Chapter 15.16 CRITICAL AREAS CODE

The town finds that critical areas’ biological and physical functions benefit the town by protecting water quality, providing fish and wildlife habitat, supporting the food chain, recharging ground water, controlling erosion, and providing aesthetic values and recreation. (Ord. 2017-10 § 3 (Exh. A), 2017; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.102 Purpose.

The purpose of this critical areas code is to:

A. Protect the functions and values of ecologically sensitive areas while allowing for reasonable use of private property, through the application of the best available science;

B. Implement the Growth Management Act and the goals of the comprehensive plan; and

C. Protect the public from injury and loss due to slope failures, erosion, seismic events, or volcanic eruptions. (Ord. 2017-10 § 3 (Exh. A), 2017; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.103 Definitions.

“Alter” means to change a critical area or its buffer, including grading, filling, dredging, clearing, construction, compaction, excavation, and pollution.

“Anadromous” refers to fish that spawn and rear in freshwater and mature in saltwater.

“Applicant” means a person who applies for a development permit from the town.

“Aquifer” means a geological formation capable of yielding water to a well or spring.

“Best available science” means scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.

“Best management practices” means actions known to protect soil, water quality, vegetation, and critical areas.

“Buffer” means an area contiguous to and required for protection of a critical area.

“Channel migration zone” means the lateral extent of likely movement of a stream or river during the next 100 years as evidenced by movement over the past 100 years.

“Conservation easement” means a legal agreement that the property owner enters into to restrict uses of the land in a manner that conserves natural functions.

“Critical aquifer recharge areas” are areas with a critical recharging effect on aquifers used for potable water, including areas where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of the water, or is susceptible to reduced recharge. There are two classes of critical aquifer recharge areas: Class 1 critical aquafer recharge areas are those associated with town potable water supplies; Class 2 critical aquifer recharge areas are all other recharge areas not associated with town potable water supplies.

“Critical area” includes the following areas and ecosystems: (1) wetlands; (2) areas with a critical recharging effect on aquifers used for potable water; (3) fish and wildlife habitat conservation areas; and (4) geologically hazardous areas. Frequently flooded areas shall be administered under Chapter 15.24 EMC.

“Development” means any land use or action that alters a critical area or its buffer, including town approvals that establish patterns of use such as subdivisions, short subdivisions, rezones, and conditional use permits.

“Director” means the town planner or any other person designated by the mayor for the purposes of administering and interpreting the critical areas code, EMC 15.16.101 through 15.16.180.

“Fish and wildlife habitat conservation areas” are areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. “Fish and wildlife habitat conservation areas” does not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of, and are maintained by, a port district or an irrigation district or company.

“Fish habitat” means habitat used by fish at any life stage at any time of the year.

“Functions and values” means the benefits conferred by critical areas, including water quality protection, fish and wildlife habitat, flood storage and conveyance, ground water recharge, erosion control, and protection from hazards.

“Geologically hazardous areas” means areas that, because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not well suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns.

“Hazardous substance” means a liquid, solid, or gas that exhibits any of the properties described in WAC 173-303-090 or 173-303-100.

“Historic” means existing before the area was altered by human activity.

“Impact” means to adversely affect a natural system or increase the hazard which a natural system poses to human life and property.

“Impervious” refers to a hard surface area that retards the entry of water into the soil.

“Monitoring” means assessing the performance of mitigation measures by collection and analysis of data on changes in natural systems.

“Ordinary high water mark” means that mark on the bed or bank below which inundation is so common in ordinary years that the soil and/or vegetation are distinct from that of the abutting upland.

“Person” means any person, organization, or other group.

“Primary association” means a relationship between a species and a habitat area whereby the species regularly uses or otherwise needs the habitat area to thrive.

“Rill” means a small, steep-sided channel caused by erosion.

“Riparian habitat” means stream-side areas that influence the aquatic ecosystem by providing shade, debris, or insects and provide habitat for riparian wildlife.

“Species” means a group of animals commonly classified by the scientific community as a species or subspecies.

“Substantial improvement” means any repair, reconstruction, or improvement of a structure, the cost of which exceeds 50 percent of the structure’s market value before the improvement, or, if the structure was damaged, before the damage occurred.

“Watercourse” means flowing waters of the state, perennial or intermittent, excluding artificial waterways such as ditches or canals not created by human alteration of a natural watercourse.

“Wetland mitigation bank” means a site where wetlands are restored, created, or enhanced to mitigate in advance authorized impacts to similar resources.

“Wetland” or “wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands. (Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2017-10 § 3 (Exh. A), 2017; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.104 Critical areas code – Title.

This chapter shall collectively be known as the critical areas code. EMC 15.16.101 through 15.16.117 shall establish the general framework for EMC 15.16.121 through 15.16.180. The director as defined in EMC 15.16.103 shall administer and interpret this critical areas code. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.105 Fees.

The town shall by resolution establish fees by which the town shall recover its cost of reviewing development proposals, including the cost of engineering review, planning review, inspections, and administration. The applicant shall be responsible for all required reports, assessments, studies, and plans. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.106 Applicability.

