Chapter 17B.52C
FISH AND WILDLIFE HABITAT CONSERVATION AREAS
Sections:
17B.52C.010 Purpose and intent.
17B.52C.020 Applicability of provisions.
17B.52C.030 Designation of fish and wildlife habitat conservation areas.
17B.52C.040 Regulated activities.
17B.52C.050 Prohibited uses in critical saltwater habitat.
17B.52C.070 Permit process and application requirements.
17B.52C.080 Classification of fish and wildlife habitat.
17B.52C.095 Tree preservation.
17B.52C.100 Land divisions and density calculations.
17B.52C.110 Habitat and stream alteration and mitigation.
17B.52C.115 Facilitation of restoration projects.
17B.52C.120 Mitigation standards and criteria.
17B.52C.130 Performance standards.
17B.52C.140 Mitigation plan requirements.
17B.52C.150 Monitoring and contingency plan.
17B.52C.010 Purpose and intent.
A. The city of Mukilteo finds that shorelines, streams, riparian habitat, and wildlife conservation areas, referred to as “habitats,” 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 shorelines, 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 section 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 habitats, shorelines, and streams in appropriate cases. It is recognized that, within Mukilteo, most streams are located in steep ravines and protection of the ravines is regulated under the city’s critical slope area regulations.
1. For the purpose of this chapter, protection of “habitats” shall include all habitats associated with regulated shorelines, streams, fish, and wildlife species.
2. The intent of these regulations is to avoid and minimize impacts to habitats to the greatest extent feasible. Unavoidable impacts resulting from regulated activities shall be mitigated consistent with this chapter.
3. 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 and shoreline management 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, the Shoreline Management Act, Chapter 90.58 RCW, the respective implementing rules, and best available science requirements; and
3. Coordinate environmental review and permitting of development projects to avoid duplication and delay. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.020 Applicability of provisions.
A. The fish and wildlife habitat conservation area management provisions of this chapter apply to any regulated activity (Section 17B.52C.040) potentially affecting a habitat or its buffer unless otherwise exempt under Section 17B.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; shoreline substantial development; variance and conditional use shall be subject to and coordinated with the requirements of this chapter and Chapter 17B.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.
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 the shoreline and critical areas, shall apply. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.030 Designation of fish and wildlife habitat conservation areas.
A. 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:
1. Habitats with which state or federally designated endangered, threatened, and sensitive species have a primary association. The Washington Department of Fish and Wildlife, U.S. Fish and Wildlife Service, and the National Marine Fisheries Service shall be consulted for current listing status;
2. State priority habitats and areas associated with state priority species as identified by the Washington State Department of Fish and Wildlife;
3. Habitats and species of local importance, if any are adopted by the city of Mukilteo;
4. Naturally occurring ponds under twenty acres;
5. Lakes and ponds over twenty acres in size, streams, and rivers planted with game fish by a governmental or tribal entity.
6. State natural area preserves and natural resource conservation areas;
7. Areas of rare plant species and high quality ecosystems as identified by the Washington Natural Heritage Program and the city’s species of local significance if any;
8. Land useful or essential for preserving connections between habitat blocks and open space;
9. Commercial and recreation shellfish areas, including all public and private tideland or bedlands suitable for shellfish harvest as well as shellfish protection district established pursuant to Chapter 90.72 RCW;
10. Critical saltwater habitat;
11. Critical freshwater habitat;
12. Kelp and eelgrass beds; and
13. Forage fish spawning areas including herring and smelt.
B. All areas within the city of Mukilteo meeting one or more of these criteria, regardless of any formal identification, are subject to the provisions of this chapter and shall be managed consistent with best available science, such as the Washington Department of Fish and Wildlife’s Management Recommendations for Priority Habitat and Species. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.040 Regulated activities.
A. 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:
1. Removing, excavating, disturbing or dredging soil, sand, gravel, minerals, organic matter or materials of any kind;
2. Dumping, discharging or filling any material;
3. Draining, flooding or disturbing the water level or water table;
4. Alteration, construction, reconstruction, or demolition of any structure or infrastructure, including driving piling or placing obstructions;
5. 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;
6. 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;
7. Any other activity potentially affecting a habitat or buffer not otherwise exempt from this chapter; and
8. Work to maintain fish and riparian habitats intentionally created from nonhabitat areas as mitigation for fish and wildlife impacts. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.050 Prohibited uses in critical saltwater habitat.
A. Standards. Docks, bulkheads, bridges, fill, floats, jetties, utility crossings, and other human-made structures shall not intrude into or over critical saltwater habitats except when all of the conditions below are met:
1. The public’s need for such an action or structure is clearly demonstrated and the proposal is consistent with protection of the public trust, as embodied in RCW 90.58.020.
