Chapter 14.15

(1) Wetlands and their buffer areas are valuable and fragile natural resources with significant development constraints due to flooding, erosion, soil liquefaction potential, and septic disposal limitations.

(2) In their natural state, wetlands provide many valuable social and ecological services, including:

(a) Controlling flooding and stormwater runoff by storing or regulating natural flows;

(b) Protecting water resources by filtering out water pollutants, processing biological and chemical oxygen demand, recycling and storing nutrients, and serving as settling basins for naturally occurring sedimentation;

(d) Preventing shoreline erosion by stabilizing the substrate;

(e) Providing habitat areas for many species of fish, wildlife, and vegetation, many of which are dependent on wetlands for their survival, and many of which are on Washington State and federal endangered species lists;

(f) Providing open space and visual relief from intense development in urbanized areas;

(g) Providing recreation opportunities; and

(h) Serving as areas for scientific study and natural resource education.

(3) Development in wetlands often results in the reduction of services provided by wetlands.

(4) Buffer areas surrounding wetlands assist in the maintenance and protection of wetland functions and values.

(5) The loss of the social and ecological services provided by wetlands results in a detriment to public safety and welfare; replacement of such services, if possible at all, can require considerable public expenditure.

(6) A considerable acreage of these important natural resources has been lost or degraded by draining, dredging, filling, excavating, building, polluting, and other acts inconsistent with the natural uses of such areas. Remaining wetlands are in jeopardy of being lost, despoiled, or impaired by such acts.

It is therefore necessary for the city of Forks to protect for wetland areas by discouraging development activities in wetlands and those activities at adjacent sites that may adversely affect wetland functions and values.

(7) Economic factors should be considered in the application and interpretation of wetland ordinances due to the limited number of wetlands in the city of Forks and surrounding areas, the limited resources available to the city of Forks to administer wetlands ordinances, and the priority of the city of Forks to promote and foster economic development. (Ord. 341 § 1.1, 1992)

14.15.020 Purpose.

(1) The primary purpose of this chapter is to satisfy the requirements of the Growth Management Act. Pursuant to the requirements of the Growth Management Act, it is the policy of the city of Forks to promote the protection of wetlands and to avoid or minimize damage to wetlands wherever possible and economically feasible and to encourage activities not dependant upon a wetland location to be located at upland sites.

(2) In addition, it is the intent of the city of Forks that activities in or affecting wetlands not threaten public safety, cause nuisances, or destroy or degrade natural wetland functions and values by adversely impacting the social and ecological services provided by wetlands as detailed in FMC 14.15.010(2). (Ord. 341 § 1.2, 1992)

Article II. Definitions

14.15.030 Definitions.

For the purposes of this chapter, the following definitions apply:

(1) "Applicant" means a person who files an application for permit under this chapter 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.

(2) "Compensation project" means actions necessary to replace project-induced wetland and wetland buffer losses, including land acquisition, planning, construction plans, monitoring, and contingency actions.

(3) "Compensatory mitigation" means replacing project-induced wetland losses or impacts, and includes, but is not limited to, the following:

(a) "Restoration" means actions performed to re-establish wetland functional characteristics and processes which have been lost by alterations, activities, or catastrophic events within an area which no longer meets the definition of a wetland.

(b) "Creation" means actions performed to intentionally establish a wetland at a site where it did not formerly exist.

(c) "Enhancement" means actions performed to improve the condition of existing degraded wetlands so that the functions they provide are of a higher quality.

(4) "Functions," "beneficial functions," or "functions and values" means the beneficial roles served by wetlands, including, but not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, ground water recharge and discharge, erosion control, wave attenuation, historical and archaeological and aesthetic value protection, and recreation. These beneficial roles are not listed in order or priority.

(5) "Hydric soil" means a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined following the methods described in the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands."

(6) "Hydrophytic vegetation" means macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. The presence of hydrophytic vegetation shall be determined following the methods described in the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands."

(7) "Isolated wetlands" means those regulated wetlands which:

(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.

(8) "Native vegetation" means plant species which are indigenous to the area in question.

(9) "Practicable alternative" means an alternative that is 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 regulated wetlands. It may include an area not owned by the applicant which could reasonably have been or be obtained, utilized, expanded, or managed in order to fulfill the basic purposes of the proposed activity.

(10) "Regulated activities" include the following if they occur in a regulated wetland or its buffer:

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

(b) The dumping of, discharging of, or filling with any material;

(d) The driving of pilings;

(e) The placing of obstructions;

(f) The construction, reconstruction, demolition, or expansion of any structure;

(g) The destruction or alteration of wetland vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland; provided, that these activities are not part of a forest practice governed under Chapter 76.09 RCW and its rules; or

(h) Activities that result in:

(i) A significant change of water temperature;

(ii) A significant change of physical or chemical characteristics of the sources of water to the wetland;

(iii) A significant change in the quantity, timing or duration of the water entering the wetland; or

(iv) The introduction of pollutants.

(11) "Regulated wetlands" means ponds 20 acres or less, including their submerged aquatic beds and shall be those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Regulated wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands created as mitigation and wetlands modified for approved land use activities shall be considered as wetlands. All Category I wetlands shall be considered regulated wetlands. Regulated wetlands do not include Category II and Category III wetlands less than 2,500 square feet and Category IV wetlands less than 10,000 square feet. Regulated wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grasslined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities.

(12) "Unavoidable and necessary impacts" are impacts to regulated wetlands that remain after a person proposing to alter regulated wetlands has demonstrated that no practicable alternative exists for the proposed project.

(13) "Water-dependent" means requiring the use of surface water that would be essential to fulfill the purpose of the proposed project.

(14) "Wetland buffers" or "wetland buffer zones" is an area that surrounds and protects a wetland from adverse impacts to the functions and values of a regulated wetland.

(15) "Wetland classes," "classes of wetlands," or "wetland types" means descriptive classes of the wetlands taxonomic classification system of the Untied States Fish and Wildlife Service (Cowardin, et al., 1978).

(16) "Wetlands" are those areas, identified in accordance with the Washington State Wetlands Identification and Delineation Manual (Ecology 1997), that meet the following definition: "Wetland" or "wetlands" means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grasslined 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.

All areas within the city of Forks meeting the criteria in the wetland definition in the Wetlands Identification and Delineation Manual (Ecology 1997), regardless of whether these areas have previously been identified or mapped, are hereby designated critical areas and are subject to the provisions of this title.

(17) "Wetlands permit" means any permit issued, conditioned, or denied specifically to implement this chapter.

(18) "Wetlands specialist" is a person with professional experience and comprehensive training in wetland issues, including experience performing wetland delineations, assessing wetland functions and values, analyzing wetland impacts, and recommending and designing wetland mitigation projects. A person certified by the Society of Wetland Scientists, or enrolled in their "wetland professional in-training" program would be considered to be a qualified wetlands expert. (Ord. 550 §§ 1 – 3, 2007; Ord. 341 § 2, 1992)

Article III. General Provisions

14.15.040 Abrogation and greater restrictions.

It is not intended that this chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail. (Ord. 341 § 3, 1992)

Article IV. Lands to Which this
Chapter Applies

14.15.050 Applicability.

(1) When any provision of any other chapter of the Forks Municipal Code conflicts with this chapter, that which provides more protection to wetlands and wetland buffers shall apply unless specifically provided otherwise in this chapter.

