Chapter 18.55 CRITICAL AREAS

A. The purpose of this chapter is to designate and classify ecologically critical and geologic and flood hazard areas in order to protect ecologically critical areas and protect lives and property from hazards, while also allowing for reasonable use of public or private property.

B. The City finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the City and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, groundwater recharge and discharge, erosion control, protection from hazards, historical and archaeological and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

C. By limiting alteration of critical areas, this chapter seeks to:

1. Strive to protect lives and public and private property from flooding;

2. Strive to protect slopes from erosion and sliding;

3. Minimize the potential for damage due to liquefaction and seismic hazards;

4. Protect wetlands from encroachment and degradation and encourage wetland restoration;

5. Protect streams from encroachment and degradation and encourage stream restoration;

6. Maintain and promote a diversity of species and habitat within the City; and

7. Address critical aquifer recharge areas and protect groundwater.

D. The regulations of this chapter are intended to protect critical areas in accordance with the GMA and through the application of best available science.

E. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property.

F. The City’s enactment and enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.020 Authority.

A. As provided herein, the city manager is given the authority to interpret, apply, and enforce this chapter to accomplish the stated purpose.

B. The City may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter.

C. In the event that multiple critical areas occur on a site, it is the authority of the city manager to balance the protection of the multiple critical areas and provide appropriate mitigation. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.030 Relationship to other regulations.

A. These critical areas regulations shall be in addition to zoning and other regulations adopted by the City. Compliance with other regulations does not exempt the applicant from critical areas regulations.

B. The critical area regulations shall apply to all critical areas located within the jurisdiction of the Kenmore Shoreline Master Program (KMC Title 16).

C. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA) (Chapter 19.35 KMC).

D. Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

E. Compliance with the provisions of this chapter does not constitute compliance with other federal, State, and local regulations and permit requirements that may be required (for example, shoreline substantial development or conditional use permits, shoreline variances, the Washington State Department of Fish and Wildlife hydraulic project approval (HPA), U.S. Army Corps of Engineers Section 404 permits, and National Pollutant Discharge Elimination System (NPDES) permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 7; Ord. 11-0329 § 3 (Exh. 1).]

18.55.040 Administrative procedures.

The administrative procedures followed during the critical area review process shall conform to the standards and requirements of the City development regulations, except that, where critical areas are located within the jurisdiction of the Kenmore Shoreline Master Program, administrative procedures shall conform to the standards and requirements of Chapter 16.75 KMC. This shall include, but not be limited to, timing, permits, variances, exemptions, exceptions, appeals, and fees associated with applications covered by this chapter. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 8; Ord. 11-0329 § 3 (Exh. 1).]

18.55.050 Fees.

The City by resolution shall establish fees for critical area review processing and other services provided by the City as required by this chapter. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.070 Administrative rules.

Applicable departments within the City are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.080 Interpretation.

In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under State statute. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.090 Jurisdiction – Critical areas.

A. The City shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with best available science and the provisions herein.

B. Critical areas regulated by this chapter include:

1. Wetlands as designated in KMC 18.55.300, Designation and rating of wetlands;

2. Streams and lakes as designated in KMC 18.55.400, Designation and rating of streams and lakes;

3. Fish and wildlife habitats of importance as designated in KMC 18.55.500, Designation of fish and wildlife habitats of importance;

4. Geologically hazardous areas as designated in KMC 18.55.610, Designation of geologically hazardous areas;

5. Frequently flooded areas as designated in KMC 18.55.707, Lands to which this article applies; and

6. Critical aquifer recharge areas and groundwater as designated in KMC 18.55.800, Designation of groundwater susceptibility and critical aquifer recharge areas.

C. All areas within the City meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

D. Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this chapter and ensure protection of the functions and values of critical areas. “Adjacent” shall mean any activity located:

1. On a site immediately adjoining a critical area;

2. A distance equal to or less than the required critical area buffer width and building setback;

3. A distance equal to or less than 660 feet from a bald eagle nest;

4. A distance equal to or less than 656 feet from the closest nest of a great blue heron rookery; or

5. Within the floodway, floodplain or channel migration zone. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.100 Protection of critical areas.

Any action taken pursuant to this chapter shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with mitigation sequencing (KMC 18.55.210) to avoid, minimize, restore, and compensate for adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions and values of critical areas. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article II. Best Available Science

18.55.110 Best available science.

A. Protection for Functions and Values. Critical areas reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas. The best available science is 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. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article III. Applicability, Exemptions, and Exceptions

18.55.120 Applicability.

A. The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the City whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the City. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

B. The City shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first assuring compliance with the requirements of this chapter. For development on lands regulated under the Kenmore Shoreline Master Program, compliance with this chapter includes compliance with the requirements of the Shoreline Master Program as well as with the requirements of this chapter.

C. Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 9; Ord. 11-0329 § 3 (Exh. 1).]

18.55.130 Mapping.

A. The approximate location and extent of critical areas are shown on the City’s critical area maps. These maps are to be used as a guide and may be updated as new critical areas are identified. They are a reference and do not provide a final critical area designation. The exact location of a critical area and its boundary shall be determined on site through a field investigation by a qualified professional.

B. The following is a list of some map sources that identify potential critical areas located in the City:

1. Wetlands and Streams.

a. City stream and wetland inventory;

b. Washington State Department of Fish and Wildlife Priority Habitats and Species online mapping system;

c. Washington State Department of Fish and Wildlife SalmonScape online mapping system; and

d. Washington State Department of Natural Resources water type maps.

2. Fish and Wildlife Habitats of Importance.

a. Washington State Department of Fish and Wildlife Priority Habitats and Species online mapping system;

b. Washington State Department of Natural Resources water type maps;

c. Washington State Department of Fish and Wildlife SalmonScape online mapping system;

d. Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors Reports published by the Washington State Conservation Commission; and

e. Washington State Department of Natural Resources State natural area preserves and natural resource conservation area maps.

3. Geologically Hazardous Areas.

a. City geologically hazardous areas inventory;

b. King County’s Landslide Hazards Along King County River Corridors interactive, web-based map folio;

c. Washington State Department of Natural Resources Geologic Information Portal;

d. Washington State Department of Natural Resources liquefaction susceptibility map for King County; and

e. Washington State Department of Natural Resources slope stability maps.

4. Flood Hazard Areas.

a. City stream and wetland inventory; and

b. Federal Emergency Management Administration flood insurance rate maps and studies.

5. Critical Aquifer Recharge Areas and Groundwater.

a. City map of aquifer susceptibility. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.140 Signs and fencing of critical areas.

A. Signs.

1. Temporary Markers. The outer perimeter of the critical area 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 verified by the city manager 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 city manager may require that the applicant install permanent signs along the boundary of a critical area 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 every 50 feet. If the length of the lot is 50 feet or less, one sign per lot is required. The sign must be maintained by the property owner in perpetuity. Signs must be placed in a visible location and remain visible throughout any future site development. The signs shall include the City’s logo and shall be worded as follows or with alternative language approved by the city manager based on specifications available from the City:

Environmentally Critical Area

Do Not Disturb

Contact the City of Kenmore

425-398-8900

Regarding Uses and Restriction

B. Fencing.

1. The city manager 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 buffer associated with a stream, lake, wetland, or fish and wildlife habitat of importance, when fencing will prevent future impacts to ecological function. When the buffer is in a legally altered state, and is permitted to remain in that condition, the fencing may be placed at the upland edge of any properly functioning portion of the buffer. The city manager may also waive the requirement for a fence if the applicant can demonstrate that a fence would interfere with current legal public access or use.

2. A required permanent fence may be:

a. Untreated wood, split-rail; or

b. Dense vegetation using native material appropriate for the ecoregion. Vegetation shall be maintained at a minimum height of three feet, with thorny species incorporated to deter intrusion.

3. Fencing installed shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts.

4. Fencing is not required for single-family residential lots where subdivision is not proposed.

C. Maintenance. To ensure long-term maintenance of signs and fencing, the owner of the property shall file a maintenance agreement as directed by the City. This agreement shall be recorded and run with the land. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.150 Exemptions.

Exempt activities shall avoid impacts to critical areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense to prior condition or better.

A. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, State, and federal laws and requirements:

1. Activities, including routine maintenance, involving artificial drainage features intentionally created from nonwetland sites, including but not limited to grass-lined swales, irrigation and drainage ditches, detention facilities, and landscape features;

2. Normal and routine maintenance, operation and reconstruction of existing roads, streets, utilities and associated rights-of-way and structures; provided, that reconstruction of any structures may not increase the impervious surface area or remove flood storage capacity;

3. Normal maintenance and repair, and reconstruction or remodeling of residential or commercial structures, or legal preexisting and ongoing uses of the site; provided, that reconstruction of any structures may not increase the previously approved building footprint;

4. Site investigative work and studies necessary for preparing site development or modification plans, including soils tests, water quality studies, wildlife studies and similar tests and investigations, where such activities do not require construction of new roads or significant amounts of excavation; and provided, that any disturbance of the critical area shall be the minimum necessary to carry out the work or studies and disturbed areas shall be immediately restored;

5. Educational activities, scientific research, and passive outdoor recreational activities, including but not limited to interpretive field trips and birdwatching, that will not have a significant adverse effect on the critical area;

6. Emergency activities necessary to prevent an immediate threat to public health, safety, property or welfare; provided, that the critical areas shall be restored, rehabilitated, or replaced at the responsible party’s expense to prior condition or better within one year of the activity. The restoration, rehabilitation, and/or replacement of the critical area is limited to that area impacted by the prevention effort; this section does not require the responsible party to restore, rehabilitate or replace critical areas damaged by natural disaster;

7. Minor activities not mentioned above and determined by the city manager to have minimal impacts to a critical area; and

8. Existing and ongoing agricultural activities, including farm pond maintenance; provided, that they implement applicable best management practices (BMPs) and minimize their effects on water quality, riparian ecology, salmonid populations, and wildlife habitat.

B. Operation, Maintenance or Repair. Operation, maintenance or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair.

C. Modification to Existing Structures.

1. Structural modification of, addition to, or replacement of single detached residences in existence before November 27, 1990, which do not meet the building setback or buffer requirements for wetlands, streams or landslide hazard areas if the modification, addition, replacement or related activity does not increase the existing footprint of the residence lying within the above-described buffer or building setback area by more than 500 square feet over that existing before November 27, 1990. No portion of the modification, addition or replacement may be located closer than the closest point of the residence to the critical area or, if the existing residence is in the critical area, no portion may extend farther into the critical area.

2. Structural modification of, addition to, or replacement of structures, except single detached residences in existence before November 27, 1990, which do not meet the building setback or buffer requirements for wetlands, streams or landslide hazard areas if modification, addition, replacement or related activity does not increase the existing footprint of the structure lying within the above-described building setback area, critical area or buffer.

D. Activities within the Improved Right-of-Way. Repair, replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a City-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater. Improved rights-of-way are those that are maintained out of necessity as a cleared, graded, paved, mowed or otherwise altered surface to allow for access, maintenance, or safety.

E. Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the city manager:

1. The removal of vegetation listed in King County’s noxious weed list.

2. The removal of trees that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property from critical areas and buffers; provided, that the city manager determines that the disturbance to the critical area is minimal. Topping or limbing the tree to eliminate the hazard should be considered before removal. When removal is necessary, place the hazard tree in the critical area or buffer to provide habitat as downed wood unless doing so would pose a safety risk or increase a geologic hazard. Replacement trees at a 3:1 ratio are required.

3. Measures to control a 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 in kind or with similar native species within one year in accordance with an approved restoration plan. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.160 Exception – Public agency or utility.

A. If strict application of this chapter would prohibit the following:

1. Expansion of an existing facility operated by a public agency that is site-specific and nonlinear, including, but not limited to, a school facility, a fire or police facility, a governmental office, a recreational facility, a park, or a stormwater retention/detention facility; or

2. Expansion or extension of a linear public transportation facility, such as a street, highway or sidewalk; or

3. Expansion or extension of a utility;

then the public agency or utility may apply for relief from strict application of this chapter through an exception pursuant to this section, unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC.

B. Adjustment of critical area standards for new site-specific and nonlinear facilities to be operated by a public agency, such as schools, fire or police facilities, governmental offices, recreational facilities, parks or stormwater retention/detention facilities, shall be considered through the variance process (KMC 18.55.170) if adjustments to buffers or building setbacks are required, or as a reasonable use exception if direct impacts to the critical area are proposed (KMC 18.55.180).

C. Exception Request and Review Process. An application for a public agency or utility exception shall be made to the City and shall include a critical areas report, including mitigation plan, if necessary, and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (SEPA).

D. City Manager Review. The city manager shall review the application as a Type 2 land use decision under KMC 19.25.020. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s demonstrated ability to comply with all of the public agency and utility exception criteria in subsection E of this section.

