Chapter 16.16
CRITICAL AREAS
Sections:
16.16.060 Reasonable use exemption.
16.16.070 Aquifer recharge areas.
16.16.090 Fish and wildlife habitat conservation areas.
16.16.130 Frequently flooded areas.
16.16.150 Geologically hazardous areas.
16.16.010 Purpose.
The purpose of this chapter is to regulate development in critical areas as required by the Growth Management Act as it now exists or hereinafter amended to protect these areas and their functions and values in a manner that also allows reasonable use of private property. This chapter is intended to:
A. Implement the city of Okanogan comprehensive plan and the requirements of the Growth Management Act;
B. Protect critical areas, in accordance with the Growth Management Act and through the application of best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals;
C. Protect designated critical areas lying outside of the jurisdiction of the city of Okanogan shoreline master program (SMP);
D. Protect the general public, resources and facilities from injury, loss of life, property damage or financial loss due to flooding, erosion, landslides, or steep slopes failure;
E. Protect unique, fragile and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats;
F. Meet the requirements of the National Flood Insurance Program and maintain Okanogan as an eligible community for federal flood insurance benefits;
G. Prevent cumulative adverse environmental impacts to water quality and availability, wetlands, ground water, rivers, streams and fish and wildlife habitat;
H. Provide flexibility and attention to site specific characteristics, so as to ensure reasonable use of property;
I. Provide appropriate guidance and protection measures for addressing the needs and concerns associated with resource lands and critical areas that help define the quality of life in Okanogan;
J. Encourage the retention of open space and development of recreational opportunities, conserving fish and wildlife habitat, and increasing access to natural resource lands and water; and
K. Implement applicable mandated federal and state regulations. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.020 Applicability.
These critical area regulations shall apply as an overlay to zoning and other land use regulations established by the city. Critical areas lying within the jurisdiction of the city of Okanogan shoreline master program (SMP) shall be regulated under the provisions of said SMP.
A. All land uses and/or development permit applications on all lots or parcels and/or rights-of-way within the city that lie within designated critical areas (as identified on one or more of the maps of the critical areas contained within the land use element of the comprehensive plan) shall comply with the provisions of this chapter. No action shall be taken by any person that results in any alteration of any critical area except as consistent with the purposes, objectives and intent of this chapter.
B. Where two or more types of critical areas overlap, requirements for development shall be consistent with the more stringent standards applied to each critical area. Where it is determined that a designated critical area is located within the shoreline jurisdiction, the provisions of the shoreline master program will be used to provide protection to that particular critical area(s). However, any standards found in this chapter may also be applied to a proposal as optional and/or supplemental items to the provisions of the shoreline master program.
C. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.
D. The city shall maintain reference maps that provide information on the general locations of critical areas, alerting the public and city officials of the potential presence of critical areas. Since boundaries are generalized, the application of these regulations and the actual type, extent and boundaries of critical areas shall be determined and governed by the classifications contained in the city of Okanogan comprehensive plan. In the event of any conflict between the critical area location, or designation shown on the city’s maps and the criteria and standards established herein, or the site-specific conditions, the criteria, standards and/or site-specific conditions shall prevail.
E. If a permit approval is requested for a development proposal that is located within a designated critical area, or within 250 feet of an area so designated on the generalized reference maps, the city shall review said proposal to determine the applicability of the regulations herein. The city may require additional analysis be provided by the applicant to assist in making this determination. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.030 General provisions.
A. Conflicts. In the event of any conflict between these regulations and any other regulations, the standard which provides the greatest level of protection to the critical area(s) shall apply. The provisions contained herein shall be the minimum requirements and shall be liberally interpreted to serve the purposes of this chapter. The presence of any known critical areas on or within 250 feet of property that is the subject of a development permit shall be identified by the applicant in the application materials submitted to the city.
B. Implementation. The permit administrator is hereby authorized and directed to enforce the provisions of this chapter. The permit administrator shall have the authority to render interpretations of this chapter and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in conformance with the intent and purposes of this chapter. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this chapter.
C. Definitions. For purposes of this chapter, the following definitions shall apply. Other applicable definitions may be located in OMC Title 18 or elsewhere in the development codes.
1. A Definitions.
“Actively farmed” means land that has a documented history of ongoing agricultural use and that is currently used primarily for the production of crops and/or raising or keeping livestock.
“Adaptive management” means using scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty.
“Advance mitigation” means compensation, in the form of creation, reestablishment, rehabilitation, or enhancement, for an anticipated critical area impact that is completed prior to the impact for which it compensates. The compensation must be in accordance with a city-approved plan.
“Agricultural land” is land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, or livestock.
“Alteration” means any human-induced change in an existing condition of a critical area or its buffer. Alterations include, but are not limited to, grading, filling, channelizing, dredging, clearing (vegetation), draining, construction, compaction, excavation, or any other activity that changes the critical area.
“Anadromous fish” means those species that migrate up rivers from salt water to spawn in fresh water.
“Aquifer” means a geological formation, group of formations or part of formation that is capable of yielding a significant amount of water to a well or spring.
“Aquifer recharge areas” are areas that, due to the presence of certain soils, geology, and surface water, act to recharge ground water by percolation.
“Aquifer susceptibility” means the ease with which contaminants can move from the land surface to the aquifer based solely on the types of surface and subsurface materials in the area. Susceptibility usually defines the rate at which a contaminant will reach an aquifer unimpeded by chemical interactions with the vadose zone media.