(2) The planning director is authorized to adopt written procedures for the purpose of carrying out the provisions of this chapter. Prior to fulfilling the requirements of this chapter, the city of Forks shall not grant any approval or permission to conduct a regulated activity in a wetland or wetland buffer. (Ord. 341 § 4.1, 1992)

14.15.060 Maps and inventory.

This chapter shall apply to all lots or parcels on which wetlands and/or wetland buffers are located within the city of Forks. The approximate location and extent of wetlands are shown on the adopted critical area(s) maps.* The city of Forks critical areas map is hereby adopted. Said map was created using information obtained from the National Wetlands Inventory, as well as field verification of wetlands by contractors hired by the city of Forks. Additionally, soil maps produced by U.S. Department of Agriculture Natural Resources Conservation Service may be useful in helping to identify potential wetland areas. The National Wetlands Inventory and the USDA NRCS maps are to be used as a guide for the city of Forks, project applicants, and/or property owners to identify potential wetland areas that may be subject to the provisions of this title.

It is the actual presence of wetlands on a parcel, as delineated by the requirements of the Washington State Wetlands Identification and Delineation Manual (Ecology 1997), that triggers the requirements of this title, whether or not the wetland is identified on the adopted maps. The exact location of a wetland’s boundary shall be determined through the performance of a field delineation by a qualified wetlands professional, applying the Washington State Wetlands Identification and Delineation Manual (Ecology 1997) as required by RCW 36.70A.175. (Ord. 550 § 3, 2007; Ord. 341 § 4.2, 1992)

*Code reviser’s note: The critical area maps were adopted in 1994 and are on file with the city.

14.15.065 Exemptions.

(1) Wetlands less than 1,000 square feet are exempt from regulation where the applicant has shown that the wetland:

(a) Is not associated with a riparian corridor;

(b) Is not part of a wetland mosaic;

(c) Does not contain habitat identified as essential for local populations of priority species identified by Washington Department of Fish and Wildlife.

(2) Single-Family Residences.

(a) Expedited Approval. Applicants proposing a single-family dwelling may receive expedited approval by the city of Forks if they choose to adopt the largest buffer width from the appropriate wetland category. Expedited approval removes the requirements of the wetland certification process for single-family dwellings (subsection (2)(b) of this section); provided, that the wetland delineation and/or wetland rating is not disputed. Administrative buffer reductions or variance will not apply.

(b) Wetland Certification Process for Single-Family Dwellings (No Encroachment into a Regulated Wetland or its Standard Buffer).

(i) Prior to issuance of a building permit, site development permit, or on-site sewage system permit, the applicant may submit a single-family wetland certification form completed by a wetland specialist that certifies either:

(A) No regulated wetlands are present within 300 feet of the project area; or

(B) Wetlands are present within 300 feet of the project area, but all regulated activities associated with the dwelling (e.g., landscaped areas, septic facilities, outbuildings, etc.) will occur outside of the standard buffer of the identified wetland.

(ii) If regulated wetland buffers extend onto the site, the wetland specialist shall place permanent, clearly visible, wetland buffer signs at the edge of the buffer. A wetland buffer sign affidavit, signed by the wetland specialist, shall be submitted to the department as verification that the wetland buffer signs have been placed on the site.

(iii) A survey will not be required.

(iv) The single-family certification form may be used only to authorize single-family dwellings and associated home site features such as driveways, gardens, fences, wells, lawns, and on-site septic systems. It may not be used for new agricultural activities, expansion of existing agricultural activities, forest practice activities, commercial projects, land divisions, buffer width modifications, or violations.

(v) The single-family certification process will be monitored by the department for accuracy, and enforcement actions will be initiated should encroachment into a regulated wetland or buffer occur.

(vi) The applicant/property owner assumes responsibility for any and all errors of the single-family certification form and all associated mitigation imposed by the department.

(vii) Single-family certification forms shall be filed with the county auditor’s office.

(3) Trails – Stormwater – Utilities. The following uses may be permitted within a wetland buffer, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize negative impacts to the buffer and adjacent wetland:

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

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

(i) Wildlife viewing structures; and

(ii) Walkways and trails, provided pathways minimize adverse impacts on water quality. They should generally be parallel to the perimeter of the wetland, located in the outer 25 percent of the wetland buffer area, and avoid removal of significant trees. They must be limited to pervious surfaces no more than four feet in width. Raised boardwalks utilizing nontreated pilings may be acceptable.

(c) Stormwater management facilities, limited to stormwater dispersion outfalls and bioswales, when permitted by other applicable codes, may be allowed within the outer 25 percent of the buffer of Category III or IV wetlands only; provided, that:

(i) No other location is feasible; and

(ii) Their location, with mitigation, will not degrade the functions or values of the wetland. (Ord. 550 § 4, 2007)

14.15.070 Determination of regulatory wetland boundary.

(1) The exact location of the wetland boundary shall be determined by the applicant through the performance of a field investigation applying the wetland definition provided in FMC 14.15.030. The applicant is required under FMC 14.15.120(3) to show the location of the wetland boundary on a scaled drawing as a part of the permit application.

(2) The planning director may perform a delineation if he/she concludes that the applicant has not submitted a delineation that accurately represents the wetland boundary. The planning director may consult with qualified professional scientists and technical experts or other experts as needed to perform the delineation. The applicant may be charged for the costs incurred in accordance with the provisions of FMC 14.15.120(4). The planning director shall use the federal Manual for Identifying and Delineating Jurisdictional Wetlands as a guide in delineating wetlands.

(3) Signs and Fencing of Wetlands.

(a) Temporary Markers. The outer perimeter of the wetland buffer and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary "clearing limits" fencing, flagging, and/or other agreed-upon markings in such a way as to ensure that no unauthorized intrusion will occur. The marking is subject to inspection 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.

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

(i) Permanent signs shall be made of an enamel-coated metal face and attached to a metal post or another nontreated 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 [Local Jurisdiction] Regarding Uses, Restrictions, and Opportunities for Stewardship

(ii) The provisions of subsection (3)(b)(i) of this section may be modified as necessary to assure protection of sensitive features or wildlife.

(i) The planning director shall determine if fencing is necessary to protect the functions and values of the critical area. If found to be necessary, the planning director shall condition any permit or authorization issued pursuant to this chapter to require the applicant to install a permanent fence at the edge of the wetland buffer, when fencing will prevent future impacts to the wetland.

(ii) 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.

(iii) Fencing installed as part of a proposed activity or as required in this subsection 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. 550 § 5, 2007; Ord. 341 § 4.3, 1992)

14.15.080 Wetlands rating system.

(1) Wetlands shall be rated according to the Washington State wetland rating system for Western Washington (Washington State Wetland Rating System for Western Washington – Revised, Ecology Publication No. 04-06-025) or as revised by Ecology. Wetland rating categories shall be applied as the wetland exists at the time of the adoption of the ordinance codified in this title or as it exists at the time of an associated permit application. Wetland rating categories shall not change due to illegal modifications.

(2) The following rating system is hereby adopted as the rating system for the city of Forks:

(a) Category I. Category I wetlands are:

(i) Relatively undisturbed estuarine wetlands larger than one acre;

(ii) Wetlands that are identified by scientists of the Washington Natural Heritage Program/DNR as high quality wetlands;

(iii) All bogs;

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

(v) Wetlands in coastal lagoons; or

(vi) Wetlands that perform many functions well.