E. Public Agency or Utility Exception Review Criteria. The criteria for review and approval of a public agency or utility exception are as follows:

1. There is no other feasible location for the proposed development with less adverse impact on the critical area or buffer;

2. There is no other practical alternative to the proposed development with less impact on the critical area or buffer. Practical alternatives include but are not limited to:

a. Location outside of the critical area and its buffer;

b. Pursuit and exhaustion of other administrative code modifications or exceptions including but not limited to: front yard setback modifications in KMC 18.30.190; modifications of minimum parking standards in Chapter 18.40 KMC; and allowances for nonconforming uses in Chapter 18.100 KMC;

3. The application of this chapter would unreasonably restrict the ability to provide public agency or utility services to the public;

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

5. The development proposal protects and mitigates impacts to the critical area functions and values consistent with best available science;

6. The development proposal achieves no net loss of critical area functions and values;

7. Mitigation sequencing through KMC 18.55.210 has been demonstrated in the critical areas report, along with a demonstration of how the public agency or utility will provide mitigation using a watershed approach;

8. Development activities involve the least intrusion into and disruption of the critical area necessary while fulfilling a public purpose and need;

9. The proposal is consistent with a public agency or utility system plan, capital facilities plan, master plan, program, or policy that has been the subject of a public review process; and

10. The proposal is consistent with the general purpose and intent of the City’s comprehensive plan and adopted development regulations.

F. Approval Conditions. Conditions for approval of a public agency or utility exception shall include, at a minimum:

1. Conformance with the development standards and mitigation plans identified in the approved critical areas report; and

2. Appropriate best management practices, as described in this chapter and in other science-based documents, including but not limited to the Washington State Department of Commerce Critical Areas Guidebook, as amended, sources of science by State agencies with expertise, and standard conditions of approval published by federal agencies. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 10; Ord. 11-0329 § 3 (Exh. 1).]

18.55.170 Variances – Buffer widths and building setbacks.

A. Variances from the buffer width and building setback standards of this chapter may be authorized by the City in accordance with the procedures set forth in the City’s zoning code, unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC.

B. No variance is allowed in order to create additional lots.

C. The City may grant a variance; provided, that the applicant demonstrates that all of the following criteria are met:

1. Special Circumstances.

a. Private Development Proposals: There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location or surroundings that do not apply generally to other properties and which support the granting of a variance from the buffer width or building setback requirements;

b. New Public Agency Development Proposals: There is no other practical alternative that allows the public agency to meet its public service obligations pursuant to applicable laws, rules, or adopted plans. Practical alternatives include but are not limited to:

(1) Location out of the critical area buffer;

(2) Pursuit and exhaustion of other code modifications or exceptions;

2. Necessary for Rights or Use.

a. Private Development Proposals: Such variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question;

b. New Public Agency Development Proposals: Such variance is necessary for a public agency proposal to fulfill a duty to serve per federal, State, or local laws; or to provide an essential public facility; or to address a public need or demand for service consistent with an adopted capital facilities plan, system plan, or other master plan that has been subject to a public review process which commonly includes an evaluation of alternative sites;

3. The granting of such buffer width or building setback variance will not be materially detrimental to the public welfare or injurious to the property or improvement;

4. The granting of the buffer width or building setback variance will not significantly impact the subject critical area;

5. The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

6. The granting of the variance is consistent with the general purpose and intent of the City’s comprehensive plan and adopted development regulations.

D. Conditions May Be Required. In granting any variance, the City may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts and to ensure conformity with this chapter.

E. City Manager Review. The city manager shall review the application. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the variance criteria in this section.

F. Time Limit.

1. Establishment of any development activity authorized pursuant to a variance shall occur within four years of the effective date of the decision for such variance. This period may be extended for one additional year by the city manager if the applicant has submitted the applications necessary to authorize the development activity and has provided written justification for the extension.

2. For the purpose of this subsection, “establishment” shall occur upon the issuance of all local permit(s) needed to begin the development activity; provided, that the improvements authorized by such permits are completed within the time frames of said permits.

G. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 11; Ord. 11-0329 § 3 (Exh. 1).]

18.55.180 Exception – Reasonable use.

A. If the application of this chapter pertaining to critical areas will prevent the applicant from making any reasonable use of the subject property, the applicant may apply for an exception pursuant to this section unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC. An application for a reasonable use exception must accompany a development permit application through the City’s review and decision process.

1. Criteria for Granting. The city manager shall grant a reasonable use allowance only when all of the following criteria are met:

a. Reasonable Use.

(1) Private Proposals: The applicant demonstrates that the application of this chapter will deny all reasonable use of the subject property otherwise allowed by applicable law;

(2) New Public Agency Development Proposals: The applicant demonstrates that the application of this chapter would interfere with a public agency proposal to fulfill a duty to serve per federal, State, or local laws; or to provide an essential public facility; or to address a public need or demand for service consistent with an adopted capital facilities plan, system plan, or other master plan that has been subject to an alternative site evaluation and public review process;

b. The development activities involve the least intrusion into and disruption of the critical area necessary to allow a reasonable use of the subject property by a private applicant or to achieve a public agency responsibility consistent with adopted laws, rules, and plans per subsection (A)(1)(a) of this section;

c. The development activities will not cause or result in damage to properties other than the subject property and will not endanger the public health, safety or welfare;

d. The applicant’s inability to make reasonable use of the subject property has not resulted from any of the following:

(1) Prior subdivision or segregation of the subject property, or changes to the boundaries of the subject property through a boundary line adjustment or otherwise; or

(2) Prior actions taken in violation of this chapter or any local, State, or federal law or regulation;

e. No other reasonable use of the property has less impact on the critical area;

f. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor; and

g. Mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter.

2. Appeals. The applicant may appeal a decision of the city manager on a reasonable use allowance application to the hearing examiner pursuant to the provisions of the Kenmore Municipal Code.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the City and shall include a critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 19.35 KMC).

C. City Manager Review. The city manager shall review the application. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the criteria in subsection A of this section.

D. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

E. Time Limit.

1. Establishment of any development activity authorized pursuant to a reasonable use exception shall occur within four years of the effective date of the decision for such reasonable use exception. This period may be extended for one additional year by the city manager if the applicant has submitted the applications necessary to authorize the development activity and has provided written justification for the extension.

Article IV. Critical Areas Report

18.55.190 Critical areas reports – Requirements.

A. Prepared by Qualified Professional. The applicant shall submit a critical areas report prepared by a qualified professional as defined herein.

B. Incorporating Best Available Science. The critical areas report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

C. Critical Areas Report Contents. Requirements for critical areas reports are available from the city manager. In addition, the applicant shall provide any additional known information pertain-ing to the critical area(s) on the subject property and adjacent properties. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.200 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of critical areas unless there is no practicable alternative. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved critical areas report and SEPA documents.

B. Mitigation shall be in kind and on site, when possible, and sufficient to maintain the functions and values of the critical area, or to prevent risk from a hazard posed by a critical area. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.210 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been made to identify and evaluate practicable alternatives with the intent to avoid and minimize impacts to critical areas while still achieving the overall project purposes. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for as outlined by WAC 197-11-768, in the following order of preference:

A. Avoiding the impact altogether by not taking a certain action or parts of actions;

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;

C. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

D. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

E. Compensating for the impact by replacing or providing substitute resources or environments; and/or

F. Monitoring the impact and the compensation projects and taking appropriate corrective measures.

Mitigation for individual actions may include a combination of the above measures. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 13; Ord. 11-0329 § 3 (Exh. 1).]

18.55.220 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the City a mitigation plan as part of the critical areas report. Mitigation plan requirements are available from the city manager.

Within 30 days of installation of the approved mitigation, the applicant shall submit an affidavit or as-built drawing signed by the qualified professional described in KMC 18.55.190 certifying that the mitigation has been installed consistent with the approved plan, unless the installed mitigation has been inspected and accepted by the department. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article V. Unauthorized Alterations and Enforcement

18.55.230 Unauthorized critical area alterations and enforcement.

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

B. Restoration Plan Required. All development work shall remain stopped and the site stabilized until a restoration plan is prepared and approved by the City. Such a plan shall be prepared by a qualified professional and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The city manager 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.

C. Minimum Performance Standards for Restoration. For alterations to wetlands, streams and lakes, geologically hazardous areas, fish and wildlife habitats of importance, and flood hazard areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

1. The historic structural and functional values shall be restored, including water quality and habitat functions;

2. The historic soil types and configuration shall be replicated;

3. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities; and

4. The historic functions and values should be replicated at the location of the alteration.

D. Site Investigations. The city manager is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The inspector shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Monitoring. Monitoring shall be required for five years unless otherwise determined by the city manager. A performance and/or maintenance bond of 125 percent of the estimated cost of restoring the functions and values of the critical area shall be posted to assure that all work or actions are satisfactorily completed and maintained in accordance with the approved plans, specifications, permit or approval requirements, and applicable regulations, and to ensure that all work or actions will be completed. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article VI. General Critical Area Protective Measures

18.55.250 Notice on title.

A. In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county records and elections division according to the direction of the City. The notice shall state the presence of the critical area or buffer on the property, of the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.

B. This notice on title shall not be required for a development proposal by a public agency or utility:

1. Within a recorded easement or right-of-way;

2. Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

3. On the site of a permanent public facility.

C. The applicant shall submit proof that the notice has been filed for public record before the City approves any development proposal for the property or, in the case of subdivisions, short subdivisions, and binding site plans, at or before recording. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.260 Critical area tracts.

A. Critical area tracts shall be used in development proposals for subdivisions, short subdivisions, site plan reviews, commercial and multifamily building permits, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below:

1. All wetlands and their buffers;

2. All streams, lakes and their buffers;

3. All fish and wildlife habitats of importance;

4. Geologically hazardous areas and buffers, if applicable; and

5. All other lands to be protected from alterations as conditioned by project approval.

B. Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C. Critical area tracts shall be designated on the face of the plat, short plat or recorded drawing in a format approved by the City. The designation shall include the following restriction:

1. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

2. The right of the City to enforce the terms of the restriction.

D. The City shall determine at the City’s discretion that any required critical area tract be dedicated to the City, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowners’ association or other legal entity (such as a land trust), which assures the ownership, maintenance, and protection of the tract. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.270 Building setbacks.

Unless otherwise provided in this chapter or in Division I of KMC Title 16 (Shoreline Management), buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. Structures that may extend into or be located in the required setback are listed in KMC 18.30.230. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.280 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to the City final permit approval, such as final plat approval or final building inspection, the City shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the City. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the City to ensure mitigation is fully functional.

B. The performance bond shall be in the amount of 125 percent of the estimated cost of the installed mitigation project (including monitoring) or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C. The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

D. Bonds or other security authorized by this section shall remain in effect until the City determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the City for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical area requirements established by law or condition, including but not limited to the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the City may demand payment of any financial guarantees or require other action authorized by the City code or any other law.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.290 Critical area inspections.

Reasonable access to the site shall be provided to the City, State, and federal agency review staff for the purpose of inspections of the critical area during any proposal review, restoration, emergency action, or monitoring period. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article VII. Wetlands – Designation and Rating

18.55.300 Designation and rating of wetlands.

A. Designating Wetlands. All areas within the City meeting the wetland designation criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter. Identification of wetlands and delineation of their boundaries shall be done in accordance with the Corps of Engineers wetlands delineation manual (Corps, 1987) and applicable regional supplement (Corps, 2010), as revised or as may be revised in WAC 173-22-035 and 173-22-080.

B. Wetland Ratings. Wetlands, as defined by this chapter, shall be classified and scored using the 2014 Department of Ecology Washington State Wetland Rating System for Western Washington, Publication No. 14-06-029 (Hruby, 2014 or latest edition), which contains the definitions and methods for determining whether the criteria below are met.

1. Category I. Category I wetlands are:

a. Wetlands of high conservation value that are identified by scientists of the Washington Natural Heritage Program/DNR;

b. Bogs;

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

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

These wetlands: (1) represent unique or rare wetland types; (2) are more sensitive to disturbance than most wetlands; (3) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or (4) provide a high level of functions.

2. Category II. Category II wetlands are wetlands larger than one acre or those found in a mosaic of wetlands, or wetlands with a moderately high level of functions (scoring between 20 and 22 points).

3. Category III. Category III wetlands have a moderate level of functions (scoring between 16 and 19 points) and can often be adequately replaced with a well-planned mitigation project. Wetlands scoring between 16 and 19 points generally 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.

4. 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 can often be adequately replaced with a well-planned mitigation project, or in some cases 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.

C. Buffer Areas.

1. The establishment of buffer areas shall be required for all development proposals and activities in or adjacent to wetland areas. The purpose of the buffer shall be to protect the integrity, function, and value of the critical area, and/or to protect life, property and resources from risks associated with development on unstable or critical lands.

2. Buffers shall be protected during construction by placement of a temporary barricade, on-site notice for construction crews of the presence of the critical area, and implementation of appropriate erosion and sedimentation controls.

