Chapter 17.52C
FISH AND WILDLIFE HABITAT CONSERVATION AREAS (OUTSIDE SHORELINE JURISDICTION)
Sections:
17.52C.010 Purpose and intent.
17.52C.020 Applicability of provisions.
17.52C.030 Designation of fish and wildlife habitat conservation areas.
17.52C.040 Regulated activities.
17.52C.070 Permit process and application requirements.
17.52C.080 Classification of fish and wildlife habitat.
17.52C.100 Land divisions and density calculations.
17.52C.110 Habitat and stream alteration and mitigation.
17.52C.120 Mitigation standards and criteria.
17.52C.130 Performance standards.
17.52C.140 Mitigation plan requirements.
17.52C.150 Monitoring and contingency plan.
17.52C.160 Procedural provisions.
17.52C.010 Purpose and intent.
A. The city of Mukilteo finds that streams, riparian habitat, and wildlife conservation areas, referred to as “habitats,” located outside the two-hundred-foot shoreline jurisdiction perform many important physical and biological functions that benefit the city and its residents, including but not limited to: providing opportunities for food, cover, nesting, breeding and movement for fish and wildlife, and maintaining species and genetic diversity. Protection of streams and riparian habitat for fish and wildlife species is necessary to protect the public health, safety and general welfare. These regulations contain requirements and standards for the protection of streams and riparian areas for fish and wildlife species.
B. This chapter of the city code contains standards, guidelines, criteria and requirements intended to identify, evaluate and mitigate potential impacts to habitat conservation areas within the city and to enhance degraded habitat and streams in appropriate cases. It is recognized that, within Mukilteo, most streams are located in steep ravines and protection of the ravines are regulated under the city’s critical slope area regulations.
1. The intent of these regulations is to avoid impacts to habitats where such avoidance is feasible and reasonable. In appropriate circumstances, impacts resulting from regulated activities may be minimized, rectified, reduced and/or compensated for, consistent with this chapter.
2. The overall goals of these regulations are to: manage land so as to maintain fish and wildlife species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created, although this does not imply maintaining all individuals of all species at all times; and achieve no net loss in fish or wildlife habitat, or stream functions.
C. It is the further intent of this code to:
1. Implement the goals and policies of the city comprehensive plan, including but not limited to those pertaining to natural features and environmental protection; aesthetics and community character; providing adequate housing and infrastructure; providing opportunities for economic development; creating a balanced transportation system; ensuring adequate public facilities; allowing for essential public facilities; and achieving a mix of land use types and densities consistent with the city’s land use plan;
2. Comply with the requirements of the Growth Management Act (Chapter 36.70A RCW and its amendments), its implementing rules, and best available science requirements; and
3. Coordinate environmental review and permitting of development projects to avoid duplication and delay. (Ord. 1111 § 3 (part), 2005)
17.52C.020 Applicability of provisions.
A. The fish and wildlife habitat conservation area management provisions of this chapter apply to any regulated activity (Section 17.52C.040) potentially affecting a habitat or its buffer unless otherwise exempt under Section 17.52C.050.
B. To avoid overlap and duplication, all city permit applications leading to the development or alteration of land, including but not limited to applications for: clearing and grading; subdivision or short subdivision; building permit; planned unit development; shoreline substantial development; variance and conditional use shall be subject to and coordinated with the requirements of this chapter and the Mukilteo Zoning Code, Chapter 17.13, Project Permit Review Process.
C. Nonproject actions, including but not limited to, rezones, annexations, and adoption of plans and programs, shall be required to comply with the Growth Management Act (GMA), Chapter 36.70A RCW, including submittal of appropriate information as determined by the city according to this chapter.
D. This chapter shall apply as any other overlay to development or land use regulations established by the city. In the event of a conflict between regulations in this chapter and any other city code, the regulations, which provide greater protection to critical areas, shall apply. (Ord. 1111 § 3 (part), 2005)
17.52C.030 Designation of fish and wildlife habitat conservation areas.