2. Avoidance and minimization of impacts to critical saltwater habitats by an alternative alignment or location are not feasible.
3. The project, including any required mitigation, will result in no net loss of ecological functions associated with critical saltwater habitat.
4. The project is consistent with the state’s interest in resource protection and species recovery.
B. Private, noncommercial docks for individual residential or community use are prohibited in critical saltwater habitat areas. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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;
7. Washington State Department of Natural Resources Puget Sound Intertidal Habitat Inventory maps;
8. Washington State Department of Natural Resources Shorezone Inventory; and
9. Washington State Department of Health annual Inventory of Shellfish Harvest Areas. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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 Section 17B.08.020, must be submitted to the city for review prior to the issuance of a development permit pursuant to Chapter 17B.13 (project permit review process). The report must be prepared in accordance with city permit application requirements pursuant to Chapter 17B.13 and incorporate best available science as defined in Section 17B.08.020. 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 Section 17B.08.020 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. Permit Process. This section is not intended to create a separate permit process for development proposals. To the extent possible, and pursuant to Chapter 17B.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. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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.
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Stream Types |
Attributes |
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Typical Stream Segments |
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Type 1 |
All waters, within their ordinary high water mark, as inventoried as “shorelines of the state.” |
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No Type 1 streams are located within the city of Mukilteo |
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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. |
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No Type 2 streams are located within the city of Mukilteo |
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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. |
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Japanese Gulch—North of 5th Street |
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Big Gulch and the South Fork of Big Gulch next to Harbour Pointe Boulevard |
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Picnic Point Creek—to the fork in Sector 20 (portion in Snohomish County) |
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Lunds Gulch (Snohomish County) |
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Stream segments where blockages to fish can be removed |
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Type 4 |
Waters that are perennial nonfish habitat streams. |
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Japanese Gulch—south of 5th Street and north of 71st Place SW (due to blockages) |
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Brewery Creek—between 2nd Street and 5th Street |
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Goat Trail Ravine |
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Olympic View Ravine |
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Smuggler’s Gulch |
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North fork of Big Gulch |
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Upper Chennault Creek |
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Lower Chennault Creek |
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Hulk Creek (portion in Snohomish County) |
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North fork of Picnic Point Creek (portion in Snohomish County) |
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Norma Creek (within Snohomish County) |
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Type 5 |
Seasonal, nonfish 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. |
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Japanese Gulch—south of 71st Street |
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Brewery Creek—south of 5th Street |
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Small feeder streams into Big Gulch |
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Picnic Point Creek—south fork in Sector 20 |
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Small feeder streams into Picnic Point Creek |
B. Freshwater Lakes—Lake Serene. The purpose of the freshwater environment designation is to protect, restore, and improve, wherever possible, the ecological functions of the freshwater environment of Lake Serene, while allowing existing single-family development and park and lake recreational uses to continue to occur along with associated docks. The freshwater environment designation consists of both the upland single-family development and redevelopment and park development and associated in-water docks occurring on Lake Serene. The shoreline designation applies to Lake Serene and upland two hundred feet of the ordinary high water mark (OHWM) and all of the freshwater of the lake.
C. Federal, State, and Local Species.
1. Federally designated endangered, threatened, and candidate 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, if any, 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.
D. Critical Saltwater Habitat. Critical saltwater habitat includes all in-water lands, tidelands, and uplands within two hundred feet of the ordinary high water mark of Puget Sound. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.090 Buffer areas.
A. Buffer Widths. 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. Critical Freshwater Habitat—Streams.
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Streams |
Standard Buffer Width |
|---|---|
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Type 1 |
250 feet |
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Type 2 |
250 feet |
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Type 3 |
150 feet |
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Type 4 (H) |
75 feet |
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Type 4 (L) |
50 feet |
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Type 5 (H and L) |
50 feet |
1 As measured horizontally on each side of the stream from the ordinary high water mark (OHWM) of the stream.
Note 1: Most streams within Mukilteo are located within steep ravines, where the ravine as a whole is protected under critical slope area regulations contained in Chapter 17B.52A. Steep slopes are defined as slopes 40 percent or greater.
Note 2: Mukilteo does not contain any Type 1 or 2 streams.
Note 3: H = High mass wasting; L = Low mass wasting
2. Critical Freshwater Habitat—Lakes. A ten-foot-wide buffer of vegetation along the entirety of the shoreline shall be provided. A six-foot-wide path through the vegetation is allowed for access to a pier.
