Chapter 18.20
CRITICAL AREAS PROTECTION
Sections:
18.20.030 Designation of critical areas.
18.20.040 Construction with other laws.
18.20.060 New permits required for activities in critical areas.
18.20.070 Performance standards.
18.20.110 Administrative appeals.
18.20.120 Nonconforming activities.
18.20.010 Purpose.
The purpose of this chapter is to protect the functions and values of critical areas, and to protect the public health, safety, and welfare of the citizens of Kittitas. Additionally, this chapter is intended to protect public and private property and natural ecosystems found within city limits. The city of Kittitas finds that development in and/or near critical areas may pose a threat to public and private property, to natural ecosystems and to the public health, safety and welfare. This chapter aims to protect critical areas and to channel development to less ecologically sensitive areas. (Ord. 07-013 § 1).
18.20.020 Definitions.
(1) “Critical areas” include the following areas and ecosystems:
(a) Wetlands;
(b) Areas with a critical recharging effect on aquifers used for potable water;
(c) Fish and wildlife habitat conservation areas;
(d) Frequently flooded areas; and
(e) Geologically hazardous areas.
(2) “Fish and wildlife habitat conservation areas” include:
(a) Areas with which endangered, threatened, and sensitive species have primary association;
(b) Habitats and species of local importance;
(c) Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish and wildlife habitat;
(d) Waters of the state;
(e) State natural area preserves and natural resource conservation areas.
(3) “Frequently flooded areas” include those flooded areas in the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program and other frequently flooded areas.
(4) “Geologically hazardous area” means an area that is not suited to commercial, residential, or industrial development because of its susceptibility to erosion, sliding, earthquakes, or other geological events hazardous to public health or safety.
(5) A “qualified scientific expert” has the expertise appropriate to the relevant critical areas and is determined by the person’s professional credentials and/or certification, any advanced degrees earned in the pertinent scientific discipline from a recognized university, the number of years’ experience in the pertinent scientific discipline, formal training in the specific area of expertise, and field and/or laboratory experience with evidence of the ability to produce peer-reviewed publications or other professional literature. No one factor is determinative in deciding whether a person is a qualified scientific expert.
(6) “Wetland” or “wetlands” means an area that is inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and other similar areas. Wetlands do not include those artificial wetlands intentionally created from non-wetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street or highway. (Ord. 07-013 § 1).
18.20.030 Designation of critical areas.
(1) The city of Kittitas shall regulate all uses, activities and developments within, adjacent to, or likely to affect, one or more critical areas, consistent with the best available science and the provisions herein.
(2) Critical areas regulated by this chapter include:
(a) Wetlands are those areas, designated in accordance with the Washington State Wetland Identification and Delineation Manual (1997), that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. All areas within the city meeting the wetland designation criteria in the identification and delineation manual are hereby designated critical areas and are subject to the provisions of this chapter. Wetlands shall be rated according to the Washington State Department of Ecology wetland rating system found in the Washington State Wetland Rating System documents (Eastern Washington, Ecology Publication No. 04-16-15) or as revised by Ecology.
(b) Critical aquifer recharge areas (CARAs) are those areas with a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2). CARAs have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water. Aquifer recharge areas shall be rated as having high, moderate, or low susceptibility based on soil permeability, geologic matrix, infiltration, and depth to water as determined by the criteria established by the state Department of Ecology. These areas include the following:
(i) Wellhead Protection Areas. Wellhead protection areas may be defined by the boundaries of the 10-year time of ground water travel or boundaries established using alternate criteria approved by the Washington State Department of Health in those settings where ground water time of travel is not a reasonable delineation criterion, in accordance with WAC 246-290-135.
(ii) Sole Source Aquifers. Sole source aquifers are areas that have been designated by the U.S. Environmental Protection Agency pursuant to the Federal Safe Water Drinking Act.
(iii) Susceptible Ground Water Management Areas. Susceptible ground water management areas are areas that have been designated as moderately or highly vulnerable or susceptible in an adopted ground water management program developed pursuant to Chapter 173-100 WAC.
(iv) Special Protection Areas. Special protection areas are those areas defined by WAC 173-200-090.