3. Native vegetation removal or disturbance is not allowed in established buffers, unless the removal or disturbance is part of a restoration activity or is allowed by other provisions of this chapter. In all cases, the removal or disturbance should be appropriately mitigated consistent with KMC 18.55.200 and 18.55.210.

4. Wetland buffers shall be established as follows:

Wetland Type	Buffer Width (Feet) Based on Habitat Score (Points)
Wetland Type	3-5	6-7	8-9
Category I	75	110	225
Category II	75	110	225
Category III	60	110	225
Category IV	40	40	40

5. To minimize the impacts of adjacent land uses, development proposals and activities proposed in or adjacent to wetland areas must implement the following measures if applicable:

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-foot 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 treatment for roads and existing adjacent development

•

Prevent channelized flow from lawns that directly enters the buffer

•

Use low impact development techniques

Change in water regime

•

Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns

Pets and human disturbance

•

Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion

•

Place wetland and its buffer in a separate tract or protect with a conservation easement

Dust

•

Use best management practices to control dust

6. For wetlands that score six points or more for habitat function, a relatively undisturbed, vegetated corridor at least 100 feet wide shall be protected when feasible between the wetland and any other priority habitats as defined by the Washington State Department of Fish and Wildlife. Presence or absence of a nearby priority habitat must be confirmed by a qualified professional and documented in a critical areas report. 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 or critical area tract.

7. Measurement of Wetland Buffers. Wetland buffers shall be measured from the wetland edge as delineated and marked in the field using the methodology specified in subsection A of this section.

8. Increased Wetland Buffer Widths. The city manager shall require increased buffer widths in accordance with the recommendations of a qualified professional biologist and the best available science on a case-by-case basis when a larger buffer is necessary to protect wetland functions and values based on site-specific characteristics. This determination shall be based on one or more of the following criteria:

a. A larger buffer is needed to protect other critical areas or their functions;

b. The buffer has a slope greater than 30 percent or is susceptible to erosion and standard erosion-control measures will not prevent adverse impacts to the wetland. In such cases, the buffer shall be increased to include the slope or the standard buffer shall be drawn from the top of the slope, whichever provides greater protection; or

c. A degraded wetland buffer is present. In this case, the standard buffer on the entire site shall be increased by 33 percent unless new net impervious surface between the upland edge of the standard buffer and the upland edge of the potentially increased buffer equals or is less than 500 square feet or a buffer revegetation plan is provided meeting all of the following criteria:

(1) The buffer revegetation plan shall be prepared by a qualified professional and the applicant shall fund a review of the plan by the City’s wetland consultant. Enhancements shall include revegetation with native species appropriate for the site, and may also include installation of special habitat features, such as snags, downed wood, bat boxes, or other wildlife habitats. The buffer revegetation plan shall meet the requirements for a mitigation plan as described in KMC 18.55.220, including five years of maintenance and monitoring consistent with KMC 18.55.280.

(2) The degraded wetland buffer shall be enhanced at a 1:1 ratio relative to the total net new impervious surface located between the upland edge of the standard buffer and the upland edge of the potentially increased buffer, up to the total on-site square footage of degraded wetland buffer outside of any legal nonconformances. When the available degraded wetland buffer area is exceeded by the new net impervious surface area, the remaining required area of revegetation shall be implemented in degraded wetland, if present on the site.

(3) If the total new net impervious surface area between the upland edge of the standard buffer and the upland edge of the potentially increased buffer exceeds the area of degraded wetland buffer outside of any legal nonconformances and degraded wetland, the applicant should consider opportunities to convert areas of legal nonconformances to enhanced buffer.

D. Limited Exemptions.

1. All isolated Category IV wetlands meeting certain criteria that are less than 4,000 square feet may be exempt from the requirement to avoid wetland and buffer impacts (KMC 18.55.210(A)), and they may be altered or filled if the impacts are fully mitigated based on the remaining actions in KMC 18.55.210(B) through (F). If available, impacts should be mitigated through the purchase of credits from an in-lieu fee program or mitigation bank, consistent with the terms and conditions of the program or bank. A critical areas report for wetlands meeting the requirements in KMC 18.55.310 must be submitted that demonstrates that the wetland is eligible for this exemption by confirming that the following criteria are met:

a. The wetland is not associated with riparian areas or their buffers;

b. The wetland is not associated with shorelines of the state or their associated buffers;

c. The wetland is not part of a wetland mosaic;

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

e. The wetland does not contain a fish and wildlife habitat of importance as identified in KMC 18.55.500.

2. All isolated Category IV wetlands meeting certain criteria that are less than 1,000 square feet may be exempt from the buffer provisions contained in this chapter. A critical areas report for wetlands meeting the requirements in KMC 18.55.310 must be submitted that demonstrates that the wetland is eligible for this exemption by confirming that the following criteria are met:

a. Criteria in subsections (D)(1)(a) through (e) of this section; and

b. The wetland does not contain federally listed species or their critical habitat. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article VIII. Wetlands – Additional Report Requirements

18.55.310 Critical areas report.

Requirements for critical areas reports for wetlands are available from the city manager. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article IX. Wetlands – Allowed Uses and Alterations

18.55.320 Allowed uses.

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

B. Unless otherwise allowed by this chapter, activities may only be permitted in a wetland or wetland buffer after demonstration of mitigation sequencing, and if the applicant can show that the proposed activity will not degrade the functions and values of the wetland and other critical areas and no other feasible site design exists that results in less encroachment or impact to the wetland or wetland buffer.

C. Category I and II Wetlands. Activities and uses shall be prohibited from Category I and II wetlands, except as provided for in the exemptions, public agency and utility exception, or reasonable use exception sections of this chapter, or in subsection E of this section.

D. Category III and IV Wetlands. Activities may be permitted if the city manager determines, based upon review of special studies completed by qualified professionals, that the activity meets avoidance and minimization requirements outlined in KMC 18.55.210 and will not:

1. Adversely affect water quality;

2. Adversely affect fish, wildlife, or their habitat;

3. Have an adverse effect on drainage and/or stormwater detention capabilities;

4. Lead to unstable earth conditions or create an erosion hazard or contribute to scouring actions;

5. Be materially detrimental to any other property or the City as a whole; or

6. Have adverse effects on any other critical areas.

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

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

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

a. Private walkways and trails; provided, that those pathways that are generally parallel to the perimeter of the wetland shall be located in the outer 25 percent of the buffer area. Walkway and trail surfaces in buffers shall be made of pervious materials and shall be a maximum of five feet wide. Where private walkways and trails must cross a wetland to reach a permitted water access structure, such as a dock, or a pedestrian bridge over an associated waterbody, the walkway or trail must be a raised boardwalk supported by piles that allow free movement of water beneath the structure;

b. Public walkways and trails; provided, that those pathways are located and designed based on existing site-specific conditions to minimize native vegetation removal, and are part of an approved public park or trail plan. The trail proposal shall be accompanied by a plan demonstrating that the existing ecological functions of the wetland or required buffer area on a project site would be improved. Trails may extend in or across a wetland if necessary to access viewing platforms or other viewpoints, access pedestrian bridges over an associated waterbody, or provide some other public purpose. Walkway and trail surfaces in buffers shall be made of pervious materials except that public multipurpose trails may be of impervious materials if they meet all other requirements, including water quality. Trail segments in wetlands must be a raised boardwalk supported by piles that allow free movement of water beneath the structure, but should be limited to protect ecological functions of the buffer and wetland;

c. Walkways and trails proposed in wetlands and buffers by private parties as part of subdivisions, multifamily development, or commercial or institutional uses may be allowed, subject to subsection (E)(2)(b) of this section, if they will be accessible to the general public, identified with visible signage, and are recorded on title. Providing connectivity to existing City or regional trail systems or completing or contributing to a trail linkage identified in the City’s Parks, Recreation and Open Space Plan or Walkways and Waterways Plan is encouraged;

d. Wildlife viewing structures;

e. Fishing access areas; and

f. Interpretive and other signs, benches, railings, and similar accessories to passive recreation that do not require significant ground disturbance, vegetation clearing, or concrete foundations;

3. Stormwater Management Facilities. Stormwater dispersion outfalls and bioswales may be located in the outer 25 percent of the buffer area of Category III and IV wetlands only. All other surface water management facilities are not allowed within the buffer area. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 14; Ord. 11-0329 § 3 (Exh. 1).]

18.55.325 Buffer width alterations.

A. Buffer Conditions Shall Be Maintained. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers shall be retained in an undisturbed condition.

B. Averaged Buffer Widths. The city manager may allow averaging of the wetland buffer width in accordance with an approved critical areas report and the best available science on a case-by-case basis. Averaging of buffer widths may only be allowed where a qualified professional biologist demonstrates that:

1. Additional protection to the wetland will be provided through implementation of a buffer enhancement plan;

2. It will not reduce wetland functions or values;

3. 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;

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

5. The buffer width shall not be reduced by more than 25 percent in any one place.

C. The City may approve a modification of the minimum required buffer in cases where an improved right-of-way, associated with a legally established roadway, transects the buffer. The buffer may be reduced to match the edge of the right-of-way closest to the wetland if the portion of the buffer on the other side of the roadway meets the following criteria:

1. Does not provide additional protection to the proposed development from flooding or other hazard, or to the wetland; and

2. Provides insignificant biological, geological or hydrological buffer functions relating to the other portion of the buffer adjacent to the wetland.

Improved rights-of-way are those that are maintained out of necessity as a cleared, graded, paved, mowed or otherwise altered surface to allow for access, maintenance, or safety.

D. The City may approve a modification of the minimum required buffer width where the proposed development or use is isolated from the critical area and its contiguous buffer by an existing legally established building, detached garage, accessory dwelling unit, commercial parking area, or retaining wall over six feet in height. The modification may not be requested for such improvements as fences, sheds, patios, decks, driveways, or other similar structures and impervious surfaces.

For the buffer modification to be approved, the applicant must demonstrate conclusively in a critical area report that all of the following criteria are met:

1. The existing legal improvement between the proposed development or use and the wetland creates a substantial barrier to buffer function;

2. The isolated section of buffer does not provide additional protection of the critical area from the proposed development; and

3. The isolated section of buffer does not provide significant hydrological, water quality, and wildlife buffer functions relating to the portion of the buffer adjacent to the critical area. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.330 Performance standards – Mitigation requirements.

A. Mitigation Shall Achieve Equivalent or Greater Ecological Functions. Mitigation for alterations to wetlands and buffers shall achieve equivalent or greater ecologic functions than exist in the impacted wetland and buffer. Mitigation plans shall be generally consistent with the Department of Ecology Guidelines found in Wetland Mitigation in Washington State – Part 2, Version 1, March 2006, Publication No. 06-060-011b.

B. Mitigation for Lost Functions and Values. Mitigation actions shall address functions affected by the alteration to achieve functional equivalency or improvement, and shall provide similar wetland functions as those lost except when:

1. The lost wetland provides minimal functions as determined by a site-specific function assessment and the proposed mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal watershed assessment plan or protocol; or

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

C. Buffers for Mitigation Shall Be Consistent. When mitigation for a wetland impact includes creation of a new wetland area, the new area shall be provided with a functioning buffer consistent with the buffer requirements of this chapter, unless determined by the city manager through a variance or a reasonable use exemption that a different buffer would provide adequate protection to the critical area.

D. Preference of Mitigation Actions. Mitigation sequencing outlined in KMC 18.55.210 shall be demonstrated in each development proposal. Mitigation actions that require compensation by replacing, enhancing, or substitution shall occur in the following order of preference:

1. Restoring wetlands on upland sites that were formerly wetlands.

2. Creating wetlands in upland areas, considering degraded areas first.

3. Enhancing significantly degraded wetlands.

4. Preserving high quality wetlands that are under imminent threat.

E. Type and Location of Mitigation. Mitigation actions shall be conducted within the same sub-drainage basin or on the same site as the alteration except when all of the following apply:

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

2. Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the impacted wetland; and

3. Off-site locations shall be in the same subdrainage basin unless established regional or watershed goals for water quality, flood or conveyance, habitat or other wetland functions have been established and strongly justify location of mitigation at another site.

F. Mitigation Timing. Where feasible, mitigation or restoration projects shall be completed prior to activities that will disturb wetlands. In all other cases, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development. Construction of mitigation projects shall be timed to reduce impacts to existing wildlife and flora.

G. 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. These ratios do not apply to remedial actions resulting from unauthorized alterations; greater ratios shall apply on a case-by-case basis. These ratios do not apply to the use of credits from a State-certified wetland mitigation bank. The first number specifies the acreage of replacement wetlands and the second specifies the acreage of wetlands altered.

Standard Wetland Mitigation Ratios
Category and Type of Wetland	Creation or Reestablishment	Rehabilitation1	Enhancement2
Category I (Mature Forested)	6:1	12:1	24:1
Category I	4:1	8:1	16:1
Category II	3:1	6:1	12:1
Category III	2:1	4:1	8:1
Category IV	1.5:1	3:1	6:1
Buffer	1:1	1:1	1:1

1 “Rehabilitation” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions and processes of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. An example would be breaching a dike to reconnect wetlands to a floodplain.