Unless exempted in EMC 15.16.107, this critical areas code shall apply to all developments (see definition in EMC 15.16.103) within one or more of the following critical areas or their associated buffers or building setback areas, regardless of whether the site has been previously identified as a critical area:

A. Wetlands as designated in EMC 15.16.121 through 15.16.125;

B. Critical aquifer recharge areas as designated in EMC 15.16.141 through 15.16.147;

C. Geologically hazardous areas as designated in EMC 15.16.161 through 15.16.165; and

D. Fish and wildlife habitat conservation areas as designated in EMC 15.16.171 through 15.16.175. (Ord. 2017-10 § 3 (Exh. A), 2017; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.107 Exemptions.

The following shall be exempt from this critical areas code:

A. Emergency actions immediately necessary to prevent injury or property damage, provided the action minimizes impact to critical areas and buffers. The person undertaking the action shall notify the director within one day following commencement of the emergency action. The director shall determine if the action was allowable under this subsection and commence enforcement if not. Within one year of the date of the emergency, the person undertaking the action shall fully mitigate any resulting impacts to the critical area and buffers in accordance with an approved critical areas report and mitigation plan.

B. Normal operation, maintenance, or repair of existing structures, utilities, roads, levees, drainage systems, or similar improvements, including vegetation management, if the action does not alter or increase the impact to or encroach upon the critical area or buffer, and if the action accords with best management practices and maintenance, and does not impact an endangered or threatened species.

C. Passive outdoor activities such as recreation, education, and scientific research that do not degrade the critical area.

D. Forest practices in accordance with Chapter 76.09 RCW and WAC Title 222, other than forest practice conversions.

E. Structural modifications of, additions to, or replacements of existing legal structures without altering or increasing the impact to the critical area; provided, that the town’s regulations regarding legal nonconforming uses are complied with. Includes most tenant improvements.

F. The following work within improved public rights-of-way or private street easements: construction, replacement, or modification of streets, utilities, lines, mains, equipment, or appurtenances, excluding electrical substations; provided, that actions that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater shall be subject to the following requirements wherever possible:

1. Critical area and/or buffer widths shall be increased equal to the width of the right-of-way improvement, including disturbed areas; and

2. Native vegetation shall be retained and replanted along the right-of-way improvement.

G. Minor utility projects such as placement of a utility pole, street sign, anchor, or vault, which do not significantly impact critical areas function or values, if constructed using best management practices.

H. Removal with hand labor and light equipment of invasive or noxious plants as designated by the director, including:

1. English ivy (Hedera helix);

2. Himalayan blackberry (Rubus discolor, R. procerus); and

3. Evergreen blackberry (Rubus laciniatus).

I. Thinning or removal of trees which a qualified arborist, landscape architect, or forester has documented as posing a threat to public safety and which do not provide critical habitat such as eagle perches; provided, that removed trees and thinnings are left on-site, and for each tree removed, two replacement trees shall be planted in the same or nearly the same location within one year in accordance with a plan approved by the director. The replacement trees shall be of species native and indigenous to the site. Deciduous trees shall be at least one inch in diameter at breast height. Evergreen trees shall be at least six feet in height measured from the top of the root ball.

J. Measures to control fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed vegetation shall be replaced with the same or similar native species within one year in accordance with an approved plan.

K. Application of herbicides, pesticides, or fertilizers, if necessary; provided, that their use shall conform to Department of Fish and Wildlife management recommendations and the regulations of the Department of Agriculture and the U.S. Environmental Protection Agency.

L. Minor clearing or digging necessary for surveys, soil logs, percolation tests, and similar activities, provided critical area impacts are minimized and disturbed areas are immediately restored.

M. Navigational aids and boundary markers.

N. Proposed developments that have undergone critical area review at a previous stage of permit review, provided the earlier permit has not expired.

O. Harvesting of wild crops without injuring their natural reproduction, tilling the soil, planting crops, applying chemicals, or altering the critical area.

P. Conservation measures of soil, water, vegetation, fish, and other wildlife that do not adversely impact ecosystems.

Q. Required environmental impact remediation.

R. Existing and ongoing agricultural activities where the land has not lain idle so long that modifications to the hydrological regime are necessary to resume operations; and

S. Development of Category IV wetlands less than 1,000 square feet in size if a critical areas report demonstrates that:

1. The wetland does not provide suitable habitat for amphibians; and

2. The wetland does not possess unique characteristics that would be difficult to replicate. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.108 Review process.

The director’s general sequence for administering this critical areas code shall be per the following table, which shows questions the director shall answer, and actions he or she shall take depending on the answer.

Review Process
Step 1	Is the development proposal in a critical area or its buffer?
	The director shall check maps, review the environmental checklist, visit the site, and require scientific determinations as necessary to make this determination.
	Yes	No
	Go to step 2.	Go to step 4.
Step 2	Is the development proposal exempt per EMC 15.16.107?
	Yes	No
	Go to step 4.	Require a critical areas report. Don’t issue determination of completeness until critical areas report is received. Reference critical areas report in any public notice.
Step 3	Does the proposal, with conditions of approval as necessary, conform to EMC 15.16.113, Substantive requirements?
	Yes	No
	Go to step 4.	Go to step 4.
Step 4	Document the review process in a manner appropriate to, and filed with, the permit(s) required for the proposed development, and act on the permit application in accordance with the findings.

(Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.109 Critical areas reports.