Category I wetlands represent a unique or rare wetland type, are more sensitive to disturbance than most wetlands, are relatively undisturbed and contain some ecological attributes that are impossible to replace within a human lifetime, or provide a very high level of functions.

(b) Category II. Category II wetlands are:

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

(ii) A wetland identified by the Washington State Department of Natural Resources as containing "sensitive" plant species;

(iii) An interdunal wetland larger than one acre; or

(iv) Wetlands with a moderately high level of functions.

Category II wetlands are difficult, though not impossible, to replace, and provide high levels of some functions. These wetlands occur more commonly than Category I wetlands, but they still need a relatively high level of protection.

(i) Wetlands with a moderate level of functions; or

(ii) Interdunal wetlands between one-tenth and one acre in size.

Generally, wetlands in this category may have been disturbed in some way and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.

(d) Category IV. Category IV wetlands have the lowest levels of functions and are often heavily disturbed. These are wetlands that should be replaceable, and in some cases may be improved. 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.

(3) The category designation of a wetland shall be determined by the applicant through the performance of a field investigation applying the four tier classification system detailed above. The applicant is required under FMC 14.15.120(3) to submit a written category designation with an explanation of the reasons for the designation.

(4) The planning director may perform the designation if he/she concludes that the applicant’s designation is not accurate. The planning director may consult with qualified professional scientists and technical experts or other experts as needed to perform the designation. The applicant may be charged for the costs incurred in accordance with the provisions of FMC 14.15.120(4). (Ord. 550 § 6, 2007; Ord. 341 § 4.4, 1992)

Article V. Allowed Activities

14.15.090 Allowed activities.

(1) Activities which are not regulated activities and which leave no material change in the wetland environment immediately after the activity ceases are allowed within a wetland or wetland buffer.

(2) The activities listed below are allowed in wetlands in addition to those activities listed in the provisions established in subsection (1) of this section. These activities do not require submission of a critical area report, except where such activities result in a loss to the functions and values of a wetland or wetland buffer. These activities include:

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

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

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

(d) Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal. All removed plant material shall be taken away from the site and disposed of in an appropriate manner. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species. (Ord. 550 § 7, 2007; Ord. 341 § 5, 1992)

Article VI. Procedures for Wetland Permits

14.15.100 Permit requirements and compliance.

Except as specifically provided in FMC 14.15.090, no regulated activity shall occur or be permitted to occur within a regulated wetland or wetland buffer without a written permit from the planning director. Any alteration approved by such written permit shall comply fully with the requirements and purposes of this chapter, other applicable regulations, and any terms or conditions of said permit. All activities which are not allowed or permitted shall be prohibited. (Ord. 341 § 6.1, 1992)

14.15.110 Wetland permits and extensions.

(1) Application for a wetland permit to conduct any regulated activity not specifically authorized by FMC 14.15.090 within a wetland or wetland buffer shall be made to the planning director on forms furnished by that office. Permits shall normally be valid for a period of three years from the date of issue and shall expire at the end of that time, unless a longer or shorter period is specified by the planning director upon issuance of the permit.

(2) An extension of an original permit may be granted upon written request to the planning director by the original permit holder or the successor in title. Prior to the granting of an extension, the planning director shall require updated studies and/or additional hearings if, in his judgment, the original intent of the permit is altered or enlarged by the renewal, if the circumstances relevant to the review and issuance of the original permit have changed substantially, or if the applicant failed to abide by the terms of the original permit. (Ord. 341 § 6.2, 1992)

14.15.120 Permit application.

(1) Request for Determination of Applicability. Any person seeking to determine whether a proposed activity or an area is subject to this chapter may request in writing a determination from the planning director. Such a request for determination shall contain plans, data, and other information as may be specified by the planning director.

(2) Pre-Permit Consultations. Any person intending to apply for a wetland permit is strongly encouraged, but not required, to meet with the planning director during the earliest possible stages of project planning in order to discuss wetland impact avoidance and minimization and compensation before large commitments have been made to a particular design. Effort put into re-application consultations and planning will help applicants create projects which will be more quickly and easily processed.

(3) Information Requirements. Application for a wetland permit under this chapter shall include one or more of the following information requirements upon demand by the planning director:

(a) A description and maps overlaid on an aerial photograph at a scale no smaller than one inch equals 200 feet, showing the entire parcel of land owned by the applicant and the exact boundary pursuant to FMC 14.15.070 of the wetland on the parcel;

(b) A description of the vegetative cover of the wetland and adjacent area, including dominant species;

(c) A site plan for the proposed activity overlaid on an aerial photograph at a scale no smaller than one inch equals 200 feet, showing the location, width, depth, and length of all existing and proposed structures, roads, sewage treatment, and installations within the wetland and its buffer;

(d) The exact location sites and specifications for all regulated activities, including the amounts and methods;

(e) Elevations of the site and adjacent lands within the wetland and its buffer at contour intervals of no greater than five feet;

(f) Top view and typical cross-section views of the wetland and its buffer to scale;

(g) The purposes of the project and an explanation why the proposed activity cannot be located at other sites, including an explanation of how the proposed activity is dependant upon wetlands or water-related resources as described in FMC 14.15.160;

(h) Specific means to mitigate any potential adverse environmental impacts of the applicant’s proposal; and

(i) Classification of any on-site wetlands pursuant to the classification system of FMC 14.15.080 and written justification for said classification.

The planning director may require additional information, including but not limited to an assessment of the wetland functional characteristics, including a discussion of the methodology used; documentation of the ecological, aesthetic, economic, or other values of a wetland, a study of flood, erosion or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards, and any other information deemed necessary to verify compliance with the provisions of this chapter or to evaluate the proposed use in terms of the purposes of this chapter. The planning director shall maintain and make available to the public all information applicable to any wetland and its buffer.

(4) Filing Fees. At the time of an application the applicant shall pay a filing fee as determined by the planning director. Sufficient fees shall be charged to the applicant to cover the costs of evaluation of the application or request for delineation. These fees may be used by the planning director to retain expert consultants to provide services pertaining to wetland boundary determinations, functional assessments, and evaluation of mitigation measures. As deemed necessary by the planning director, the planning director may assess additional reasonable fees as needed to monitor and evaluate permit compliance and mitigation measures.

(5) Notice on Title.

(a) The owner of any property with field verified presence of wetland or wetland buffer pursuant to FMC 14.15.070, on which a development proposal is submitted shall file for record with the appropriate records division a notice approved by the planning director in a form substantially as set forth in subsection (5)(b) of this section. Such notice shall provide notice in the public record of the presence of wetland or wetland buffer, the application of this chapter to the property, and that limitations on actions in or affecting such wetlands and their buffers may exist.

The applicant shall submit proof that the notice has been filed for record before the city of Forks shall approve any development proposal for such site. The notice shall run with the land and failure to provide such notice to any purchaser prior to transferring any interest in the property shall be in violation of this chapter.

(b) Form of Notice.

WETLAND AND/OR WETLAND
BUFFER NOTICE

Legal Description: _________________

_________________

Present Owner: _________________

NOTICE: This property contains wetlands or their buffers as defined by the city of Forks Ordinance. The property was the subject of a development proposal for (type of permit) application #________ filed on (date). Restrictions on use or alteration of the wetlands or their buffers may exist due to natural conditions of the property and resulting regulations. Review of such application has provided information on the location of wetlands or wetland buffers and restrictions on their use through setback areas.