2 “Enhancement” means the manipulation of the physical, chemical, or biological characteristics of a wetland to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, floodwater retention, or wildlife habitat. Enhancement results in a change in wetland function(s) and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres. Examples are planting vegetation, controlling nonnative or invasive species, and modifying site elevations to alter hydroperiods.

2. Increased Replacement Ratio. The city manager may increase the ratios under the following circumstances:

a. Uncertainty exists as to the probable success of the proposed restoration or creation; or

b. A significant period of time will elapse between impact and replication of wetland functions; or

c. Mitigation will occur off site versus on site; or

d. Proposed mitigation will result in a lower category wetland or reduced functions relative to the wetland being impacted; or

e. The impact was an unauthorized impact.

3. Decreased Replacement Ratio.

a. The city manager may decrease the creation/reestablishment ratios required for Category II and III wetlands to 2:1 and 1.5:1, respectively, under the following circumstances:

(1) The applicant’s qualified biologist provides documentation that increases the certainty of success of the proposed wetland restoration or creation. At a minimum, this documentation shall include groundwater monitoring in the area of proposed restoration or creation in the early growing season over a sufficient period of time to determine that there is a high probability of creating or restoring wetlands in that location; or

(2) Proposed mitigation will result in a higher functioning wetland (higher class) relative to the functions of the wetland being impacted; or

(3) The mitigation is successfully installed for a period of one year prior to the wetland being impacted. Successful installation shall be determined by a qualified biologist.

b. When a decreased replacement ratio is allowed, the mitigation shall be monitored for a period of no less than 10 years.

4. Credit/Debit Method. As an alternative to the standard mitigation ratios, the City may allow mitigation based on the “credit/debit” method developed by the Department of Ecology and documented in Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Western Washington, Final Report, March 2012 (Hruby, 2012, or as revised).

H. 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.

I. Mitigation Banking.

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

a. The bank is certified under State rules;

b. The city manager determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

c. The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.

2. Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.

3. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.

J. In-Lieu Fee Programs. To aid in the implementation of off-site mitigation, the City may develop an in-lieu fee (ILF) program or allow participation in an ILF program, such as King County’s mitigation reserves program. ILF programs shall be developed and approved through a public process and be consistent with federal rules, State policy on in-lieu fee mitigation, and State water quality regulations. An approved ILF program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in-lieu fee program may be used when subsections (J)(1) through (6) of this section apply:

1. The city manager determines that it would provide environmentally appropriate compensation for the proposed impacts.

2. The mitigation will occur on a site identified using the site selection and prioritization process in the approved ILF program instrument.

3. The proposed use of credits is consistent with the terms and conditions of the approved ILF program instrument.

4. Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three years of the credit sale. A one-year extension to this requirement may be granted by the city manager if the need for additional mitigation because of possible temporal loss is evaluated and addressed.

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

6. Credits from an approved ILF program may be used to compensate for impacts located within the service area specified in the approved ILF instrument.

K. Advance Mitigation. Mitigation for projects with pre-identified impacts to wetlands may be constructed in advance of the impacts if the mitigation is implemented according to federal rules, State policy on advance mitigation, and State water quality regulations.

L. Alternative Mitigation Plans. The city manager may approve alternative critical areas mitigation plans that are based on best available science, such as priority restoration plans that achieve restoration goals identified in the Shoreline Master Program (SMP). Alternative mitigation proposals must provide an equivalent or better level of protection of critical area functions and values than would be provided by the strict application of this chapter and must contain all of the standard components of a mitigation plan. The city manager shall consider the following for approval of an alternative mitigation proposal:

1. The proposal uses a watershed approach consistent with Selecting Wetland Mitigation Sites Using a Watershed Approach (Western Washington) (Ecology Publication No. 09-06-32, Olympia, WA, December 2009, or as revised).

2. Creation or enhancement of a larger system of natural areas and open space is preferable to the preservation of many individual habitat areas.

3. There is clear potential for success of the proposed mitigation at the proposed mitigation site.

4. A wetland of a different type is justified based on regional needs or functions and values; the replacement ratios may not be reduced or eliminated unless the reduction results in a preferred environmental alternative. [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 §§ 15, 16; Ord. 11-0329 § 3 (Exh. 1).]

Article X. Streams and Lakes – Designation and Rating

18.55.400 Designation and rating of streams and lakes.

A. Stream and Lake Classifications. Streams and lakes shall be designated Type S, Type F, Type Np, and Type Ns according to the following criteria identified in WAC 222-16-030:

1. “Type S waters” means those segments of natural waters identified as “shorelines of the State” under Chapter 90.58 RCW, including the Sammamish River and the main stem of Swamp Creek, as well as Lake Washington.

2. “Type F waters” means segments of natural waters other than Type S waters, which are within the bankfull widths of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of one-half acre or greater at seasonal low water and which in any case contain fish habitat.

3. “Type Np waters” means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow.

4. “Type Ns waters” means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and which are not located downstream from any stream reach that is a Type Np water. Ns waters must be physically connected by an aboveground channel system to Type S, F, or Np waters.

B. Presumption of Fish Use. Waters having any of the following characteristics are presumed to contain suitable fish habitat, and therefore are a Type F water:

1. Stream segments having a defined channel width of two feet or greater within the bankfull width and having a channel gradient of 16 percent or less;

2. Stream segments having a defined channel width of two feet or greater within the bankfull width and having a channel gradient greater than 16 percent and less than or equal to 20 percent, and having greater than 50 acres in contributing basin size based on hydrographic boundaries;

3. Ponds or impoundments having a surface area of less than one acre at seasonal low water and having an outlet to a fish stream; or

4. Ponds or impoundments having a surface area greater than one-half acre at seasonal low water.

C. Ditches. Ditches are artificial drainage features created in uplands through purposeful human action, such as irrigation and drainage ditches, grass-lined swales, and canals. Purposeful creation must be demonstrated through documentation, photographs, statements and/or other evidence. Ditches are excluded from regulation as streams, unless they are used by native species of fish. Drainage setbacks are required as per the City’s surface water runoff policy (Chapter 13.35 KMC).

D. Lakes and ponds, which terms can be used interchangeably and are loosely differentiated in common use by the larger size of lakes, are surface water bodies distinguished from wetlands by the presence of deep water, typically two meters (6.6 feet) or greater.

E. Lakes, ponds and impoundments deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds (of less than three years duration), and landscape amenities, are not regulated by this chapter unless they are used by native fish. Purposeful creation must be demonstrated through documentation, photographs, statements and/or other evidence. However, lakes, ponds and impoundments intentionally created from dry areas as mitigation for a critical areas impact are regulated by this chapter.

F. Stream and Lake Buffers.

1. The establishment of buffer areas shall be required for all development proposals and activities in or adjacent to streams and lakes. The purpose of the buffer shall be to protect the integrity, function, and value of the stream or lake and provide habitat for great blue heron and other wildlife. Buffers shall be protected during construction by placement of a temporary barricade, on-site notice for construction crews of the presence of the stream or lake, and implementation of appropriate erosion and sedimentation controls.

The following buffers are established for streams and lakes to protect functions and values:

Stream Type	Buffer Width (Feet)
Type S – Swamp Creek, Lake Washington and Sammamish River	See KMC 16.65.020
Type F – Little Swamp Creek	150
Type F (other water bodies used by or containing habitat suitable for salmonid fish)	100
Type F (water bodies used by or containing habitat suitable for fish other than salmonids)	50
Type Np or Ns	25
Any type stream restored from a pipe	25

2. Measurement of Buffers. Buffers shall be measured perpendicularly from the ordinary high water mark.

3. Increased Buffer Widths. The city manager shall require increased buffer widths in accordance with the recommendations of a qualified professional and the best available science on a case-by-case basis when a larger buffer is necessary to protect stream or lake functions and values based on site-specific characteristics. This determination shall be based on one or more of the following criteria:

a. A larger buffer is needed to protect other critical areas or their functions;

b. The buffer has a slope greater than 30 percent or is susceptible to erosion and standard erosion-control measures will not prevent adverse impacts to the stream or lake. The buffer should be measured from the toe of the slope. In such cases, the buffer shall be increased to include the slope or the standard buffer shall be drawn from the top of the slope, whichever provides greater protection. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XI. Streams and Lakes – Additional Report Requirements

18.55.410 Critical areas report.

Requirements for critical areas reports for streams and lakes are available from the city manager. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XII. Streams and Lakes – Allowed Uses and Alterations

18.55.415 Allowed uses.

A. Buffer Conditions Shall Be Maintained. Except as otherwise specified or allowed in accordance with this chapter and Division I of KMC Title 16 (Shoreline Management), stream and lake buffers shall be retained in an undisturbed condition.

B. Native vegetation removal or disturbance is not allowed in established buffers.

C. Buffer Uses. The following uses may be permitted within a stream or lake buffer in accordance with the review procedures of this chapter and Division I of KMC Title 16 (Shoreline Management), 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 stream or lake:

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

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

a. Private walkways and trails; provided, that those pathways that are generally parallel to the perimeter of the stream or lake shall be located in the outer 25 percent of the buffer area. Walkway and trail surfaces in buffers shall be made of pervious materials and shall be a maximum of five feet wide;

b. Public walkways and trails; provided, that those pathways are located and designed based on existing site-specific conditions to minimize native vegetation removal, and are part of an approved public park or trail plan. The trail proposal shall be accompanied by a plan demonstrating that the ecological functions of the overall required buffer area on a project site would be improved. Walkway and trail surfaces in buffers shall be made of pervious materials, except that public multipurpose trails may be of impervious materials if they meet all other requirements, including water quality. In order to allow for a waterfront promenade area along the inner harbor area of the Downtown Waterfront Shoreline Environment on Lake Washington, public access improvements may extend to the water’s edge;

c. Walkways and trails proposed in stream and lake buffers by private parties as part of subdivisions, multifamily development, or commercial or institutional uses may be allowed, subject to subsection (C)(2)(b) of this section, if they will be accessible to the general public, identified with visible signage, and are recorded on title. Providing connectivity to existing City or regional trail systems or completing or contributing to a trail linkage identified in the City’s Parks, Recreation and Open Space Plan or Walkways and Waterways Plan is encouraged;

d. Wildlife viewing structures;

e. Fishing access areas; and

f. Interpretive and other signs, benches, railings, and similar accessories to passive recreation that do not require significant ground disturbance, native vegetation removal, or concrete foundations.

3. Stormwater Management Facilities. Stormwater dispersion outfalls and bioswales may be located in the outer 25 percent of the buffer area. All other surface water management facilities are not allowed within the buffer area. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.420 Alterations.

A. Modification of Standard Buffer.

1. The City may approve a modification of the minimum required buffer in cases where an improved right-of-way, associated with a legally established roadway, transects the stream or lake buffer. The buffer may be reduced to match the edge of the right-of-way closest to the stream or lake if the portion of the buffer on the other side of the roadway meets the following criteria:

a. Does not provide additional protection to the proposed development from flooding or other hazard, or to the lake or stream; and

b. Provides insignificant biological, geological or hydrological buffer functions relating to the other portion of the buffer adjacent to the lake or stream.

Improved rights-of-way are those that are maintained out of necessity as a cleared, graded, paved, mowed or otherwise altered surface to allow for access, maintenance, or safety.

2. The City may approve a modification of the minimum required buffer width where the proposed development or use is isolated from the critical area and its contiguous buffer by an existing legally established building, detached garage, accessory dwelling unit, commercial parking area, retaining wall over six feet in height, or similar structure. The modification may not be requested for such improvements as fences, sheds, patios, decks, driveways, or other similar structures and impervious surfaces. For the buffer modification to be approved, the applicant must demonstrate conclusively in a critical area report that all of the following criteria are met:

a. The existing legal improvement between the proposed development or use and the stream or lake creates a substantial barrier to buffer function;

b. The isolated section of buffer does not provide additional protection of the critical area from the proposed development; and

c. The isolated section of buffer does not provide significant hydrological, water quality, and wildlife buffer functions relating to the portion of the buffer adjacent to the critical area.

B. Buffer Reduction with Enhancement. Standard buffer widths for degraded buffers of Type F, Ns, or Np waters may be reduced a maximum of 25 percent of the standard width through a combination of buffer enhancement and low impact development strategies. The applicant shall demonstrate that through enhancing the buffer and use of low impact development strategies the reduced buffer will function at a higher level than the standard buffer. Type S buffers and setbacks may only be reduced as outlined in KMC 16.60.030 or under the shoreline variance requirements of KMC 16.75.030.