Unless waived by the director, critical areas reports shall be prepared for nonexempt proposed developments located within critical areas or their buffers. Said critical areas reports shall:

A. Be prepared by qualified professionals as defined in WAC 365-195-905(4). The following list shows the type of critical areas report and the related professional discipline:

1. Wetlands: wetland biologist.

2. Critical aquifer recharge areas: hydrogeologist, geologist, or engineer.

3. Geologically hazardous areas: engineer or geologist.

4. Fish and wildlife habitats: biologist.

B. Incorporate best available science.

C. Cover a study area large enough to understand relationships with important off-site factors and identify any nearby critical area whose buffer extends onto the project site.

D. Contain the following unless waived by the director:

1. Name and contact information of the applicant, description of the proposed development, and identification of required permits;

2. Site plan drawn to scale showing critical areas, buffers, existing structures, and proposed structures, clearing, grading, and stormwater management;

3. Characterization of critical areas and buffers;

4. Assessment of the probable impact to critical areas;

5. Analysis of site development alternatives;

6. Description of efforts to avoid, minimize, and mitigate impacts to critical areas pursuant to EMC 15.16.113 (“sequencing”);

7. Mitigation plans as needed, in accordance with EMC 15.16.111;

8. Evaluation of compliance with this critical areas code’s substantive requirements applicable to the proposed development;

9. Financial guarantees to ensure compliance, such as a performance bond or deposit, if necessary;

10. Additional information as required in the sections corresponding to the type of critical area;

11. Documentation of who prepared the report and when, with fieldwork and data sheets;

12. Statement specifying the accuracy of the report and assumptions relied upon; and

13. Additional information as required by the director. (Ord. 2017-10 § 3 (Exh. A), 2017; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.110 Previous studies.

Critical areas reports may rely upon, without duplication of effort, valid previous studies prepared for the site, taking into account any change in the site, the proposed development, or the surrounding area. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.111 Mitigation plan requirements.

If the town allows conformance with this critical areas code’s substantive requirements to be achieved by mitigation, the critical areas report shall include a mitigation plan consisting of:

A. An analysis of the anticipated impacts on functions and values;

B. A strategy for mitigating the impacts, including site selection factors;

C. An analysis of the existing and anticipated functions and values at the mitigation site, including an assessment of risks;

D. A review of the best available science relative to the proposed mitigation;

E. Specific standards for evaluating whether the mitigation is successful;

F. Detailed construction plans, including:

1. Construction timing;

2. Grading and excavation details;

3. Erosion and sediment control features;

4. Planting plan including species and spacing; and

5. Measures to protect plants until established and control invasive species.

G. A program for monitoring the mitigation over at least five years; and

H. Potential corrective measures should the monitoring indicate the standards set per subsection E of this section are not being met. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.112 Independent review of critical areas report.

The director may have the critical areas report evaluated by an independent qualified professional and/or request consultation from an agency with expertise. If the report and evaluations disagree, the director shall determine which to utilize. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.113 Substantive requirements.

A. All treatment of critical areas shall be in accordance with best available science as defined in WAC 365-195-900 through 365-195-925, which is hereby adopted by reference, along with the Washington State Department of Community Development’s Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas.

B. Critical areas and their buffers shall be left undisturbed, except the following may be permitted if best management practices are used:

1. Authorized functional restoration;

2. In buffers: utility poles and utility lines which do not require excavation;

3. In the outer 50 percent of buffers: permeable-surfaced walkways, trails, and minimal wildlife viewing structures;

4. Developments for which mitigation is allowed per subsection E of this section; and

5. Other uses specifically authorized by this critical areas code.

C. No development shall occur which results in a net loss of the functions or values of any critical area except reasonable use variances per EMC 15.16.114. The pre- and postdevelopment functional comparison shall be on a per-function basis unless otherwise authorized by this critical areas code.

D. No development shall occur in critical areas and their buffers which results in an unreasonable hazard to the public health and safety.

E. These substantive requirements shall be met via one or more of the following methods, listed in preferential sequence (commonly known as “sequencing”). The methods used shall be those which are highest on the list yet consistent with the objectives of the proposed development.

1. Avoid the impact altogether by not taking the proposed action;

2. Minimize the impact by limiting the action’s magnitude or changing the project design, location, or timing;

3. Mitigate (compensate for) the impact on natural system functions and values by enhancing or replacing other natural systems and ensuring that the mitigation serves its purpose over time. Mitigation should provide equivalent or greater functions and values than those of the critical area it replaces. The mitigation shall be near the impact site unless it is more cost-effective to mitigate lost functions at a larger scale, such as at a wetland mitigation bank within the impacted wetland’s drainage basin. The town reserves the right to disallow mitigation that would be located outside the UGA.

F. As a condition of any permit approval, the town may require that:

1. The outer edge of the critical area or buffer be marked, signed, or fenced to protect the resource. Such protection may be temporary, during construction, or permanent, such as to protect the resource from livestock or people. The director shall specify the design and sign message, if applicable, of such markers, signs, and fencing.

2. The applicant file a notice with the county records and elections division stating the presence of the critical area or buffer and the application of this critical areas code to the property, to inform subsequent purchasers of the property.

