Chapter 14.25 NATIONAL FLOODPLAIN INSURANCE

The legislature of the state of Washington has delegated the responsibility to local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. (Ord. 2021-632 § 3).

14.25.020 Findings of fact.

Therefore, the city of Newcastle does ordain as follows:

A. Areas of Newcastle are subject to periodic inundation and channel migration which result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for protection and relief from flooding and channel migration, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

B. When floodplains and watersheds are developed without taking appropriate care and precautions, flood heights, frequencies, and velocities increase, causing a greater threat to humans, damage to property, destruction of natural floodplain functions, and adverse impacts to water quality and habitat.

C. Rivers, streams, lakes, estuarine and marine areas and their floodplains are major elements of healthy aquatic and riparian habitats and conveyance of floodwaters. If watersheds, rivers, streams, lakes, estuaries, floodplains, and other systems are not viewed holistically as biological and geomorphologic units, it can lead to serious degradation of habitat and increased flood hazards to people and human development.

D. Over the years, natural processes have evolved that manage floodwaters and channel flows in the most effective and efficient manner. Disruption of these processes through alterations to land cover, stream channels, wetlands, and other water bodies leads to increased flood hazards, loss of life and property, threats to public health, and loss of habitat. (Ord. 2021-632 § 3).

14.25.030 Purpose.

It is the purpose of this chapter to promote the public health, safety, and general welfare by managing development in order to:

A. Protect human life, health, and property from the dangers of flooding;

B. Minimize the need for publicly funded and hazardous rescue efforts to save those who are isolated by floodwaters;

C. Minimize expenditure of public money for costly flood damage repair and flood control projects;

D. Minimize disruption of commerce and governmental services;

E. Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets, and bridges located in the floodplain;

F. Maintain a stable tax base by providing for the sound use of flood-prone areas so as to minimize future flood blight areas;

G. Encourage those who occupy areas subject to flooding and channel migration to assume responsibility for their actions;

H. Qualify the city of Newcastle for participation in the National Flood Insurance Program, thereby giving citizens and businesses the opportunity to purchase flood insurance;

I. Maintain the quality of water in rivers, streams, lakes, estuaries, and marine areas and their floodplains so as to protect public water supplies, areas of the public trust, and wildlife habitat protected by the Endangered Species Act;

J. Retain the natural channel, shoreline, and floodplain creation processes and other natural floodplain functions that protect, create, and maintain habitat for threatened and endangered species;

K. Prevent or minimize loss of hydraulic, geomorphic, and ecological functions of floodplains and stream channels. (Ord. 2021-632 § 3).

14.25.040 Lands to which this chapter applies.

This chapter shall apply to the special flood hazard area within the jurisdiction of the city of Newcastle as defined in NMC 14.25.310. (Ord. 2021-632 § 3).

14.25.050 Approach.

In order to achieve the listed purposes, this chapter:

A. Defines and clarifies the terms and phrases used in this chapter in NMC 14.25.200, Definitions.

B. Identifies in NMC 14.25.310, Area to be regulated, the special flood hazard area, the protected area in NMC 14.25.340, Protected area, and the supporting technical data needed to delineate those areas.

C. Establishes a permit requirement in NMC 14.25.410. Establishment of floodplain development permit, so that all proposed development that may affect flood hazards, water quality, and habitat is reviewed prior to construction.

D. Sets minimum protection standards in NMC 14.25.500, General development standards, for all development to ensure that the development will not increase the potential for flood damage or adversely affect natural floodplain functions.

E. Sets minimum standards to protect new and substantially improved structures from flood damage in NMC 14.25.610, Standards for protection of structures.

F. Specifies additional habitat protection criteria in NMC 14.25.700. Some small projects do not need a permit. For all other development projects, the applicant must assess their impact on those factors that contribute to increased flood hazard and degradation of habitat. If the assessment concludes that the project will cause an adverse effect outside the protected area, the permit will be denied unless the project impacts are mitigated (avoided, minimized, restored, or compensated for). (Ord. 2021-632 § 3).

14.25.060 Penalties for noncompliance.

No development shall be undertaken or placed in the areas regulated by this chapter without full compliance with the terms of this chapter and other applicable regulations of Newcastle. Violations of the provisions of this chapter by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who violates this chapter, or fails to comply with any of its requirements, shall upon conviction thereof be fined not more than $1,000 for each violation, and in addition shall pay all costs and expenses involved in the case. Nothing herein contained shall prevent Newcastle from taking such other lawful action as is necessary to prevent or remedy any violation. Each violation or each day of continued unlawful activity shall constitute a separate violation. (Ord. 2021-632 § 3).

14.25.070 Interpretation.

In the interpretation and application of this chapter, all provisions shall be:

A. Considered as minimum requirements;

B. Liberally construed in favor of the city of Newcastle; and

C. Deemed neither to limit nor repeal any other powers granted under state statutes. (Ord. 2021-632 § 3).

14.25.080 Abrogation and greater restrictions.

Where this chapter and another code, ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. 2021-632 § 3).

14.25.090 Warning and disclaimer of liability.

The degree of property and habitat protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods and movement of channels outside of mapped channel migration areas can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the regulated areas, or development permitted within such areas, will be free from flood or erosion damage. This chapter shall not create liability on the part of the city of Newcastle or any officer or employee thereof for any damage to property or habitat that results from reliance on this chapter or any administrative decision lawfully made hereunder. (Ord. 2021-632 § 3).

14.25.100 Severability.

The provisions and sections of this chapter shall be deemed separable and the invalidity of any portion of this chapter shall not affect the validity of the remainder. (Ord. 2021-632 § 3).

14.25.200 Definitions.

The definitions below only apply to this chapter, National Floodplain Insurance, unless specifically referenced by other titles, chapters, or sections of this municipal code.

Unless specifically defined below, terms or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application.

A. “Adversely affect/adverse effect” means effects that are a direct or indirect result of the proposed action, or its interrelated or interdependent actions, and the effect is not discountable, insignificant, or beneficial. Discountable effects are extremely unlikely to occur. Insignificant effects relate to the size of the impact and should never reach the scale where a take occurs. Based on best judgment, a person would not: (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur. Beneficial effects are contemporaneous positive effects without any adverse effects. In the event that the overall effect of the proposed action is beneficial, but is also likely to cause some adverse effects, then the proposed action is considered to result in an adverse effect.