“Aquifer vulnerability” is the combined effect of susceptibility to contamination and the presence of potential contaminants.
“Artificial wetland or surface water system” means a wetland or surface water system that was intentionally created from a nonwetland site through human activity and for a specific purpose. This includes storm water detention ponds, bioswales, irrigation canals, wastewater treatment ponds, landscape amenities, stock ponds, and similar areas.
Artificial wetlands or surface water systems do not include wetlands created as compensation for development impacts or wetlands that have inadvertently become established as a result of changing environmental conditions or land use.
2. B Definitions.
“Best available science” means information from research, inventory, monitoring, surveys, modeling and assessments that is used to designate, protect, or restore critical areas. As defined by WAC 365-195-900 through 365-195-925, best available science is derived from a process that includes peer reviewed literature, standard methods, quantitative analysis and documented references to produce reliable information.
“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:
a. Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, and/or sediment;
b. Minimize adverse impacts to surface water and ground water flow, circulation patterns, and to the chemical, physical, and biological characteristics of wetlands and streams;
c. Protect trees and other vegetation designated to be retained during and following site construction; and
d. Provide standards for proper use of chemical herbicides and pesticides within critical areas.
“Buffer” or “buffer area” means the area or zone contiguous to a critical area that protects the integrity or functions and values of a critical area from potential adverse impacts. Buffers shall not include areas that are functionally and effectively disconnected from the wetland by a road or other substantial developed surface.
3. C Definitions.
“City” means the city of Okanogan.
“Clearing” means the removal of timber, brush, grass, ground cover or other vegetative matter from a site, which exposes the earth’s surface of the site.
“Compensatory mitigation” means replacing, to an equivalent or greater level, critical areas or buffers after all appropriate and practicable impact avoidance and minimization measures have been implemented. Compensatory mitigation includes but is not limited to: wetland creation, rehabilitation, reestablishment, enhancement, and preservation; stream restoration and relocation; and buffer enhancement and restoration.
“Conservation easement” means a legal agreement or dedication by the property owner to restrict uses of the land. Conservation easements shall be recorded in the Okanogan County real property records, shall run with the land, and are legally binding on all present and future owners of the property.
“Creation” means the manipulation of a nonwetland (upland) site for purposes of establishing wetland functions and characteristics where none previously existed. Activities could include, but are not limited to, excavation of upland soils to elevations that will produce a wetland hydroperiod, create hydric soils, and support the growth of wetland plant species. Creation results in a net increase in wetland area.
“Critical aquifer recharge area” means areas designated by WAC 365-190-080(2) that are determined to have a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2).
“Critical area report” means a report prepared by a qualified professional based on best available science, and the specific methods and standards for technical study required for each applicable critical area. Geotechnical reports and hydrogeological reports are critical area reports specific to geologically hazardous areas and critical aquifer recharge areas, respectively.
“Critical area tract” means land held in private ownership and retained in an open condition in perpetuity for the protection of critical areas.
“Critical areas” include any of the following areas or ecosystems: aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands, as defined in Chapter 36.70A RCW and this chapter.
“Critical habitat” means habitat areas with which endangered, threatened, or sensitive plant or wildlife species have a primary association (e.g., feeding, breeding, rearing of young, migrating). Such areas are identified herein with reference to lists, categories, and definitions promulgated by the Washington Department of Fish and Wildlife as identified in WAC 232-12-011 or 232-12-014; in the Priority Habitat and Species (PHS) Program of the Department of Fish and Wildlife; or by rules and regulations adopted by the U.S. Fish and Wildlife Service, National Marine Fisheries Service, or any other agency with jurisdiction for such designations.
4. D Definitions.
“Department” means the office of the permit administrator of the city of Okanogan.
“Disturbance” means alteration (see definition of “alteration”) of a critical area or associated buffer.
“Ditch” means any graded (manmade) channel specifically installed to collect and convey runoff from properties and roadways. Ditches include drains, outfalls, channels, storm water runoff facilities or other wholly artificial watercourses, except those that directly result from the manmade modification to a natural watercourse.
“DRASTIC” means a model developed by the National Water Well Association and Environmental Protection Agency to measure aquifer susceptibility.
5. E Definitions.
“Emergency activities” are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter.
“Emergent wetland” means a wetland with at least 30 percent of the surface area covered by erect, rooted, herbaceous vegetation extending above the water surface as the uppermost vegetative stratum.
“Enhancement” means the manipulation of an existing degraded wetland site to heighten, intensify or improve existing functions or to change the growth stage or composition of the vegetation present. Activities could include, but are not limited to, planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence plant composition, or some combination of these. Enhancement improves some wetland functions but can lead to a decline in other wetland functions; it does not result in a net increase in wetland area.
“Erosion” means a process whereby wind, rain, water and other natural agents mobilize and transport soil particles.
“Erosion hazard areas” means lands or areas underlain by soils identified by the U.S. Department of Agriculture Natural Resource Conservation Service (NRCS) as having “severe” or “very severe” erosion hazards. These include, but are not limited to, Pogue extremely stony fine and Cashmont extremely stony loam when they occur on slopes of 25 percent or greater.
“Excavation” means the mechanical movement or removal of earth.