(Signature of Owner)

STATE OF WASHINGTON )

) SS:

COUNTY OF CLALLAM )

On this day personally appeared before me to me known to be the individual(s) described in and who executed the within and foregoing instrument and acknowledged that they signed the same as their free and voluntary act and deed for the sues and purposes therein stated.

Given under my hand and official seal this _______ day of _____, 19__.

NOTARY PUBLIC in and

for the State of Washington,

residing at ____________.

(Ord. 341 § 6.3, 1992)

14.15.130 Permit processing.

(1) Consolidation. The planning director shall, to the extent practicable and feasible, consolidate the processing of wetlands related aspects of other city of Forks regulatory programs which affect activities in wetlands.

(2) Completeness of Application. No later than 10 working days after receipt of the permit application, the planning director shall notify the applicant as to the completeness of the application. An application shall not be deemed complete until and unless all information necessary to evaluate the proposed activity, its impacts, and its compliance with the provisions of this chapter have been provided to the satisfaction of the planning director.

(3) Public Hearings. Following the submittal of an application determined to be complete by the planning director, the planning director or city council shall hold a public hearing on the application, unless the planning director finds that the activity is so minor as to not affect a wetland or wetland buffer. The planning director or the city council may, to the extent that the proposed activity impacts the benefits of the wetlands extending to others, require the applicant to comply with one or more of the following notice provisions, to be complied with at least 15 days prior to the date of hearing:

(a) Publish a notice of the hearing at least once a week on the same day of the week for two consecutive weeks in a newspaper having a general circulation in the city of Forks;

(b) Give notice to the latest recorded real property owners as shown by the records of the county assessor within at least 300 feet of the boundary of the property upon which the regulated activity is proposed; and

(c) Post a notice at the proposed site of activity and at public places of assembly near the site of the proposed activity.

The notices shall include a brief description of the project, including the location, notice of the time and place of the hearing, notice that the file regarding the permit application is available for public inspection during regular business hours, comments prior to the hearing, and attendance and oral testimony by concerned parties at the hearing.

All hearings shall be open to the public. A record of the hearings shall be made. Any person may present evidence and testimony at the hearing. At the hearing the applicant has the burden of demonstrating that the proposed activity will be in accordance with the purposes of this chapter and the standards set forth below.

(4) Permit Action. The Forks city council shall approve, approve with conditions, or deny a permit application within 30 working days of the public hearing, except that where additional information is required by the Forks city council, it may extend this period by 60 days. In acting on the application, the Forks city council shall in writing deny, permit, or conditionally permit the proposed activity. If a decision must be made in a 90-day period and there is insufficient information or time to process the application, a denial will be issued. (Ord. 341 § 6.4, 1992)

14.15.135 Regulatory procedures for small wetlands.

(1) Evaluate wetlands between 1,000 and 4,000 square feet, using Ecology’s Wetland Rating System for Western Washington (2004), to establish category and evaluate functions. Use the following criteria and local knowledge of natural resources to make an informed decision about whether to exempt wetlands between 1,000 and 4,000 square feet from the requirement to avoid impacts.

(a) The requirement to avoid impacts may be dropped for Category III and IV wetlands between 1,000 and 4,000 square feet that meet all of the following criteria:

(i) Wetland is not associated with a riparian corridor; and

(ii) Wetland is not part of a wetland mosaic; and

(iii) Wetland does not score 20 points or more for habitat in the wetland rating system; and

(iv) Wetland does not contain habitat identified as essential for local populations of priority species identified by Washington Department of Fish and Wildlife.

Where there is a desire to place high priority on water quality functions, add a criterion that includes wetlands that score 24 points or more for water quality function in the rating system. Such wetlands receive surface water drainage from the surrounding landscape and improve water quality before discharging water to downstream water bodies. This approach could include specific drainages where protection of water quality is given higher priority and there are significant wetland resources that provide high levels of this function.

(b) Impacts allowed under this provision to these wetlands will be fully mitigated as required in FMC 14.15.175, Mitigation requirements.

The rationale for dropping the requirement to avoid impacts for certain wetlands is based on the premise that functions provided by these Category III and IV wetlands can be adequately replaced by mitigation. This approach may benefit local wetland resources by providing part of the funding through a fee-in-lieu system for larger local restoration projects that could provide higher functioning wetlands in the long term.

(c) All Category I and II wetlands between 1,000 and 4,000 square feet should be evaluated with full mitigation sequencing and buffer establishment. Any approved impacts should be adequately compensated by mitigation.

(2) Wetlands larger than 4,000 square feet will be evaluated using standard procedures for wetland review found elsewhere in this chapter. (Ord. 550 § 8, 2007)

Article VII. Impacts

14.15.140 Standards for permit decisions.

(1) A permit shall be granted for activities in regulated wetlands or wetland buffers if the permit, as conditioned, is consistent with the provisions of this chapter. Additionally, permits shall be granted if:

(a) A proposed action avoids adverse impacts to regulated wetlands or their buffers or takes affirmative and appropriate measures to minimize and compensate for unavoidable impacts;

(b) The proposed activity results in no net loss; or

(c) Denial of a permit would deny the applicant of all reasonable economic use of his property. The inability to derive reasonable economic use of the property may not be the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of this chapter.

(2) Wetlands permits shall not be effective and no activity thereunder shall be allowed during the time provided to file a permit appeal. (Ord. 341 § 7, 1992)

14.15.150 Wetland buffers.

(1) Wetland buffers shall be required for all regulated activities adjacent to regulated wetlands. All buffers shall be measured from the wetland boundary. The width of the wetland buffer zone shall be determined according to the wetland category as follows:


Wetland Rating and Characteristics	Buffer Widths by Impact of Land Use*	Other Measures Recommended for Protection
Category IV (score for functions < 30 points)	Low – 25 feet Moderate – 40 feet High – 50 feet
Category III – moderate level of function for habitat (score for habitat 20 – 28 points)	Low – 75 feet Moderate – 110 feet High – 150 feet
Category III – not meeting above criteria for habitat	Low – 40 feet Moderate – 60 feet High – 80 feet
Category II – high level of function for habitat (score for habitat 29 – 36 points)	Low – 150 feet Moderate – 225 feet High – 300 feet	Maintain connectivity to other natural areas.
Category II – moderate level of function for habitat (score for habitat 20 – 28 points)	Low – 75 feet Moderate – 110 feet High – 150 feet
Category II – high level of function for water quality improvement (score for water quality 24 – 32 points) and low level of function for habitat (score for habitat < 20 points)	Low – 50 feet Moderate – 75 feet High – 100 feet	No additional discharges of untreated runoff.
Category II – not meeting any of above criteria for habitat or water quality	Low – 50 feet Moderate – 75 feet High – 100 feet
Category I – Natural Heritage Wetlands	Low – 125 feet Moderate – 190 feet High – 250 feet	No additional discharges of surface water. No septic systems within 300 feet. Restore degraded parts of buffer.
Category I – Bogs	Low – 125 feet Moderate – 190 feet High – 250 feet	No additional discharges of surface water. Restore degraded parts of buffer.
Category I – Forested	Buffer size needs to be based on score for habitat functions or water quality functions.	If forested wetland scores high for habitat, need to maintain connectivity to other natural areas. Restore degraded parts of buffer.
Category I – high level of function for habitat (score for habitat 29 – 36 points)	Low – 150 feet Moderate – 225 feet High – 300 feet	Maintain connectivity to other natural areas. Restore degraded parts of buffer.
Category I – moderate level of function for habitat (score for habitat 20 – 28 points)	Low – 75 feet Moderate – 110 feet High – 150 feet
Category I – high level of function for water quality improvement (score for water quality 24 – 32 points) and low level of function for habitat (score for habitat < 20 points)	Low – 50 feet Moderate – 75 feet High – 100 feet	No additional discharges of untreated runoff.
Category I – not meeting any of above criteria for habitat or water quality	Low – 50 feet Moderate – 75 feet High – 100 feet
* See subsection (2)(c) of this section for definitions of high, moderate, and low impacts.