3. The critical area and/or buffer be placed in a critical area tract or conservation easement, the purpose of which is to set aside and protect the critical area. The critical area tract or conservation easement shall be:

a. Held by the town, a homeowner’s association, a land trust or similar conservation organization, or by each lot owner within the development in an undivided interest;

b. Recorded on all documents of title of record for the affected parcels;

c. Noted on the face of any plat or recorded drawing; and

d. Delineated on the ground with permanent markers and/or signs in accordance with local survey standards.

G. The town may allow averaging of standard wetland and stream buffer widths if a qualified professional demonstrates that:

1. Functions and values are not adversely affected;

2. The total buffer area is not reduced; and

3. At no location is the buffer width reduced more than 40 percent.

H. Unless otherwise provided, buildings and other structures shall be set back a distance of 10 feet from the edges of all critical areas and critical area buffers. The same protrusions into this setback area shall be allowed as the zoning code allows into property line setback areas.

I. Lots created through subdivisions or short plats may contain critical areas and buffers, provided they contain adequate buildable area to build upon. Subdivision and short plats shall show, on their face, any applicable critical area limitations.

J. When any existing regulation, easement, covenant, or deed restriction conflicts with this critical areas code, that which provides more protection to the critical areas shall apply.

K. When critical areas of two or more types coincide, the more restrictive buffer and requirements shall apply.

L. The substantive requirements peculiar to the type of critical area shall also be complied with. See following sections. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.114 Variances.

The town may grant variances from this critical areas code’s substantive regulations in accordance with EMC 18.09.040 if the criteria in subsection A or B of this section are met.

A. The variance conforms with the variance criteria stated in EMC 18.09.040 plus the variance:

1. Conforms with the purpose of this critical areas code;

2. Does not impact anadromous fish habitat; and

3. Is justifiable in light of the best available science.

B. Reasonable use (conformance with EMC 18.09.040 criteria not required).

1. The application of this critical areas code would otherwise deny all reasonable economic use of the property;

2. The town does not offer to compensate the owner for the denial of reasonable economic use;

3. No other reasonable economic use of the property or development design has less impact on the critical area;

4. The proposal does not pose an unreasonable threat to the public health, safety, or welfare;

5. The proposal conforms with other applicable regulations;

6. Impacts to critical areas are mitigated; and

7. The application is sufficiently documented (for example, critical areas report, mitigation plan, permit applications, and environmental documents) to make a determination regarding these criteria. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.115 Enforcement and inspections.

A. In enforcing this critical areas code per Chapter 18.10 EMC, the director may require a restoration plan prepared by a qualified professional. Historic functions and values, soil configurations, and native vegetation shall be used as a guide for restoration. Geological hazards shall be reduced to the predevelopment level.

B. Reasonable access to the development shall be provided to agents of the town for critical area inspections, monitoring, restoration, or emergency action. (Ord. 2017-10 § 3 (Exh. A), 2017; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.116 Record per WAC 365-195-915 and 365-195-920.

A. This critical areas code is designed to implement the town’s comprehensive plan’s policies regarding protection functions and values of critical areas.

B. This critical areas code is based on best available science. See definition in EMC 15.16.103. This critical areas code largely derives from the Example Code Provisions for Designating and Protecting Critical Areas prepared in November 2003 by the Washington State Department of Community, Trade, and Economic Development, which in turn is based on documented best available science. This critical areas code is also based on Guidance Document for the Establishment of Critical Aquifer Recharge Areas Ordinances, published in July 2000 by the Washington State Department of Ecology.

C. In addition to scientific information, economic, political, and legal factors were also considered in determining certain substantive requirements. Where this critical areas code’s buffer widths differ from those in the Example Code Provisions for Designating and Protecting Critical Areas, the purpose is to develop the economy and protect property rights. The town identifies no substantial risk to critical areas in enacting these alternative substantive requirements. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.117 Nonconforming uses.

Developments or uses that upon initiation were legally permitted but which do not conform with this critical areas code may continue; provided, that they:

A. Shall not be expanded or changed so as to increase the nonconformity;

B. Shall not be resumed if discontinued for 12 consecutive months; and

C. May be replaced or restored in the event of destruction by fire, explosion, or other casualty only if reconstruction is commenced within one year and completed within 18 months. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.121 Wetlands – Designation, rating and mapping wetlands.

A. Designating Wetlands. Wetlands are those areas designated in accordance with the approved federal wetland delineation manual and applicable regional supplements.

B. Wetland Ratings. Wetlands shall be rated according to the Department of Ecology wetland rating system found in the Washington State Wetland Rating System documents (Western Washington, Ecology Publication No. 14-06-029) or as revised by Ecology. These documents contain the definitions and methods for determining if the criteria below are met.