While not all of the below listed critical habitat areas exist in the city of Mukilteo, these regulations provide for the protection of the following fish and wildlife habitat conservation areas:
A. Habitats with which state or federally designated endangered, threatened, and sensitive species have a primary association;
B. State priority habitats and areas associated with state priority species;
C. Habitats and species of local importance;
D. Naturally occurring ponds under twenty acres (lakes greater than twenty acres are covered under the shoreline regulations);
E. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;
F. State natural area preserves and natural resource conservation areas;
G. Areas of rare plant species and high quality ecosystems; and
H. Land useful or essential for preserving connections between habitat blocks and open space. (Ord. 1111 § 3 (part), 2005)
17.52C.040 Regulated activities.
The following activities associated with any land use development proposal that occurs within a habitat and/or its buffer, or outside a habitat or buffer but potentially affecting the habitat or buffer, shall be regulated pursuant to the standards of this chapter:
A. Removing, excavating, disturbing or dredging soil, sand, gravel, minerals, organic matter or materials of any kind;
B. Dumping, discharging or filling any material;
C. Draining, flooding or disturbing the water level or water table;
D. Alteration, construction, reconstruction, or demolition of any structure or infrastructure, including driving piling or placing obstructions;
E. Destroying or altering habitat vegetation through clearing, harvesting, shading or planting vegetation that would alter the habitat or buffer character; provided, that these activities are not part of a forest practice governed under Chapter 76.09 RCW and its rules;
F. Activities that result in significant changes in water temperature, physical or chemical characteristics of the habitat or buffer, including water quantity and quality, soil flow, or natural contours;
G. Any other activity potentially affecting a habitat or buffer not otherwise exempt from this chapter; and
H. Work to maintain fish and riparian habitats intentionally created from non-habitat areas as mitigation for fish and wildlife impacts. (Ord. 1111 § 3 (part), 2005)
17.52C.050 Exemptions.
A. The following activities shall be exempt from this code. To be exempt from this chapter does not give permission to degrade a regulated habitat or ignore risk from natural hazards. Any incidental damage to, or alteration of, habitat that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.
1. Mowing, maintenance, cleaning, excavation, or repair/replacement of drainage structures within artificially or intentionally created habitat, including but not limited to grass-lined swales, irrigation and drainage ditches, detention facilities such as ponds, and landscape features, except for habitat or streams areas created as mitigation.
2. Maintenance, operation and reconstruction of existing roads, streets, utilities and associated structures undertaken pursuant to public works director approved best management practices; provided, that activities shall not increase the impervious area by more than two hundred square feet and that disturbed areas are restored to an acceptable usable condition as required by the public works and planning directors.
3. Normal maintenance, and repair of residential or commercial structures; provided, that reconstruction of any structures may not increase the previous floor area, and subject to the requirements of Chapter 17.68, Nonconforming Uses, Buildings, and Lots.
4. Site investigative work and studies necessary for preparing land use applications, including soils tests, water quality studies and similar tests and investigations; provided, that any disturbance of the habitat shall be the minimum necessary to carry out the work or studies.
5. Educational activities, scientific research, and outdoor recreational activities, including but not limited to interpretive field trips, bird watching and hiking, that will not have a significant effect on the habitat area.
6. Emergency activities that are required due to landslides, floods, earthquakes, other acts of nature, or emergency utility repairs that are necessary to prevent an immediate threat to public health, safety or property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter. After the emergency, the person or agency undertaking the action shall restore and/or mitigate any impacts to the habitat and buffer resulting from the emergency action in accordance with an approved habitat report and mitigation or buffer enhancement plan. Restoration, mitigation, or enhancement activities must be initiated within six months of the date of emergency, and completed within a year of the approval.
7. Minor activities such as invasive plant management, snagging of dead, dying, or diseased vegetation, and removal of hazardous trees where owners’ property or adjacent properties, or the health and safety of the general public or employees are in danger of damage and where such activities are determined by the city to have minimal impacts to habitat and/or streams. Any such activities undertaken within a designated native growth protection area (NGPA) or fish and wildlife habitat conservation area may require replanting per the requirements of the NGPA or the habitat conservation area.
8. Construction of new utility facilities or improvements to existing utility facilities that take place within existing improved right-of-way or existing impervious surface that does not increase the amount of impervious surface, or the use of trenchless technology such as boring or tunneling, that would not disturb the habitat.