The following table describes the maximum buffer reduction and minimum buffer width when a degraded buffer is enhanced:

Stream Type	Maximum Buffer Reduction	Minimum Buffer Width (Feet)
Type S – Swamp Creek, Lake Washington and Sammamish River	See KMC 16.60.030 or 16.75.030
Type F – Little Swamp Creek	25 percent	112.5 feet
Type F (other water bodies used by or containing habitat suitable for salmonid fish)	25 percent	75 feet
Type F (water bodies used by or containing habitat suitable for fish other than salmonids)	25 percent	37.5 feet
Type Np or Ns	25 percent	18.75 feet
Any type stream restored from a pipe	25 percent	18.75 feet

1. Prior to approval of a reduced buffer, a critical areas application shall meet all of the decisional criteria listed below. A reduced buffer will be approved in a degraded stream or lake buffer only if:

a. It will provide an overall improvement in water quality;

b. It will provide an overall enhancement to fish, wildlife, or their habitat;

c. It will provide a net improvement in drainage and/or stormwater detention capabilities;

d. It will not lead to unstable earth conditions or create an erosion hazard;

e. It will not be materially detrimental to any other property or the City as a whole; and

f. All exposed areas are stabilized with native vegetation, as appropriate.

2. As part of the buffer reduction request, the applicant shall submit a buffer enhancement plan prepared by a qualified professional and fund a review of the plan by the City’s critical areas consultant. The plan shall assess the habitat, water quality, stormwater detention, groundwater recharge, shoreline protection, and erosion protection functions of the buffer; assess the effects of the proposed modification on those functions; and address the six criteria listed in subsection (B)(1) of this section.

C. Stream Crossings. Stream crossings may be allowed and may encroach on the otherwise required stream buffer if:

1. All crossings are designed using the most recent version of Washington Department of Fish and Wildlife’s Water Crossing Design Guidelines (Barnard and others, 2013, or as revised), prioritizing bridges or other construction techniques which do not disturb the stream bed or bank, except that bottomless culverts or other appropriate methods demonstrated to provide fisheries protection may be used for Type F streams if the applicant demonstrates that such methods and their implementation will pose no harm to the stream or inhibit migration of fish;

2. All crossings are constructed during the summer low flow and are timed to avoid stream disturbance during periods when use is critical to salmonids;

3. Crossings do not occur over salmonid spawning areas unless the City determines that no other possible crossing site exists;

4. Bridge piers or abutments are not placed within the Federal Emergency Management Agency (FEMA) floodway or below the ordinary high water mark;

5. Crossings do not diminish the flood-carrying capacity of the stream;

6. Underground utility crossings are laterally drilled and located at a depth of four feet below the maximum depth of scour for the base flood predicted by a civil engineer licensed by the State of Washington. Temporary bore pits to perform such crossings may be permitted within the stream buffer established in this chapter; and

7. Crossings are minimized and serve multiple purposes and properties whenever possible.

D. Stream Relocations.

1. Stream relocations may be allowed only for:

a. Types F, Np, and Ns streams as part of a public project for which a public agency and utility exception is granted pursuant to this chapter; or

b. Type F streams with fish use other than salmonids, Np or Ns streams for the purpose of enhancing resources in the stream;

c. The location occurs on site except that relocation off site may be allowed if the applicant demonstrates that any on-site relocation is impracticable, the applicant provides all necessary easements and waivers from affected property owners and the off-site location is in the same drainage subbasin as the original stream.

2. For any relocation allowed by this section, the applicant shall base the design on the most recent version of the multiagency Stream Habitat Restoration Guidelines (Cramer, 2012, or as revised), and demonstrate, based on information provided by a civil engineer and a qualified biologist, that:

a. The equivalent base flood storage volume and function will be maintained;

b. There will be no adverse impact to local groundwater;

c. There will be no increase in velocity;

d. There will be no interbasin transfer of water;

e. There will be no increase in the sediment load;

f. There is an overall increase in habitat function and value for salmonids and other fish;

g. Requirements set out in the mitigation plan are met;

h. The relocation conforms to other applicable laws; and

i. All work will be carried out under the direct supervision of a qualified biologist.

E. Stream or Lake Enhancement/Restoration. Stream or lake enhancement and restoration not associated with any other development proposal may be allowed if:

1. Accomplished according to a plan consistent with the most recent version of the multiagency Stream Habitat Restoration Guidelines (Cramer, 2012, or as revised) for its design, implementation, maintenance and monitoring prepared by a civil engineer and a qualified biologist and carried out under the direction of a qualified biologist;

2. The project results in a net increase in stream or lake functions and values;

3. The enhancement or restoration is not associated with mitigation of a specific development proposal; and

4. The enhancement or restoration is limited to removal of nonnative vegetation and enhancement of riparian vegetation, placement of rock weirs, log controls, spawning gravel and other specific habitat improvements. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.430 Performance standards – Mitigation requirements.

A. Stream or Lake Mitigation. Mitigation of adverse impacts to aquatic or riparian habitat areas shall result in equivalent functions and values on a per function basis, be located as near to the alteration as feasible, and be located in the same subdrainage basin as the impacted habitat unless mitigation will be implemented via a City-approved in-lieu fee program or mitigation bank. See also KMC 18.55.200, 18.55.210 and 18.55.220.

B. Advance Mitigation. Mitigation for projects with pre-identified impacts to streams, lakes or their buffers may be constructed in advance of the impacts if the mitigation is implemented according to federal rules, State policy on advance mitigation, and State water quality regulations.

C. Alternative Mitigation Plans. The city manager may approve alternative critical areas mitigation plans that are based on best available science, such as priority restoration plans that achieve restoration goals identified in the Shoreline Master Program (SMP). Alternative mitigation proposals shall provide an equivalent or better level of protection of critical area functions and values than would be provided by the strict application of this chapter and shall contain all of the standard components of a mitigation plan. The city manager shall consider the following for approval of an alternative mitigation proposal:

1. The proposal uses a watershed approach consistent with the joint U.S. Environmental Protection Agency and U.S. Army Corps of Engineers Compensatory Mitigation for Losses of Aquatic Resources (33 CFR Part 33, April 2008).

2. Creation or enhancement of a larger system of natural areas and open space is preferable to the preservation of many individual habitat areas.

3. There is clear potential for success of the proposed mitigation at the proposed mitigation site.

4. Mitigation in a different subbasin is justified, based on regional needs or functions and values; the replacement ratios may not be reduced or eliminated unless the reduction results in a preferred environmental alternative.

D. Mitigation Banking.

1. Credits from a mitigation bank may be approved for use as compensation for unavoidable impacts to aquatic habitats when:

a. The bank is certified under State rules;

b. The city manager determines that the mitigation bank provides appropriate compensation for the authorized impacts; and

c. The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.

2. Accounting methods for quantifying project impacts and the necessary compensation shall be consistent with methods specified in the certified bank instrument.

3. Credits from a certified mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin.

E. In-Lieu Fee Programs. To aid in the implementation of off-site mitigation, the City may develop an in-lieu fee (ILF) program or allow participation in an ILF program, such as King County’s mitigation reserves program. ILF programs shall be developed and approved through a public process and be consistent with federal rules, State policy on in-lieu fee mitigation, and State water quality regulations. An approved ILF program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in-lieu fee program may be used when subsections (E)(1) through (6) of this section apply:

1. The city manager determines that it would provide environmentally appropriate compensation for the proposed impacts.

2. The mitigation will occur on a site identified using the site selection and prioritization process in the approved ILF program instrument.

3. The proposed use of credits is consistent with the terms and conditions of the approved ILF program instrument.

4. Land acquisition and initial physical and biological improvements of the mitigation site shall be completed within three years of the credit sale. A one-year extension to this requirement may be granted by the city manager if the need for additional mitigation because of possible temporal loss is evaluated and addressed.

5. Projects using ILF credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified stream or lake scientist using the method consistent with the credit assessment method specified in the approved instrument for the ILF program.

6. Credits from an approved ILF program may be used to compensate for impacts located within the service area specified in the approved ILF instrument. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XIII. Fish and Wildlife Habitats of Importance – Designation

18.55.500 Designation of fish and wildlife habitats of importance.

A. Fish and wildlife habitats of importance are those habitat 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. In the City, habitats of importance meet any of the following criteria:

1. Documented presence of species listed by the federal government or the State of Washington as endangered, threatened or sensitive; or

2. Great blue heron rookeries or active nesting trees; or

3. Pileated woodpecker breeding habitat as mapped by the Washington Department of Fish and Wildlife in its Priority Habitats and Species Program; or

4. Biodiversity areas and corridors as mapped by the Washington Department of Fish and Wildlife in its Priority Habitats and Species Program; or

5. Bald eagle habitat, protected pursuant to the Federal Bald and Golden Eagle Protection Act; or

6. Anadromous fish habitat; or

7. Habitat for species nominated and approved by the City per subsection C of this section.

B. All areas within the City meeting one or more of these criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

C. The City may accept and consider nominations by Kenmore residents or property owners for habitat areas and species to be designated as fish and wildlife habitats of importance. Nominations will be accepted by the city manager on an annual basis and will be considered for approval by the city council following a public hearing on the nomination. Information to be included with a nomination request includes:

1. Specific geographic boundaries and list of species proposed, including a list of functions;

2. Rationale for nomination based on best available science, including the viability of the population in Kenmore and the contribution to biodiversity;

3. Causes for vulnerability, including a description of activities that compromise these areas, as well as a list of proposed management and protection measures;

4. Regulatory gaps regarding protection of the habitat or species; and

5. Nonenvironmental impacts affecting the habitat area and species (e.g., legal, cultural, recreational, and economic significance). [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XIV. Fish and Wildlife Habitats of Importance – Report Requirements

18.55.510 Critical areas report – Habitat management plan.

A. Habitat Management Plan. A habitat management plan is required when available maps, or other information, indicate the presence of fish and wildlife habitats of importance.

1. All habitat management plans shall be prepared by a qualified professional and are encouraged to be prepared in consultation with the Washington Department of Fish and Wildlife.

2. Habitat Management Plan Content Requirements. Requirements for habitat management plans are available from the city manager. Plans also shall include:

a. An analysis of how the proposed development activities will affect the fish and wildlife habitats of importance and species of importance.

b. An analysis of mitigation sequencing per KMC 18.55.210, including a mitigation plan.

c. Consideration of the following issues:

(1) Establishment of a buffer around the fish and wildlife habitat of importance;

(2) Retention of certain vegetation or areas of vegetation critically important to the species of importance;

(3) Limitation of access to the fish and wildlife habitats of importance and buffer;

(4) Seasonal restrictions on construction activities on the subject property; and

(5) Clustering of development on the subject property.

d. Discussion of how the project complies with published Washington Department of Fish and Wildlife management recommendations for the species’ habitat, if available.

3. When bald eagle habitat is the only potential fish and wildlife habitat of importance on a site, applicants may self-certify that they are in compliance with the federal Bald and Golden Eagle Protection Act by submitting a document generated online through the U.S. Fish and Wildlife Service’s Bald and Golden Eagle Permit Recommendation Tool. Washington Department of Fish and Wildlife no longer maps bald eagle nest sites, so applicants would complete the certification based on their knowledge of their site and local conditions. The City may review the applicant’s certificate and require modification if more accurate information or updated standards for protection are available.

4. The applicant may combine a habitat management plan with any studies required by other laws and regulations (e.g., a biological assessment or biological evaluation). [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XV. Fish and Wildlife Habitats of Importance – Performance Standards

18.55.520 Performance standards – General requirements.

A. Buffers.

1. Establishment of Buffers. The city manager shall require the establishment of buffer areas for activities in, or adjacent to, fish and wildlife habitats of importance when needed to protect fish and wildlife habitats of importance. Buffers shall consist of an undisturbed area of native vegetation, or areas identified for restoration, established to protect the integrity, functions and values of the affected habitat. Buffer enhancement may be required. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby, and shall be consistent with the management recommendations issued by the Washington State Department of Fish and Wildlife.

2. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions, as determined by the Washington State Department of Fish and Wildlife in a permit or in its management recommendations, or by another State or federal agency with expertise in the species or its habitat, may apply. Larger buffers may be required and activities may be further restricted during the specified season.

B. Alterations Shall Not Degrade the Functions and Values of Habitat. Wildlife habitat areas of importance may be altered only if the proposed alteration of the habitat or the mitigation proposed does not degrade the quantitative and qualitative functions and values of the habitat. Fish habitat areas of importance may be altered only when necessary to install water-dependent developments that are mitigated consistent with this chapter and Division I of KMC Title 16 (Shoreline Management), when applicable.

C. Nonindigenous Species Shall Not Be Introduced. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a fish and wildlife habitat of importance unless authorized by a State or federal permit or approval.

D. Mitigation Shall Result in Contiguous Habitat. When feasible, mitigation sites shall be located to achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical areas report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

E. Mitigation Shall Achieve Equivalent or Greater Biological Functions. Mitigation of alterations to habitat areas of importance shall achieve equivalent or greater biologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

F. Approvals Shall Be Supported by the Best Available Science. Any approval of alterations or impacts to a fish and wildlife habitat of importance shall be supported by the best available science. Special consideration shall be given to conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat, such as salmon and bull trout, as required by WAC 365-195-900 through 365-195-925. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.530 Performance standards – Specific habitats.