B. “Appurtenant structure” means a structure which is on the same parcel of property as the principal structure to be insured and the use of which is incidental to the use of the principal structure.

C. “Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year (also referred to as the “100-year flood”). The area subject to the base flood is the special flood hazard area designated on flood insurance rate maps as zones “A” or including AE.

D. “Base flood elevation” means the elevation of the base flood above the datum of the effective FIRM.

E. “Basement” means any area of the structure having its floor subgrade (below ground level) on all sides.

F. “Channel migration zone” means the area within the lateral extent of likely stream channel movement due to stream bank destabilization and erosion, rapid stream incision, aggradation, avulsions, and shifts in location of stream channels.

G. “Critical facility” means a facility necessary to protect the public health, safety, and welfare during a flood. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency operations installations, water and wastewater treatment plants, electric power stations, and installations which produce, use, or store hazardous materials or hazardous waste (other than consumer products containing hazardous substances or hazardous waste intended for household use).

H. “Development” means any manmade change to improved or unimproved real estate in the special flood hazard area (SFHA), including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, storage of equipment or materials, subdivision of land, removal of more than five percent of the native vegetation on the property, or alteration of natural site characteristics.

I. “Dry floodproofing” means any combination of structural and nonstructural measures that prevent floodwaters from entering a structure.

J. “Elevation certificate” means the official form (FEMA Form 81-31) used to provide elevation information necessary to ensure compliance with provisions of this chapter and determine the proper flood insurance premium rate.

K. “FEMA” means the Federal Emergency Management Agency, the agency responsible for administering the National Flood Insurance Program.

L. “Fish and wildlife habitat conservation area” means lands needed to maintain species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created. These areas are designated by the city of Newcastle pursuant to the Washington State Growth Management Act (WAC 365-190-080).

M. “Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from:

1. The overflow of inland or tidal waters; and/or

2. The unusual and rapid accumulation of runoff of surface waters from any source.

N. “Flood insurance rate map (FIRM)” means the official map on which the Federal Emergency Management Agency has delineated both the special flood hazard areas and the risk premium zones applicable to the community.

O. “Flood protection elevation (FPE)” means the elevation above the datum of the effective FIRM to which new and substantially improved structures must be protected from flood damage.

P. “Flood insurance study” means the official report provided by the Federal Emergency Management Agency that includes flood profiles, the flood insurance rate map, and the water surface elevation of the base flood.

Q. “Floodway” means the channel of a stream or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot at any point.

R. “Functionally dependent use” means a use that must be located or carried out close to water; e.g., docking or port facilities necessary for the unloading of cargo or passengers or shipbuilding and ship repair.

S. “Historic structure” means a structure that:

1. Is listed on the National Register of Historic Places, the Washington Heritage Register, or the Washington Heritage Barn Register; or

2. Has been certified to contribute to the historical significance of a registered historic district.

T. “Hyporheic zone” means a saturated layer of rock or sediment beneath and/or adjacent to a stream channel that contains some proportion of channel water or that has been altered by channel water infiltration.

U. “Impervious surface” means a hard surface area which causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled, macadam or other surfaces which similarly impede the natural infiltration of stormwater.

V. “Lowest floor” means the lowest floor of the lowest enclosed area (including basement or crawlspace). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area, is not considered a structure’s lowest floor; provided, that such enclosure is compliant with NMC 14.25.620(F) (i.e., provided there are adequate openings to allow floodwaters into the area).

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

X. “Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

Y. “Native vegetation” means plant species that are indigenous to the community’s area and that reasonably could be expected to naturally occur on the site.

Z. “Natural floodplain functions” means the contribution that a floodplain makes to support habitat, including, but not limited to, providing flood storage and conveyance, reducing flood velocities, reducing sedimentation, filtering nutrients and impurities from runoff, processing organic wastes, moderating temperature fluctuations, and providing breeding and feeding grounds, shelter, and refugia for aquatic or riparian species.

AA. “New construction” means structures for which the “start of construction” commenced on or after the effective date of the ordinance codified in this chapter.

BB. “Protected area” means the lands that lie within the boundaries of the floodway, the riparian habitat zone, and the channel migration area. Because of the impact that development can have on flood heights and velocities and habitat, special rules apply in the protected area.

CC. “Recreational vehicle” means a vehicle:

1. Built on a single chassis; and

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

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

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

DD. “Riparian” means of, adjacent to, or living on, the bank of a river, lake, pond, ocean, sound, or other water body.

EE. “Riparian habitat zone” means the water body and adjacent land areas that are likely to support aquatic and riparian habitat as detailed in NMC 14.25.340(C).

FF. “Special flood hazard area (SFHA)” means the land subject to inundation by the base flood. Special flood hazard areas are designated on flood insurance rate maps with the letter “A” or “V” including AE, AO, AH, A1-99 and VE. The special flood hazard area is also referred to as the area of special flood hazard or SFHA.

GG. “Start of construction” includes substantial improvement, and means the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement that occurred before the permit’s expiration date. The actual start is either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation.

HH. “Permanent construction” does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory structures not occupied as dwelling units or not part of the main structure. For a substantial improvement, the “actual start of construction” means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

II. “Structure” means a walled and roofed building, including a gas or liquid storage tank that is principally above ground.

JJ. “Substantial damage” means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

KK. “Substantial damage” also means flood-related damage sustained by a structure on two separate occasions during a 10-year period for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds 25 percent of the market value of the structure before the damage occurred.

LL. “Substantial improvement” means any repair, reconstruction, rehabilitation, addition, replacement, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the “start of construction” of the improvement. This term includes structures which have incurred “substantial damage,” regardless of the actual repair work performed. The term does not include any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions.

MM. “Variance” means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.

NN. “Water typing” means a system for classifying water bodies according to their size and fish habitat characteristics. The Washington Department of Natural Resources’ forest practices water typing classification system is hereby adopted by reference. The system defines four water types:

1. Type “S” = Shoreline: Streams that are designated “shorelines of the state,” including marine shorelines.

2. Type “F” = Fish: Streams that are known to be used by fish or meet the physical criteria to be potentially used by fish.