1. Wetland Rating Categories.

a. Category I. Category I wetlands are those that (i) represent a unique or rare wetland type; or (ii) are more sensitive to disturbance than most wetlands; or (iii) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or (iv) provide a high level of functions. The following types of wetlands are Category I:

i. Wetlands that perform many functions well (scoring 23 points or more);

ii. Wetlands of high conservation value that are identified by scientists of the Washington Natural Heritage Program (WNHP) or Washington Department of Natural Resources (WDNR);

iii. Bogs;

iv. Mature and old-growth forested wetlands larger than one acre;

v. Wetlands in coastal lagoons;

vi. Relatively undisturbed estuarine wetlands larger than one acre.

b. Category II. Category II wetlands are those not defined as Category I wetlands and include:

i. Estuarine wetlands smaller than one acre, or disturbed estuarine wetlands larger than one acre;

ii. Wetlands with a moderately high level of functions (scoring between 20 and 22 points).

c. Category III. Category III wetlands are:

i. Wetlands with a moderate level of functions (scores between 16 and 19 points);

ii. Can often be adequately replaced with a well-planned mitigation project; and

iii. Interdunal wetlands between 0.1 and one acre in size. Wetlands scoring between 16 and 19 points generally have been disturbed in some ways, and are often less diverse or more isolated from other natural resources in the landscape than Category I or II wetlands.

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

C. Mapping of Wetlands. The approximate location and extent of all known and/or suspected wetlands may be depicted on the following maps, and are hereby incorporated by reference into this chapter: The approximate location and extent of wetlands are shown on the National Wetlands Inventory maps.

D. The identification, classification, extent and location of any wetland shall be determined through the performance of a field investigation by a qualified consultant using the approved federal wetland delineation manual and applicable regional supplements. (Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.122 Wetlands – Critical areas report – Additional requirements for wetlands.

In addition to the general critical areas report requirements of EMC 15.16.109, critical areas reports for wetlands must meet the requirements of this section. Critical areas reports for two or more types of critical areas must meet the report requirements for each relevant type of critical area.

A. Wetland Analysis. In addition to the minimum required contents of EMC 15.16.109, Critical areas reports, a critical areas report for wetlands shall contain an analysis of the wetlands including the following site- and proposal-related information at a minimum:

1. A written assessment and accompanying maps of the wetlands and buffers within 300 feet of the project area, including the following information:

a. The project area of the proposed activity;

b. Wetland delineation and required buffers;

c. Existing wetland acreage;

d. Wetland category; vegetative, faunal, and hydrologic characteristics;

e. Soil and substrate conditions; and

f. Topographic elevations, at five-foot contours.

2. Proposed mitigation, if needed, including a written assessment and accompanying maps of the mitigation area, including the information detailed in EMC 15.16.111, Mitigation plan requirements.

B. Additional Information May Be Required. When appropriate, the planning director may also require the critical areas report to include an evaluation by the Department of Ecology or an independent qualified expert regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, and to include any recommendations as appropriate. (Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2005-10 § 3 (Exh. A), 2005. Formerly 15.16.123).

15.16.123 Wetlands – Performance standards – General requirements.

A. Activities may only be permitted in a wetland or wetland buffer if the applicant can show that the proposed activity will not degrade the functions and values of the wetland and other critical areas.

B. Activities and uses shall be prohibited from wetlands and wetland buffers, except as provided for in this chapter.

C. Category I Wetlands. Activities and uses shall be prohibited from Category I, except as provided for in the public agency and utility exception, reasonable use exception, and variance sections of this chapter.

D. Category II. With respect to activities proposed in Category II wetlands, the following standards shall apply:

1. Water-dependent activities as provided for under the town’s shoreline master program may be allowed where there are no feasible alternatives that would not have a less adverse impact on the wetland, its buffers and other critical areas.

2. Where non-water-dependent activities are proposed, it shall be presumed that alternative locations are available, and activities and uses shall be prohibited, unless the applicant demonstrates that:

a. The basic project purpose cannot reasonably be accomplished and successfully avoid, or result in less adverse impact on, a wetland on another site or sites in the general region; and

b. All alternative designs of the project, as proposed, that would avoid, or result in less of an adverse impact on, a wetland or its buffer, such as a reduction in the size, scope, configuration, or density of the project, are not feasible.

E. Category III and IV Wetlands. Activities and uses that result in unavoidable and necessary impacts may be permitted in Category III and IV wetlands and associated buffers in accordance with an approved critical areas report and mitigation plan, and only if the proposed activity is the only reasonable alternative that will accomplish the applicant’s objectives.

F. Wetland Buffers.

1. Land Use Intensity. Wetland buffers in the town of Eatonville are determined based on the category of the wetland and the land use intensity proposed. Land use impact “intensity” is based on development types and the estimated impact based on the proposed change in land use.

Land Use Impact “Intensity” Based on Development Types
Rating of impact from proposed changes in land use	Types of land uses that cause the impact based on common zoning categories
High (hi)	Commercial, urban, industrial, institutional, retail sales, residential with more than two units/acre, new agriculture (high-intensity processing such as dairies, nurseries and greenhouses, raising and harvesting crops requiring annual tilling, raising and maintaining animals), high intensity recreation (golf courses, ball fields), hobby farms
Moderate (mod)	Residential with two units/acre or less, moderate-intensity open space (parks), new agriculture (moderate intensity such as orchards and hay fields)
Low (lo)	Forestry, open space (low intensity such as passive recreation and natural resources preservation)

2. Buffer Widths. The town of Eatonville establishes the following buffer widths based on category and land use intensity, as defined above. These buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the wetland functions and values at the time of the proposed activity. Required wetland buffers, based on wetland category and land use intensity, are as follows:

Alternative 2 Buffer Widths, Based Upon Category and Land Use Intensity
Category (2014 Wrn. WA Rating System)	Total Points in Rating System	Alternative 2 Buffer Category + Land Use Intensity (lo/mod/hi)
I	>23	lo 150, mod 225, hi 300
II	20 – 22	lo 150, mod 225, hi 300
III	16 – 19	lo 50, mod 75, hi 150
IV	<16	lo 25, mod 35, hi 50

3. Measurement of Wetland Buffers. All buffers shall be measured from the wetland boundary as surveyed in the field. The width of the wetland buffer shall be determined according to the wetland category and the proposed land use. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer shall be planted to create the appropriate plant community or the buffer shall be widened to ensure that adequate functions of the buffer are provided.