(2) Buffer Reduction. The buffer widths recommended for proposed land uses with high-intensity impacts to wetlands can be reduced by the planning director to those recommended for moderate-intensity impacts under the following conditions:

(a) For wetlands that score moderate or high for habitat (20 points or more for the habitat functions), the width of the buffer can be reduced if both of the following criteria are met:

(i) 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 ("relatively undisturbed" and "vegetated corridor" are defined in questions H 2.1 and H 2.2.1 of the Washington State Wetland Rating System for Western Washington – Revised, (Hruby 2004b)). Priority habitats in Western Washington include:


Wetlands
Riparian zones
Aspen stands
Cliffs
Prairies
Caves
Stands of Oregon White Oak
Old-growth forests
Estuary/estuary-like
Marine/estuarine shorelines
Eelgrass meadows
Talus slopes
Urban natural open space (for current definitions of priority habitats, see http://wdfw.wa.gov/hab/phshabs.htm)

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.

(ii) Measures to minimize the impacts of different land uses on wetlands, such as the examples summarized in Table 14.15-1, are applied.

(b) For wetlands that score less than 20 points for habitat, the buffer width can be reduced to that required for moderate land use impacts by applying measures to minimize the impacts of the proposed land uses (see examples in Table 14.15-1).

Table 14.15-1 Examples of Measures to Minimize Impacts to Wetlands from Proposed Change in Land Use That Have High Impacts(this is not a complete list of measures)
Examples of Disturbance	Activities and Uses that Cause Disturbances	Examples of Measures to Minimize Impacts
Lights	• Parking lots • Warehouses • Manufacturing • Residential areas	• Direct lights away from wetland
Noise	• Manufacturing • Residential areas	• Locate activity that generates noise away from wetland
Toxic runoff*	• Parking lots • Roads • Manufacturing • Residential areas • Application of agricultural pesticides • Landscaping	• 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	• Parking lots • Roads • Manufacturing • Residential areas • Commercial • Landscaping	• Retrofit stormwater detention and treatment for roads and existing adjacent development • Prevent channelized flow from lawns that directly enters the buffer
Change in water regime	• Impermeable surfaces • Lawns • Tilling	• Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns
Pets and human disturbance	• Residential areas	• Use privacy fencing; plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion; place wetland and its buffer in a separate tract
Dust	• Tilled fields	• Use best management practices to control dust
* These examples are not necessarily adequate for minimizing toxic runoff if threatened or endangered species are present at the site.

(c) Defining of "High, Moderate, and Low Impacts" as Used in Subsection (1) of This Section. The following table provides examples of the types of land use and their impact upon wetlands:


Level of Impact from Proposed Change in Land Use	Types of Land Use Based upon Zoning Designations
High	• High Density Commercial • Forks Industrial Park and Industrial • High and Moderate Density Residential
Moderate	• Moderate and Low Density Commercial • Low Density Residential • Farming/Agricultural activities conducted pursuant to established plans using best available practices, advice of conservation districts, etc. • Utility corridors with right-of-way shared by utility providers • Paved roads and/or trails
Low	• Low Density Residential • Forestry activities taken pursuant to appropriate Forest Practice Act permits issued by the Department of Natural Resources

(3) Buffer Averaging.

(a) The widths of buffers may be averaged if this will improve the protection of wetland functions, or if it is the only way to allow for reasonable use of a parcel. Averaging could be allowed in the following situations:

(i) Averaging to improve wetland protection may be permitted when all of the following conditions are met:

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

(B) The buffer is increased adjacent to the higher-functioning area of habitat or more sensitive portion of the wetland and decreased adjacent to the lower-functioning or less sensitive portion.

(D) The buffer at its narrowest point is never less than three-fourths of the required width.

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

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

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

(D) The buffer at its narrowest point is never less than three-fourths of the required width.

(b) Averaging may not be used in conjunction with any of the other provisions of this chapter associated with the reduction of a required wetland buffer (listed above).

(4) 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 as identified in this title. 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. Only fully vegetated buffers will be considered. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers.

(5) Buffers on Mitigation Sites. All mitigation sites shall have buffers consistent with the buffer requirements of this chapter and based on the expected category of the wetland once the mitigation actions are completed.

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

(7) Buffer Uses. 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 area report, including:

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

(ii) Wildlife viewing structures.

(c) Stormwater Management Facilities. Stormwater management facilities, limited to stormwater dispersion outfalls and bioswales, may be allowed within the outer 25 percent of the buffer of Category III or IV wetlands only; provided, that:

(i) No other location is feasible; and

(ii) The location of such facilities will not degrade the functions or values of the wetland. (Ord. 550 § 9, 2007; Ord. 341 § 7.1, 1992)

14.15.160 Avoiding wetland impacts.

(1) Regulated activities shall not be authorized in a regulated wetland except where it can be demonstrated that the impact is both unavoidable and necessary.

(2) Category I Wetlands. Activities and uses shall be prohibited from Category I wetlands, except as provided for in relationship to exceptions associated with public agencies and utilities, reasonable use, and variances within this chapter.

(3) Category II and III Wetlands. For Category II and III wetlands, the following standards shall apply:

(a) Where wetland fill is proposed, it is presumed that an alternative development location exists; activities and uses shall be prohibited unless the applicant can demonstrate that:

(i) The basic project purpose cannot reasonably be accomplished on another site or sites in the general region while still successfully avoiding or resulting in less adverse impact on a wetland; and

(ii) All on-site alternative designs that would avoid or result in less 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.

(b) Full compensation for the loss of acreage and functions of wetlands and buffers shall be provided under the terms established under the mitigation elements of this chapter.

(4) Category IV Wetlands. Activities and uses that result in unavoidable impacts may be permitted in Category IV wetlands and associated buffers in accordance with an approved critical area(s) report and compensatory mitigation plan, and only if the proposed activity is the only reasonable alternative that will accomplish the applicant’s objectives. Full compensation for the loss of acreage and functions of wetlands and buffers shall be provided under the terms established under the mitigation elements of this chapter.