“Existing and ongoing agricultural activities” means those activities conducted on lands defined in RCW 84.34.020(2), and those activities involved in the production of crops and livestock, including but not limited to operation and maintenance of existing farm and stock ponds or drainage ditches, irrigation systems, changes between agricultural activities, and maintenance or repair of existing serviceable structures and facilities. Activities that result in the filling of an area or bring an area into agricultural use are not part of an ongoing activity. An operation ceases to be ongoing when the area on which it was conducted has been converted to a nonagricultural use, or has lain idle for more than five years unless that idle land is registered in a federal or state soils conservation program. Forest practices are not included in this definition.
“Exotic” means any species of plant or wildlife that is not indigenous to the Okanogan Valley area.
6. F Definitions.
“Fen” means a type of wetland similar to a bog that is wholly or partly covered with water and dominated by grasslike plants, grasses, and sedges. Fens accumulate peat soil and are alkaline rather than acid.
“Fill material” means a deposit of earth material.
“Filling” means the act of transporting or placing by any manual or mechanical means fill material from, to, or on any soil surface, including temporary stockpiling of fill material.
“Fish and wildlife habitat areas” means areas necessary for maintaining species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created as designated by WAC 365-190-080(5). These areas include:
a. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association;
b. Habitats of local importance, including but not limited to areas designated as priority habitat by the Department of Fish and Wildlife;
c. Streams and surface waters within the jurisdiction of the state of Washington; and
d. Land essential for preserving connections between habitats and open spaces.
“Fish habitat” means habitat that is used by fish at any life stage at any time of the year, including potential habitat likely to be used by fish that could be recovered by restoration or management and includes off-channel habitat.
“Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from:
a. The overflow of inland or tidal waters; and/or
b. The unusual and rapid accumulation of runoff of surface waters from any source.
“Floodplain” means the total land area adjoining a river, stream, watercourse, or lake subject to inundation by the base flood.
“Forested wetland” means a wetland with at least 30 percent of the surface area covered by woody vegetation greater than 20 feet in height that is at least partially rooted within the wetland.
“Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance and attenuation functions, as determined by the director in accordance with WAC 365-190-080(3). Classifications of frequently flooded areas include, at a minimum, the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program.
“Function and value” means the beneficial roles served by critical areas including, but not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical and archaeological and aesthetic value protection, noise and visual screening, open space, and recreation. These beneficial roles are not listed in order of priority.
“Function assessment” or “functions and values assessment” means a set of procedures, applied by a qualified professional, to identify the ecological functions being performed in a wetland or other critical area, usually by determining the presence of certain characteristics, and determining how well the critical area is performing those functions. Function assessments can be qualitative or quantitative and may consider social values potentially provided by the wetland or other critical area. Function assessment methods shall be consistent with best available science.
7. G Definitions.
“Geologically hazardous areas” means areas that may not be suited to development consistent with public health, safety or environmental standards, because of their susceptibility to erosion, sliding, earthquake, or other geological processes as designated by WAC 365-190-080(4). Types of geologically hazardous areas include: erosion, landslide, and seismic hazards.
“Grading” means any excavating or filling of the earth’s surface or combination thereof.
“Ground water” means water in a saturated zone or stratum beneath the surface of land or a surface water body.
“Ground water management area” means a specific geographic area or subarea designated pursuant to Chapter 173-100 WAC for which a ground water management program is required.
“Ground water management program” means a comprehensive program designed to protect ground water quality, to assure ground water quantity, and to provide for efficient management of water resources while recognizing existing ground water rights and meeting future needs consistent with local and state objectives, policies and authorities within a designated ground water management area or subarea and developed pursuant to Chapter 173-100 WAC.
“Growth Management Act” means Chapters 36.70A and 36.70B RCW, as amended, together with administrative regulations adopted thereunder.
8. H Definitions.
“Habitat management” means management of land to maintain species in suitable habitats within their natural geographic distribution so that subpopulations are not isolated. This does not imply maintaining all habitat or individuals of all species in all cases.
“Hazardous substance” means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical or biological properties described in WAC 173-303-090 or 173-303-100.
“High impact land use” means land uses likely to have a significant adverse impact to critical areas because of the intensity of the use, levels of human activity, use of machinery or chemicals, presence of domesticated animals, or the presence of light and noise. Examples include parking lots; buildings and yard areas of residential, commercial and business park developments; private and public streets; active use parks and recreation facilities; and other uses/activities that are likely to significantly impact critical areas.
“Hydraulic project approval (HPA)” means a permit issued by the state Department of Fish and Wildlife for modifications to waters of the state in accordance with Chapter 75.20 RCW.
“Hydric soil” means a soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined following the methods described in the currently approved federal manual and regional supplements adopted under RCW 36.70A.175 or as amended.
“Hydrologic soil groups” means soils grouped according to their runoff-producing characteristics under similar storm and cover conditions. Properties that influence runoff potential are depth to seasonally high water table, intake rate and permeability after prolonged wetting, and depth to a low permeable layer. Hydrologic soil groups are normally used in equations that estimate runoff from rainfall, but can be used to estimate a rate of water transmission in soil. There are four hydrologic soil groups:
a. Low runoff potential and a high rate of infiltration potential;
b. Moderate infiltration potential and a moderate rate of runoff potential;
c. Slow infiltration potential and a moderate to high rate of runoff potential; and
d. High runoff potential and very slow infiltration and water transmission rates.
“Hydrophytic vegetation” means macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content.