3. Type “Np” = Nonfish perennial streams.

4. Type “Ns” = Nonfish seasonal streams.

OO. “Zone” means one or more areas delineated on the FIRM. The following zones may be used on the adopted FIRM. The special flood hazard area is comprised of the A and V zones:

1. A: SFHA where no base flood elevation is provided.

2. A#: numbered A zones (e.g., A7 or A14), SFHA with a base flood elevation.

3. AE: SFHA with a base flood elevation.

4. X: the area outside the mapped SFHA. (Ord. 2021-632 § 3).

14.25.310 Area to be regulated.

The area to be regulated is comprised of the special flood hazard area and all protected areas within the special flood hazard area within the jurisdiction of the city of Newcastle. The term also includes areas delineated pursuant to NMC 14.25.350, New regulatory data. (Ord. 2021-632 § 3).

14.25.320 Special flood hazard area.

A. The special flood hazard area (SFHA) is the area subject to flooding by the base flood and subject to the provisions of this chapter. It is identified by the Federal Emergency Management Agency in a scientific and engineering report entitled “Flood Insurance Study for King County and Incorporated Areas” dated August 19, 2020, and any revisions thereto, with an accompanying flood insurance rate map (FIRM) and any revisions thereto, are hereby adopted by reference and declared to be a part of this chapter. The flood insurance study and the FIRM are kept electronically on file at Newcastle City Hall.

B. Upon receipt of a floodplain development permit application, the floodplain administrator shall compare the elevation of the site to the base flood elevation. A development project is not subject to the requirements of this chapter if it is located on land that can be shown to be:

1. Outside the protected area; and

2. Higher than the base flood elevation as demonstrated by an elevation certificate.

The floodplain administrator shall inform the applicant that the project is still subject to the flood insurance purchase requirements unless the owner receives a letter of map amendment from FEMA. (Ord. 2021-632 § 3).

14.25.330 Flood hazard data.

A. The base flood elevation for the SFHAs of the city of Newcastle shall be as delineated on the 100-year flood profiles in the flood insurance study for “Flood Insurance Study for King County and Incorporated Areas.”

B. The base flood elevation for all other SFHAs shall be as defined in NMC 14.25.340, Protected area, and 14.25.350, New regulatory data.

C. The flood protection elevation (FPE) shall be the base flood elevation plus one foot.

D. The floodway shall be as delineated on the flood insurance rate map or in accordance with this section, and NMC 14.25.350, New regulatory data.

E. Where base flood elevation and floodway data have not been provided in special flood hazard areas, the floodplain administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other source. (Ord. 2021-632 § 3).

14.25.340 Protected area.

A. The protected area is comprised of those lands that lie within the boundaries of the floodway, the riparian habitat zone, and the channel migration area.

B. In riverine areas, where a floodway has not been designated in accordance with NMC 14.25.330, Flood hazard data, or 14.25.350, New regulatory data, the protected area is comprised of those lands that lie within the boundaries of the riparian habitat zone, the channel migration area, and the SFHA.

C. Riparian Habitat Zone. The riparian habitat zone includes those watercourses within the SFHA and adjacent land areas that are likely to support aquatic and riparian habitat.

1. The size and location of the riparian habitat zone is dependent on the type of water body. The riparian habitat zone includes the water body and adjacent lands, measured perpendicularly from ordinary high water on both sides of the water body:

a. Type S streams that are designated “shorelines of the state”: 250 feet.

b. Type F (fish bearing) streams greater than five feet wide and marine shorelines: 200 feet.

c. Type F streams less than five feet wide and lakes: 150 feet.

d. Type N (nonsalmonid-bearing) perennial and seasonal streams with unstable slopes: 225 feet.

e. All other Type N (nonsalmonid-bearing) perennial and seasonal streams: 150 feet.

2. The riparian habitat zone shall be delineated on the site plan by the applicant at the time of application for subdivision approval or floodplain development permit for all development proposals within 300 feet of any stream or shoreline.

D. Channel Migration Area.

1. The channel migration area shall be the channel migration zone as delineated on the adopted flood insurance study plus 50 feet.

2. Where more than one channel migration zone has been delineated, the floodplain administrator shall use the delineation that has been adopted for other local regulatory purposes.

3. Where a channel migration zone has not yet been mapped, the provisions of NMC 14.25.350, New regulatory data, shall apply at the time of permit application. (Ord. 2021-632 § 3).

14.25.350 New regulatory data.

A. All requests to revise or change the flood hazard data, including requests for a letter of map revision and a conditional letter of map revision, shall be reviewed by the floodplain administrator.

1. The floodplain administrator shall not sign the community acknowledgment form for any requests based on filling or other development unless the applicant for the letter documents that such filling or development is in compliance with this chapter.

2. The floodplain administrator shall not approve a request to revise or change a floodway delineation until FEMA has issued a conditional letter of map revision that approves the change.

B. If an applicant disagrees with the regulatory data prescribed by this chapter, he/she may submit a detailed technical study needed to replace existing data with better data in accordance with FEMA mapping guidelines or Regional Guidance for Hydrologic and Hydraulic Studies in Support of the Model Ordinance for Floodplain Management under the National Flood Insurance Program and the Endangered Species Act, FEMA Region X, 2010. If the data in question are shown on the published FIRM, the submittal must also include a request to FEMA for a conditional letter of map revision.

C. Where base flood elevation data are not available in accordance with NMC 14.25.330, Flood hazard data, applicants for approval of new subdivisions and other proposed developments (including proposals for manufactured home parks and subdivisions) greater than 50 lots or five acres, whichever is the lesser, shall include such data with their permit applications.

D. Where floodway delineation is not available in accordance with NMC 14.25.330, Flood hazard data, the floodway will be designated to be one-half the distance of the mapped 100-year floodplain at any point, and the prohibition on floodway development adheres, unless a floodway study indicates otherwise. This provision applies to any floodplain development permit, including those for substantial improvements.