(5) Reasonable Use. If an applicant for a development proposal demonstrates to the satisfaction of the planning director that application of these standards would deny all reasonable economic use of the property, development as conditioned shall be allowed if the applicant also demonstrates all of the following to the satisfaction of the planning director:

(a) That the proposed project is water-dependent or requires access to the wetland as a central element of its basic function, or is not water-dependent but has no practicable alternative, pursuant to this section;

(b) That the proposed activities will result in minimum feasible alteration or impairment to the wetland’s functional characteristics and its existing contours, vegetation, fish and wildlife resources, and hydrological conditions;

(c) That the proposed activities will not jeopardize the continued existence of endangered, threatened, rare, sensitive, or monitor species as listed by the federal government or the state of Washington;

(d) That the proposed activities will not cause significant degradation of ground water or surface water quality;

(e) That there will be no damage to nearby public or private property and no threat to the health or safety of people on or off the property; and

(f) That the inability to derive reasonable economic use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance codified in this chapter. (Ord. 550 § 10, 2007; Ord. 341 § 7.2, 1992)

14.15.170 Minimizing wetlands impacts.

(1) After it has been determined by the planning director that a proposed activity will be authorized in a regulated wetland or wetland boundary, the applicant shall take deliberate measures to minimize wetland impacts.

(2) Minimizing impacts to wetlands shall include but is not limited to:

(a) Limiting the degree or magnitude of the regulated activity;

(b) Limiting the implementation of the regulated activity;

(d) Taking affirmative steps to avoid or reduce impacts;

(e) Sensitive site design and siting of facilities and construction staging areas away from regulated wetlands and their buffers;

(f) Involving resource agencies early in site planning; and

(g) Providing protective measures, such as siltation curtains and other siltation prevention measures, scheduling the regulated activity to avoid interference with wildlife and fisheries rearing, resting, nesting, or spawning activities. (Ord. 550 § 11, 2007; Ord. 341 § 7.3, 1992)

14.15.175 Mitigation requirements.

(1) Requirements for Compensatory Mitigation. Compensatory mitigation for alterations to wetlands shall achieve equivalent or greater biologic functions. Compensatory mitigation plans shall be consistent with the Guidance on Wetland Mitigation in Washington State – Part 2: Guidelines for Developing Wetland Mitigation Plans and Proposals, April 2004 (Washington State Department of Ecology, U.S. Army Corps of Engineers Seattle District, and U.S. Environmental Protection Agency Region 10; Ecology Publication #04-06-013b), or as revised.

(2) Mitigation shall be required in the following order of preference:

(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.

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

(f) Monitoring the required compensation and taking remedial or corrective measures when necessary.

(3) 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 as determined by a site-specific function assessment, 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 of wetland type or functions will best meet watershed goals formally identified by the city, such as replacement of historically diminished wetland types.

(4) Preference of Mitigation Actions. Methods to achieve compensation for wetland functions shall be approached in the following order of preference:

(a) Restoration (re-establishment and rehabilitation) of wetlands.

(b) Creation (establishment) of wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative introduced species. This should only be attempted when there is an adequate source of water and it can be shown that the surface and subsurface hydrologic regime is conducive for the wetland community that is anticipated in the design.

(c) Enhancement of significantly degraded wetlands in combination with restoration or creation. Such enhancement should be part of a mitigation package that includes replacing the impacted area and meeting appropriate ratio requirements.

(5) Type and Location of Compensatory Mitigation. Unless it is demonstrated that a higher level of ecological functioning would result from an alternate approach, compensatory mitigation for ecological functions shall be either in-kind and on-site, or in-kind and within the same stream reach, sub-basin, or drift cell (if estuarine wetlands are impacted). Compensatory mitigation actions shall be conducted within the same sub-drainage basin and on the site of the alteration except when all of the following apply:

(a) There are no reasonable on-site or in sub-drainage basin opportunities (e.g., on-site options would require elimination of high-functioning upland habitat), or on-site and in sub-drainage basin opportunities do not have a high likelihood of success based on a determination of the capacity of the site to compensate for the impacts.

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

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

(ii) Credits from a state-certified wetland mitigation bank are used as compensation and the use of credits is consistent with the terms of the bank’s certification.

(d) The design for the compensatory mitigation project needs to be appropriate for its location (i.e., position in the landscape).

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

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

(7) Mitigation Ratios.

(a) When an applicant proposes to alter or eliminate a regulated wetland, the functions and values of the affected wetland and buffer shall be replaced through wetland creation, re-establishment, rehabilitation, or enhancement, according to the minimum ratios established in the table in this section. The ratios shall apply to wetland creation, re-establishment, rehabilitation, or enhancement, which is in-kind, on-site, of the same category, timed prior to or concurrent with alteration, and has a high probability of success.

(b) Ratios for out-of-kind or off-site mitigation may be greater than set forth in the table, if the planning director determines that additional mitigation is warranted to mitigate impacts. Ratios for remedial actions resulting from unauthorized alterations shall be greater than set forth in the table; provided, that the extent of the increase shall be as determined by the planning director to be appropriate in the circumstances.

(c) Replacement ratios may be decreased by up to 25 percent by the planning director, if the applicant demonstrates to the satisfaction of the planning director that all of the following criteria are met:

(i) Documentation by a qualified professional demonstrates that the proposed mitigation actions have a very high likelihood of success;

(ii) Documentation by a qualified professional demonstrates that the proposed mitigation actions will provide functions and values that are significantly greater than the wetland being altered;

(iii) The proposed mitigation actions are conducted in advance of the impact and shown to be successful through post-construction monitoring and function assessment.

(d) The mitigation ratios in the following table are required for all projects with unavoidable impacts to wetlands:


Affected Wetland	Mitigation Type and Ratio
Category	Re-establishment or Wetland Creation	Rehabilitation	Re-establishment or Creation (R/C) and Enhancement (E)	Enhancement Only
Category IV	1.5:1	3:1	1:1 R/C and 2:1 E	6:1
Category III	2:1	4:1	1:1 R/C and 2:1 E	8:1
Category II	3:1	6:1	1:1 R/C and 4:1 E	12:1
Category I – Forested	6:1	12:1	1:1 R/C and 10:1 E	24:1
Category I – Score-Based	4:1	8:1	1:1 R/C and 10:1 E	16:1
Category I – Bog	Not possible	6:1	Case by Case	Case by Case

(8) Preservation. Impacts to wetlands may be mitigated by preservation of wetland areas when used in combination with other forms of mitigation such as creation, restoration, or enhancement.

(a) Acceptable Uses of Preservation. The preservation of at-risk, high quality wetlands and habitat may be considered as part of an acceptable mitigation plan when the following criteria are met:

(i) Preservation is used as a form of compensation only after the standard sequencing of mitigation (avoid, minimize, and then compensate);

(ii) Restoration (re-establishment and rehabilitation), creation, and enhancement opportunities have also been considered, and preservation is proposed by the applicant and approved by the permitting agencies as the best compensation option;

(iii) The preservation site is determined to be under imminent threat; that is, the site has the potential to experience a high rate of undesirable ecological change due to on-site or off-site activities that are not regulated. This potential includes permitted, planned, or likely actions;

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

(A) Category I or II wetland rating (using the Washington State wetland rating system for Western Washington);

(B) Rare or irreplaceable wetland type (e.g., bogs, mature forested wetlands, estuaries) or aquatic habitat that is rare or a limited resource in the area;

(D) Provides biological and/or hydrological connectivity;

(E) High regional or watershed importance (e.g., listed as priority site in a watershed or basin plan);

(F) Large size with high species diversity (plants and/or animals) and/or high abundance of native species;

(G) A site that is continuous with the head of a watershed, or with a lake or pond in an upper watershed that significantly improves outflow hydrology and water quality.