B. No private or public entity shall undertake exempt activities as listed in this section prior to providing the city written notification of their intent to proceed with an exempt activity. The city shall verbally confirm the activity is exempt and where needed provide written authorization within thirty days of receipt of the written notice
C. In case of any questions as to whether a particular activity is exempt under the provisions of this section, the city’s determination shall prevail and be determinative.
D. Notwithstanding the exemptions provided by this section, any otherwise exempt activities occurring in or near critical fish or wildlife habitat shall comply with the intent of these standards and should consider on-site alternatives that avoid or minimize potential habitat impacts. Exempt activities shall use reasonable methods (i.e., best management practices), to avoid potential impacts to fish and wildlife habitat. (Ord. 1111 § 3 (part), 2005)
17.52C.060 Habitat maps.
A. The approximate location and extent of fish and wildlife habitat conservation areas within the city’s planning area are shown on the maps adopted as part of this chapter. These maps shall be used as a general guide only for the assistance of property owners and other interested parties; boundaries are generalized. The actual type, extent and boundaries of habitat areas or streams shall be determined by a qualified professional according to the procedures, definitions and criteria established by this chapter. In the event of any conflict between the habitat location or type shown on the city’s maps and the location or designation as determined in the field by a qualified scientist, the field determination shall control.
B. The following critical area maps are hereby adopted:
1. City of Mukilteo Critical Areas Map;
2. Washington Department of Fish and Wildlife Priority Habitat and Species maps;
3. Washington State Department of Natural Resources, Official Water Type Reference maps, as amended;
4. Washington State Department of Natural Resources Natural Heritage Program mapping data;
5. Washington State Department of Natural Resources State Natural Area Preserves and Natural Resources Conservation Area maps;
6. Anadromous and resident salmonid distribution maps contained in the habitat limiting factors reports published by the Washington Conservation Commission. (Ord. 1111 § 3 (part), 2005)
17.52C.070 Permit process and application requirements.
A. Preapplication Conference. All applicants are encouraged to meet with the city prior to submitting an application subject to the provisions of this chapter. The purpose of this meeting shall be to discuss the fish and wildlife habitat conservation requirements, process and procedures; to review the critical areas checklist and any conceptual plans prepared by the applicant; to identify potential impacts and mitigation measures; and to familiarize the applicant with state and federal programs. Such conference shall be for the convenience of the applicant and any recommendations shall not be binding on the applicant or the city.
B. Biological/Habitat Report. If the city determines that habitat or buffer impacts might occur as a result of the proposal, a biological/habitat report, as defined in Chapter 17.08, must be submitted to the city for review prior to the issuance of a development permit pursuant to Chapter 17.13 (Project Permit Review Process). The report must be prepared in accordance with city permit application requirements pursuant to Chapter 17.13 and incorporate best available science as defined in Chapter 17.08. The report will analyze the extent, type, and function of habitats and buffers on any site where regulated or exempt activities are proposed. The report will also be used by the city to determine the appropriate buffer requirements for the fish and wildlife areas and to assist the city in determining appropriate mitigation if required.
C. Biologist. A qualified biologist as defined in Chapter 17.08 shall prepare all reports and studies required of the applicant by this chapter. The city may retain a qualified biologist, at the expense of the applicant, to review and confirm the applicant’s reports, studies, and plans.
D. This section is not intended to create a separate permit process for development proposals. To the extent possible, and pursuant to Chapter 17.13, the city shall consolidate and integrate the review and processing of fish and wildlife habitat related aspects of proposals with other land use and environmental considerations and approvals. (Ord. 1111 § 3 (part), 2005)
17.52C.080 Classification of fish and wildlife habitat.