E. Where channel migration zone data are not available in accordance with NMC 14.25.340, Protected area, the permit applicant shall either:

1. Designate the entire SFHA as the channel migration zone; or

2. Identify the channel migration area in accordance with Regional Guidance for Hydrologic and Hydraulic Studies in Support of the Model Ordinance for Floodplain Management under the National Flood Insurance Program and the Endangered Species Act, FEMA Region X, 2012.

F. All new hydrologic and hydraulic flood studies conducted pursuant to this section shall consider future conditions, and the cumulative effects from anticipated future land use changes, in accordance with Regional Guidance for Hydrologic and Hydraulic Studies in Support of the Model Ordinance for Floodplain Management under the National Flood Insurance Program and the Endangered Species Act, FEMA Region X, 2012.

G. The floodplain administrator shall use the most restrictive data available for the channel migration zone, floodways, future conditions, and riparian habitat areas. (Ord. 2021-632 § 3).

14.25.410 Establishment of floodplain development permit.

A floodplain development permit shall be obtained before construction or development begins within the special flood hazard area. The permit shall be for all development as set forth in NMC 14.25.200, Definitions. (Ord. 2021-632 § 3).

14.25.420 Floodplain development permit application.

Application for a floodplain development permit shall be made on forms furnished by the floodplain administrator and shall include, but are not limited to:

A. One or more site plans, drawn to scale, showing:

1. The nature, location, dimensions, and elevations of the property in question;

2. Names and location of all lakes, water bodies, waterways and drainage facilities within 300 feet of the site;

3. The elevations of the 10-, 50-, 100-, and 500-year floods, where such data are available;

4. The boundaries of the SFHA, floodway, riparian habitat zone, and channel migration area, delineated in accordance with NMC 14.25.310 through 14.25.350;

5. The proposed drainage system including, but not limited to, storm sewers, overland flow paths, detention facilities and roads;

6. Existing and proposed structures, fill, pavement and other impervious surfaces, and sites for storage of materials;

7. All wetlands;

8. Designated fish and wildlife habitat conservation areas, and habitat areas identified for conservation or protection under state or federal or local laws or regulations (e.g., Endangered Species Act, Magnuson-Stevens Fishery Conservation and Management Act, Growth Management Act, Shorelines Management Act, Priority Habitat and Species List); and

9. Existing native vegetation and proposed revegetation.

B. If the proposed project involves grading, excavation, or filling, the site plan shall include proposed post-development terrain at one-foot contour intervals.

C. If the proposed project includes a new structure, substantial improvement, or repairs to a substantially damaged structure that will be elevated, the application shall include the flood protection elevation for the building site and the proposed elevations of the following:

1. The top of bottom floor (including basement, crawlspace, or enclosure floor);

2. The top of the next higher floor;

3. The top of the slab of an attached garage;

4. The lowest elevation of machinery or equipment servicing the structure;

5. The lowest adjacent (finished) grade next to structure;

6. The highest adjacent (finished) grade next to structure;

7. The lowest adjacent grade at the lowest elevation of a deck or stairs, including structural support.

D. If the proposed project includes a new structure, substantial improvement, or repairs to a substantially damaged nonresidential structure that will be dry floodproofed, the application shall include the FPE for the building site, the elevation in relation to the datum of the effective FIRM to which the structure will be dry floodproofed, and a certification by a registered professional engineer or licensed architect that the dry floodproofing methods meet the floodproofing criteria in NMC 14.25.630, Nonresidential construction.

E. The proposed project must be designed and located so that new structural flood protection is not needed.

F. The application shall include a description of the extent to which a stream, lake, or other water body, including its shoreline, will be altered or relocated as a result of the proposed development.

1. Bank stabilization measures along salmonid-bearing streams, channel migration zones, and along estuarine and marine shorelines must be minimized to the maximum extent possible. If bank stabilization measures are necessary, bioengineered armoring of streambanks and shorelines must be used.

2. Channel Migration. No activity is allowed that limits the natural meandering pattern of the channel migration zone; however, natural channel migration patterns may be enhanced or restored.

G. The application shall include documentation that the applicant will apply for all necessary permits required by federal, state, or local law. The application shall include written acknowledgment that the applicant understands that the final certification of use or certificate of occupancy will be issued only if the applicant provides copies of the required federal, state, and local permits or letters stating that a permit is not required. The floodplain permit is not valid if those other permits and approvals are not obtained prior to any ground-disturbing work or structural improvements.

H. The application shall include acknowledgment by the applicant that representatives of any federal, state, or local unit of government with regulatory authority over the project are authorized to enter upon the property to inspect the development. (Ord. 2021-632 § 3).

14.25.430 Floodplain development permit expiration.

If there has been no start of construction, a floodplain development permit shall expire 180 days after the date of issuance. Where the applicant documents a need for an extension beyond this period due to conditions beyond the applicant’s control, the floodplain administrator may authorize one or more extensions. (Ord. 2021-632 § 3).

14.25.440 Designation of the floodplain administrator.

The floodplain administrator is hereby appointed to administer and implement this chapter by granting or denying floodplain development permit applications in accordance with its provisions. (Ord. 2021-632 § 3).

14.25.450 Duties of the floodplain administrator.

Duties of the floodplain administrator shall include, but not be limited to:

A. Review all floodplain development permits to determine that the permit requirements of this chapter have been satisfied.

B. Review all floodplain development permits to determine that all necessary permits have been obtained from those federal, state, or local governmental agencies from which prior approval is required, including those local, state or federal permits that may be required to assure compliance with the Endangered Species Act and/or other appropriate state or federal laws.

C. Review all floodplain development permits to determine if the proposed development is located in the protected area. If located in the protected area, ensure that the provisions of NMC 14.25.700 through 14.25.790 are met.

D. Ensure that all development activities within the special flood hazard area of the jurisdiction of the city of Newcastle meet the requirements of this chapter.

E. Inspect all development projects before, during and after construction to ensure compliance with all provisions of this chapter, including proper elevation of the structure.

F. Maintain for public inspection all records pertaining to the provisions of this chapter.

G. Submit reports to include the projects for which they issue floodplain development permits, including effects to flood storage, fish habitat, and all indirect effects of development and mitigation provided to FEMA as required for the National Flood Insurance Program.