4. Modification of Buffer Widths. The buffer widths of subsection (F)(2) of this section may be decreased through buffer width averaging in subsection (F)(5) of this section or reduction mechanisms of this section.

a. The buffer widths recommended for land uses with “high intensity” impacts to wetlands can be reduced to those recommended for “moderate intensity” impacts under the conditions identified below.

i. For wetlands that score moderate or high for habitat (six points or more), the width of the buffer around the wetland can be reduced if the following measures to minimize the impacts of different land uses on wetlands are applied.

ii. A relatively undisturbed, vegetated corridor at least 100 feet wide is protected between the wetland and any other priority habitats as defined by the Washington State Department of Fish and Wildlife. The corridor must be protected for the entire distance between the wetland and the priority habitat by some type of legal protection such as a conservation easement. Presence or absence of a nearby habitat must be confirmed by a qualified biologist.

Disturbance	Required Measures to Minimize Impacts
Lights	• Direct lights away from wetland
Noise	• Locate activity that generates noise away from wetland
	• If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source
	• For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10 feet heavily vegetated buffer strip immediately adjacent to the outer wetland buffer
Toxic runoff	• Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered
	• Establish covenants limiting use of pesticides within 150 feet of wetland
	• Apply integrated pest management
Stormwater runoff	• Retrofit stormwater detention and runoff treatment for roads and existing adjacent development
	• Prevent channelized flow from lawns that directly enters the buffer
	• Use low-intensity development techniques (for more information refer to Chapter 16.54 EMC and the Stormwater Management Manual)
Change in water regime	• Infiltrate or treat, detain and disperse into buffer new runoff from surfaces and new lawns
Pets and human disturbance	• Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion
Pets and human disturbance	• Place wetland and its buffer in a separate tract or protect with a conservation easement
Dust	• Use best management practices to control dust

5. Wetland Buffer Width Averaging. The planning director may also allow modification of the wetland buffer width in accordance with an approved critical areas report and the best available science on a case-by-case basis by averaging buffer widths. Averaging of buffer widths may only be allowed where a qualified wetlands consultant demonstrates that:

a. It will not reduce wetland functions or values;

b. The wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation, and the wetland would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;

c. The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer;

d. The buffer width is not reduced to less than 50 percent of the high intensity buffer width or 50 feet, whichever is greater, except for buffers for Category III and IV wetlands and low or moderate intensity land uses; and

e. Buffer width averaging is being conducted and/or implemented within or on the property where the averaging is being requested.

6. Buffer Uses. In addition to those allowed uses listed within EMC 15.16.107, the following uses may be permitted within a wetland buffer in accordance with the review procedures of this title, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent wetland:

a. Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife;

b. Passive Recreation. Passive recreation facilities designed and in accordance with an approved critical areas report, including:

i. Walkways and trails, pursuant to EMC 15.16.107 (passive outdoor activities). Walkways and trails should be generally parallel to the perimeter of the wetland, located in the outer 25 percent of the wetland buffer area when reasonably possible, and located to avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width for pedestrian use only. Raised boardwalks utilizing nontreated pilings may be acceptable; and

ii. Wildlife viewing structures; and

iii. Fishing access areas.

c. Stormwater Management Facilities. Stormwater management facilities, limited to stormwater dispersion outfalls, detention facilities and bioswales, may be allowed; provided, that:

i. Alternate locations have been considered and been demonstrated to not be feasible; and

ii. The location of such facilities should generally be located in the outer 25 percent of the buffer, provided its placement will not affect the hydroperiod of the wetland or adversely affect water quality.

iii. Stormwater detention facilities are not allowed in buffers of Category I or II wetlands.

G. Signs and Fencing of Wetlands.

1. Temporary Markers. The outer perimeter of the wetland or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur, and inspected by the planning director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction, and shall not be removed until permanent signs, if required, are in place.

2. Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the planning director shall require the applicant to install permanent signs along the boundary of a wetland or buffer.

Permanent signs shall be made of a metal face and attached to a metal post, or another material of equal durability. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner in perpetuity. The sign shall be worded as follows or with alternative language approved by the director:

Protected Wetland Area

Do Not Disturb

Contact the Town of Eatonville Regarding Uses and Restriction

3. Fencing.

a. The planning director may require the applicant to install a permanent fence at the edge of the wetland buffer when fencing will prevent future impacts to the wetland.

b. The applicant shall be required to install a permanent fence around the wetland or buffer when domestic grazing animals are present or may be introduced on site.

c. Fencing installed as part of a proposed activity or as required in this subsection (G)(3) shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat. (Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2005-10 § 3 (Exh. A), 2005. Formerly 15.16.124).