A. Streams. Streams shall be classified according to the stream type system as provided in WAC 222-16-031, Interim water typing system.
|
Stream Types |
Attributes |
Typical Stream Segments |
|---|---|---|
|
Type 1 |
All waters, within their ordinary high-water mark, as inventoried as “shorelines of the state.” |
No Type 1 streams are located within the city of Mukilteo. |
|
Type 2 |
All waters with twenty feet or more between each bank’s ordinary high water mark and have high use, important water quality features, public recreation, and fish and wildlife uses. |
No Type 2 streams are located within the city of Mukilteo. |
|
Type 3 |
Waters that have five or more feet between each bank’s ordinary high water mark, and a moderate to slight use and are moderately important from a water quality standpoint for domestic use, public recreation, and fish and wildlife habitat. |
• Japanese Gulch – north of 5th Street • Big Gulch and the South Fork of Big Gulch next to Harbour Pointe Boulevard • Picnic Point Creek – to the fork in Sector 20 (portion in Snohomish County) • Lunds Gulch (Snohomish County) • Stream segments where blockages to fish can be removed. |
|
Type 4 |
Waters that are perennial non-fish habitat streams. |
• Japanese Gulch – south of 5th Street and north of 71st Place SW (due to blockages) • Brewery Creek – between 2nd Street and 5th Street • Goat Trail Ravine • Olympic View Ravine • Smugglers Gulch • North fork of Big Gulch • Upper Chennault Creek • Lower Chennault Creek • Hulk Creek (portion in Snohomish County) • North fork of Picnic Point Creek (portion in Snohomish County) • Norma Creek (within Snohomish County) |
|
Type 5 |
Seasonal, non-fish habitat streams in which surface flow is not present for at least some portion of the year and are not located downstream from any stream reach that is a Type 4 water. |
• Japanese Gulch – south of 71st Street • Brewery Creek – south of 5th Street • Small feeder streams into Big Gulch • Picnic Point Creek – south fork in Sector 20 • Small feeder streams into Picnic Point Creek |
|
1 As measured horizontally on each side of the stream from the ordinary high water mark (OHWM) of the stream. |
||
B. Federal, State, and Local Species.
1. 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.
2. 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.
3. 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 Department of Fish and Wildlife.
4. 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 run. (Ord. 1111 § 3 (part), 2005)
17.52C.090 Buffer areas.
A. The establishment of buffer areas shall be required for all development proposals and activities adjacent to fish and wildlife habitat areas to protect the functions and integrity of the habitat. The following buffering widths are established:
1. Streams:
|
Stream Type |
Standard Buffer Width |
|
Type 3 |
150 feet |
|
Type 4 (H) |
75 feet |
|
Type 4 (L) |
50 feet |
|
Type 5 (H and L) |
50 feet |
Notes: H = High mass wasting; L = Low mass wasting
2. Federal, State, and Local Habitats and Species. The establishment of buffer areas may be required for regulated activities in or adjacent to federal, state, and local species and habitat areas. Buffers shall consist of an undisturbed area of native vegetation established to protect the integrity, functions and values of the affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby. Buffers shall be determined by the department based on information in the biological/habitat report, a habitat management plan approved by the Department of Fish and Wildlife supplemented by its own investigations, the intensity and design of the proposed use, and adjacent uses and activities. Buffers are not intended to be established or to function independently of the habitat they are established to protect. Buffers shall be measured from the edge of the habitat area as measured in the field.
B. Where existing buffer area plantings provide minimal vegetative cover and cannot provide the minimum water quality (per the Department of Ecology’s Stormwater Manual for the Puget Sound Basin) or habitat functions (per the requirements of the Departments of Ecology and Fish and Wildlife), buffer enhancement shall be required. Where buffer enhancement is required a plan shall be prepared that includes plant densities that are not less than five feet on center for shrubs and ten feet on center for trees. Monitoring and maintenance of plants shall be required in accordance with Section 17.52C.150, Monitoring and contingency plan. Existing buffer vegetation is considered “inadequate” and will require enhancement through additional native plantings and removal of nonnative plants when:
1. Nonnative or invasive plant species provide the dominate cover;
2. Vegetation is lacking due to disturbance and wetland resources could be adversely affected; or
3. Enhancement plantings in the buffer could significantly improve buffer functions. If, according to the buffer enhancement plan, additional buffer mitigation is not sufficient to protect the habitat, the city may require larger buffers where it is necessary to protect habitat functions based on site-specific characteristics.
