall incorporate mitigation recommendations developed in consideration of the Washington State Department of Fish and Wildlife’s Aquatic Habitat Guidelines, the Washington State Department of Ecology’s Stormwater Management Manual for the Puget Sound (2012), and Chapter 5 of the Low Impact Development Technical Guidance Manual for the Puget Sound (2012).

(e) Performance Standards for Terrestrial Habitats and Species.

(i) A habitat management plan shall be required for any development in or adjacent to areas identified as habitat for endangered, threatened or sensitive species and for breeding or nesting habitat of priority species. The plan shall incorporate mitigation recommendations developed in consideration of Washington Department of Fish and Wildlife habitat recommendations.

(ii) The habitat management plan shall show the exact location and extent of habitat conservation areas and any alteration of any habitat areas that may reduce the likelihood that the above listed species will survive or reproduce.

(iii) Development in or adjacent to areas used by state priority species shall be designed, located and constructed in consideration of Washington Department of Fish and Wildlife habitat recommendations, and consistent with best management practices (BMPs), including measures to avoid impacts due to construction noise, light and timing.

(iv) Developments occurring within the shoreline jurisdiction shall comply with the DuPont shoreline master program, as amended.

(v) To preserve areas of native vegetation and to allow for habitat connectivity, the following development standards shall also be applied in terrestrial habitat conservation areas that lie within the shoreline jurisdiction:

(A) Total impervious surface area shall be limited to 40 percent or 4,000 square feet, whichever is less; and

(B) At least 25 percent of the lot shall be required to be retained or restored in native vegetation.

(f) Performance Standards for Marine Habitats and Species (Refer to City of DuPont SMP).

(i) Development in areas waterward of the ordinary high water mark shall require a habitat analysis and shall give special consideration to the preservation and enhancement of anadromous fish habitat.

(ii) Development proposals shall be designed to first avoid and then minimize environmental impacts.

(iii) Unavoidable impacts to marine habitat and environmental processes shall be mitigated to achieve no net loss of habitat function.

(iv) A habitat management plan shall be required for any development likely to cause impacts to marine habitat and environmental processes. The plan shall incorporate mitigation recommendations consistent with Washington Department of Fish and Wildlife habitat recommendations.

(v) All in-water development shall meet the requirements of the hydraulic project approval (HPA) process administered by the Washington Department of Fish and Wildlife.

(g) Buffers or Setbacks.

(i) A 100-foot buffer is required on each side of a stream as measured from the ordinary high water mark (OHWM). To retain adequate natural habitat for classified species the buffer widths may be adjusted on a case-by-case basis, and the process and justification shall be described in the required habitat management plan.

(ii) Buffers shall consider the Washington Department of Fish and Wildlife priority habitat and species management recommendations.

(iii) Buffer widths may be increased by the director if species present are sensitive to or endangered by habitat alteration, or if the area supports unique or rare plant communities, or contains rearing and nesting sites for endangered, threatened or priority species.

(iv) Buffer widths may be reduced by the director if the project includes buffer enhancement as part of an approved habitat management plan or if it is found that the affected property would be denied reasonable use.

(v) Building setback lines shall be measured from the outside edge of required buffers and no setback shall be less than 15 feet from an established buffer.

(h) Mitigation or Compensation for Terrestrial Habitats and Species.

(i) Mitigation measures could include, but are not limited to:

(A) Establishment of buffer zones;

(B) Preservation of critically important plants and trees;

(D) Seasonal restriction of construction activities;

(E) Establishing a timetable for periodic review of the development;

(F) Using BMPs to avoid or reduce impacts;

(G) Reducing the size, scope, configuration, or density of the project;

(H) Participation in the city’s in-lieu fee program (see DMC 25.105.060).

(i) Report Required. A habitat management plan shall be required for:

(i) Any development in or adjacent to areas identified as habitat for endangered, threatened or sensitive species or for breeding or nesting habitat of priority species.

(ii) Development in areas waterward of the ordinary high water mark shall require a habitat analysis.

(iii) Any compensatory mitigation proposed for stream enhancement, rehabilitation, or restoration associated with out-of-kind mitigation for wetland impacts.