(v) Moderately or Highly Vulnerable Aquifer Recharge Areas. Aquifer recharge areas that are moderately or highly vulnerable to degradation or depletion because of hydrogeologic characteristics are those areas delineated by a hydrogeologic study prepared in accordance with the state Department of Ecology guidelines.
(vi) Moderately or Highly Susceptible Aquifer Recharge Areas. Aquifer recharge areas moderately or highly susceptible to degradation or depletion because of hydrogeologic characteristics are those areas meeting the criteria established by the state Department of Ecology.
(c) Frequently flooded areas are those areas that have a one percent or greater chance of flooding in any given year. These areas may include, but are not limited to, streams (including intermittent ones), draws/ravines, rivers, wetlands, and the like.
(d) Geologically hazardous areas include those with the following characteristics:
(i) Erosion Hazard Areas. Erosion hazard areas are at least those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “moderate to severe,” “severe,” or “very severe” rill and inter-rill erosion hazard. Erosion hazard areas are also those areas impacted by shoreland and/or streambank erosion and those areas within a river’s channel migration zone.
(ii) Landslide Hazard Areas. Landslide hazard areas are areas potentially subject to 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.
(iii) Seismic Hazard Areas. Seismic hazard areas are areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density, typically in association with a shallow ground water table.
(iv) Mine Hazard Areas. Mine hazard areas are those areas underlain by or affected by mine workings such as adits, gangways, tunnels, drifts, or airshafts, and those areas of probable sink holes, gas releases, or subsidence due to mine workings. Factors that should be considered include: proximity to development, depth from ground surface to the mine working, and geologic material.
(v) Volcanic Hazard Areas. Volcanic hazard areas are areas subject to pyroclastic flows, lava flows, debris avalanche, and inundation by debris flows, lahars, mudflows, or related flooding resulting from volcanic activity.
(vi) Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the director to be susceptible to other geological events including mass wasting, debris flows, rock falls, and differential settlement.
(e) Fish and wildlife habitat conservation areas include those with the following characteristics:
(i) Federally Designated Endangered, Threatened and Sensitive Species. Areas with which federally designated endangered, threatened and sensitive species have a primary association. Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status.
(ii) State-Designated Endangered, Threatened and Sensitive Species. Areas with which state-designated endangered, threatened and sensitive species have a primary association. State-designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington Department of Fish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State-designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The state Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.
(iii) State Priority Habitats and Areas Associated With State Priority Species. Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by the state Department of Fish and Wildlife.
(iv) Habitats and Species of Local Importance. Habitats and species of local importance are those identified by the city, including but not limited to those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection. Habitats may include a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.
(3) All areas within the city meeting the definition of one or more critical areas defined above are hereby designated critical areas and are subject to the provisions of this chapter. (Ord. 07-013 § 1).
18.20.040 Construction with other laws.
(1) Abrogation and Greater Restrictions. It is not intended that this chapter repeals, abrogates, or impairs any existing regulations, easements, covenants, or deed restrictions. However, when this chapter imposes greater restrictions, the provisions of this chapter shall prevail.
(2) Interpretation. The provisions of this chapter shall be liberally construed to serve the purposes of this chapter. (Ord. 07-013 § 1).
18.20.050 Permitting.
All applications for permits to conduct activities having a possible significant impact on critical areas that are located on or near a project site must identify the areas affected and make an estimate of the probable impact. The city of Kittitas shall deny all requests for permits which would result in activities degrading a wetland or fish and/or wildlife habitat conservation area, which would put people or property in a position of unacceptable risk with respect to floods or geologic hazards, which would tend to aggravate geologic hazards, or which would harm critical recharging areas for aquifers. The city of Kittitas may, however, grant permits which include mitigation measures if the mitigation measures adequately protect the critical area and people involved. In granting a permit that includes mitigation measures, best available science, which shall be determined utilizing the criteria set out in WAC 365-195-900 through 365-195-925, shall be used to develop and approve the mitigation measures. (Ord. 07-013 § 1).
18.20.055 Determination.
(1) Each development permit shall be reviewed to determine if the proposal is within a critical area or critical area buffer. City staff shall use maps and data maintained by the city and a site inspection if appropriate.