C. Buffer Averaging. Buffer widths may be modified by averaging buffer widths as long as the total area contained within the buffer after averaging is no less than the required buffer prior to averaging and as set forth below. A buffer enhancement plan shall be required for any request for buffer averaging. The enhancement plan shall be similar to a mitigation plan as described in Section 17.52C.120, and include provisions for mitigation monitoring and contingency plans similar to the requirements of Section 17.52C.150. Averaging may be used in conjunction with any of the other provisions for reduction in buffers including off-site buffer mitigation through use of the HRP.
1. Buffer width averaging shall be allowed only where the applicant demonstrates through a report prepared by a qualified biologist or habitat specialist that:
a. Buffer averaging is necessary to avoid a hardship caused by circumstances to the property;
b. The habitat contains variations in sensitivity due to existing physical characteristics, or the buffer varies in characteristics and it would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;
c. Lower intensity land uses would be located adjacent to areas where the buffer width is reduced;
d. Buffer width averaging will not adversely impact fish and wildlife habitat conservation areas;
e. The buffer width may be reduced by thirty-five percent of the standard buffer, but not less than thirty-five feet.
D. Buffer Reduction. Buffers may be reduced by twenty-five percent where the applicant demonstrates through a report relying on best available science and prepared by a qualified specialist that through buffer enhancement the smaller buffer would provide equal or better protection than the larger buffer. Enhancement techniques can include, but are not limited to:
1. Planting of native trees or shrubs, increasing the diversity of plant cover types, replacing exotic species with native species, or reestablishing fish area adjacent to a stream where one currently does not exist will result in improved function of the fish habitat,
2. Fish barrier removal to restore accessibility to resident or anadromous fish,
3. Fish habitat enhancement using log structures incorporated as part of a fish habitat enhancement plan,
4. Stream and/or retention/detention pond improvements:
i. Removal or modification of existing stream culverts (such as at road crossings) to improve fish passage and flow capabilities, or
ii. Upgrade of retention/detention facilities or other drainage facilities beyond required levels to provide a more naturalized habitat.
5. Buffers may be further reduced up to fifty percent only where creation of a surface channel, day lighting a stream that was previously culverted or piped, or day lighting use of box culverts or trestles is proposed and where the applicant demonstrates through a report relying on best available science and prepared by a qualified specialist that through buffer enhancement the smaller buffer would provide equal or better protection than the larger buffer.
E. The planning director may authorize the following low impact uses and activities within a buffer upon showing that said uses or activities will be performed in a manner that will not disturb the fish and wildlife habitat conservation area, increase the impervious surface of the buffer, or decrease the functions of the associated habitat: pedestrian trails, viewing platforms, interpretative signage, stormwater recharge facilities that benefit the habitat, utility easements and the installation of underground utilities pursuant to best management practices. Uses permitted within the buffer shall be located in the outer portion of the buffer as far as possible from the water body, stream or associated wetland.
F. Stormwater management facilities, such as water quality swales, shall not be located within the required buffer unless no other locations are feasible and the location of such facilities will not have an adverse impact on the habitat. Stormwater detention ponds shall not be allowed in buffers.
G. Buffers shall be shown on the development site plans or final plat maps along with the notation requirements identified in Section 17.52.035, Native growth protection areas (NGPAs) and buffers.
H. If an existing property has a previously delineated and approved fish and wildlife habitat conservation area and associated buffer by the city, the approved conservation area and buffer may remain in effect. Redevelopment, and/or additions outside of the existing footprint shall be subject to the previously approved buffer, however a buffer enhancement plan may be required in accordance with subsection B of this section if the habitat buffer area has become degraded or is currently not functioning or if the habitat area and/or buffer may be negatively affected by proposed new development.
I. Minor additions or alterations such as decks and small additions less than one hundred twenty square feet, interior remodels, or tenant improvements which have no impact on the habitat area or buffer may be exempt from the buffer enhancement requirements. (Ord. 1309 § 15, 2012; Ord. 1111 § 3 (part), 2005)
17.52C.095 Tree preservation.