A. Great Blue Heron Rookery.

1. A buffer equal to the distance of a 656-foot radius measured from the outermost nest tree in the rookery will be established around an active rookery. This area will be maintained in native vegetation. For the Kenmore heron rookery located adjacent to the Kenmore park-and-ride lot, the buffer excludes the area south of the north edge of the State Route 522 right-of-way and west of the east edge of the 73rd Avenue NE right-of-way.

2. Between January 1st and July 31st, no clearing, grading or land-disturbing activity shall be allowed within 656 feet of the rookery unless approved by the City. For the Kenmore heron rookery located adjacent to the Kenmore park-and-ride lot, the area south of the north edge of the State Route 522 right-of-way and west of the east edge of 73rd Avenue NE right-of-way is excluded.

3. Approval of permits for activities within the heron rookery buffer shall not occur prior to the approval of a habitat management plan by the City.

B. Anadromous Fish.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a. Activities shall be timed to occur only during the allowable work window as designated by the Washington State Department of Fish and Wildlife for the applicable species;

b. Applicant must demonstrate that an alternative alignment or location for the activity is not feasible;

c. The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas; and

d. Any impacts to the functions or values of the anadromous fish habitat are mitigated in accordance with an approved habitat management plan.

2. Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed. See also KMC 18.55.420(C). [Ord. 19-0488 § 2 (Exh. 1); Ord. 12-0334 § 17; Ord. 11-0329 § 3 (Exh. 1).]

Article XVI. Geologically Hazardous Areas – Designation

18.55.600 Purpose.

The primary purpose of geologically hazardous area regulations is to avoid and minimize potential impacts to life and property from geologic hazards. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.610 Designation of geologically hazardous areas.

Geologically hazardous areas include areas susceptible to erosion, landsliding, earthquake, or other geological events. They pose a threat to the health and safety of citizens when incompatible development is sited in hazard areas. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous area:

A. Erosion hazard;

B. Landslide hazard;

C. Seismic hazard; and

D. Other geological events including debris flows and differential settlement. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.620 Designation of specific hazard areas.

A. Erosion Hazard Areas. Erosion hazard areas are those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service or identified by a special study as having a “moderate to severe,” “severe,” or “very severe” erosion potential.

B. High Landslide Hazard Areas. High landslide hazard areas are areas at high risk of landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following:

1. Areas of historic failures, such as:

a. Those areas delineated by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “severe” limitation for building site development; or

b. Areas designated as Quaternary slumps, earthflows, mudflows, or landslides on maps published by the U.S. Geological Survey or State Department of Natural Resources; or

c. Areas identified on King County’s 2017 map of unstable slopes and as amended;

2. Areas with all three of the following characteristics:

a. Slopes steeper than 15 percent; and

b. Hillsides intersecting geologic contacts with a relatively permeable sediment overlying relatively impermeable sediment; and

c. Springs or groundwater seepage;

3. Areas that have shown movement during the post-glacial period (from 16,000 years ago to the present) or that are underlain or covered by mass wastage debris of that time period, as shown on U.S. Geological Survey, Washington Department of Natural Resources, or King County maps;

4. Areas potentially unstable because of rapid stream incision, stream bank erosion, and undercutting by wave action; and

5. Areas located in a canyon or on an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding.

C. Moderate Landslide Hazard Areas. Moderate landslide hazard areas are areas at moderate risk of landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following:

1. Areas with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet. A slope is delineated by establishing its toe and measured by averaging the inclination over at least 10 feet of vertical relief.

D. Seismic Hazard Areas. Seismic hazard areas are locations subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, tsunami, or surface faulting. One indicator of potential for future earthquake damage is a record of earthquake damage in the past. Ground shaking is the primary cause of earthquake damage in Washington. The strength of ground shaking is primarily affected by:

1. The magnitude of an earthquake;

2. The distance from the source of an earthquake;

3. The type or thickness of geologic materials at the surface; and

4. The type of subsurface geologic structure.

Settlement, soil liquefaction, and lateral spreading occur in areas underlain by cohesionless, loose, or soft saturated soils of low density, typically in association with shallow groundwater. Tsunami or seiche waves triggered by an earthquake or seismically induced landslides can inundate shoreline-adjacent land, such as along Lake Washington or the lower reaches of the Sammamish River.

In Kenmore, seismic hazard areas include liquefaction-prone areas and a potential strand of the Southern Whidbey Island Fault Zone known as the Kenmore Lineament as designated by the Washington Department of Natural Resources.

E. Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the city manager to be susceptible to other geological events, including debris flows and differential settlement. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XVII. Geologically Hazardous Areas – Report Requirements

18.55.630 Critical areas report.

A. A critical areas report shall be required for all proposed alterations of properties that are located within 200 feet of any geologically hazardous area. Requirements for critical areas reports for geologically hazardous areas are available from the city manager.

B. In the event that the applicant’s geotechnical consultant and the City’s geotechnical reviewer cannot resolve the geotechnical issues and do not agree on required development conditions, the city manager may require a third-party review of the critical areas report. The applicant’s consultant and the City’s reviewer shall select a mutually agreed-upon qualified professional to provide the final opinion. The applicant shall fund this review and shall make substantive changes to the proposed alteration or provide additional analysis as directed by the third-party reviewer. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XVIII. Geologically Hazardous Areas – Performance Standards

18.55.640 Performance standards – General requirements.

A. Structures and site improvements shall be clustered to avoid geologically hazardous areas and other critical areas;

B. Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

1. Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;

2. Will not adversely impact other critical areas;

3. Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and

4. Are determined to be safe as sited and designed and under anticipated conditions by a qualified engineer, or engineering geologist, as appropriate, licensed in the State of Washington;

C. Critical Facilities Prohibited. Critical facilities shall not be sited within geologically hazardous areas unless there is no other practical alternative. If so sited, the design shall be adequate to mitigate the effects of the hazard. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

18.55.650 Performance standards – Specific hazards.

A. Erosion Hazard Areas. Erosion shall meet the following requirements:

1. Buffer Not Required for Erosion Hazard Areas. No buffer is required from an area categorized as only an erosion hazard area.

2. Best Management Practices. Best management practices for sediment and erosion control shall be implemented in an erosion hazard area.

3. Vegetation Shall Be Retained. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion hazard area shall be prohibited.

4. Seasonal Restriction. Site development work shall be allowed only from May 1st to October 1st of each year; provided, that the city manager may extend or shorten the dry season on a case-by-case basis depending on actual weather conditions, except that timber harvest, not including brush clearing or stump removal, may be allowed pursuant to an approved forest practice permit issued by the City or the Department of Natural Resources.

5. Utility Lines and Pipes. Utility lines and pipes shall be permitted in erosion hazard areas only when the applicant demonstrates that no other practical alternative is available. Such utilities shall be designed by qualified professionals to resist ground movement and erosion.

6. Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from an erosion hazard area shall be prohibited except as follows:

a. Conveyed via continuous storm pipe downslope to a point where there are no erosion hazard areas downstream or downslope from the discharge; or

b. Discharged at flow durations matching predeveloped conditions, with adequate energy dissipation, into existing channels that previously conveyed stormwater runoff in the predeveloped state.

7. Alterations. In addition to meeting the requirements in KMC 18.55.640, alterations of an erosion hazard area may only occur for activities for which a special study is submitted demonstrating that the alteration will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions.

B. Landslide Hazard Areas. In addition to meeting the requirements in KMC 18.55.640, activities on sites containing landslide hazards shall meet the following requirements:

1. General Standards. The following standards shall apply in all landslide hazard areas:

a. Buffer Required for Landslide Hazard Areas. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer shall be determined by the city manager to eliminate or minimize the risk of property damage, death or injury resulting from landslides caused in whole or part by the development, based upon review of and concurrence with a critical area report prepared by a qualified professional.

(1) Minimum Buffer. The minimum buffer shall be equal to the height of the slope, as measured from the toe to the top, or 50 feet, whichever is greater.

(2) Buffer Reduction. The buffer may be reduced to a minimum of 25 feet when a qualified professional demonstrates to the city manager’s satisfaction based upon review of a special study that the reduction will adequately protect the proposed development, adjacent developments and uses and the subject critical area through slope stability improvements or structural means.

(3) Increased Buffer. The buffer may be increased where the city manager determines a larger buffer is necessary to prevent risk of damage to proposed and existing development.

b. Vegetation Shall Be Retained. Unless otherwise provided or as part of an approved alteration, removal of vegetation from a landslide hazard area or related buffer shall be prohibited.

c. Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from a landslide hazard area shall be prohibited except as follows:

(1) Conveyed via continuous storm pipe downslope to a point where there are no landslide hazard areas downstream or downslope from the discharge;

(2) Discharged at flow durations matching predeveloped conditions, with adequate energy dissipation, into existing channels that previously conveyed stormwater runoff in the predeveloped state; or

(3) Dispersed discharge upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and stormwater runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope.

d. Utility Lines and Pipes.

(1) Utility lines and pipes shall be permitted in landslide hazard areas only when the applicant demonstrates that no other practical alternative is available. The line or pipe shall be located aboveground and properly anchored and/or designed so that it will continue to function in the event of an underlying landslide. It must be demonstrated by the applicant that a utility line within the landslide hazard area has been designed in a manner that does not negatively impact the stability of the slope, minimizes or eliminates the potential for rupture or failure, and ensures that in the event of failure there will not be a life/safety risk. Stormwater conveyance shall be allowed only through a high-density polyethylene pipe with fuse-welded joints, or similar product that is technically equal or superior. Automatic shutoff valves shall be provided on petroleum or natural gas lines to isolate the landslide area.

(2) Access roads to serve utilities may be permitted within a landslide hazard area and associated buffer if the City determines that no other feasible alternative exists, and the road is designed so as not to lower the stability of the slope. Such a road shall not be used for general ingress/egress to the property unless otherwise approved as part of a development proposal.

e. Seasonal Restriction. Permitted site development work shall be allowed only from May 1st to October 1st of each year; provided, that the city manager may extend or shorten the dry season on a case-by-case basis depending on actual weather conditions, except that timber harvest, not including brush clearing or stump removal, may be allowed pursuant to an approved forest practice permit issued by the City or the Washington Department of Natural Resources. An exception may be granted by the city manager for emergency repair of structures or landslides when waiting for the clearing window will (1) create a life-threatening risk; (2) do additional damage to the structure; or (3) damage adjacent property or structures.

f. Trails. Trails shall be permitted when all of the following conditions have been met:

(1) The proposed trail shall not decrease the existing factor of safety within the landslide hazard area or any required buffer;

(2) The proposed trail is for pedestrian use only, and is a maximum of four feet wide;

(3) The trail shall not be sited within a landslide hazard area or associated buffer when there is such a high risk of landslide activity that the use of the trail would be hazardous; and

(4) The trail shall be designed and constructed using an engineered drainage system or other methods to prevent the trail surface from becoming a drainage course.

g. Subdivisions. The division of land in landslide hazard areas and associated buffers is subject to the following:

(1) Land that is located wholly within a landslide hazard area or its minimum buffer as required by subsection (B)(1)(a) of this section shall not be subdivided.

(2) Land that is located partially within a landslide hazard area or its minimum buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, or be affected by, the landslide hazard area or its buffer. For single-family residential subdivisions and short subdivisions on sites in the R-4 zone located partially within a landslide hazard area and its minimum buffer, minimum lot size in the area outside of the landslide hazard area and its buffer may be reduced to 5,400 square feet with no limitation on the percentage of smaller lots, regardless of KMC 18.21.030, Footnote 16. These smaller lots shall be located so as to have the least impact on surrounding properties in terms of consistency of street frontages and privacy of abutting properties and the lot area shall exclude access easements and access panhandles.

(3) Access roads shall be allowed within a landslide hazard area and associated buffer only if the City determines that no other feasible alternative exists, and the road is designed so as not to lower the stability of the slope.

h. Prohibited Development. On-site sewage disposal systems, including drain fields, shall be prohibited within landslide hazard areas and related buffers.

2. High Landslide Hazard Areas – Additional Standards.

a. No new alteration shall be permitted in a high landslide hazard area unless approved as a reasonable use exception, KMC 18.55.180.

b. Modifications to a previously approved alteration, including remodeling of an existing residence, in a high landslide hazard area may be permitted only if a critical areas report is submitted demonstrating that the proposal is determined to be safe as sited and designed and under anticipated conditions by a qualified engineer, or engineering geologist, as appropriate, licensed in the State of Washington.