(b) Preservation in Combination with Other Forms of Compensation. Using preservation as compensation is acceptable when done in combination with restoration, creation, or enhancement; provided, that a minimum of one-to-one acreage replacement is provided by re-establishment or creation and the criteria below are met:

(i) All criteria listed in subsection (8)(a) of this section are met;

(ii) The impact area is small and/or impacts are occurring to a low-functioning system (Category III or IV wetland);

(iii) Preservation of a high quality system occurs in the same watershed or basin as the wetland impact;

(iv) Preservation sites include buffer areas adequate to protect the habitat and its functions from encroachment and degradation; and

(v) Mitigation ratios for preservation in combination with other forms of mitigation shall range from 10 to one to 20 to one, as determined on a case-by-case basis, depending on the quality of the wetlands being impacted and the quality of the wetlands being preserved.

(c) Preservation as the Sole Means of Compensation for Wetland Impacts. Preservation alone shall only be used as compensatory mitigation in exceptional circumstances. Preservation alone shall not apply if impacts are occurring to functions that must be replaced on-site, such as flood storage or water quality treatment that needs to be replicated by water quality measures implemented within the project limits. Preservation of at-risk, high quality wetlands and habitat (as defined above) may be considered as the sole means of compensation for wetland impacts when the following criteria are met:

(i) All criteria listed in subsections (8)(a) and (b) of this section are met;

(ii) There are no adverse impacts to habitat for fish and species listed as endangered and threatened;

(iii) There is no net loss of habitat functions within the watershed or basin;

(iv) Higher mitigation ratios are applied. Mitigation ratios for preservation as the sole means of mitigation shall generally start at 20 to one. Specific ratios should depend upon the significance of the preservation project and the quality of the wetland resources lost.

(9) Wetland Mitigation Banks.

(a) Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:

(i) The bank is certified under Chapter 173-700 WAC;

(ii) The planning director determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

(iii) The proposed use of credits is consistent with the terms and conditions of the bank’s certification.

(b) Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the bank’s certification.

(c) Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the bank’s certification. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions. (Ord. 550 § 12, 2007)

14.15.180 Limited density transfer.

(1) For development proposal on lands containing wetland buffers, the planning director shall determine allowable dwelling units for residential development proposals based on the formula below.

(2) The following formula for density calculations is designed to provide incentives for the preservation of wetlands and wetland buffers, flexibility in design, and consistent treatment of different types of development proposals. The formula shall apply to all properties within existing residential zones on which wetlands and wetland buffers are located.

The maximum number of dwelling units (du) for a lot or parcel which contains wetlands and wetland buffers shall be equal to: (acres in wetland buffer) (du/acre) (density credit).

(3) The density credit figure is derived from the following table:


Percentage of Site in Buffers	Density Credit
1 – 10%	100%
11 – 20%	90%
21 – 30%	80%
31 – 40%	70%
41 – 50%	60%
51 – 60%	50%
61 – 70%	40%
71 – 80%	30%
81 – 90%	20%
91 – 99%	10%

(4) The density credit can only be transferred within the development proposal site. To the extent that application of the formula may result in lot sizes less than the minimum allowed by the underlying district, they are hereby authorized; provided, that the resultant lot is of sufficient size for an on-site waste disposal system if no sanitary sewer system exists.

(5) The planning director shall not allow credit for density for the portions of the site occupied by wetlands. (Ord. 341 § 7.4, 1992)

14.15.190 Acting on the application.

(1) Bonding.

(a) Performance Bonds. The planning director shall require, if necessary, the application of a development proposal to post a cash performance bond or other security acceptable to the planning director in an amount and with surety and conditions sufficient to secure compliance with conditions and limitations set forth in the permit. The amount and the conditions of the bond shall be consistent with the purposes of the chapter. In the event of a breach of any condition of any such bond, the planning director may institute an action in a court of competent jurisdiction upon such bond and prosecute the same to judgment and execution. The planning director shall release the bond upon determining that:

(i) All activities have been completed in compliance with the terms and conditions of the permit and the requirements of this chapter;

(ii) Upon the posting by the applicant of a maintenance bond.

Until such written release of the bond, the principal or surety cannot be terminated or canceled.

(b) Maintenance Bonds. The planning director shall, if necessary, require the holder of a development permit issued pursuant to this chapter to post a cash performance bond or other security acceptable to the planning director in an amount and with surety and conditions sufficient to guarantee that structures, improvement, and mitigation required by the permit or by this chapter perform satisfactorily for a minimum of two years after they have been completed. The planning director shall release the maintenance bond upon determining that performance standards established for evaluating the effectiveness and success of the structures, improvements, and/or compensatory mitigation have been satisfactorily met for the required period. For compensation projects, the performance standards shall be those contained in the mitigation plan developed and approved during the permit review process, pursuant to FMC 14.15.120 and 14.15.175. The maintenance bond applicable to a compensation project shall not be released until the planning director determines that performance standards established for evaluating the effect and success of the project have been met.

(2) Suspension – Revocation. In addition to other penalties provided for elsewhere, the planning director may suspend or revoke a permit if he finds that the applicant or permittee has not complied with any or all of the conditions or limitations set forth in the permit, has exceeded the scope of work set forth in the permit, or has failed to undertake the project in the manner set forth in the approved application.

(3) Publication of Notice. The planning director shall cause notice of his issuance, conditional issuance, revocation, or suspension of a permit to be published in a daily newspaper having a broad circulation in the area wherein the wetland lies. Such notice shall be published within five working days of the decision or order and shall include at least the following:

(a) A brief description of the project, including location;

(b) The decision or order of the planning director with respect to the project;

(c) Notification that the permit file is open for public inspection during regular business hours, and the address where such file may be inspected; and

(d) A statement of the procedures regarding appeal or judicial review of the decision, if applicable. (Ord. 341 § 7.5, 1992)

14.15.200 Appeals.

Any decision of the planning director in the administration of this chapter may be appealed to-the city council. (Ord. 341 § 7.6, 1992)

14.15.210 Modification of wetland permits.

A wetland permit holder may request and the planning director may approve modification of a previously issued wetland permit. (Ord. 341 § 7.7, 1992)

14.15.220 Resubmittal of denied permit applications.

A wetland permit application which has been denied may be modified and resubmitted. (Ord. 341 § 7.8, 1992)

Article VIII. Enforcement – Appeals

14.15.230 Temporary emergency permit.

(1) Notwithstanding the provisions of this chapter or any other laws to the contrary, the planning director may issue a temporary emergency wetlands permit if:

(a) The planning director determines that an unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted; and

(b) The anticipated threat or loss may occur before a permit can be issued or modified under the procedures otherwise required by this act and other applicable laws.

(2) Any emergency permit granted shall incorporate, to the greatest extent practicable and feasible but not inconsistent with the emergency situation, the standards and criteria required for nonemergency activities under this act and shall:

(a) Be limited in duration to the time required to complete the authorized emergency activity, not to exceed 90 days; and

(b) Require within this 90-day period, the restoration of any wetland altered as a result of the emergency activity, except that if more than the 90 days from the issuance of the emergency permit is required to complete restoration, the emergency permit may be extended to complete this restoration.

(3) Issuance of an emergency permit by the planning director does not preclude the necessity to obtain necessary approvals from appropriate federal and state authorities.