To ensure adequate habitat for wildlife, no cutting of trees over twenty-four inches in diameter is allowed in the two-hundred-foot shoreline zone. Removal of trees over twenty-four inches in diameter within the two-hundred-foot shoreline zone may only be considered if they are dead, dying, diseased or hazardous trees as determined by a certified landscape architect or arborist and approved by the planning and public works directors. (Ord. 1124 § 10, 2005)
17.52C.100 Land divisions and density calculations.
A. All short plats and subdivisions shall comply with the following development standards in addition to the applicable sections of Title 16, Subdivision and Planning.
1. All identified fish and wildlife habitat and its required buffer may receive credit in calculation of the number of lots allowed.
2. Land that is located partially within a habitat conservation area or its buffer may be divided; provided, that the developable portion of each new lot and its access is located outside of the habitat conservation area or its buffer.
3. All identified fish and wildlife habitat and any required buffers shall be set aside as native growth protection areas per Section 17.52.035, Native growth protection areas (NGPAs) and buffers.
4. Property wholly contained within a habitat conservation area or its buffer may not be subdivided.
5. Utilities serving the proposed development may be permitted within the habitat conservation area and associated buffers only if the city determines that no other feasible alternative exists and mitigation is provided consistent with this chapter.
B. An owner of a site or property containing fish or wildlife habitat may be permitted to transfer the density attributable to the habitat area to another nonhabitat, nonsensitive portion of the same site or property, subject to the limitations of this section and other applicable regulations.
C. Up to one hundred percent of the density that could be achieved on the habitat and buffer portion of the site can be transferred to the nonhabitat portion, subject to:
1. The density limitations of the underlying zoning classification;
2. The minimum lot size of the underlying zoning classification may be reduced to three thousand square feet in order to accommodate the transfers in densities;
3. Applicable setbacks may be reduced to fifteen feet and the lot coverage standards of underlying zoning regulations may be increased to sixty percent; and
4. The area to which density is transferred shall not be constrained by another environmentally critical area regulated by this code.
D. Property lines may not be adjusted through the lot line adjustment process if the proposed change creates a new impact on a fish and wildlife conservation area regulated by this chapter. (Ord. 1111 § 3 (part), 2005)
17.52C.110 Habitat and stream alteration and mitigation.
After careful consideration of the potential impacts and a determination that impacts are unavoidable, unavoidable impacts to streams, associated fish buffers and wildlife habitat not exempt under Section 17.52C.050 or meeting the criteria for a reasonable use exception in Section 17.52.025 shall be mitigated as follows:
A. Mitigation actions by an applicant shall occur in the following priority sequence:
1. Avoiding the impact altogether by not taking a certain action or parts of actions;
2. Minimizing impacts by limiting the degree of magnitude of the action and its implementation (e.g., use of appropriate technology, consideration of alternative site plans and building layouts and/or reductions in the density or scope of the proposal);
3. Rectifying the impact by repairing, rehabilitating or restoring the affected environment;
4. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;
5. Compensating for the impact by replacing, enhancing or otherwise providing equivalent or greater stream and wildlife functions;
6. Monitoring the impact and taking appropriate corrective measures.
B. Alteration of streams may be permitted by the city subject to the following standards:
1. Type 1, 2, and 3 Streams. Alterations of Type 1, 2, and 3 streams shall be avoided except where subject to the reasonable use provisions of Section 17.52.025;
2. Type 4 and 5 Streams. All feasible and reasonable measures shall be taken to reduce impacts to Type 4, and 5 streams. Alterations may be permitted subject to the mitigation standards and criteria of this chapter and provided that no overall net loss will occur in stream functions and fish habitat value;
3. Relocation of a stream may occur only when it is part of an approved mitigation or rehabilitation plan, and will result in equal or better habitat and water quality, and will not diminish the flow capacity of the stream;
4. Culverts may be placed in streams only under the following circumstances:
a. For street/driveway crossings – only in Type 4 or 5 streams (bridges are recommended to cross Type 1, 2 and 3 streams). For site development – only Type 5 streams;
b. When fish passage will not be impaired;
c. When the following design criteria are met:
i. Installation of culverts of, in order of priority, bottomless pipe arch, elliptical or round pipe (Type 5 streams only);
ii. Installation of oversized culverts (i.e., exceeding the diameter needed to accommodate flows);
iii. Culverts include gradient controls and creation of pools within the culvert for Type 4 or 5 streams;
iv. Gravel substrate will be placed in the bottom of the culvert to a minimum depth of one foot for Type 4 or 5 streams;
d. The applicant will keep any culvert that is part of a mitigation or enhancement plan free of debris and sediment to allow free passage of water and, if applicable, fish;
e. A hydraulic project approval (HPA) is obtained from the Washington Department of Fish and Wildlife; and
f. The city may require that a culvert be removed from a stream as a condition of approval, unless the culvert is not detrimental to fish habitat or water quality, or removal would be detrimental to fish or wildlife habitat or water quality. (Ord. 1309 § 16, 2012; Ord. 1111 § 3 (part), 2005)
17.52C.120 Mitigation standards and criteria.