(iv) Unless otherwise exempt under this chapter, a permit application to develop in the regulatory floodplain shall include an assessment of the impact of the project on federal, state or locally protected species and habitat, water quality and aquatic and riparian habitat. The assessment shall be:

(A) A biological evaluation or biological assessment developed per 50 CFR 402.12 to initiate federal interagency consultation under Endangered Species Act Section 7(a)(2); or

(B) Documentation that the activity fits within Section 4(d) of the Endangered Species Act; or

(C) Documentation that the activity fits within a habitat conservation plan approved pursuant to Section 10 of the Endangered Species Act, where any such assessment has been prepared or is otherwise made available; or

(D) An assessment prepared in accordance with Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA Region X, 2013. The assessment shall determine if the project would adversely affect:

(I) Species that are federal, state or local listed as threatened or endangered;

(II) The primary constituent elements for critical habitat, when designated;

(III) Essential fish habitat designated by the National Marine Fisheries Service;

(IV) Fish and wildlife habitat conservation areas;

(V) Other protected areas and elements necessary for species conservation.

(3) Geologically Hazardous Areas. The bluffs, ravines and hillsides of DuPont are distinctive physical features that contribute to the natural beauty of the city. These areas provide open space and viewing points of extraordinary vistas and serve to define the boundaries between different parts of the city. These areas are stabilized by existing vegetation, which moderate the effects of runoff and erosion from wind and rain. The natural drainage patterns on hillsides contribute to the amount of ground water recharge. Development on hillsides can, therefore, result in: loss of slope and soil stability, causing increased erosion and the potential for slope failures; increased runoff from removal of vegetation, which reduces the percolation of precipitation into the soil and intensifies erosion; destruction of the city’s aesthetic resources; major public expenditures to repair damaged facilities and to protect against future damages due to slope instability caused by development activities.

Lands determined to be susceptible to landslide or erosion hazard areas (including channel migration zones), are hereby designated as geologically hazardous areas. Development in these geologic hazard areas can put human life, safety, health, and development at risk, alter geologic processes, adversely affect natural resources, and put the development and surrounding developments and uses at risk.

(a) Classification. For purposes of this chapter, geologically hazardous areas shall include all of the following:

(i) Landslide Hazard Areas. Landslide hazard areas shall include areas potentially susceptible to landslides based on a combination of geologic, topographic, and hydrologic factors. They include any areas susceptible to mass movement due to any combination of bedrock, soil, slope (gradient), slope aspect, slope form (concave, convex, planar), geological structure, surface and subsurface hydrology, or other factors. Landslide hazard areas shall also include areas along which landslide material may be routed or which may be subject to deposition of landslide delivered material. Landslide hazard areas include but are not limited to the following areas:

(A) Areas designated as quaternary slumps, earth-flows, mudflows, or landslides on maps published by the U.S. Geological Survey, Washington State Department of Natural Resources, or other reputable sources;

(B) Areas with all three of the following characteristics:

(I) Slopes steeper than 15 percent;

(II) Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and

(III) Springs or ground water seepage;

(D) Potentially unstable slopes resulting from river or stream erosion or undercutting by wave erosion;

(E) Areas that show past sloughing or calving of sediment or rocks resulting in a steep slope that is poorly vegetated;

(F) Slopes that are parallel or sub-parallel to planes of weakness (which may include but not be limited to bedding planes, soft clay layers, joint systems, and fault planes) in subsurface materials;

(G) Any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of competent bedrock or a properly engineered slope designed and approved by a geotechnical engineer licensed in the state of Washington and experienced with the site;

(H) Areas within which land use activities could affect the slope stability, including but not limited to areas with subsurface hydrologic flow, ground water recharge areas and surface water flow;

(I) Areas of historical landslide movement including coastal shoreline areas mapped by the Department of Ecology Coastal Zone Atlas or the Department of Natural Resources slope stability mapping as unstable (“U” or class 3), unstable old slides (“UOS” or class 4), or unstable recent slides (“URS” or class 5).

(ii) Erosion Hazard Areas. Erosion hazard areas shall include:

(A) Channel migration zones, also known as riverine erosion areas, are defined as the areas along a river or stream within which the channel(s) can be reasonably predicted to migrate over time. This is a result of natural and normally occurring geomorphic, hydrological, and related processes when considered with the characteristics of the river or stream and its surroundings, and in consideration of river and stream management plans. Channel migration hazard areas shall include: potential channel migration, channel avulsion, bank erosion, and stability of slopes along the river or stream;

(B) Coastal erosion areas that are subject to shoreline retreat from wind, wave, and tidal erosion.

(b) Standards.

(i) Landslide Hazard Areas.

(A) General Standards. The following activities may be allowed in active landslide hazard areas when reasonable measures have been taken to minimize risks and other adverse effects associated with landslide hazards, and when the amount and degree of the alteration are limited to the minimum needed to accomplish the project purpose:

(I) Developments that will have no threat to the health or safety of people and will not increase potential for landslides on or off the site and meet the reasonable use standards as set forth above.