3. Moderate Landslide Hazard Areas – Additional Standards.

a. Design Standards. Alterations of a moderate landslide hazard area and/or its buffer may only occur for activities for which a critical areas report is submitted. Alterations shall be designed to meet the following basic requirements unless it can be demonstrated that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this article. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development design standards are:

(1) The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.2 for dynamic conditions. Analysis of dynamic conditions shall be based on a minimum horizontal acceleration as established by the current version of the International Building Code;

(2) Structures and improvements shall minimize alterations to the natural contour of the slope and foundations shall be tiered where possible to conform to existing topography;

(3) Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

(4) The proposed development shall not decrease slope stability on adjacent properties or result in greater risk or a need for increased buffers on neighboring properties;

(5) The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes; and

(6) Development shall be designed to minimize impervious lot coverage.

C. Slopes Created by Previous Grading. Artificial slopes meeting the criteria of a landslide hazard area based on slope steepness and height that were created through previous permitted grading or are legally nonconforming may be further altered or graded, provided the applicant provides information from a qualified professional demonstrating that the naturally occurring slope, as it existed prior to the permitted grading, did not meet any of the criteria for a landslide hazard area and that a new hazard will not be created. Previously graded slopes meeting the criteria of a landslide hazard area that were not permitted or were illegally created are considered to be landslide hazard areas.

D. Seismic Hazard Areas. Activities proposed to be located in seismic hazard areas shall meet the standards of KMC 18.55.640, Performance standards – General requirements, and the International Building Code. Development or renovation of property in designated tsunami or seiche zones, when identified by the USGS or Washington State Department of Natural Resources, may be allowed if taking into account Designing for Tsunamis, Seven Principles for Planning and Designing for Tsunami Hazards (National Tsunami Hazard Mitigation Program, 2001) and following the regulations for floodways.

E. Other Hazard Areas. Activities on sites adjacent to geologically hazardous areas shall meet the standards of KMC 18.55.640, Performance standards – General requirements. [Ord. 19-0488 § 2 (Exh. 1); Ord. 11-0329 § 3 (Exh. 1).]

Article XIX. Flood Hazard Areas

18.55.700 Purpose.

The Washington State Legislature has delegated the responsibility to each community to adopt floodplain management regulations consistent with the National Flood Insurance Program designed to promote the public health, safety and general welfare of its citizenry. The State Legislature also has established that floodplains and other areas subject to flooding perform important hydrologic functions, and as such they must also be regulated as critical areas under the Growth Management Act (GMA). This article addresses both mandates as an integrated set of regulations.

The flood hazard areas of the City of Kenmore, which encompass the Federal Emergency Management Agency (FEMA) designated areas of special flood hazard, are subject to periodic inundation which may result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. These flood losses may be caused by the cumulative effect of development in areas of flood hazard which increase flood heights and velocities.

Uses that are inadequately floodproofed, elevated, anchored, or otherwise protected from flood damage contribute to flood losses and may cause damage in other areas. The purpose of this article is to establish minimum standards for developments located within or adjacent to flood hazard areas, including areas of special flood hazard. The following statements describe the purpose of this article:

A. Protect human life and health;

B. Minimize expenditure of public money and costly flood control projects;

C. Minimize the need for rescue and relief efforts associated with flooding;

D. Minimize prolonged business interruptions;

E. Minimize damage to public infrastructure, facilities and utilities;

F. Minimize damage to critical fish and wildlife habitat areas;

G. Protect frequently flooded areas that provide natural and beneficial ecological functions, including providing vital habitat to support salmon and other fish and wildlife species;

H. Ensure that potential buyers are notified that property is in a flood hazard area;

I. Ensure that those who occupy flood hazard areas assume responsibility for their actions; and

J. Qualify for participation in the National Flood Insurance Program, thereby providing owners located within the mapped area of special flood hazard the opportunity to purchase flood insurance. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.705 Definitions.

Most of the terms used in this article are defined in Chapter 18.20 KMC. However, there are some terms used in this article that are required to have unique meanings separate from those in Chapter 18.20 KMC. Those terms listed below are defined in 44 CFR Part 59.1 and supersede those provided in Chapter 18.20 KMC for purposes of administering this article. Any undefined terms used in these definitions will also be based on 44 CFR Part 59.1.

A. “Appeal” means a request for a review of the interpretation of any provision of this article or a request for a variance.

B. “Development” means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

C. “Existing manufactured home park or subdivision” means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain management regulations adopted by the City.

D. “Highest adjacent grade” means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

E. “Manufactured home” means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term “manufactured home” does not include a recreational vehicle.

F. “New construction” means, for the purposes of determining insurance rates, structures for which the start of construction commenced on or after the effective date of an initial flood insurance rate map or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, “new construction” means structures for which the start of construction commenced on or after the effective date of a floodplain management regulation adopted by the City and includes any subsequent improvements to such structures.

G. “Recreational vehicle” means a vehicle which is:

1. Built on a single chassis;

2. Four hundred square feet or less when measured at the largest horizontal projection;

3. Designed to be self-propelled or permanently towable by a light-duty truck; and

4. Designed primarily not for use as a permanent dwelling, but as temporary living quarters for recreational, camping, travel, or seasonal use.

H. “Structure” means, for floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank that is principally aboveground, as well as a manufactured home.

I. “Substantial improvement” means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the start of construction of the improvement. This term includes structures which have incurred substantial damage, regardless of the actual repair work performed. The term does not, however, include either:

1. Any project for improvement of a structure to correct existing violations of State or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or

2. Any alteration of an historic structure; provided, that the alteration will not preclude the structure’s continued designation as an historic structure.

J. “Variance” means a grant of relief by the City from the terms of a floodplain management regulation. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.707 Lands to which this article applies.

This article shall apply to all flood hazard areas within the jurisdiction of the City of Kenmore, including areas of special flood hazards as mapped by FEMA and shown on the FIRM. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.710 Basis for establishing flood hazard area.

A. The City shall determine the flood hazard area after obtaining, reviewing and utilizing base flood elevations and available floodway data for a flood having a one percent chance of being equaled or exceeded in any given year, often referred to as the “100-year flood.” The base flood is determined for existing conditions, unless a basin plan including projected flows under future developed conditions has been completed and adopted by the City, in which case these future flow projections shall be used.

B. The areas of special flood hazard identified by the Federal Insurance Administrator (FIA) in a scientific and engineering report entitled “The Flood Insurance Study of King County, Washington and Incorporated Areas,” dated August 19, 2020, and any revisions thereto, with an accompanying effective flood insurance rate map (FIRM), dated August 19, 2020, and any revisions thereto, are hereby adopted by reference and declared to be a part of this article. The flood insurance study is on file at Kenmore City Hall. In areas where the flood insurance study for the City includes detailed base flood elevation calculations, those calculations will be used until projections of future flows are completed and approved by the City and FEMA.

C. The City may use other sources of flood hazard data to determine floodplain boundaries, floodway boundaries, base flood elevations or cross-sections when identifying a flood hazard area if the data from sources listed below is more restrictive than the effective data:

1. Preliminary flood insurance rate maps;

2. Preliminary flood insurance studies;

3. Draft flood boundary work maps and associated technical reports;

4. Critical area reports prepared in accordance with FEMA standards contained in 44 CFR Part 65 and consistent with the King County Surface Water Design Manual provisions for floodplain analysis;

5. Approved letter of map amendments;

6. Approved letter of map revisions;

7. Channel migration zone maps and studies;

8. Historical flood hazard information;

9. Wind and wave data provided by the United States Army Corps of Engineers; and

10. Any other available data that accurately classifies and delineates the flood hazard area or base flood elevation.

D. Where elevation data is not available either through the flood insurance study or from the FIRM, or another authoritative source for the City to administer the floodplain development requirements, applications for building permits shall be reviewed to ensure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a federal, State or local source; historical data; documented high water marks; photographs of past flooding; or additional modeling studies, etc., where available. Structures shall be elevated two feet above the highest adjacent grade in these zones.

E. Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less). [Ord 20-0508 § 1; Ord. 19-0488 § 2 (Exh. 1).]

18.55.715 Permits.

A. Development Permit Required. A development permit shall be obtained before construction or development begins within any flood hazard area. The permit shall be for all structures, including manufactured homes as defined in KMC 18.55.705, and for all development as defined in KMC 18.55.705.

B. Application for Development Permit. Application for a development permit shall be made on forms furnished by the City of Kenmore and may include but not be limited to plans drawn to scale showing the nature, location, dimensions, and elevations of the area in question, existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing. Specifically, the following information is required:

1. Elevation in relation to mean sea level and the effective flood study base flood elevation survey data of the lowest floor (including basement) of all structures;

2. Elevation in relation to mean sea level and the effective flood study base flood elevation survey datum to which any structure has been floodproofed;

3. Map depicting existing conditions, wetlands, streams, water bodies, designated fish and wildlife habitats of importance, the boundary of the flood hazard area and floodway, and the location of grading and structures in the proposed development;

4. Description of the extent to which a watercourse will be altered or relocated as a result of proposed development; and

5. Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing standards in this article.

C. All elevated construction shall be designed and certified by a professional structural engineer licensed by the State of Washington and shall be approved by the City prior to construction.

D. Prior to approving any permit, the City shall determine that all permits required by State or federal law have been obtained.

E. A notice on title shall be recorded consistent with KMC 18.55.250. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.720 Final certification by surveyor.

A. For all new structures or substantial improvements in a flood hazard area, the applicant shall provide certification by a professional land surveyor licensed by the State of Washington of:

1. The actual as-built elevation of the lowest floor, including basement; and

2. The actual as-built elevation to which the structure is floodproofed, if applicable.

B. The surveyor shall indicate if the structure has a basement. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.723 Designation and responsibilities of the local administrator.

The city manager is hereby appointed to administer and implement this article by granting or denying development permit applications in accordance with its provisions. Duties of the city manager shall include, but not be limited to:

A. Review of the flood hazard area maps, and other source documents, for any development proposal to determine whether the proposed project area for a regulated activity falls within a potential flood hazard area;

B. Review of proposed development located within a flood hazard area to ensure compliance with the flood hazard area standards set forth in this article; and

C. Interpretation of flood hazard area boundaries. The city manager shall make interpretations, where needed, as to exact location of the boundaries of the flood hazard area, including the FEMA-mapped area of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation to the hearing examiner as provided in Chapter 19.30 KMC. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.725 Information to be obtained and maintained by the City.

A. The City shall obtain, verify and record the actual elevation (in relation to mean sea level and the base flood elevation data) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement.

B. For all new or substantially improved floodproofed structures, the City shall maintain the floodproofing certifications required in this article.

C. Alteration of Watercourses.

1. The City shall notify adjacent communities and the Department of Ecology, or federal resource agencies where required, prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administrator through appropriate notification means.

2. The City shall require that the flood-carrying capacity of the altered or relocation portion of said watercourse is maintained.

3. Base flood elevations may increase or decrease resulting from physical changes affecting flooding conditions. If a project will alter the base flood elevation or boundaries of the area of special flood hazard, then the project proponent shall provide the City with engineering documentation and analysis regarding the proposed change. If the change to the base flood elevation or boundaries of the area of special flood hazard would normally require a Letter of Map Change, then the applicant shall initiate, and receive approval of, a Conditional Letter of Map Revision (CLOMR) prior to approval of the development permit. The project shall be constructed in a manner consistent with the approved CLOMR. As soon as practicable, but not later than six months after the date such information becomes available, the city manager shall notify the Federal Insurance Administrator of the changes by submitting technical or scientific data in accordance with 44 CFR Part 65.3. The City reserves the right to require the applicant to develop and provide the required technical or scientific data. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements will be based upon current data.

4. The City shall notify the Federal Insurance Administrator in writing of acquisition by means of annexation, incorporation or otherwise of additional areas of jurisdiction.

D. The City shall maintain for public inspection all records pertaining to the provisions of this article. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.730 Development standards applicable to all flood hazard areas.

Development proposals on sites within flood hazard areas, including the area of special flood hazard, shall meet the following requirements:

A. Buffers. No critical area buffer is required for a flood hazard area.

B. Anchoring.

1. All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy; and

2. All manufactured homes must likewise be anchored to prevent flotation, collapse, or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (reference FEMA’s “Manufactured Home Installation in Flood Hazard Areas” guidebook for additional techniques).

C. Construction Materials and Methods.

1. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

2. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

3. Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other utility and service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

4. Adequate drainage paths shall be provided around structures on slopes to guide floodwaters around and away from proposed structures.

D. Utilities.

1. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.

2. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the systems into floodwaters.

3. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. They shall be, to the extent possible, located outside of the flood hazard area. The installation of a new on-site sewage disposal system in the flood hazard area may be allowed if no feasible alternative site is available.

4. Aboveground utility transmission lines, other than electric transmission lines, shall only be allowed for the transport of nonhazardous substances.

5. Buried utility transmission lines transporting hazardous substances shall be buried at a minimum depth of four feet below the maximum depth of scour for the base flood, as predicted by a professional civil engineer licensed by the State of Washington, and shall achieve sufficient negative buoyancy so that any potential for flotation or upward migration is eliminated.