“Hyporheic zone” means the saturated zone located beneath and adjacent to streams that contains some portion of surface waters, serves as a filter for nutrients, and maintains water quality.
9. I Definitions.
“Impervious surface” means a hard surface area that either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development or that causes water to run off the surface in greater quantities or at an increased rate of flow compared to natural conditions prior to development. Common impervious surfaces include, but are not limited to, roof tops, 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 storm water. Impervious surfaces do not include surfaces created through proven low impact development techniques.
“In-kind compensation” means to replace critical areas with substitute areas whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity.
“Indigenous” means any species of plant or wildlife that occurs naturally on a particular site or area.
“Infiltration” means the downward entry of water into the immediate surface of soil.
“Innovative mitigation” means mitigation that may occur off site and/or may be out of kind compared to the critical area being impacted.
“Isolated wetland” means a wetland that is not adjacent to or hydraulically connected via surface water, ground water, or other conveyance to another wetland, lake, or stream.
10. J definitions: (reserved).
11. K definitions: (reserved).
12. L Definitions.
“Lake” means a naturally existing or artificially created body of standing water, which exists on a year-round basis and occurs in a depression of land or expanded part of a stream. A lake must be greater than one acre in size, greater than six and six-tenths feet in depth at the deepest point, and have less than 30 percent aerial coverage by trees, shrubs, or persistent emergent vegetation. A lake is bounded by the ordinary high water mark or the extension of the elevation of the lake’s ordinary high water mark with the stream where the stream enters the lake.
“Landfill” means a disposal facility or part of a facility at which solid waste is permanently placed in or on land including facilities that use solid waste as a component of fill.
“Landslide” means episodic downslope movement of a mass of soil or rock.
“Landslide hazard areas” means areas that, due to a combination of slope inclination and relative soil permeability, are susceptible to landsliding.
“Low impact land use” means land uses which are not likely to have a significant adverse impact to critical areas because of the intensity of the use, levels of human activity, limited use of machinery or chemicals, site design, and other factors identified in this chapter. Examples include passive open space tracts and detention/retention ponds.
13. M Definitions.
“Mature forested wetland” means a forested wetland where the largest trees are at least 80 years old or have diameters at breast height of at least 21 inches.
“Mitigation” means individual actions that may include one or a combination of the following measures, listed in order of preference:
a. Avoiding an impact altogether by not taking a certain action or parts of actions;
b. Minimizing impacts by limiting the degree or magnitude of an action and its implementation;
c. Rectifying impacts by repairing, rehabilitating, or restoring the affected environment;
d. Reducing or eliminating an impact over time by preservation and maintenance operations during the life of the action;
e. Compensating for an impact by replacing or providing substitute resources or environments; and
f. Monitoring the hazard or other required mitigation and taking remedial action when necessary.
“Monitoring” means evaluating the impacts of development proposals over time on the biological, hydrological, pedological, and geological elements of such systems and/or assessing the performance of required mitigation measures throughout the collection and analysis of data by various methods for the purpose of understanding and documenting changes in natural ecosystems and features, and includes gathering baseline data.
14. N Definitions.
“Native growth protection area (NGPA)” means an area where native vegetation is preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering and protecting plants and animal habitat.
“Native vegetation” means plant species that are indigenous to the Okanogan Valley area.
“No net loss” means the maintenance of the aggregate total of the city’s critical area functions and values as achieved through a case-by-case review of development proposals. Each project shall be evaluated based on its ability to meet the no net loss standard.
“Nonconformity” means a legally established use, activity, structure or building existing at the time the ordinance codified in this title or any amendment thereto becomes effective which does not conform to the development requirements applicable to where it is located.
15. O Definitions.
“Off-site compensation” means to replace critical areas away from the site on which critical area impacts have occurred.
“On-site compensation” means to replace critical areas at or adjacent to the site on which critical area impacts have occurred.
“Ordinary high water mark (OHWM)” means that mark which is found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, that the soil has a character distinct from that of the abutting upland in respect to vegetation.
“Out-of-kind mitigation” means replacement of critical areas or buffers with substitute critical areas or buffers whose characteristics do not closely approximate those destroyed or degraded by a regulated activity.
16. P Definitions.
“Permeability” means the capacity of an aquifer or confining bed to transmit water. It is a property of the aquifer or confining bed and is independent of the force causing movement.
“Pond” means a naturally existing or artificially created body of standing water that exists on a year-round basis and occurs in a depression of land or expanded part of a stream. A pond must be less than or equal to one acre and greater than 10,000 square feet in size, and greater than six and six-tenths feet in depth at the deepest point.
“Porous soil types” means soils, as identified by the National Resources Conservation Service, U.S. Department of Agriculture, which contain voids, pores, interstices or other openings which allow the passing of water.
“Potable water” means water that is safe and palatable for human use.
“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and having less impact to critical areas.
“Preservation” means actions taken to ensure the permanent protection of existing, ecologically important critical areas and/or buffers that the city or another agency has deemed worthy of long-term protection.
“Priority habitat” means areas with one or more of the following attributes: comparatively high wildlife density, high wildlife species richness, significant wildlife breeding habitat, significant wildlife seasonal ranges, significant movement corridors for wildlife, limited availability, and/or high vulnerability. Priority habitats have unique or significant value to one or more species as classified by the Washington Department of Fish and Wildlife. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element under WAC 173-26-020(34).