(II) Utility lines and pipes that are above ground, properly anchored and/or designed so that they will continue to function in the event of a slope failure or movement of the underlying materials and will not increase the risk or consequences of static or seismic slope instability or result in a risk of mass wasting. Such utility lines may be permitted only when the applicant demonstrates that no other feasible alternative is available to serve the affected population.

(III) Access roads and trails that are engineered and built to standards that avoid the need for major repair or reconstruction beyond that which would be required in nonhazard areas. Access roads and trails may be permitted only if the applicant demonstrates that no other feasible alternative exists, including through the provisions of Chapter 8.24 RCW. If such access through critical areas is granted, exceptions or deviations from technical standards for width or other dimensions and specific construction standards to minimize impacts, including drainage and drainage maintenance plans, may be required.

(IV) Stormwater conveyance through a properly designed stormwater pipe when no other stormwater conveyance alternative is available. The pipe shall be located above ground and be properly anchored and/or designed so that it will continue to function in the event of a slope failure or movement of the underlying materials and will not increase the risk or consequences of static or seismic slope instability or result in increased risk of mass wasting activity.

(B) Landslide Hazard Management Zone. Alteration may be allowed within 300 feet of an active landslide hazard area when the director determines that the following standards are met:

(I) The proposed alteration includes appropriate measures to avoid, eliminate, reduce, or otherwise mitigate risks to health and safety.

(II) The proposed alteration is located outside of a landslide hazard area and any required setback.

(III) The development will not decrease slope stability on adjacent properties. The development shall not increase the risk or frequency of landslide occurrences.

(IV) The removal and disturbance of vegetation, clearing, or grading shall be limited to the area of the approved development.

(V) The development is outside of the area of potential upslope or downslope surface movement or potential deposition in the event of a slope failure.

(VI) The development will not increase or concentrate surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions.

(VII) The proposed alterations will not adversely impact other critical areas.

(VIII) Structures and improvements shall minimize alterations to the slope contour, and shall be designed to minimize impervious lot coverage unless such alterations or impervious surfaces are needed to maintain slope stability.

(ii) Erosion Hazard Areas. For coastal, riverine, and stream erosion hazard areas, the following activities shall be allowed when the applicable general protective measures are applied as follows:

(A) Discharge of surface water drainage into a coastal or riverine erosion hazard area, provided there are no other alternatives for discharge, and the drainage is collected upland of the top of the active erosion hazard area and directed downhill in an appropriately designed stormwater pipe that includes an energy dissipating device at the base of the hazard area. The pipe shall be located on the surface of the ground and be properly anchored so that it will continue to function under erosion conditions and not create or contribute to adverse effects on downslope critical areas. The number of pipes should be minimized along the slope frontage.

(B) Stormwater retention and detention systems, such as dry wells and infiltration systems using buried pipe or French drains, provided they are located outside the identified channel migration zone, designed by a qualified professional and shall not affect the stability of the site.

(C) Utility lines when no feasible conveyance alternative is available. The line shall be located above ground and properly anchored and/or designed so that it will not preclude or interfere with channel migration and will continue to function under erosion conditions; provided, that utility lines may be located within channel migration zones if they are buried below the scour depth for the entire width of the CMZ.

(D) Public roads, bridges, and trails when no feasible alternative alignment is available. Facilities shall be designed such that the roadway prism and/or bridge structure will not be susceptible to damage from active erosion.

(E) Access to private development sites may be allowed to provide access to portions of the site that are not critical areas, if there are no feasible alternative alignments. Alternative access shall be pursued to the maximum extent feasible, including through the provisions of Chapter 8.24 RCW. Exceptions or deviations from technical standards for width or other dimensions, and specific construction standards to minimize impacts, may be specified.

(F) Stream bank stabilization and shoreline protection may be permitted subject to all the following standards:

(I) Shoreline protection measures located within coastal or riverine erosion areas shall use soft armoring techniques (bioengineering erosion control measures as identified by the State Department of Ecology and the Department of Fish and Wildlife guidance) unless the applicant provides a geotechnical analysis demonstrating that bioengineering approaches will not adequately protect the property.

(II) The armoring will not adversely affect critical areas including habitat conservation areas or mitigation will be provided to compensate for adverse effects where avoidance is not feasible.

(III) Hard bank armoring is discouraged and may occur only when the property contains an existing permanent structure(s) that is in danger from shoreline erosion caused by wave action or riverine processes and not erosion caused by upland conditions, such as the alteration of natural vegetation or drainage, and the armoring shall not increase erosion on adjacent properties and shall not eliminate or reduce sediment supply.

(IV) The erosion is not being caused by upland conditions, such as the removal of vegetation or human alteration of existing drainage.