6. Water wells shall be located on high ground that is not in the floodway.

E. Encroachments. The cumulative effect of any proposed development, where combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one foot at any point within the City. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.740 Development standards for specific uses in flood hazard areas.

A. Residential Construction.

1. New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated one foot above the base flood elevation. In any flood hazard area where the base flood elevation has not been determined on the FIRM, the base flood elevation is determined by the city manager consistent with KMC 18.55.710.

2. Fully enclosed areas below the lowest floor that are subject to flooding are prohibited unless used solely for parking, access or storage. These areas shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

a. A minimum of two openings on opposite walls having a total open area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided;

b. The bottom of all openings shall be no higher than one foot above grade; and

c. Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters.

B. Manufactured Homes.

1. Except as noted in subsection (B)(2) of this section, all manufactured homes to be placed or substantially improved within any flood hazard area shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated one foot above the base flood elevation and shall be securely anchored to an adequately designed foundation system to resist flotation, collapse and lateral movement. In any flood hazard area where the base flood elevation has not been determined on the FIRM, the base flood elevation is determined by the city manager consistent with KMC 18.55.710. The City reserves the right to require the applicant to perform the engineering studies necessary to determine the base flood elevation.

2. Manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within a flood hazard area that have not incurred substantial damage as the result of a flood shall be elevated so that either:

a. The lowest floor of the manufactured home is elevated one foot above the base flood elevation; or

b. The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and is securely anchored to an adequately designed foundation system to resist flotation, collapse, and lateral movement.

C. Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated one foot above the base flood elevation; or, together with attendant utility and sanitary facilities, shall:

1. Be floodproofed so that below one foot above the base flood level the structure is watertight with walls substantially impermeable to the passage of water;

2. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;

3. Be certified by a professional civil or structural engineer licensed by the State of Washington that the floodproofing methods are adequate to withstand the flood depths, pressures, velocities, impacts, uplift forces and other factors associated with the base flood. After construction, the engineer shall certify that the permitted work conforms with the approved plans and specifications;

4. Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in subsection (A)(2) of this section;

5. Approved building permits for floodproofed nonresidential structures shall contain a statement notifying applicants that flood insurance premiums shall be based upon rates for structures which are one foot below the floodproofed level (e.g., a building floodproofed to the base flood level will be rated as one foot below);

6. Sewage and agricultural waste storage facilities shall be floodproofed to the flood protection elevation.

D. Recreational Vehicles. Recreational vehicles placed on sites within flood hazard areas shall either:

1. Be on the site for fewer than 180 consecutive days;

2. Be fully licensed and ready for highway use, on their wheels or jacking systems, attached to the site only by quick-disconnect type utilities and security devices, and have no permanently attached additions; or

3. Meet the requirements of subsection B of this section, including the elevation and anchoring requirements.

E. Critical Facility. Construction of new critical facilities shall be, to the extent possible, located outside the limits of flood hazard areas, including the area of special flood hazard. Construction of new critical facilities shall be permissible within the flood hazard area if no feasible alternative site is available and if the proposal is evaluated through the conditional use permit process. Critical facilities constructed within the flood hazard area shall have the lowest floor elevated three feet or more above the level of the base flood elevation (100-year) at the site. Floodproofing and sealing measures shall be taken to ensure that hazardous substances will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the base flood elevation shall be provided to all critical facilities from the nearest maintained public street or roadway.

F. Subdivisions, short subdivisions and binding site plans shall meet the following requirements:

1. New building lots shall contain 5,000 square feet or more of buildable land outside the flood hazard area, and building setback areas shall be shown on the face of the plat to restrict permanent structures to this buildable area;

2. All utilities and facilities such as sewer, gas, electrical and water systems shall be located and constructed consistent with KMC 18.55.730;

3. Base flood data and flood hazard notes shall be shown on the face of the recorded subdivision, short subdivision or binding site plan, including, but not limited to, the base flood elevation, required flood protection elevations and the boundaries of the flood hazard area and the floodway, if determined;

4. The following notice shall also be shown on the face of the recorded subdivision, short subdivision or binding site plan for all affected lots:

NOTICE

Lots and structures located within flood hazard areas may be inaccessible by emergency vehicles during flood events. Residents and property owners should take appropriate advance precautions.

5. All subdivision proposals shall be consistent with the need to minimize flood damage; and

6. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.750 Development in the floodway.

A. Encroachments. Encroachments, including fill, new construction, substantial improvements, and other development, within the adopted regulatory floodway are prohibited unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachments shall not result in any increase in flood levels within the City during the occurrence of the base flood discharge.

B. If the requirements in subsection A of this section are satisfied, the requirements which apply to all flood hazard areas (KMC 18.55.730 and 18.55.740), including the area of special flood hazard, shall also apply to all new construction and substantial improvements in the floodway. The more restrictive requirements shall apply where there is a conflict.

C. Any development proposal, including, but not limited to, new or reconstructed structures, that results in any increase in the base flood elevation shall meet the following requirements:

1. Amendments to the flood insurance rate map are approved and adopted by FEMA, in accordance with all requirements of 44 CFR Part 65.7, to incorporate the increase in the base flood elevation; and

2. Appropriate legal documents are prepared in which all property owners affected by the increased flood elevations consent to the impacts on their property. These documents shall be filed with the title of record for the affected properties.

D. If allowed, post or piling construction techniques which permit water flow beneath a structure shall be used. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.760 Habitat assessment.

To comply with Federal Endangered Species Act requirements, the applicant shall provide an assessment of impacts to federal, State or locally listed species, habitat, water quality and aquatic riparian habitat impacts for any proposal lying within a mapped area of special flood hazard. See Article XIV of this chapter. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.770 Warnings and disclaimer of liability.

The degree of flood protection required by this article is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Floods larger than the regulatory base flood can and will occur. Flooding and flood hazards may occur in unmapped areas. Flood heights may be increased by manmade or natural causes. This article does not imply that land outside flood hazard areas or uses permitted within such areas will be free from flooding or flood damages. This article shall not create liability on the part of the City of Kenmore, any officer or employee thereof, or the Federal Emergency Management Agency for any flood damages that result from reliance on this article or any administrative decision lawfully made hereunder. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.780 Variances in flood hazard areas.

A. Conditions for Variances.

1. Generally, the only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided subsections (B)(1) through (11) of this section have been fully considered. As the lot size increases, the technical justification required for issuing the variance increases.

2. Variances may be issued for the repair or rehabilitation of historic structures or the City’s local landmarks, upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

3. Variances shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.

4. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

5. Variances shall only be issued upon:

a. A showing of good and sufficient cause;

b. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

c. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

6. Variances as interpreted in the National Flood Insurance Program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, or economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.

7. Variances may be issued for nonresidential buildings in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance conditions except subsection (A)(1) of this section and otherwise complies with KMC 18.55.730(A) and (B).

8. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

B. If a variance to the standards in this article is proposed, the decisionmaker shall consider, in addition to the conditions itemized in subsection A of this section, and the standard variance criteria itemized in KMC 18.115.030:

1. The danger that materials may be swept onto other lands to the injury of others;

2. The danger to life and property due to flooding or erosion damage;

3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

4. The importance of the services provided by the proposed facility to the community;

5. The necessity to the facility of a waterfront location, where applicable;

6. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

7. The compatibility of the proposed use with existing and anticipated development;

8. The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

9. The safety of access to the property in times of flood for ordinary and emergency vehicles;

10. The expected depths, heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

11. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

C. The city manager shall report any variances to the Federal Emergency Management Agency upon request. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.790 Penalties for noncompliance.

No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this article and other applicable regulations. Violations of the provisions of this article by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Nothing herein contained shall prevent the City of Kenmore from taking such other lawful action as is necessary to prevent or remedy any violation. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.795 Abrogation and greater restrictions.

This article is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this article and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. [Ord. 19-0488 § 2 (Exh. 1).]

Article XX. Groundwater Susceptibility and Critical Aquifer Recharge Areas

18.55.800 Designation of groundwater susceptibility and critical aquifer recharge areas.

Groundwater recharge areas play an important role in groundwater quality and the general environmental health of the area in which they are located. Although no critical aquifer recharge areas are designated within the City limits at this time, the City understands the importance of protecting its groundwater resources. For example, groundwater can be an important source of water in City streams and wetlands, particularly during dry summer months, which supports associated vegetation communities and aquatic habitat. Some communities rely on groundwater for irrigation or drinking water. In the City, areas susceptible to groundwater contamination have been designated using the City of Kenmore Groundwater Susceptibility Map, which was developed based on the Guidance Document for the Establishment of Critical Aquifer Recharge Area Ordinances (Ecology, 1998). The map is the result of combining the ratings of a variety of factors for areas throughout the City, including: geologic unit (i.e., depositional environment), near surface permeability (based on the county soil map), and depth to groundwater. The map identifies areas with “moderate” or “high” susceptibility to groundwater contamination. [Ord. 19-0488 § 2 (Exh. 1).]

18.55.810 Critical areas report.

A. The purpose of a hydrogeologic assessment report is to evaluate actual hydrogeologic conditions and determine a site’s proximity to vulnerable groundwater resources. This information then is used to evaluate the likely impacts of proposed activities and to determine appropriate construction practices, monitoring programs, and other mitigation measures required to ensure achievement of the purpose and intent of these regulations.

B. The information required by the hydrogeologic assessment report should be coordinated with the study and reporting requirements for any other critical areas located on the site.

C. The hydrogeologic assessment report shall be prepared by a qualified professional who is a hydrogeologist, geologist, or engineer licensed in the State of Washington and has experience in preparing hydrogeologic assessments.

D. The City of Kenmore Groundwater Susceptibility Map, referenced under KMC 18.55.800, identifies the level of evaluation required at a particular site within the City.

1. Level One Hydrogeological Assessment – Areas of Moderate Susceptibility.

a. A level one hydrogeologic assessment shall be required for any of the following nonresidential proposed activities at sites located within groundwater susceptibility zones that are rated as “moderate susceptibility”:

(1) The storage, handling, treatment, use, production, recycling, or disposal of hazardous substances, other than hazardous household substances used according to the directions specified on the packaging for domestic applications. See RCW 70.105.010.

(2) The use of injection wells, including on-site septic systems, except those domestic septic systems releasing less than 14,500 gallons of effluent per day and that are limited to a maximum density of one system per acre.

(3) Any other activity determined by the city manager likely to have an adverse impact on groundwater quality or quantity, or on groundwater recharge.

b. A level one hydrogeologic assessment shall include the following site and development-related information at a minimum:

(1) Information regarding geologic and hydrogeologic characteristics of the site, including the permeability of the unsaturated zone (soils located above the groundwater table) based on existing data.

(2) Groundwater depth, flow direction, and gradient based on available information.

(3) Location of wells and springs within 1,300 feet of the project area.

(4) Location of other critical areas, including surface waters, within 1,300 feet of the project site.

(5) Available historic water quality data for the area to be affected by the proposed activity.

(6) Best management practices (BMPs) proposed to be utilized.

2. Level Two Hydrogeologic Assessment – Areas of High Susceptibility.

a. A level two hydrogeologic assessment shall be required for any of the following nonresidential proposed activities at sites located within groundwater susceptibility zones that are rated as “high susceptibility”:

(3) Any other activity determined by the city manager likely to have an adverse impact on groundwater quality or quantity, or on groundwater recharge.

b. A level two hydrogeologic assessment shall include the following site and proposal-related information at a minimum, in addition to the requirements for a level one hydrogeologic assessment:

(1) Historic water quality and elevation data for the area to be affected by the proposed activity compiled for at least the previous five-year period, unless otherwise approved by the city manager.

(2) Groundwater monitoring plan provisions.

(3) Discussion of the effects of the proposed project on groundwater quality and quantity, including:

(a) Predictive evaluation of groundwater withdrawal effects on nearby wells and surface water features.

(b) Predictive evaluation of contaminant transport based on potential releases to groundwater.

(4) Identification of the type and quantities of any hazardous materials that will be stored, handled, treated, used, produced, recycled, or disposed of on the site, including but not limited to materials such as elevator lift/hydraulic fluid, hazardous materials used during construction, materials used by the building occupants, proposed storage and manufacturing uses, etc.

(5) Proposed methods of storing any of the above substances, including containment methods to be used during construction and/or use of the proposed facility.

(6) Proposed plan for implementing protection standards during construction.

(7) A spill prevention, control and countermeasure (SPCC) plan that identifies equipment and/or structures that could fail, resulting in an impact. Spill plans shall include provisions for regular inspection, repair, and replacement of structures and equipment that could fail.

(8) A discussion of past environmental investigations, sampling, spills, or incidents that may have resulted in or contributed to contaminated soil or groundwater at the site. Attach copies of all historical and current reports, and sampling results. [Ord. 19-0488 § 2 (Exh. 1).]