“Priority species” means wildlife species of concern due to their population status and their sensitivity to habitat alteration, as defined by the Washington Department of Fish and Wildlife.
“Project area” means a proposed development site and the lands within 50 feet of the area proposed to be disturbed, altered, or used by the proposed activity.
“Pruning” means mechanical removal of woody plant parts intended to maintain plant health by removing dead, injured or diseased wood or to control or direct vegetative growth. Pruning in a hillside and associated buffer area is an alteration activity subject to the provisions of this chapter.
17. Q Definitions.
“Qualified professional” or “qualified consultant” shall mean a person with experience and training in the pertinent scientific discipline, and who is a qualified scientific expert with expertise appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, soil science, engineering, environmental studies, fisheries, geomorphology or related field, and two years of related work experience, and meet the following criteria:
a. A qualified professional for habitats or wetlands must have a degree in biology or a related discipline and professional experience related to the subject species.
b. A qualified professional for geologically hazardous areas must be a professional engineer or geologist, licensed in the state of Washington.
c. A qualified professional for critical aquifer recharge areas means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.
18. R Definitions.
“Recharge” means the process involved in the absorption and addition of water to ground water.
“Reestablishment” means the manipulation of a former wetland site with the goal of restoring natural or historic wetland characteristics and functions that are no longer present. Reestablishment activities could include, but are not limited to, grading/excavation, removing fill material, plugging ditches, breaking drain tiles, and planting. Reestablishment results in a net increase in wetland area and functions.
“Regulated activity” means activities occurring in or near and/or potentially affecting an environmentally critical area or associated buffer that are subject to the provisions of this chapter. Regulated activities generally include but are not limited to any filling, dredging, dumping or stockpiling, draining, excavating, flooding, constructing or reconstructing, driving pilings, obstructing, shading, clearing or harvesting.
“Rehabilitation” means the manipulation of the physical or hydrological characteristics of an existing degraded wetland for the purposes of repairing natural or historic functions and processes. Activities could involve, but are not limited to, breaching a dike to reconnect wetlands to a floodplain or other activities that restore the natural water regime. Rehabilitation results in a gain in wetland functions and processes but does not result in a net increase in wetland area.
“Repair” or “maintenance” means an activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.
“Restoration” means the repair of an altered or damaged wetland or other area through the manipulation of its physical, chemical, and/or biological characteristics.
“Reestablishment” and “rehabilitation” are the specific forms of restoration that are utilized to mitigate impacts and to regulate critical areas, as defined in this section.
“Rills” means steep-sided channels resulting from accelerated erosion. A rill is generally a few inches deep. Rill erosion tends to occur on slopes, particularly steep slopes with poor vegetative cover.
“Riparian habitat” means areas adjacent to streams that contain elements of both aquatic and terrestrial ecosystems that mutually influence each other. The width of these areas extends to that portion of the terrestrial landscape that directly influences the aquatic ecosystem by providing shade, fine or large woody material, nutrients, organic and inorganic debris, terrestrial insects, or habitat for riparian-associated wildlife. Riparian habitat areas include those riparian areas severely altered or damaged due to human development activities.
19. S Definitions.
“Scrub/shrub wetland” means a wetland with at least 30 percent of its surface area covered by woody vegetation less than 20 feet in height as the uppermost strata.
“Seismic hazard areas” means areas that are subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, or soil liquefaction.
“SEPA” means the Washington State Environmental Policy Act, Chapter 43.21C RCW.
“Significant habitat” means areas with one or more of the following attributes: comparatively high wildlife density, high wildlife species diversity, important wildlife nesting or breeding areas, wildlife seasonal ranges or refuge areas along migratory routes, important movement corridors for wildlife, and limited availability or high vulnerability. These areas typically contain some feature that is particularly attractive to wildlife, in most instances water. To be considered a significant habitat, the area must be of sufficient size or functionally linked to another significant habitat or critical habitat to allow continued functioning of the area at the level described in this definition considering existing and proposed developments of noncritical areas in the vicinity.
“Site” means any parcel or combination of contiguous parcels, or right-of-way or combination of contiguous rights-of-way, under the applicant’s ownership or control.
“Slope” means an inclined earth surface, the inclination of which is expressed as the ratio of horizontal distance to vertical distance. In these regulations, slopes are generally expressed as a percentage. Percentage of slope refers to a given rise in elevation over a given run or distance. A 40 percent slope, for example, refers to a 40-foot rise in elevation over a distance of 100 feet.
“Slope buffer” means a designated area contiguous or adjacent to a slope that is required for the continued maintenance, function, and structural stability of the slope.
“Sphagnum bog” means a type of wetland dominated by mosses that form peat. Sphagnum bogs are very acidic, nutrient-poor systems, fed by precipitation rather than surface inflow, with specially adapted plant communities.
“Storm water conveyance facilities” means biofiltration swales, dispersal trenches, storm water pipes, and other facilities that carry storm water from a detention or treatment facility to a discharge location.
“Storm water facility” means structures or lands used for the specific purpose of treating or managing storm runoff. Storm water facilities include detention/retention ponds, wet ponds, media filtration facilities, vaults, lagoons, infiltration basins, and other approved facilities constructed in accordance with the city’s storm water management regulations.