(V) Nonstructural measures, such as placing or relocating the development further from the shoreline, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

(G) New public flood protection measures and expansion of existing ones may be permitted, subject to a state hydraulic project approval; provided, that bioengineering or soft armoring techniques shall be used where feasible. Hard bank armoring may occur only in situations where soft approaches do not provide adequate protection.

(i) Landslide Hazard Area. The director shall require setbacks from the edges of any identified landslide hazard area in accordance with the following:

(A) The size of the setback shall be based on the findings of a qualified professional and shall minimize the risk of property damage, death, or injury resulting from landslides both on and off the property.

(B) The setback shall include consideration of the hydrologic contribution area to the potential landslide area and/or the area subject to the potential for mass movement, and the downhill area subject to potential deposition.

(C) The setback shall include consideration of vegetation on the potential landslide area and in areas above and below the potential landslide area. The director shall have the authority to require vegetation or other measures to protect or improve slope stability and shall have the authority to require a mitigation plan developed in accordance with this chapter, and an easement in accordance with this title to ensure appropriate vegetation improvements are installed, maintained, and preserved.

(D) Developments on sites that are directly adjacent to a wetland, marine shoreline, or other habitat conservation area as defined in this chapter may be subject to additional buffer requirements and standards as set forth in the subsequent sections of this chapter.

(ii) Erosion Hazard Areas. The director shall have the authority to require setbacks from the edges of any coastal, stream, or riverine hazard erosion area in accordance with the following:

(A) The size of the setback shall be based on the findings of a qualified professional and shall protect critical areas and processes and minimize the risk of property damage, death or injury resulting from erosion over the life of the development, typically identified as 100 years.

(B) The setback shall include the uphill area subject to potential erosion, the downhill area subject to potential deposition, and any area subject to landslide as a result of erosion.

(C) The setback shall include woody vegetation adequate to stabilize the soil and prevent soil movement (native species are preferred). If the designated setback area lacks adequate woody vegetation, the director shall have the authority to require vegetation enhancement or other measures to improve slope stability.

(D) Developments on sites that are directly adjacent to a wetland or marine shoreline or other habitat conservation area as defined in this chapter may be subject to additional setback requirements and standards as set forth in the subsequent sections of this chapter.

(d) Development Requirements. The following requirements shall apply to all activities in geologically hazardous areas:

(i) Generally. New developments shall be located and/or engineered and constructed to reduce risks to life, health, safety, and buildings, and not increase potential for landslides or erosion that could impact either other properties, public resources, or other critical areas. The director may impose conditions on development activity in a geologically hazardous area as needed to:

(A) Protect human life and safety;

(B) Minimize the potential for property damage related to seismic events, erosion and/or landslides;

(D) Reduce public liabilities for damages associated with geologic hazards;

(E) Protect slope stability and minimize erosion, seismic, and/or landslide hazard risks; and

(F) Maintain natural sediment and erosion processes that are integral to the health and sustainability of freshwater and marine ecosystems as well as minimizing impacts to stream, river, and coastal processes such as channel infill, channel migration, sediment transport, or flooding.

(ii) Impact Avoidance. Impact avoidance measures shall include, but not be limited to, locating the use/development outside of the hazard area, reducing the number, size or scale of buildings, driveways and other features; altering the configuration or layout of the proposed development; implementing special engineering methods for construction, drainage, runoff management, etc.; forgoing construction of accessory structures; preserving native vegetation; and other feasible protective measures as determined by an alternatives analysis. For some geologic hazards, impact avoidance may mean no development will be permitted on a property.

(iii) Location of Alterations. New development shall be directed toward portions of a parcel or parcels under contiguous ownership that are not subject to, or at risk from, geological hazards and/or are outside any setback or buffer established by this chapter.

(iv) Critical Facilities Prohibited. Critical facilities as defined in WAC 16.16.800 shall not be constructed or located in geologically hazardous areas if there is a feasible alternative location outside geologically hazardous areas that would serve the intended service population. If allowed, the critical facility shall be designed and operated to minimize the risk and danger to public health and safety to the maximum extent practicable.

(v) Review by Qualified Professional. A geologist or other qualified professional, licensed in the state of Washington, shall review development proposals that occur in potentially geologically hazardous areas to determine the potential risk. If development takes place within an identified geologically hazardous area requiring design or structural elements to mitigate the hazard, the mitigation shall be designed by a qualified professional licensed in the state of Washington with expertise in mitigation of geological hazards.