(4) Notice of the issuance of the emergency permit and request for public comments shall be published at least once a week on the same day of the week for two consecutive weeks in a newspaper having a general circulation in the city of Forks, no later than 10 days after issuance of the emergency permit.

(5) The emergency permit may be terminated at any time without process upon a determination by the planning director that the action was not or is no longer necessary to protect human health or the environment. (Ord. 341 § 8.1, 1992)

14.15.240 Enforcement.

The planning director shall have authority to enforce this chapter, any rule or regulation adopted, and any permit or order issued pursuant to this chapter against any violation or threatened violation thereof. The planning director is authorized to issue violation notices and administrative orders, levy fines, and/or institute legal actions in court. Recourse to any single remedy shall not preclude recourse to any of the other remedies. Each violation of this chapter, or any rule or regulation adopted, or any permit, permit condition, or order issued pursuant to this chapter, shall be a separate offense, and, in the case of a continuing violation, each day’s continuance shall be deemed to be a separate and distinct offense. All costs, fees, and expenses in connection with enforcement actions may be recovered as damages against the violator. Enforcement actions shall include:

(1) Civil Penalties, Administrative Orders and Actions for Damages and Restoration.

(a) The planning director may bring appropriate actions at law or equity, including actions for injunctive relief, to ensure that no uses are made of a regulated wetland or their buffers which are inconsistent with this chapter or an applicable wetlands protection program.

(b) The planning director may serve upon a person a cease and desist order if an activity being undertaken on regulated wetlands or its buffer is in violation of the act, these rules, or a local wetlands protection program. Whenever any person violates this chapter or any permit issued to implement this chapter, the city of Forks may issue an order reasonably appropriate to cease such violation and to mitigate any environmental damage resulting therefrom.

(i) Content of Order. The order shall set forth and contain:

(A) A description of the specific nature, extent, and time of violation and the damage or potential damage.

(B) A notice that the violation or the potential violation cease and desist or, in appropriate cases, the specific correction action to be taken within a given time. A civil penalty may be issued with the order.

(C) Effective Date. The cease and desist order issued under this section shall become effective immediately upon receipt by the person to whom the order is directed.

(D) Compliance. Failure to comply with the terms of a cease and desist order can result in enforcement actions including, but not limited to, the issuance of a civil penalty.

(c) Any person who undertakes any activity within a regulated wetland or its buffer without first obtaining a permit required by this chapter, except as allowed in FMC 14.15.090, or any person who violates one or more conditions of any permit required by this chapter or of any order issued pursuant to subsection (1)(b) of this section, shall incur a penalty allowed per violation. In the case of a continuing violation, each permit violation and each day of activity without a required permit shall be a separate and distinct violation. The penalty amount shall be set in consideration of the previous history of the violator and the severity of the environmental impact of the violation. The penalty provided in this subsection shall be appealable to the superior court with the subject jurisdiction.

(d) Aiding or Abetting. Any person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have committed a violation for the purposes of the penalty.

(e) Notice of Penalty. Civil penalties imposed under this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the Department of Ecology and/or the city of Forks, or from both jointly. The notice shall describe the violation, approximate the date(s) of violation, and shall order the acts constituting the violation to cease and desist, or, in appropriate cases, require necessary correction action within a specified time.

(f) Application for Remission or Mitigation. Any person incurring a penalty may apply in writing within 30 days of receipt of the penalty to the planning director for remission or mitigation of such penalty. Upon receipt of the application, the planning director may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty.

(g) Orders and penalties issued pursuant to this subsection may be appealable as provided for in FMC 14.15.200.

(h) Criminal penalties shall be imposed on any person who wilfully or negligently violates this chapter or who knowingly makes a false statement, representation, or certification in any application, record or other document filed or required to be maintained under this chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device, record or methodology required to be maintained pursuant to this chapter or pursuant to a wetland permit.

(2) Restoration or Mitigation Required. When a wetland or its buffer has been altered in violation of this title, all ongoing development work shall stop and the critical area shall be restored, or mitigation shall be required. The planning director shall have the authority to issue a "stop-work" order to cease all ongoing development work and order restoration, rehabilitation, mitigation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this title.

(a) Requirement for Restoration Plan. All development work shall remain stopped until a restoration or mitigation plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional using the currently accepted scientific principles and shall describe how the actions proposed meet the minimum requirements described in subsection (3) of this section. The planning director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

(b) Minimum Performance Standards for Restoration. The following minimum performance standards shall be met for the restoration of a wetland; provided, that if the violator can demonstrate that greater functions and habitat values can be obtained, these standards may be modified:

(i) The historic structure, functions, and values of the affected wetland shall be restored, including water quality and habitat functions;

(ii) The historic soil types and configuration shall be replicated;

(iii) The wetland and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

(iv) Information demonstrating compliance with other applicable provisions of this title shall be submitted to the planning director.

(c) Site Investigations. The planning director is authorized to make site inspections and take such actions as are necessary to enforce this title. The planning director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

(3) The planning director may request as part of a civil order, or may enter into a settlement agreement to resolve an alleged violation of this chapter, of a party to have found to have violated, or alleged to have violated this chapter, a restoration or mitigation plan meeting the requirements of this section. Any such plan shall be subject to expert review at the party’s expense. (Ord. 550 § 13, 2007; Ord. 341 § 8.2, 1992)

14.15.250 Nonconforming activities.

A regulated activity which was approved prior to the passage of this chapter and to which significant economic resources have been committed pursuant to such approval, but which is not in conformity with the provisions of this chapter, may be continued subject to the following:

(1) No such activity shall be expanded, changed, enlarged, or altered in any way that increases the extent of its nonconformity without a permit issued pursuant to the provisions of this chapter;

(2) Except for cases of discontinuance as part of normal agricultural practices, if a nonconforming activity is discontinued for 12 consecutive months, any resumption of the activity shall conform to this chapter. (Ord. 341 § 9, 1992)

14.15.260 Judicial review.

(1) Any decision or order issued by the planning director pursuant to this chapter, including decisions concerning denial, approval, or conditional approval of a wetland permit, may be judicially reviewed in the Clallam County superior court, provided that:

(a) Available administrative remedies, including appeals available pursuant to FMC 14.15.200, have been exhausted; and

(b) Such review is commenced by the filing with the court and the planning director of a legal action within 30 working days after service of such order or issuance of notice of such decision, as the case may be.

(2) Based on these proceedings and the decision of the court, the planning director may, within the time specified by the court, elect to:

(a) Institute negotiated purchase or condemnation proceedings to acquire an easement or fee interest in the applicant’s land;

(b) Approve the permit application with lesser restrictions or conditions; or

(c) Other appropriate actions ordered by the court that fall within the jurisdiction of the planning director. (Ord. 341 § 10, 1992)

14.15.270 Assessment relief.

The assessor of Clallam County shall consider wetland regulations in determining the fair market value of land. Any owner of an undeveloped wetland who has dedicated an easement or entered into a perpetual conservation restriction with the city of Forks or a nonprofit organization to permanently control some or all regulated activities in the wetland shall have that portion of land assessed consistent with these restrictions. Such landowner shall also be exempted from special assessments on the controlled wetland to defray the costs of municipal improvements such as sanitary sewers, storm sewers and water mains. (Ord. 341 § 13, 1992)

Chapter 14.15 WETLANDS

14.15.010 Findings of fact.