“Stream” means those areas where surface waters produce a defined channel or bed. A defined channel or bed is an area that demonstrates clear evidence of the passage of water and includes, but is not limited to, bedrock channels, gravel beds, sand and silt beds, and defined-channel swales. The channel or bed need not contain water year-round. Streams provide biological functions and habitat for aquatic organisms. This definition does not include artificially created irrigated ditches, canals, storm or surface water runoff devices or other entirely artificial watercourses unless they are used by anadromous or resident fish populations.
“Stream buffer” means a designated area contiguous or adjacent to a stream that is required for the continued maintenance, function, and structural stability of the stream.
“Structural diversity” means the relative degree of diversity or complexity of vegetation in a habitat area as indicated by the stratification or layering of different plant communities (e.g., ground cover, shrub layer and tree canopy); the variety of plant species; and the spacing or pattern of vegetation.
“Subdrainage basin” or “subbasin” means the drainage area of the highest order stream containing the subject property impact area. Stream order is used to define the position of a stream in the hierarchy of tributaries in the watershed. The smallest streams are the highest order (first order) tributaries. These are the upper watershed streams and have no tributaries of their own.
“Surface water systems” means aquatic resources including streams, lakes, and ponds and associated riparian habitat.
20. T definitions: (reserved).
21. U Definitions.
“Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization measures have been implemented.
“Utility line” means pipe, conduit, cable or other similar facility by which services are conveyed to the public or individual recipients. Such services shall include, but are not limited to, water supply, electric power with an associated voltage of 55,000 volts or less, natural gas, communications and sanitary sewer.
22. V definitions: (reserved).
23. W Definitions.
“Water resources inventory area (WRIA)” means one of 62 watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in Chapter 173-500 WAC as it existed on January 1, 1997.
“Water table” means that surface in an unconfined aquifer at which the pressure is atmospheric. The water table is defined by the levels at which water stands in wells that penetrate the aquifer just far enough to hold standing water.
“Well” means a bored, drilled or driven shaft, or a dug hole whose depth is greater than the largest surface dimension for the purpose of withdrawing or injecting water or other liquids.
“Wellhead protection area (WHPA)” means the portion of a zone of contribution for a well, wellfield or spring, as defined using criteria established by the state Department of Ecology.
“Wetland” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. For identifying and delineating a wetland, local government shall use the currently approved federal manual and regional supplements.
“Wetland buffer” means a designated area contiguous or adjacent to a wetland that is required for the continued maintenance, function, and structural stability of the wetland.
“Wetland class” means the general appearance of the wetland based on the dominant vegetative life form or the physiography and composition of the substrate. The uppermost layer of vegetation that possesses an aerial coverage of 30 percent or greater of the wetland constitutes a wetland class. Multiple classes can exist in a single wetland. Types of wetland classes include forest, scrub/shrub, and emergent.
“Wetland edge” means the boundary of a wetland as delineated based on the definitions contained in this chapter.
“Wetland mitigation bank” means a site where wetlands and buffers are restored, created, enhanced, or in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources.
24. X definitions: (reserved).
25. Y definitions: (reserved).
26. Z Definitions.
“Zone of contribution” means the area surrounding a well or spring that encompasses all areas or features that supply ground water recharge to the well or spring.
D. Reference Maps and Materials. The city shall maintain maps that designate the various types of critical areas as well as reference maps and materials that provide more specific information on the location of critical areas. Since boundaries on the critical areas designation maps contained in the map appendix to the comprehensive plan are generalized, the application of this chapter and the actual type, extent and boundaries of critical areas shall be determined and governed on a case-by-case basis. In the event of any conflict between the critical area location or designation shown on the referenced maps and the criteria and standards established in this chapter, or the site-specific conditions, the criteria, standards and/or site-specific conditions shall prevail. Reference maps and inventories shall include but are not limited to the following:
1. Okanogan generalized critical areas maps (see map appendix of the land use elements of the comprehensive plan);
2. Okanogan County critical areas maps;
3. Wetlands map, based upon U.S. Fish and Wildlife Service National Wetlands Inventory;
4. Fish and wildlife habitat area maps, based upon Washington Department of Fish and Wildlife Priority Habitats and Species data;
5. Okanogan County soil survey (NRCS 2009);
6. Flood Insurance Rate Map Community Panel H&I-01, as exists today or may be amended or adopted in the future;
7. Shoreline master program maps;
8. U.S.G.S. 7.5 Minute Series Topographic Quadrangle Maps;
9. Aerial photos;
10. City of Okanogan comprehensive plan maps (see map appendix);
11. Federal Wetlands Delineation Manual (1987);
12. Washington State Wetlands Rating System for Eastern Washington – Revised (WDOE No. 14-06-030, as amended);
13. Management Recommendations for Washington’s Priority Habitats and Species, May 1991, as amended;
14. Management Recommendations for Washington’s Priority Habitats – Riparian, December 1997, as amended;
15. Priority Habitats and Species List, July 1999, as amended;
16. U.S. Army Corps of Engineers (2006) Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0), as amended;
17. Wetlands in Washington State – Volume 1: A Synthesis of the Science, Washington State Department of Ecology, Publication No. 05-06-006;
18. Wetlands in Washington State – Volume 2: Guidance for Protecting and Managing Wetlands, Washington State Department of Ecology, Publication No. 05-06-008; and