H. Notify FEMA of any proposed amendments to this chapter.

I. Cooperate with state and federal agencies to improve flood and other technical data and notify FEMA of any new data that would revise the FIRM. (Ord. 2021-632 § 3).

14.25.460 Records.

A. Where base flood elevation data have been obtained pursuant to NMC 14.25.330, Flood hazard data, and 14.25.350, New regulatory data, the floodplain administrator shall obtain, record, and maintain the actual “finished construction” elevations for the locations listed in NMC 14.25.420(C), floodplain development permit application. This information shall be recorded on a current FEMA elevation certificate (FEMA Form 81-31), signed, and sealed by a professional land surveyor, currently licensed in the state of Washington.

B. For all new or substantially improved dry floodproofed nonresidential structures, where base flood elevation data has been obtained pursuant to NMC 14.25.320 and 14.25.350, the floodplain administrator shall obtain, record, and maintain the elevation (in relation to the datum of the effective FIRM) to which the structure was floodproofed. This information shall be recorded on a current FEMA floodproofing certificate (FEMA Form 81-65) by a professional engineer currently licensed in the state of Washington. (Ord. 2021-632 § 3).

14.25.470 Certificate of occupancy.

A. A certification of use for the property or a certificate of occupancy for a new or substantially improved structure or an addition shall not be issued until:

1. The permit applicant provides a properly completed, signed, and sealed elevation or floodproofing certificate showing finished construction data as required by NMC 14.25.460, Records;

2. If a mitigation plan is required by NMC 14.25.770, Habitat impact assessment, and 14.25.780, Habitat mitigation plan, all work identified in the plan has been completed according to the plan’s schedule;

3. The applicant provides copies of all required federal, state, and local permits noted in the permit application per NMC 14.25.420(F), floodplain development permit application;

4. All other provisions of this chapter have been met.

B. The floodplain administrator may accept a performance bond or other security that will ensure that unfinished portions of the project will be completed after the certification of use or certificate of occupancy has been issued. (Ord. 2021-632 § 3).

14.25.480 Appeals.

The hearing examiner as established by Chapter 2.20 NMC shall hear and decide appeals and requests for variances from the requirements of this chapter. (Ord. 2021-632 § 3).

14.25.490 Variance criteria.

A. In reviewing applications for a variance, the hearing examiner shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and:

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

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

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

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

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

6. The availability of alternative locations for the proposed use which are not subject to flooding or channel migration and are not in designated fish and wildlife habitat conservation areas;

7. The relationship of the proposed use to the comprehensive plan, growth management regulations, critical area regulations, the shoreline management program, and floodplain management program for that area;

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

9. The potential of the proposed development project to destroy or adversely affect a fish and wildlife habitat conservation area or create an adverse effect to federal, state or locally protected species or habitat; and

10. The potential of the proposed development project to affect, or be affected by, channel migration; and

11. Is the minimum necessary to grant relief; and

12. Must be compliant with the ESA.

B. No variance shall be granted to the requirements of this chapter unless the applicant demonstrates that:

1. The development project cannot be located outside the special flood hazard area;

2. An exceptional hardship would result if the variance were not granted;

3. The relief requested is the minimum necessary;

4. The applicant’s circumstances are unique and do not represent a problem faced by other area properties;

5. If the project is within a designated floodway, no increase in flood levels during the base flood discharge would result;

6. The project will not adversely affect features or quality of habitat supporting local, state or federally protected fish or wildlife;

7. There will be no additional threat to public health, safety, beneficial stream or water uses and functions, or creation of a nuisance;

8. There will be no additional public expense for flood protection, lost environmental functions, rescue or relief operations, policing, or repairs to streambeds, shorelines, banks, roads, utilities, or other public facilities; and

9. All requirements of other permitting agencies will still be met.

C. Variances requested in connection with restoration of a historic site, building or structure may be granted using criteria more permissive than the above requirements, provided:

1. The repair or rehabilitation is the minimum necessary to preserve the historic character and design of the site, building or structure; and

2. The repair or rehabilitation will not result in the site, building or structure losing its historic designation.

D. Variances may be requested for new construction, substantial improvements, and other development necessary for the conduct of functionally dependent uses, provided:

1. There is good and sufficient cause for providing relief;

2. The variance is the minimum necessary to provide relief;

3. The variance does not cause a rise in the 100-year flood level within the regulatory floodway;

4. The project will not adversely affect federal, state or locally protected fish, wildlife and their habitat or the functions associated with their habitat.

E. Variances to the provisions of NMC 14.25.610 through 14.25.670 may be issued for a structure on a small or irregularly shaped lot contiguous to and surrounded by lots with existing structures constructed below the FPE, providing the other variance criteria are met. The applicant for such a variance shall be notified, in writing, that the structure (1) will be subject to increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage and (2) such construction below the FPE increases risks to life and property. Such notification shall be maintained with a record of all variance actions.

F. Variances pertain to a physical piece of property. They are not personal in nature and are not based on the inhabitants or their health, economic, or financial circumstances. (Ord. 2021-632 § 3).

14.25.500 General development standards.

The provisions of this section through 14.25.540 shall apply in the special flood hazard area. All new structures and substantial improvements shall be protected from flood damage below the flood protection elevation. (Ord. 2021-632 § 3).

14.25.510 Subdivisions.

This section applies to all subdivision proposals, short subdivisions, short plats, planned developments, and new and expansions to manufactured housing parks.

A. All proposals shall be consistent with the need to minimize flood damage.

B. The proposed subdivision must have one or more new lots in the special flood hazard area set aside for open space use through deed restriction, easement, subdivision covenant, or donation to a public agency.

1. In the special flood hazard area outside the protected area, zoning must maintain a low density of floodplain development.

2. The special flood hazard area outside the protected area in which the current zoning is less than five acres must maintain the current zoning.

3. The density of the development in the portion of the development outside the special flood hazard area may be increased to compensate for the amount of land in the special flood hazard area preserved as open space in accordance with NMC 18.12.080 and Chapter 18.24 NMC.

C. If a parcel has a buildable site outside the special flood hazard area, it shall not be subdivided to create a new lot, tract, or parcel within a binding site plan that does not have a buildable site outside the special flood hazard area. This provision does not apply to lots set aside from development and preserved as open space.