A. Habitat Performance Standards. The performance standards and criteria contained in this section shall be considered by applicants and incorporated into plans submitted for regulated activities in fish and wildlife habitat conservation areas. It is recognized that in specific situations, all the listed standards may not apply or be feasible to implement, or that individual standards may conflict.
1. Consider habitat in site planning and design;
2. Locate buildings and structures in a manner that preserves and minimizes adverse impacts to important habitat areas;
3. Integrate retained habitat into open space and/or landscaping, consistent with the provisions of adopted city requirements;
4. Where possible, consolidate habitat and vegetated open space in contiguous blocks;
5. Locate habitat contiguous to other habitat areas, open space or landscaped areas to contribute to a continuous system or corridor that provides connections to adjacent habitat areas and allows movement of wildlife;
6. Use native species in any landscaping of disturbed or undeveloped areas and in any enhancement of habitat or buffers. The introduction of nonnative species will not be allowed;
7. Emphasize heterogeneity and structural diversity of vegetation in landscaping;
8. Recommendations to remove and/or control any nonnative or undesirable species of plants and animals;
9. Preserve significant trees, preferably in groups, consistent with city’s tree preservation regulations, if any, and with achieving the objectives of these standards;
10. Locate mitigation areas such that contiguous habitat corridors are maintained, thus minimizing the isolation of individual habitats.
B. Landscape Plan. A landscape plan shall be submitted consistent with the city’s landscape requirements and with the goals and standards of this chapter. The plan shall reflect the recommendations contained in reports prepared pursuant to these regulations. (Ord. 1111 § 3 (part), 2005)
17.52C.130 Performance standards.
A. Endangered, Threatened, and Sensitive Species.
1. No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association, except that which is provided by a management plan established by the Washington Department of Fish and Wildlife or applicable state or federal agency.
2. Whenever activities are proposed adjacent to a habitat conservation area with which state or federally endangered, threatened, or sensitive species have a primary association, such areas shall be protected through the application of protection measures in accordance with a critical area report prepared by a qualified professional and approved by the city. Approval for alternation of land adjacent to the habitat conservation area or its buffer shall not occur prior to the consultation with the Washington State Department of Fish and Wildlife for animal species, the Washington Department of Natural Resources for plant species, and other appropriate federal or state agencies.
3. Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292). Whenever activities are proposed adjacent to a verified nest territory or communal roost, a habitat management plan shall be developed by a qualified professional. Activities are adjacent to bald eagle site when they are within eight hundred feet or within one half mile (two thousand six hundred and forty feet) and in a shoreline foraging area. The city shall verify the location of eagle management areas for each proposed activity. Approval of the activity shall not occur prior to approval of the habitat management plan by the Washington Department of Fish and Wildlife.
B. Anadromous Fish.
1. All activities, uses, and alteration 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 Department of Fish and Wildlife for the applicable species;
b. An alternative alignment or location for the activity is not feasible;
c. The activity is designed so that is will not degrade the functions or values of the fish habitat or other critical areas;
d. Erosion control measures shall be designed to use bioengineering methods or soft armoring techniques, according to an approved critical areas report; and
e. Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical areas report.
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.
3. Fill, when authorized by the city’s shoreline management program shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impact and shall only be allowed for a water-dependent use. (Ord. 1111 § 3 (part), 2005)
17.52C.140 Mitigation plan requirements.