(vi) Life of Structure. Proposed development shall be sited far enough from erosion and landslide hazard areas to ensure at least 100 years of useful life for the proposed structure(s) or infrastructure. The location should be determined by a geologist or other qualified professional, licensed in the state of Washington and should be based on site-specific evaluation of the landslide and/or erosion hazard.

(vii) Remodels and Additions. Any proposed remodel or addition to an existing permitted or nonconforming structure that exceeds a valuation of greater than 50 percent of the fair market value shall be required to ensure that the entire structure is improved in accordance with city of DuPont building code requirements.

(viii) Land Subdivision. Land that is located wholly within a landslide hazard area/erosion hazard area or its buffer may not be subdivided to create buildable parcels entirely within the hazardous area. Land that is located partially within a hazard area or its setback may be divided; provided, that each resulting lot has sufficient buildable area outside of the hazardous area with provision for drainage, erosion control and related features that will not adversely affect the hazard area or its setback.

(4) Aquifer Recharge Areas. Aquifer recharge areas are characterized as porous geologic formations which store surface water that has percolated into the soil (ground water). Currently the Red Salmon Springs Aquifer and the Outwash/Lakewood Glacier Aquifer are used as drinking water sources for the city of DuPont. This section provides protection measures to effectively maintain the quality of potable ground water by prevention of contamination. Development in aquifer recharge areas shall be subject to the standards described in this section.

(a) Classification.

(i) Aquifers are highly susceptible to damage when the overlying soils and geologic formations that filter surface waters feeding the aquifer are very coarse textured, allowing rapid translocation of surface pollutants to the aquifer. Aquifers under fine-textured soils and geologic formation are less susceptible to surface influences and pollution.

(ii) Aquifers underlying areas that are currently developed or industrialized are more vulnerable to pollution than aquifers in undeveloped areas. Combining aquifer susceptibility indexes with vulnerability indexes allows identification of those areas most at risk. Aquifers with relatively high susceptibility indexes located in industrial areas have the highest potential to become a significant public health hazard. High vulnerability is characterized by land uses which produce contaminants that may degrade ground water quality or reduce ground water quantity. Low vulnerability is characterized by land uses which will not affect ground water quality or quantity.

(iii) Vulnerability to pollution is a function of depth of ground water, permeability of soils and geologic formations (susceptibility), presence of potential source of contamination, and any other relevant factors.

(b) Regulated Development. The following types of development shall be regulated under this chapter:

(i) Any development not connected to sanitary sewers which is located in a critical aquifer recharge area. On-site sewage treatment shall be prohibited in critical aquifer recharge areas.

(ii) The following land uses shall require a hydrogeologic assessment of the proposed site:

(A) Hazardous substance processing or handling;

(B) Hazardous waste treatment and storage facilities;

(D) Landfills, junkyards, auto wrecking yards;

(E) Golf courses; and

(F) Large scale agriculture; or

(G) Other land use of a similar nature.

(c) Performance Standards for Development. All regulated development, as identified in this section, shall be designed and constructed subject to the following standards:

(i) Underground hazardous substance and/or petroleum storage facilities shall:

(A) Be designed to prevent releases due to corrosion or structural failure for the operational life of the tank;

(B) Be protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substance; and

(ii) Above-ground hazardous substance and/or petroleum storage tanks shall:

(A) Not be fabricated, constructed, installed, used or maintained in any manner which may allow the release of a hazardous substance to the ground, ground water, or surface waters of DuPont within an aquifer recharge area;

(B) Not be fabricated, constructed, installed, used or maintained without having constructed around and under it an impervious containment area enclosing or underlying the tank;

(C) Require a secondary containment system either built into the tank structure or dike system built outside the tank for all tanks located within an aquifer recharge area. Propane and heating oil tanks are exempt from secondary containment system requirements;

(D) Be consistent with the Department of Ecology’s standards for construction and installation.

(iii) Stormwater runoff will be controlled and treated using BMPs and facility design standards as defined in DMC Title 22.

(iv) Agricultural and landscaping activities, specifically use of fertilizers, herbicides, and pesticides in highly susceptible areas, shall be controlled through state water quality standards.

(v) Applicants shall also consider the guidance set forth in Chapter 5 of the Low Impact Development Technical Guidance Manual for the Puget Sound (2012) for recommendations concerning the protection of native soils and vegetation, and retention of hydrologic function, during clearing and grading for development proposals.

(d) Mitigation or Compensation. Any regulated development listed in subsection (4)(b) of this section which results in degradation of aquifer recharge areas or aquifer water quality will require restoration of on-site disturbance in full to predisturbance conditions. Additional compensation shall be required in the form of fines, provision of drinking water for areas dependent on the degraded aquifer, or alternative environmental restoration.