D. All proposals shall have utilities and facilities, such as sewer, gas, electrical, and water systems, located and constructed to minimize or eliminate flood damage.

E. All proposals shall ensure that all subdivisions have at least one access road connected to land outside the special flood hazard area with the surface of the road at or above the FPE wherever possible.

F. All proposals shall have adequate drainage provided to avoid exposure to water damage.

G. The final recorded subdivision plat shall include a notice that part of the property is in the SFHA, riparian habitat zone and/or channel migration area, as appropriate. (Ord. 2021-632 § 3).

14.25.520 Site design.

A. Structures and other development shall be located to avoid flood damage.

1. If a lot has a buildable site out of the special flood hazard area, all new structures shall be located in that area.

2. If a lot does not have a buildable site out of the special flood hazard area, all new structures, pavement, and other development must be sited in the location that has the least impact on habitat by locating the structures as far from the water body as possible or placing the structures on the highest land on the lot.

3. A minimum setback of 15 feet from the protected area shall be required for all structures.

B. All new development shall be designed and located to minimize the impact on flood flows, flood storage, water quality, and habitat.

1. Stormwater and drainage features shall incorporate low impact development techniques, if technically feasible, that mimic predevelopment hydrologic conditions, such as stormwater infiltration, rain gardens, grass swales, filter strips, disconnected impervious areas, permeable pavement, and vegetative roof systems.

2. If the proposed project will create new impervious surfaces so that more than 10 percent of the portion of the lot in the special flood hazard area is covered by impervious surface, the applicant shall demonstrate that there will be no net increase in the rate and volume of the stormwater surface runoff that leaves the site or that the adverse impact is mitigated, as provided by NMC 14.25.770, Habitat impact assessment, and 14.25.780, Habitat mitigation plan.

C. The site plan required in NMC 14.25.420, Floodplain development permit application, shall account for surface drainage to ensure that:

1. Existing and new buildings on the site will be protected from stormwater runoff; and

2. The project will not divert or increase surface water runoff onto neighboring properties. (Ord. 2021-632 § 3).

14.25.530 Hazardous materials.

A. No new development shall create a threat to public health, public safety, or water quality. Chemicals, explosives, gasoline, propane, buoyant materials, animal wastes, fertilizers, flammable liquids, pollutants, or other materials that are hazardous, toxic, or a threat to water quality are prohibited from the special flood hazard area. This prohibition does not apply to small quantities of these materials kept for normal household use. This prohibition does not apply to the continued operations of existing facilities and structures, reuse of existing facilities and structures, or functionally dependent facilities or structures.

B. If the proposed project will not or cannot meet subsection (A) of this section, then a habitat assessment must be conducted in accordance with NMC 14.25.770 and 14.25.780. (Ord. 2021-632 § 3).

14.25.540 Critical facilities.

A. Construction of new critical facilities shall be, to the extent possible, located outside the limits of the special flood hazard area.

B. Construction of new critical facilities in the special flood hazard area shall be permissible if no feasible alternative site is available, provided:

1. Critical facilities shall have the lowest floor elevated three feet above the base flood elevation or to the height of the 500-year flood, whichever is higher. If there is no available data on the 500-year flood, the permit applicants shall develop the needed data in accordance with FEMA mapping guidelines.

2. Access to and from the critical facility shall be protected to the elevation of the 500-year flood. (Ord. 2021-632 § 3).

14.25.610 Standards for protection of structures.

The provisions of this section through NMC 14.25.670 shall apply in the special flood hazard area. All new structures and substantial improvements shall be protected from flood damage below the flood protection elevation.

This section’s protection requirement applies to all new structures and substantial improvements, which include:

A. Construction or placement of a new structure.

B. Reconstruction, rehabilitation, or other improvement that will result in a substantially improved building.

C. Repairs to an existing building that has been substantially damaged.

D. Placing a manufactured home on a site.

E. Placing a recreational vehicle or travel trailer on a site for more than 180 days. (Ord. 2021-632 § 3).

14.25.620 Flood protection standards.

A. All new structures and substantial improvements shall have the lowest floor, including basement, elevated above the FPE.

B. The structure shall be aligned parallel with the direction of flood flows where practicable.

C. The structure shall be anchored to prevent flotation, collapse, or lateral movement of the structure.

D. All materials below the FPE shall be resistant to flood damage and firmly anchored to prevent flotation. Materials harmful to aquatic wildlife, such as creosote, are prohibited below the FPE.

E. Electrical, heating, ventilation, duct work, plumbing, air conditioning equipment and other service facilities shall be elevated above the FPE. Water, sewage, electrical, and other utility lines below the FPE shall be constructed so as to prevent water from entering or accumulating within them during conditions of flooding.

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

1. A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

2. The bottom of all openings shall be no higher than one foot above grade.

3. Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters. (Ord. 2021-632 § 3).

14.25.630 Nonresidential construction.

New construction and substantial improvement of any commercial, industrial, or other nonresidential structure shall be elevated in accordance with NMC 14.25.620. As an alternative to elevation, a new or substantial improvement to a nonresidential structure and its attendant utility and sanitary facilities may be dry floodproofed in A zones. The project must meet the following requirements:

A. Below the FPE the structure is watertight with walls substantially impermeable to the passage of water; and

B. The structural components are capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

C. The plans are certified by a registered professional engineer or licensed architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this section based on their development and/or review of the structural design, specifications, and plans. Such certifications shall be provided to the floodplain administrator as set forth in NMC 14.25.460(B) and 14.25.470(A)(1). (Ord. 2021-632 § 3).

14.25.640 Manufactured homes.

All manufactured homes to be placed or substantially improved on sites shall be:

A. Elevated on a permanent foundation in accordance with NMC 14.25.620; and

B. Securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. Methods of anchoring may include, but are not to be limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to other applicable anchoring requirements for resisting wind forces. (Ord. 2021-632 § 3).

14.25.650 Recreational vehicles.

Recreational vehicles placed on sites shall:

A. Be on the site for fewer than 24 consecutive hours; and

B. Be fully licensed and ready for highway use, on their wheels or jacking system, attached to the site only by quick disconnect type utilities and security devices, and have no permanently attached additions. (Ord. 2021-632 § 3).