15.16.124 Wetlands – Performance standards – Mitigation requirements.

A. Mitigation Shall Achieve Equivalent or Greater Biological Functions. Mitigation for alterations to wetlands shall achieve equivalent or greater biologic functions.

B. Mitigation Shall Result in No Net Loss. Wetland mitigation actions shall not result in a net loss of wetland area or functions and values except when the following criteria are met:

1. The lost wetland area provides minimal functions and the mitigation action(s) results in a net gain in wetland functions as determined by a site-specific function assessment; or

2. The lost wetland area provides minimal functions as determined by a site-specific function assessment and other replacement habitats provide greater benefits to the functioning of the watershed, such as riparian habitat restoration and enhancement; or

3. Out-of-kind replacement will best meet formally identified regional goals, such as replacement of historically diminished wetland types.

C. Preference of Mitigation Actions. Mitigation actions that require compensation by replacing, enhancing, or substitution shall occur in the following order of preference:

1. Restoration. Restoring wetlands on upland sites that were formerly wetlands and/or have been degraded.

2. Enhancement. Enhancing on-site degraded wetlands.

3. Creation. Creating wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of exotic introduced species.

D. Mitigation Ratios.

1. Acreage Replacement Ratios. The following ratios shall apply to creation or restoration that is in-kind, on site, the same category, timed prior to or concurrent with alteration, and has a high probability of success. The first number specifies the acreage of replacement wetlands and the second specifies the acreage of wetlands altered.

Category and type of wetland	Creation or reestablishment	Rehabilitation	Enhancement
Cat. I: Bog, natural heritage site	Not considered possible	Case by case	Case by case
Cat. I: mature forest	6:1	12:1	24:1
Cat. I based on functions	4:1	8:1	16:1
Cat. II	3:1	6:1	12:1
Cat. III	2:1	4:1	8:1
Cat. IV	1.5:1	3:1	6:1

E. Wetlands Enhancement as Mitigation. Impacts to wetlands may be mitigated by enhancement of existing significantly degraded wetlands. Applicants proposing to enhance wetlands must produce a critical areas report that identifies how enhancement will increase the functions of the degraded wetland and how this increase will adequately mitigate for the loss of wetland area and function at the impact site. An enhancement proposal must also show whether existing wetland functions will be reduced by the enhancement actions. (Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2005-10 § 3 (Exh. A), 2005. Formerly 15.16.125).

15.16.125 Wetlands – Performance standards – Subdivisions.

The subdivision and short subdivision of land in wetlands and associated buffers is subject to the following:

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

B. Land that is located partially within a wetland or its buffer may be subdivided; provided, that:

1. Each lot and/or parcel created through the subdivision process shall maintain a minimum buildable lot area not including a wetland or buffer area which totals 75 percent of the minimum lot size area for the zoning district where located; and

2. Meets the minimum lot size requirements of EMC Title 18.

C. Access roads and utilities serving the proposed subdivision may be permitted within the wetland and associated buffers only if the town determines that no other feasible alternative exists. Loss of wetlands shall be mitigated in accordance with this title. (Ord. 2019-10 § 2 (Exh. A), 2019).

15.16.141 Critical aquifer recharge areas – Designation and susceptibility rating.

The town is aware of two critical aquifer recharge areas in its jurisdiction: the northwestern Class 2 aquifer and the southeastern Class 1 aquifer, which is associated with town potable water supplies. The town’s critical aquifer recharge areas map is located in the comprehensive plan, Figure 9-2. Upon discovery of scientific data attesting to the existence of additional critical aquifer recharge areas, the town will enforce this code upon said areas. (Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.142 Critical aquifer recharge areas – Exemptions.

In addition to the developments listed in EMC 15.16.107, the following developments shall be exempt from the critical aquifer recharge areas provisions:

A. Construction of structures, improvements, and additions of less than 2,500 square feet total site impervious surface area that do not increase risk from hazardous substances.

B. Development of parks, recreation facilities, or conservation areas that do not increase risk from hazardous substances. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.144 Critical aquifer recharge areas – Hydrogeologic assessments – Level 1.

In addition to the requirements of EMC 15.16.113, critical areas reports for critical aquifer recharge areas shall include a hydrogeologic assessment. Level 1 (simpler) hydrogeologic assessment shall contain at a minimum:

A. Available information regarding geology and hydrogeology of the site, including permeability of the unsaturated zone;

B. Ground water depth, flow direction, and gradient based on available information;

C. Available data on wells and springs within 1,300 feet;

D. Location of other critical areas, including surface waters, within 1,300 feet; and

E. Best management practices proposed to be utilized. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.145 Critical aquifer recharge areas – Hydrogeologic assessments – Level 2.

A. In addition to Level 1, a Level 2 hydrogeologic assessment shall be prepared for:

1. Activities that divert, alter, or reduce the flow of surface or ground waters, or otherwise reduce the recharging of the aquifer;

2. The use of hazardous substances other than household chemicals used according to the directions specified on the packaging;

3. Injection wells; and

4. Any other activity determined by the director likely to have an adverse impact on ground water quality or quantity.

B. Level 2 hydrogeologic assessments shall contain at a minimum:

1. Historic water quality data for the area to be affected by the proposed development;

2. Ground water monitoring plan;

3. Potential effects on water quality and quantity of nearby wells and water bodies; and

4. Analysis of equipment or structures that could fail and regular inspection, repair, and replacement necessary to prevent failure. (Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.146 Critical aquifer recharge areas – Substantive requirements.