(2) If it is determined that a critical area(s) is present, additional assessments prepared by a qualified engineer, biologist and/or geologist best suited for the type of identified critical area(s) may be required.
(3) In cases related to geohazards, the assessment shall include a description of the geology of the site and the proposed development; an assessment of the potential impact the project may have on the geologic hazard; an assessment of what potential impact the geologic hazard may have on the project; appropriate mitigation measures, if any; a conclusion as to whether further analysis is necessary; and be signed by and bear the seal of the engineer or geologist that prepared it.
(4) When a geotechnical report is required, it shall include a certification from the engineer preparing the report, including the engineer’s professional stamp and signature, stating all of the following:
(a) The risk of damage from the project, both on- and off-site;
(b) The project will not materially increase the risk of occurrence of the hazard; and
(c) The specific measures incorporated into the design and operational plan of the project to eliminate or reduce the risk of damage due to the hazard.
(5) All mitigation measures, construction techniques, recommendations and technical specifications provided in the geotechnical report shall be applied during the implementation of the proposal. The engineer of record shall submit sealed verification at the conclusion of construction that development occurred in conformance with the approved plans.
(6) A proposed development cannot be approved if it is determined by the geotechnical report that either the proposed development or adjacent properties will be at risk of damage from the geologic hazard, or that the project will increase the risk of occurrence of the hazard, and there are no adequate mitigation measures to alleviate the risks. (Ord. 07-013 § 1).
18.20.060 New permits required for activities in critical areas.
The following activities shall require a critical areas permit if they are not already reviewed through a more general permit in which the applicant has reported a possible impact on a critical area:
(1) In wetlands: The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter or material of any kind; dumping, discharging, or filling with any material; the draining, flooding, or disturbing of the water level or water table; the driving of piling; the placing of obstructions; the construction, reconstruction, or demolition or expansion of any structure; the destruction or alteration of wetlands vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland, or activities that result in a significant change of physical or chemical characteristics or wetland water sources, including quantity, or the introduction of pollutants.
(2) In critical aquifer recharge areas: Any land use, agricultural activity, or other activity having significant potential to contaminate the water.
(3) In fish and wildlife habitat conservation areas: Any land use or other activity having the potential to significantly degrade the habitat or harm wildlife.
(4) In frequently flooded areas: Any land use or other activity likely to contribute to a significant increase in flood hazards or to place a significant number of people in danger.
(5) In geologically hazardous areas: Any land use or other activity likely to contribute to a significant increase in geological hazards or to place people in danger.
(6) Designated critical areas and any associated buffers shall be designated and disclosed on the final plats, maps, documents, etc., as critical area tracts, nonbuildable lots and buffer areas or common areas. (Ord. 07-013 § 1).
18.20.070 Performance standards.
The following general performance standards shall apply to activities permitted within critical areas or critical area buffers. Additional standards may be necessary based on site-specific considerations or proposed development impacts.
(1) General Performance Standards.
(a) Areas of new permanent disturbance and all areas of temporary disturbance shall be mitigated and/or restored pursuant to a mitigation and restoration plan.
(b) Mitigation plans shall include a discussion of mitigation alternatives (sequencing) as they relate to:
(i) Avoiding the impact altogether by not taking a certain action or parts of an action;
(ii) Minimizing impacts by limiting the degree or magnitude of the actions and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
(iii) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
(iv) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
(v) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or
(vi) Monitoring the impact and taking appropriate corrective measures.
(c) All boundaries of critical areas or any associated buffers shall be delineated prior to development activity on site.
(2) Wetland Areas.
(a) Lights shall be directed away from the wetland.
(b) Activities that generate noise shall be located away from the wetland, or noise impacts shall be minimized through design or insulation techniques.
(c) Toxic runoff from new impervious surface area shall be directed away from wetlands.
(d) Treated storm water runoff may be allowed into wetland buffers. Channelized flow should be prevented.
(e) Use of pesticides, insecticides and fertilizers within 150 feet of wetland boundary shall be limited and follow best management practices (BMPs).
(f) The outer edge of the wetland buffer shall be planted with dense native vegetation and/or fencing to limit pet and human disturbance.
(3) Critical Aquifer Recharge Areas (CARAs).