(e) Report Required. A geohydrological report may be required in those areas identified as highly susceptible or vulnerable. (Ord. 18-1054 § 2 (Exh. A))

25.105.060 In-lieu fees.

To aid in the implementation of off-site mitigation, the city may develop an in-lieu fee program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in-lieu fee mitigation, and state water quality regulations. An approved in-lieu-fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or non-profit natural resource management entity. Credits from an approved in-lieu-fee program may be used when all of the following requirements are met:

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

(2) The mitigation will occur on a site identified using the site selection and prioritization process in the approved in-lieu-fee program instrument.

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

(4) Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three years of the credit sale.

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

(6) Credits from an approved in-lieu-fee program may be used to compensate for impacts located within the service area specified in the approved in-lieu-fee instrument. (Ord. 18-1054 § 2 (Exh. A))

25.105.070 Exemptions and exceptions.

Certain actions are exempt from the requirements of this chapter while other actions may be granted specific exceptions or modifications as provided in this chapter. Exemptions and exceptions shall be narrowly construed to protect critical areas and their buffers.

(1) Exemptions.

(a) Existing structures or improvements (not covered under subsection (2) of this section) that do not meet the requirements of this chapter may be remodeled, reconstructed, or replaced providing the existing structures or improvements currently meet the originally intended use or function and that any new construction does not further intrude into or detrimentally disrupt a critical area and/or buffer. The burden of proof of functionality and material use, of existing structures or improvements, as well as impact of the proposed activity, is on the applicant and subject to the discretion of the director.

(b) Normal and routine maintenance of existing drainage ditches and drainage retention/detention facilities, and other existing utilities.

(c) Clean-up activities through nonmechanical and nonchemical means such as trash removal and invasive plant removal are exempt activities under this chapter. Coordination of these activities should be made after prior consultation with the director.

(d) Exemption requests shall be made in writing and subject to the administrative authority of the director.

(2) Exceptions.

(a) Construction of new transportation corridors such as roads, sidewalks, and trails; utilities such as water and sewer lines, gas lines, telecommunications and underground power lines; recreation facilities such as boardwalks, viewing platforms and pedestrian bridges; research facilities and monitoring stations where it can clearly be demonstrated that the project is needed for the benefit of the public; and no feasible alternative exists or to gain access to private property; and there is no feasible alternative to the proposed location; and the proposed location results in no net loss in a critical area’s functional value. An alternative site for the proposed activity shall be considered feasible if it is available and the proposed activity can be carried out on the site after taking into consideration costs, existing technology, infrastructure, and logistics, in light of overall project purposes. There is no feasible alternative when the following can be demonstrated:

(i) The basic purpose of the public transportation or underground utility project cannot reasonably be accomplished using one or more other sites in the city that would avoid or result in less adverse impacts on critical areas; and

(ii) The basic purpose of the project cannot be accomplished by a reduction in the size, scope, or configuration of the project as proposed or by changing the design of the project in a way that would avoid or result in fewer adverse effects on the critical area.

(b) Projects or alterations qualifying as an exception under this section shall be required to mitigate any impacts to critical areas in accordance with the mitigation requirements provided in this chapter.

(c) Exception requests shall be made in writing and subject to the administrative authority of the director. (Ord. 18-1054 § 2 (Exh. A))

25.105.080 Critical area permit submittal requirements.

Any development proposal within a critical area or its buffer, as determined by the director, shall require a critical area permit unless it qualifies for an exemption or exception under DMC 25.105.070. Development outside a critical area or buffer that may nonetheless adversely affect the critical area or buffer may be conditioned pursuant to the city’s substantive authority under the State Environmental Policy Act and DMC 23.01.150.

(1) Nonexempt actions and development within or adjacent to a critical area shall be processed with a Type III procedure as set forth in DMC 25.175.010.

(2) A complete critical area development application shall contain the information contained in this section in addition to the information required by DMC 25.175.020 in addition to any specific submittal requirements of this chapter.

(a) Name, address, and phone number of the applicant(s) and property owner(s) (if different from the applicant).

(b) Complete legal description of the subject property.

(d) A site plan at a scale acceptable to the city showing existing conditions that include the following elements:

(i) Topographic contours at two-foot intervals;

(ii) Existing streets, roads and trails;

(iii) Existing structures and facilities;

(iv) Extent of critical areas as delineated in the field;

(v) Location of existing trees and tree masses;

(vi) Soil types and their locations.