19. Approved special reports previously completed for a subject property.
E. Trails and Trail-Related Facilities. Construction of public and private trails and trail-related facilities, such as picnic tables, benches, interpretive centers and signs, viewing platforms and campsites may be authorized within designated critical areas, subject to the following minimum standards:
1. Trail facilities shall, to the extent feasible, be placed on existing road grades, utility corridors, or other previously disturbed areas;
2. Trail facilities shall minimize the removal of trees, shrubs, snags and important habitat features. Vegetation management performed in accordance with best management practices as part of ongoing maintenance to eliminate a hazard to trail users is considered consistent with this standard;
3. Viewing platforms, interpretive centers, campsites, picnic areas, benches and their associated access shall be designed and located to minimize disturbance of wildlife and/or critical characteristics of the affected conservation area;
4. All facilities shall be constructed with materials complementary to the surrounding environment;
5. Trail facilities that parallel a water course may be located in the outer 25 percent of the required buffer, and:
a. Commercial and public trails shall be the minimum width necessary to meet the designed need, but in no case shall they exceed 10 feet in width, unless required for approved fire/EMS access.
b. Private trails shall not exceed four feet in width, unless additional width is required for ADA compliance;
6. Private trails that provide direct water access (perpendicular) shall not exceed four feet in width and shall be kept to the minimum number necessary to serve the intended purpose. Public trail widths may be expanded in width to accommodate for necessary safety and accessibility;
7. Review and analysis of a proposed trail facility shall demonstrate no net loss of ecological functions and values in conformance with this chapter;
8. Trail facilities shall not be exempt from special report requirements, as may be required by this chapter.
F. Review Process. Any proposal for a land use activity or development within and/or within 250 feet of a designated critical area shall be required to notify the city of any potential impacts to the critical area. To be deemed complete, all applicants shall be required to disclose whether such actions are proposed within 250 feet of a critical area. The provisions of this chapter shall be applied to any such proposals. The review process shall proceed as follows:
1. Preapplication Meeting/Site Visit. Upon receiving a land use or development proposal, the administrator shall schedule a preapplication meeting and/or site visit with the proponent for purposes of a preliminary determination whether the proposal is likely to impact the functions or values of any designated critical areas or pose other health and safety hazards. At this meeting, the administrator shall discuss the requirements of this chapter and other applicable regulations, provide critical areas maps and other available reference materials, outline the review and permitting processes, and work with the proponent to identify any potential concerns with regards to critical areas.
2. Application and SEPA Checklist. For all nonexempt proposals, the proponent shall submit all relevant land use/development applications, together with a SEPA checklist.
3. Determination of Need for Critical Areas Report. Based upon the preapplication meeting, application materials, SEPA checklist, and known information, the administrator shall determine if there is cause to require a critical areas report. In addition, the administrator may use critical areas maps and reference materials, information and scientific opinions from appropriate agencies, or any reasonable evidence regarding the existence of critical area(s) on or adjacent to the site of the proposed activity. If no critical areas are found to exist, the administrator shall document notifying the applicant of this fact.
G. Documentation and Notification. The administrator shall document the preapplication meeting and/or site visit, application and SEPA process determination (i.e., the project is categorically exempt or a threshold determination is required), and any other steps or findings that inform the determination whether a critical areas report shall be required. The applicant shall receive notice of the determination and any findings which support it.
H. Critical Areas Report. If the administrator determines that the site of a proposed development potentially includes, or is adjacent to, critical area(s), a critical areas report may be required. When required, the expense of preparing the critical areas report shall be borne by the applicant. The applicant’s choice of consultant or technical expert and the content, format and extent of the critical areas report shall be approved by the administrator.
1. The requirement for critical areas reports may be waived by the administrator if there is substantial evidence that:
a. There will be little or no alteration of the critical area(s) and/or the required buffer(s);
b. The proposal will not impact the critical area(s) in a manner contrary to the purpose, intent and requirements of this chapter and the comprehensive plan; and
c. The minimum standards of this chapter will be met.
2. No critical areas report is required for proposals that are exempt from the provisions of this chapter as set forth in OMC 16.16.050.
3. Critical areas reports shall be completed by a qualified professional who is knowledgeable about the specific critical area(s) in question, and approved by the administrator.
4. At a minimum, a required critical areas report shall contain the following information:
a. Applicant’s name and contact information, permits being sought, and description of the proposal;
b. A copy of the site plan for the development proposal, drawn to scale and showing:
i. Identified critical areas, buffers, and the development proposal with dimensions;
ii. Limits of any areas to be cleared and/or altered;
iii. A description of the proposed storm water management plan for the development and consideration of impacts to drainage alterations;
iv. The names and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;
v. Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;
c. An assessment of the probable cumulative impacts to critical areas resulting from the proposed development of the site;
d. An analysis of site development alternatives;
e. A description of reasonable efforts made to apply mitigation sequencing to avoid, minimize, and mitigate impacts to critical areas;
f. A mitigation plan, as needed, in accordance with the mitigation requirements of this chapter, including, but not limited to:
i. The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and
ii. The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;
iii. A discussion of the performance standards applicable to the critical area and proposed activity;
iv. Financial guarantees to ensure compliance; and
v. Any additional information required for specific critical areas as listed in subsequent sections of this chapter.
The administrator may request any other information reasonably deemed necessary to understand impacts to critical areas.