(a) All structures shall be placed to provide a maximum buffer to known CARAs.
(b) Impervious coverage of the lot shall be minimized.
(c) Best management practices shall be used during construction.
(4) Fish and Wildlife Habitat Conservation Areas.
(a) Flora (plant life) and fauna (animal life) identified as protected shall be sheltered from construction activities using best management practices.
(b) Replacement of any flora shall be maintained by the applicant for three years to establish viable plant life.
(5) Frequently Flooded Areas.
(a) All structures and other improvements shall be located on the buildable portion of the site out of the area of flood hazard. Where necessary residential buildings may be elevated.
(b) Utilities shall be located above the base flood elevation (BFE), preferably three or more feet.
(c) All new construction and substantial improvements shall be constructed using flood-resistant materials and using methods and practices that minimize flood damage.
(d) All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.
(e) No rise in the BFE shall be allowed. Post and piling techniques are preferred and are presumed to produce no increase in the BFE.
(f) Modification of stream channels shall be avoided.
(6) Geologically Hazardous Areas.
(a) 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.
(b) Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation.
(c) The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties.
(d) Development shall be designed to minimize impervious surfaces within the critical area and critical area buffer.
(7) Additional Considerations.
(a) Site-specific considerations may warrant additional performance standards, to be determined during the permit process, to ensure the protection of critical areas.
(b) Development-specific considerations may warrant additional performance standards based on level of impact to critical areas. (Ord. 07-013 § 1).
18.20.080 Exemptions.
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) Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer;
(2) 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. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species; and
(3) Passive Outdoor Activities. Recreation, education and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. (Ord. 07-013 § 1).
18.20.090 Reasonable use.
(1) Where the provisions of this chapter would prevent all reasonable use of those properties completely encumbered by critical areas, the property owner may apply for a reasonable use exception as provided below. One or more of the following criteria shall apply where a reasonable use exception is requested:
(a) The application of this title would deny all reasonable economic use of the property;
(b) No other reasonable economic use of the property has less impact on the critical area;
(c) The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;
(d) The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of this chapter, or its predecessor;
(e) The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
(f) The proposal will result in no net loss of critical area functions and values consistent with the best available science; or
(g) The proposal is consistent with other applicable regulations and standards.
(2) The responsibility of proving the presence of one or more of the above criteria 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.
(3) A request for a reasonable use exception shall be made to the city of Kittitas and shall be processed according to the provisions in KMC 14.09.050, “quasi-judicial review of applications.” The request shall include a critical areas report, including a 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. The city shall prepare a recommendation to the city’s hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria identified above.
(4) The city hearing examiner shall review and decide upon the request for reasonable use. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with the reasonable use exception criteria identified above. (Ord. 07-013 § 1).
18.20.100 Penalties.
The city shall process violations of this chapter in accordance with the procedures identified in Chapter 14.13 KMC, Enforcement and Penalties. (Ord. 07-013 § 1).
18.20.110 Administrative appeals.
Any aggrieved person dissatisfied with a permitting decision may appeal the decision in accordance with the procedures identified in Chapter 14.11 KMC, Appeals. (Ord. 07-013 § 1).
18.20.120 Nonconforming activities.
A regulated activity that was approved prior to the passage of this chapter and to which significant economic resources have been committed pursuant to such approval but which does not conform to this chapter may be continued subject to the following:
(1) No such activity shall be expanded, changed, enlarged, or altered in any way that increases the extent of its nonconformity without a permit issued pursuant to the provisions of this chapter.
(2) Except for cases of discontinuance as part of a normal agricultural activity, if a nonconforming activity is discontinued for 12 consecutive months, any resumption of the activity shall conform to this chapter.
(3) If a nonconforming use or activity is destroyed by human activities or an act of God, it shall not be resumed except in conformity with the provisions of this chapter.
(4) Activities or adjuncts thereof that are or become nuisances shall not be entitled to continue as nonconforming activities. (Ord. 07-013 § 1).
18.20.130 Severability.
If any clause, sentence, paragraph, section or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances and to this end the provisions of each clause, sentence, paragraph, section or part of this law are hereby declared to be severable. (Ord. 07-013 § 1).