A. If the city determines that impacts to habitats may occur as a result of a development project, a biological/habitat assessment report shall be required. The preparation and submission of this report is the responsibility of the applicant. The report shall rely on best available science as defined in WAC 365-195-900 through 365-195-925 and shall be prepared by a qualified professional who is a biologist with experience preparing reports for the relevant type of habitat. The city may retain a qualified consultant at the applicant’s expense to review and confirm the applicant’s reports, studies and plans.
B. A biological/habitat assessment is an investigation of the project area to evaluate the potential presence or absence of designated critical fish or wildlife species or habitat. The assessment of habitats for the site and project shall at a minimum include the following information:
1. Detailed description of vegetation on and adjacent to the project area and its associated buffer;
2. Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;
3. A discussion of any federal, state, or local special management recommendations, including Washington Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;
4. A detailed discussion of the direct and indirect potential impacts on habitat by the project, including potential impacts to water quality;
5. A discussion of measures, including avoidance, minimization, and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with the mitigation sequencing required by this chapter; and
6. A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring, maintenance, and enforcement programs.
C. When appropriate due to the type of habitat or species present or the project conditions, the planning director may also require the habitat management plan to include:
1. An evaluation by an independent qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate;
2. A request for consultation with the Washington Department of Fish and Wildlife or the local Native American Indian Tribe or other appropriate agency; and
3. Detailed surface and subsurface hydrologic features both on and adjacent to the site. (Ord. 1111 § 3 (part), 2005)
17.52C.150 Monitoring and contingency plan.
A. A monitoring program shall be included as a part of the approved mitigation plan for a fish and wildlife habitat conservation area. To ensure that the performance standards of the approved mitigation plan have been met, the mitigation and/or buffer enhancement site(s) shall be monitored for a minimum of five years. A longer monitoring period may be required by the city based on either the initial mitigation plan or a review of subsequent monitoring reports. The monitoring reports shall be submitted no later than November 1st of each year during the monitoring period.
B. An acceptable surety device is required to ensure the applicant’s compliance with the terms of the mitigation agreement.
1. Performance Surety. All mitigation and buffer enhancement shall be completed prior to final plat approval and/or building occupancy depending on the type of application. However, when improvements cannot be completed prior to final acceptance due to weather conditions which may negatively affect the success of the project, a performance surety may be used. The performance surety shall equal one hundred fifty percent of the cost of the mitigation project, and the required improvements shall be installed in a satisfactory manner within six months or less.
2. Maintenance Surety. A maintenance surety shall be required on all mitigation projects to ensure that the improvement successfully survives the monitoring periods set above.
a. Wetland Mitigation Projects. The amount of the maintenance surety shall be equal to fifteen percent of the cost of the mitigation project and the term of the surety shall reflect the term of the monitoring program.
b. Buffer Enhancement Projects. The amount of the maintenance surety shall be equal to fifteen percent of the costs of the enhancement project and the term of the surety shall reflect the term of the monitoring program.
3. Monitoring Deposit. A cash deposit shall be submitted with all sureties prior to final acceptance of the project to cover the estimated city’s costs to review the yearly monitoring reports and conduct a site inspection to ensure the performance standards are being met.
C. Long-Term Maintenance. To ensure the long-term success of the fish and wildlife habitat conservation area, the applicant or their heirs or successors shall be responsible for the long-term maintenance of the habitat area and its associated buffer. The habitat and buffer shall be kept clear of weeds, invasive plant material, lawn clippings, junk, debris, intrusions or the like. (Ord. 1309 § 17, 2012; Ord. 1111 § 3 (part), 2005)
17.52C.160 Procedural provisions.
A. Interpretation and Conflicts. Any questions regarding interpretation of this chapter shall be resolved pursuant to the procedures set forth in Section 17.72.020 of this title.
B. Penalties and Enforcement. Compliance with this chapter and penalties for its violation shall be enforced pursuant to the procedures set forth in Title 18, Land Use Enforcement.
C. Appeals from Permit Decisions. Appeals from permit decisions shall be governed by the procedures set forth in Section 17.13.090, Appeals. (Ord. 1111 § 3 (part), 2005)