14.25.660 Appurtenant structures.

A structure which is on the same parcel of property as the principal structure and the use of which is incidental to the use of the principal structure and is not used for human habitation may be exempt from the elevation requirement of NMC 14.25.620(A), provided:

A. It is used only for parking or storage;

B. It is constructed and placed on the building site so as to offer minimum resistance to the flow of floodwaters;

C. It is anchored to prevent flotation which may result in damage to other structures;

D. All portions of the structure below the FPE must be constructed of flood-resistant materials;

E. Service utilities such as electrical and heating equipment meet the standards of NMC 14.25.620(E) and 14.25.670;

F. It has openings to allow free flowage of water that meet the criteria in NMC 14.25.620(F);

G. The project meets all the other requirements of this chapter, including NMC 14.25.700 through 14.25.790. (Ord. 2021-632 § 3).

14.25.670 Utilities.

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

B. Water wells shall be located outside the floodway and shall be protected to the FPE;

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

D. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. A habitat impact assessment shall be conducted in accordance with NMC 14.25.770 as a condition of approval of an on-site waste disposal system to be located in the special flood hazard area. (Ord. 2021-632 § 3).

14.25.700 Standards for habitat protection.

The provisions of this section through NMC 14.25.790 shall apply in the special flood hazard area. (Ord. 2021-632 § 3).

14.25.710 Nondevelopment activities.

Activities that do not meet the definition of “development” are allowed in the special flood hazard area without the need for a floodplain development permit under this chapter, provided all other federal, state, and local requirements are met. The following are examples of activities not considered development or “manmade changes to improved or unimproved real estate”:

A. Routine maintenance of landscaping that does not involve grading, excavation, or filling;

B. Removal of noxious weeds and hazard trees and replacement of nonnative vegetation with native vegetation;

C. Normal maintenance of structures, such as reroofing and replacing siding, provided such work does not qualify as a substantial improvement;

D. Normal maintenance of aboveground utilities and facilities, such as replacing downed power lines and utility poles;

E. Normal street and road maintenance, including filling potholes, repaving, and installing signs and traffic signals, but not including expansion of paved areas;

F. Normal maintenance of a levee or other flood control facility prescribed in the operations and maintenance plan for the levee or flood control facility are allowed in the special flood hazard area without need for a floodplain development permit. Normal maintenance does not include repair from flood damage, expansion of the prism, expansion of the face or toe or addition for protection on the face or toe with rock armor; and

G. Plowing and other normal farm practices (other than structures or filling) on farms in the special flood hazard area and in existence as of the effective date of the ordinance codified in this chapter do not require a floodplain development permit. Clearing additional land for agriculture after the date of the ordinance codified in this chapter will require a floodplain development permit. (Ord. 2021-632 § 3).

14.25.720 Activities allowed with a floodplain permit.

The following activities are allowed in the special flood hazard area without the analysis required in NMC 14.25.750 or the habitat impact assessment required under NMC 14.25.770, providing all other requirements of this chapter are met, including obtaining a floodplain development permit:

A. Repairs or remodeling of an existing structure; provided, that the repairs or remodeling are compliant with Chapter 18.32 NMC.

B. Expansion of an existing structure that is no greater than 10 percent beyond its existing footprint; provided, that the repairs or remodeling are not a substantial improvement or a repair of substantial damage. This measurement is counted cumulatively from the effective date of the ordinance codified in this chapter, or September 22, 2011, whichever is earlier. If the structure is in the floodway, there shall be no change in the dimensions perpendicular to flow.

C. Activities with the sole purpose of creating, restoring, or enhancing natural functions associated with floodplains, streams, lakes, estuaries, marine areas, habitat, and riparian areas that meet federal and state standards, provided the activities do not include structures, grading, fill, or impervious surfaces.

D. Development of open space and recreational facilities, such as parks, trails, and hunting grounds, that do not include structures, fill, impervious surfaces, or removal of more than five percent of the native vegetation on that portion of the property in the special flood hazard area.

E. Repair to on-site septic systems provided the ground disturbance is the minimum necessary. (Ord. 2021-632 § 3).

14.25.730 Other activities.

All other activities not listed in NMC 14.25.710 or 14.25.720 that are allowed by NMC Title 18 are allowed, provided they meet all the other requirements of this chapter, including the analysis required in NMC 14.25.750 and the habitat impact assessment required under NMC 14.25.770, and a floodplain development permit is issued. (Ord. 2021-632 § 3).

14.25.740 Native vegetation.

The site plan required in NMC 14.25.420 shall show existing native vegetation.

A. In the riparian habitat zone, native vegetation shall be left undisturbed, except as provided in NMC 14.25.710 and 14.25.720(C).

B. Outside the riparian habitat zone, removal of native vegetation shall not exceed 35 percent of the surface area of the portion of the site in the special flood hazard area. Native vegetation in the riparian habitat zone portion of the property can be counted toward this requirement.

C. If the proposed project does not meet the criteria of subsections (A) and (B) of this section, a habitat impact assessment shall be conducted pursuant to NMC 14.25.770 and, if necessary, a habitat mitigation plan shall be prepared and implemented pursuant to NMC 14.25.780. (Ord. 2021-632 § 3).

14.25.750 Floodway standards.

A. In addition to the other requirements of this chapter, a project to develop in the floodway as delineated pursuant to NMC 14.25.330(D) or (E) or NMC 14.25.350(D) shall meet the following criteria:

1. The applicant shall provide a certification by a registered professional engineer demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed development would not result in any increase in flood levels during the occurrence of the base flood discharge.