3. Federal, State, and Local Wildlife 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.
4. Critical Saltwater Habitat—Marine Shorelines. All development within the two-hundred-foot shoreline jurisdiction shall apply the following buffers to critical saltwater habitat:
a. In the urban waterfront and urban waterfront park environments the buffers shall be determined based on a case by case study.
b. In the conservancy environment the buffer shall be the same as steep slopes: twenty-five feet from the top of slope.
c. In addition, all projects which affect the marine shorelines shall mitigate for the project impacts to the shoreline in accordance with best available science and as required by any state or federal agency.
B. Buffer Enhancement. Where existing buffer area plantings provide minimal vegetative cover and cannot provide the minimum water quality (per the current Department of Ecology’s Stormwater Management Manual for Western Washington) 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 17B.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 dominant cover;
2. Vegetation is lacking due to disturbance and stream or 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 17B.52C.140, and include provisions for mitigation monitoring and contingency plans similar to the requirements of Section 17B.52C.150.
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.
E. Activities Allowed in Buffers. 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. No Stormwater Facilities Allowed in Buffers. 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. Designated in NGPAs. Buffers shall be shown on the development site plans or final plat maps along with the notation requirements identified in Section 17B.52.035, Native growth protection areas and buffers.
H. Existing Designated Buffers. 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 for a period of five years. 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. 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.
J. Stream Crossings. Stream crossings are allowed within a buffer if necessary to provide access to property and if the crossing impacts are fully mitigated consistent with an approved critical areas report.
K. Streambank Stabilization. Streambank stabilization needed to protect structures from future channel migration may only be allowed in a buffer if bioengineering or soft armoring techniques are used. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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 except for dead, dying, diseased or hazardous trees as determined by a certified landscape architect or arborist and approved by the planning and public works directors. However, where one or more trees must be removed to provide a building footprint for development or for essential public facilities, the developer shall provide one-to-one replacement of Douglas fir trees or similar tree species that in the future will provide nesting or roosting habitat for raptors when the trees mature. Replacement trees shall be a minimum of six feet in height at the time of planting. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.100 Land divisions and density calculations.
A. 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.
B. 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 front and rear building setbacks as listed in the bulk matrix may be reduced to fifteen feet, and the lot coverage standards of underlying zoning regulations may be increased to sixty percent;
4. The area to which density is transferred shall not be constrained by another environmentally critical area regulation.
5. All required stream or wildlife conservation buffers shall be applied to the parcel and set aside in native growth protection area tract(s). (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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 fish and wildlife habitats shall be mitigated. Mitigation shall be applied in the following sequence of steps, listed in the order of priority from top to bottom. Work within these habitats requires state and likely federal authorization in addition to city approval.
A. Sequencing. 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. Stream Alteration. Alteration of streams may be permitted by the city subject to the following standards. However, the applicant must also obtain state and federal approvals for work within the OHWM in addition to meeting the city’s requirements.
1. Type 1, 2, and 3 Streams. Alterations of Type 1, 2, and 3 streams shall be avoided, however where avoidance is not feasible projects will be subject to Section 17B.52.022 and shall be submitted as a shoreline variance;
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. New culverts and culvert replacements shall be consistent with the standards in Design of Road Culverts for Fish Passage (WDFW 2003) and 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. An 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.
C. Marine Shoreline. New, replacement, or substantially improved marine shoreline erosion control measures may be permitted consistent with all necessary state and federal permits and in accordance with an approved critical area report that demonstrates the following:
1. No feasible alternative would provide adequate protection to upland property;
2. Bioengineering or soft armoring shall be employed to the greatest extent feasible;
3. Mitigation measures shall ensure there is no net loss of the functions of intertidal or riparian habitat, allowing for off-site mitigation if necessary. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.115 Facilitation of restoration projects.
Stream buffers may be further reduced up to fifty percent only where creation of a surface channel, daylighting a stream that was previously culverted or piped, or daylighting 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. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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; and
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. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.52C.130 Performance standards.
A. Endangered, Threatened, Sensitive, and Candidate Species.
1. No development shall be allowed within a habitat conservation area or buffer with which state or federal endangered, threatened, sensitive, or candidate 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 federal endangered, threatened, sensitive, or candidate 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 alteration 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 bald eagle site (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 forty feet) and in a shoreline foraging area. The city shall verify the location of eagle management area 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 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 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.
C. Marine Shoreline. Development within an aquatic habitat or two hundred feet of the shoreline shall be consistent with the Mukilteo comprehensive plan, shoreline management plan, and the regulations contained in this title. (Ord. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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 Section 17B.08.020 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 and location of the OHWM on and adjacent to the project area and its associated buffer. The OHWM shall be shown on project drawings and a description of field indicators used to establish the OHWM included in the assessment;
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. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.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 on August 1st, or as otherwise agreed upon by the city and the applicant, 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. Stream 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. 1427 § 3 (Exh. C) (part), 2019: Ord. 1295 § 10 (Exh. 1B) (part), 2011)