(e) A site plan at a scale acceptable to the city showing proposed development that includes the following elements:

(i) Topographic contours showing finished grade at two-foot intervals;

(ii) Proposed streets, parking, trails and sidewalks;

(iii) Location of proposed structures and facilities;

(iv) Extent of critical areas and their buffers as delineated in the field;

(v) Location of major landscaping including those existing trees and tree masses to be retained.

(f) A site plan at a scale acceptable to the city showing any proposed subdivision including:

(i) Lot lines;

(ii) Street rights-of-way;

(iii) Utility easements;

(iv) Critical areas tracts;

(v) Proposed storm drainage system and facilities.

(3) Permit Submittal Requirements.

(a) Preapplication Consultation. Any person preparing to submit an application for a development proposal, as defined by DMC 25.105.030.105, shall conduct a consultation meeting with the director or his/her designee prior to submitting an application for development or other approval. At this meeting, the director or his/her designee shall discuss the requirements of this chapter; provide available critical area maps, scientific information, and other materials that outline the review process; and work with the applicant to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements.

(b) Initial Review. Following submittal of an application for a development proposal, the director or his/her designee shall review the application, site conditions, and other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal.

(c) Site Inspection. The property owner shall provide the city with reasonable access to the site for the purpose of inspections during any proposal review, enhancement, rehabilitation, or restoration effort, emergency action, or monitoring activity.

(d) Critical Area Report Required. If the information available indicates that the project area is within or adjacent to a critical area or buffer, or that the proposed activity is in close enough proximity to a critical area, as determined by the director, that it will likely degrade a critical area, then the applicant shall be required to submit a critical area report prior to further review of the project. The director will review the critical area report to determine whether a critical area permit is required under subsection (1) of this section.

(4) Permit Review Criteria.

(a) An application for a critical areas permit may be approved, approved with conditions, or denied based on the proposal’s ability to comply with all the following criteria:

(i) The proposal minimizes the impact on critical areas in accordance with mitigation as defined in the chapter;

(ii) The proposal does not pose an unreasonable threat to the public health, safety. or welfare on or off the development proposal site;

(iii) The proposal is consistent with the general purposes of this chapter and the public interest;

(iv) Any alterations permitted to the critical area are mitigated in accordance with the mitigation requirements and standards of this chapter;

(v) The proposal protects the critical area functions and values consistent with the best available science; and

(vi) The proposal is consistent with other applicable regulations and standards. The granting of a critical areas permit should not be construed as approval of any other required underlying permit or approval for the development proposal.

(b) The city may condition the underlying permit or approval for any alteration or development within or adjacent to a critical area or its buffer. Additional conditions may be placed on the proposal if it is in close enough proximity to and likely to effect a critical area or its buffer as determined by the director. Additional conditions will be established as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter. Any conditions of approval of the critical areas permit shall be attached to the underlying permit or approval.

(d) Completion of the Critical Area Review. The city’s issuance of a critical areas permit pursuant to this chapter shall be final, concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved. (Ord. 18-1054 § 2 (Exh. A))

25.105.090 Enforcement and procedures of this chapter.

(1) Peer Review. The director may require a third-party peer review of any report or study required of an applicant to implement the provision of this chapter to ensure accuracy of the information. The applicant shall bear the burden of any costs associated with this peer review. The director is authorized to hire a third-party consultant to perform this review upon completion of a three-party contract with the applicant to pay for the peer review prior to review of any permit proposal. (Ord. 18-1054 § 2 (Exh. A))

25.105.100 Notice and financial securities.

(1) Notice. The owner of any property containing critical areas or buffers on which a development project is submitted shall file for record with Pierce County a notice approved in form by the city. Such notice shall provide notice in the public record of the presence of any critical areas or buffers. The owner shall submit proof to the city that the notice has been filed for record within 30 days after the approval of a development permit. The notice shall run with the land, and failure to provide such notice to any purchase prior to transferring any interest in the property shall be a violation of this chapter.

(2) Performance Security. The city may require the applicant of a development proposal to post a financial security, in a form and amount determined by the director, sufficient to guarantee satisfactory workmanship, materials, and performance of structures and improvements allowed or required by application of this chapter. The city shall release the security upon determining that all structures and improvements have been satisfactorily completed.

(3) Maintenance Security. The city may require the applicant whose development proposal is subject to a mitigation plan to post a maintenance/monitoring financial security instrument in a form and amount determined sufficient to guarantee satisfactory performance for a period of up to five years, or longer if determined by the director to ensure success of the required mitigation. The duration of maintenance/monitoring obligations shall be established by the city after consideration of the nature of the proposed mitigation and the likelihood and expense of mitigation failures. The city shall release the security upon determining that the effectiveness and success of the mitigation plan has been satisfactory. The performance standards of the mitigation plan shall be agreed upon by the city and the applicant during the review process. (Ord. 18-1054 § 2 (Exh. A))

25.105.110 Nonconformance.

(1) Nonconforming Structures and Improvements. Structures and improvements in existence on the date the ordinance codified in this chapter becomes effective and that do not meet the setback or buffer requirements of this chapter for any defined critical area shall be considered legal nonconforming uses. Future alteration, reconstruction, or expansion of legal nonconforming structures permitted under this section must meet all the requirements of this chapter.