2. Construction or reconstruction of residential structures is prohibited within designated floodways, except for the following. The following exceptions must still meet all other requirements in this chapter, including subsection (A)(1) of this section:

a. Repairs, reconstruction, or improvements to a residential structure that do not increase the ground floor area, providing the cost of which does not exceed 50 percent of the market value of the structure either (i) before the repair or reconstruction is started, or (ii) if the structure has been damaged, and is being restored, before the damage occurred. Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications that have been identified by a local code enforcement official, and which are the minimum necessary to assure safe living conditions, or to an historic structure, may be excluded from the 50 percent calculations;

b. Repairs, replacement, reconstruction, or improvements to existing farmhouses located in designated floodways and located on designated agricultural lands that do not increase the building’s total square footage of encroachment and are consistent with all requirements of WAC 173-158-075;

c. Repairs, replacement, reconstruction, or improvements to substantially damaged residential dwellings other than farmhouses that do not increase the building’s total square footage of encroachment and are consistent with all requirements of WAC 173-158-076; or

d. Repairs, reconstruction, or improvements to residential structures identified as historic structures that do not increase the building’s dimensions.

B. In riverine special flood hazard areas where a floodway has not been delineated pursuant to NMC 14.25.330(D) or (E) or NMC 14.25.350(D), the applicant for a project to develop in the SFHA shall provide a certification by a registered professional engineer demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed development and all other past or future similar developments would not cumulatively result in an increase of flood levels during the occurrence of the base flood discharge by more than one foot. (Ord. 2021-632 § 3).

14.25.760 Compensatory storage.

New development shall not reduce the effective flood storage volume of the special flood hazard area. A development proposal shall provide compensatory storage if grading or other activity eliminates any effective flood storage volume.

Compensatory storage shall:

A. Provide equivalent volume at equivalent elevations to that being displaced. For this purpose, “equivalent elevation” means having similar relationship to ordinary high water and to the best available 10-year, 50-year and 100-year water surface profiles;

B. Be hydraulically connected to the source of flooding; and

C. Provide compensatory storage in the same construction season as when the displacement of flood storage volume occurs and before the flood season begins.

D. The newly created storage area shall be graded and vegetated to allow fish access during flood events without creating fish stranding sites. (Ord. 2021-632 § 3).

14.25.770 Habitat impact assessment.

Unless allowed under NMC 14.25.700 through 14.25.790, a permit application to develop in the special flood hazard area shall include an assessment of the impact of the project on federal, state or locally protected species and habitat, water quality and aquatic and riparian habitat. The assessment shall be:

A. A biological evaluation or biological assessment developed per 50 CFR 402.12 to initiate federal interagency consultation under Endangered Species Act, Section 7(a)(2); or

B. Documentation that the activity fits within Section 4(d) of the Endangered Species Act; or

C. Documentation that the activity fits within a habitat conservation plan approved pursuant to Section 10 of the Endangered Species Act, where any such assessment has been prepared or is otherwise made available; or

D. An assessment prepared in accordance with Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA Region X, 2013. The assessment shall determine if the project would adversely affect:

1. Species that are federal, state, or local listed as threatened or endangered.

2. The primary constituent elements for critical habitat, when designated, including but not limited to water quality, water quantity, flood volumes, flood velocities, spawning substrate, and/or floodplain refugia for listed salmonids.

3. Essential fish habitat designated by the National Marine Fisheries Service.

4. Fish and wildlife habitat conservation areas.

5. Other protected areas and elements necessary for species conservation. (Ord. 2021-632 § 3).

14.25.780 Habitat mitigation plan.

A. If the assessment conducted under NMC 14.25.770 concludes the project is expected to have an adverse effect on water quality and/or aquatic or riparian habitat or habitat functions, the applicant shall provide a plan to mitigate those impacts, in accordance with Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA Region X, 2013.

1. If the USFWS or NMFS issues an incidental take permit under Section 10 of the ESA or a biological opinion under Section 7 of the ESA, then it can be considered to qualify as a plan to mitigate those impacts.

2. If the project is located in the protected area, the mitigation plan shall stipulate avoidance measures as are needed to ensure that there is no adverse effect during any phase of the project. No compensatory mitigation is allowed in the protected area.

3. If the project is located outside the protected area, the mitigation plan shall include such avoidance, minimization, restoration, or compensation measures so that indirect adverse effects of development in the floodplain are mitigated such that equivalent or better habitat protection is provided for the following functions:

a. Stormwater: Reduce flood volumes and stormwater runoff from new development by ensuring that increased volumes of stormwater reach the river at the same frequency, timing, and duration as historical runoff. LID is required to be incorporated as described in NMC 14.25.520(B).

b. Riparian vegetation: Maintain or replace riparian function by providing equivalent area, diversity, and function of riparian vegetation as currently exists on the site. Riparian retention requirements are as outlined in NMC 14.25.740.

c. Hyporheic zones: No activity is allowed that interferes with the natural exchange of flow between surface water, groundwater, and hyporheic zone; however, natural hyporheic exchange may be enhanced or restored.

d. Wetlands: Wetland function must be maintained or replaced by providing equivalent function.

e. Large woody debris: Any large woody debris (LWD) removed from the floodplain must be replaced in kind, replicating or improving the quantity, size, and species of the existing LWD.

4. No new stream crossings are allowed outside the protected area unless approval has been obtained as stated in subsection (A)(1) of this section.

B. The plan’s habitat mitigation activities shall be incorporated into the proposed project. The floodplain development permit shall be based on the redesigned project and its mitigation components.

C. As required in NMC 14.25.470, the floodplain administrator shall not issue a certification of use or a certificate of occupancy until all work identified in the habitat assessment and mitigation plan has been completed or the applicant has provided the necessary assurance that unfinished portions of the project will be completed, in accordance with NMC 14.25.470(B). (Ord. 2021-632 § 3).

14.25.790 Alteration of watercourses.

A. In addition to the other requirements in NMC 14.25.700 through this section, an applicant for a project that will alter or relocate a watercourse shall also submit a request for a conditional letter of map revision (CLOMR), where required by FEMA. The project will not be approved unless FEMA issues the CLOMR (which requires ESA consultation) and the provisions of the letter are made part of the permit requirements.

B. The floodplain administrator shall notify adjacent communities and the Washington Department of Ecology prior to any alteration or relocation of a watercourse and submit evidence of such notification to FEMA.

C. Maintenance shall be provided within the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished. If the maintenance program does not call for cutting of native vegetation, the system shall be oversized at the time of construction to compensate for said vegetation growth or any other natural factor that may need future maintenance. (Ord. 2021-632 § 3).