In addition to the substantive requirements of EMC 15.16.113, the following requirements shall apply to critical aquifer recharge areas:

A. Proposed developments shall not cause contaminants to enter the aquifer or significantly reduce the recharging of the aquifer, and shall comply with the water source protection requirements and recommendations of the U.S. Environmental Protection Agency, Washington State Department of Health, and county health department.

B. Underground facilities for storing hazardous substances shall be designed to prevent releases due to corrosion or structural failure for the operational life of the tank.

C. Above-ground facilities for storing hazardous substances shall be designed to prevent accidental release, shall have a primary containment enclosing or underlying the tank, and shall have a secondary containment built into the tank structure or consisting of an external dike.

D. Vehicle repair and servicing shall be conducted over impermeable pads, within a covered structure capable of normal weather conditions. Chemicals shall be stored in a manner that protects them from weather and provides containment should leaks occur. Dry wells are prohibited.

E. Application of household pesticides, herbicides, and fertilizers shall not exceed times and rates specified on the packaging.

F. Surface percolation or injection of reclaimed water shall conform to adopted water or sewer comprehensive plans, RCW 90.46.010(10), 90.46.042 and 90.46.080(1).

G. Proposed new development shall meet the critical aquifer recharge area standards herein and existing facilities proposed for improvement shall be retrofitted, where feasible and practicable, to meet the standards.

H. Natural and engineered solutions to maintain aquifer recharge quality shall be used. Natural solutions (e.g., maintaining undisturbed vegetation) are preferred when practicable.

I. Development proposed within critical aquifer recharge areas shall comply with applicable stormwater management requirements, Chapter 16.54 EMC.

J. The uses listed below shall be conditioned as necessary to protect critical aquifer recharge areas in accordance with the applicable state and federal regulations.

Statutes, Regulations, and Guidance Regarding Groundwater-Impacting Activities
Activity	Statute – Regulation – Guidance
Above-ground storage tanks	WAC 173-303-640
Animal feedlots*	Chapters 173-216 and 173-220 WAC
Automobile washers	Chapter 173-216 WAC, Best Management Practices for Vehicle and Equipment Discharges (Washington State Department of Ecology WQ-R-95-56)
Below-ground storage tanks*	Chapter 173-360 WAC
Chemical treatment storage and disposal facilities*	WAC 173-303-182
Hazardous waste generator*	Chapter 173-303 WAC (boat repair shops, biological research facility, dry cleaners, furniture stripping, motor vehicle service garages, photographic processing, printing and publishing shops, etc.)
Injection wells	40 CFR Parts 144 and 146, Chapter 173-218 WAC
Junk yards and salvage yards*	Chapter 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Vehicle Recycler Facilities (Washington State Department of Ecology 94-146)
Oil and gas drilling*	WAC 332-12-450, Chapter 173-218 WAC
On-site sewage systems (large-scale)*	Chapter 173-240 WAC
On-site sewage systems (< 14,500 gal./day)	Chapter 246-272 WAC, local health ordinances
Pesticide storage and use*	Chapters 15.54 and 17.21 RCW
Sawmills*	Chapters 173-303 and 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Log Yards (Washington State Department of Ecology 95-53)
Solid waste handling and recycling facilities*	Chapter 173-304 WAC
Surface mining*	WAC 332-18-015
Waste water application to land surface*	Chapters 173-200 and 173-216 WAC, Washington State Department of Ecology Land Application Guidelines, Best Management Practices for Irrigated Agriculture

NOTE: The uses noted with an asterisk (*) in the above table are prohibited in Class 1 critical aquifer recharge areas.

(Ord. 2019-10 § 2 (Exh. A), 2019; Ord. 2005-10 § 3 (Exh. A), 2005).

15.16.147 Critical aquifer recharge areas – Uses prohibited from critical aquifer recharge areas.

The following activities and uses are prohibited in critical aquifer recharge areas (based on Guidance Document for the Establishment of Critical Aquifer Recharge Area Ordinances, by WSDOE, Publication No. 97-30):

A. Landfills and solid waste transfer stations, including landfills for hazardous waste, municipal solid waste, special waste, wood waste, and inert and demolition waste;

B. Underground injection wells: Class I, III, and IV wells and subclasses 5F01, 5D03, 5F04, 5W09, 5W10, 5W11, 5W31, 5X13, 5X14, 5X15, 5W20, 5X28, and 5N24 of Class V wells;

C. Mining of metals, hard rock, sand, and gravel;

D. Wood treatment facilities that allow any portion of the treatment process to occur over permeable surfaces;

E. Creosote or asphalt manufacturing;

F. Storage, processing, or disposal of hazardous, chemical, or radioactive substances;

G. Electroplating;

H. Class 1A or 1B flammable liquids manufacturing as defined by the International Fire Code;

I. Conversion of heating systems to fuel oil;

J. New petroleum product pipelines;

K. Activities that would significantly reduce the recharge to aquifers currently or potentially used for potable water; and

L. Activities that would significantly reduce base flow to a regulated stream. (Ord. 2005-10 § 3 (Exh. A), 2005).