(2) No permit granted pursuant to this chapter, except as permitted pursuant to DMC 25.105.070, shall remove an applicant’s obligation to comply in all respects with the applicable provisions of any other federal, state, or local law or regulation. (Ord. 18-1054 § 2 (Exh. A))

25.105.120 Suspension – Revocation.

In addition to enforcement procedures and penalties provided for in Chapter 25.185 DMC the director may suspend or revoke a permit when the applicant or permittee has not complied with any or all of the conditions or limitations set forth in accordance with this chapter, has exceeded the scope of work set forth in the permit, or has failed to undertake the project in the manner set forth in the approved application, or has failed to abide by any relevant federal, state or city law, regulation or ordinance. (Ord. 18-1054 § 2 (Exh. A))

25.105.130 Amendments.

(1) These regulations and the city inventory maps may from time to time be amended in accordance with the procedures and requirements in the general statutes and as new information concerning critical areas becomes available.

(2) The city’s shoreline master program at Chapter 25.170 DMC incorporates the critical areas ordinance by reference. Therefore, amendments to this chapter that are intended to alter development regulations applicable to shorelines jurisdiction must be processed as an amendment to the city of DuPont shoreline master program and shall be subject to approval by the Department of Ecology. (Ord. 18-1054 § 2 (Exh. A))

25.105.140 Severability.

In the event any one or more of the provisions of this chapter shall for any reason be held to be invalid, such invalidity shall not affect or invalidate any other provision of this chapter, but this chapter shall be construed and enforced as if such invalid provision had not been contained therein; provided, that any provision which shall for any reason be held because of its extent to be invalid shall be deemed to be in effect to the extent permitted by law. (Ord. 18-1054 § 2 (Exh. A))

25.105.150 Appeals.

Final permit decisions made by the director shall be subject to appeal in accordance with the procedures of DMC Title 25 and Chapter 1.11 DMC, and any other relevant federal, state or city law, regulation or ordinance; provided, that the applicant may request administrative review by the director and development services prior to initiating a formal appeal process. Decisions of conditions applied to specific permits shall be subject to the appeal provisions for that permit.

Any person with standing may appeal to the hearing examiner a final administrative order, final requirement, final permit decision, or final determination made; provided, that such appeal shall be filed in accordance with the appeal procedure for the underlying permit. If there is no appealable permit or if the appeal is for a reasonable use permit decision issued by the technical administrator, the appeal shall be filed in writing within 14 calendar days of the date the written decision, order, requirement, or determination is issued and public notice provided, unless the decision is issued as part of a SEPA determination of nonsignificance for which a public comment period is required, in which case a 21-day appeal period shall be provided.

The appeal will be upheld if the applicant proves that the decision appealed is clearly erroneous or based upon error of law.

The hearing examiner shall have the authority to set an expiration date for any or all appeal approvals. The hearing examiner will render a decision pursuant to Chapters 1.11 and 25.185 DMC.

Each application for an appeal of an administrative decision to the hearing examiner shall be accompanied by a fee as stated in the unified fee schedule.

Pursuant to Chapter 36.70C RCW, the applicant, any party of record, or any city department may appeal any final decision of the hearing examiner before Pierce County superior court.

Any issue not raised in the original appeal filing is thereafter waived. (Ord. 18-1054 § 2 (Exh. A))

25.105.160 Assessment relief.

(1) The Pierce County assessor’s office shall consider critical area regulations in determining the fair market value of land.

(2) Any undeveloped critical area property which has recorded upon it an easement or which is the subject of a perpetual conservation restriction with the city or a nonprofit organization to permanently control some or all regulated activities in that portion of land assessed consistent with those restrictions shall also be considered for exemption from special assessments to defray the cost of municipal improvements such as sanitary sewers, storm sewers, and water mains. (Ord. 18-1054 § 2 (Exh. A))

25.105.170 Limitation of actions.

Any final decision under this chapter shall be final and conclusive unless timely appealed by following the appeal procedures of this chapter, Chapters 1.11 and 25.185 DMC; and any relevant federal, state, or city law, regulation or ordinance. (Ord. 18-1054 § 2 (Exh. A))