I. Mitigation Requirements. The applicant shall avoid all impacts that degrade the functions and values of critical areas. If alteration is unavoidable, all adverse impacts to critical areas and buffers resulting from the proposal shall be mitigated in accordance with an approved critical areas report and SEPA documents. Mitigation shall be on site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.
1. Mitigation Sequencing. Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following order of preference:
a. Avoiding the impact altogether by not taking a certain action or parts of an action;
b. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;
c. Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;
d. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;
e. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;
f. Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and
g. Monitoring the hazard or other required mitigation and taking remedial action when necessary.
2. Mitigation Plan. When mitigation is required, the applicant shall submit for approval a mitigation plan as part of the critical area report. The mitigation plan shall include:
a. A written report identifying mitigation objectives, including:
i. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation objectives; identification of critical area functions and values; and dates for beginning and completion of site compensation construction activities;
ii. A review of the best available science supporting the proposed mitigation and a description of the report authors experience to date in critical areas mitigation; and
iii. An analysis of the likelihood of success of the compensation project.
b. Measurable criteria for evaluating whether or not the objectives of the mitigation plan have been successfully attained and whether or not the requirements of this chapter have been met.
c. Written specifications and descriptions of the mitigation proposed, including, but not limited to:
i. The proposed construction sequence, timing, and duration;
ii. Grading and excavation details;
iii. Erosion and sediment control features;
iv. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and
v. Measures to protect and maintain plants until established.
d. A program for monitoring construction of the compensation project, and for assessing the completed project and its effectiveness over time. The program shall include a schedule for site monitoring and methods to be used in evaluating whether performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.
e. Identify potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.
J. Permit Conditions. Through the review process, the city of Okanogan shall have the authority to attach such conditions to the granting of any approval under this chapter as deemed necessary to alleviate adverse impacts to critical area(s) and to carry out the provisions of this chapter. Such conditions of approval may include but are not limited to the following:
1. Specification of allowable lot sizes;
2. Provisions for additional buffers relative to the intensity of a use or activity;
3. Requirements and/or restrictions on the construction, size, location, bulk and/or height, etc., of structure(s);
4. Dedication of necessary easements for utilities, conservation, open space, etc.;
5. Imposition of easement agreements, sureties, deed restrictions, covenants, etc., on the future use and/or division of land;
6. Limitations on the removal of existing vegetation;
7. Additional measures to address issues such as erosion control, storm water management, filling, grading, etc.;
8. Development of a mitigation plan to create, enhance, or restore damaged or degraded critical area(s) on and/or off site; and
9. Any monitoring and/or maintenance plans necessary to implement the provisions of this chapter.
K. Surety/Bonding. If a development proposal is subject to mitigation, maintenance or monitoring plans, the city of Okanogan, in a form acceptable to the city attorney, may require an assurance device or surety.
L. Penalties for Noncompliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. Violation 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 violation of Okanogan Municipal Code and are addressed as follows:
1. Administrative, Technical and Procedural Violations. Because of their nature, the following are civil infractions:
a. Noncompliance. Any person who fails to conform to the terms of a permit issued under this title or who undertakes work or use of an improvement without first obtaining any permit required under this title or fails to comply with a cease-and-desist order issued under these regulations shall also be subject to a civil penalty subject to the provisions of Chapter 1.12 OMC. Each permit violation or each day of continued work and/or use without a required permit shall constitute a separate violation.
b. Aiding and Abetting. Any person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have committed a violation for the purposes of the civil penalty.
2. Endangerment and/or Refusal to Protect Violations. In addition to incurring a civil liability under an action for abatement, the following acts or omissions because of their nature shall be instances of a gross misdemeanor and shall be punished by a fine of not less than $100.00 nor more than $1,000, or by imprisonment in the county jail for not more than 90 days for each separate offense, or by both such fine and imprisonment; provided, that the fine for each separate offense for the third and all subsequent violations in any five-year period shall be not less than $500.00 nor more than $10,000.
a. Maintaining a Damaging Condition. Any person who maintains a condition or conducts and/or allows the conduction of an activity in a manner that is damaging a critical area shall be guilty of a gross misdemeanor.
b. Failure to Comply with Final Notice and Order to Abate. If, after any order to abate of the administrator made pursuant to this title has become final, the person or persons to whom such order is directed shall fail, neglect or refuse to obey such order, such person is guilty of a gross misdemeanor.
3. Violator Liabilities – Damages, Attorney’s Fees/Costs. Any person subject to the regulatory provisions of this title who violates any provision thereof or permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to a safe and stable condition.
4. Violations Declared a Public Nuisance. All violations of this title are hereby declared a public nuisance and may be abated in a manner as prescribed by Chapter 15.08 OMC.
M. Enforcement. Nothing herein contained shall prevent the city of Okanogan, Washington, from taking such other lawful action as is necessary to prevent or remedy any violation.
N. Abrogation and Greater Restrictions. This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
O. Appeals. The city of Okanogan board of adjustment shall hear and decide appeals when it is alleged that there is an error in any requirement, decision, or determination made by the permit administrator in the enforcement or administration of this chapter.
1. Format. Appeals shall be in writing and filed in the manner as described in Chapter 18.112 OMC.
2. Appeal Procedures. Appeals shall be processed and heard in the manner as described in Chapter 18.112 OMC.
3. Limitation on Scope of Decision. An appeal shall not result in a decision granting a modification, deviation or a relief from the requirements of this chapter unless processed as a separate application as a reasonable use exemption under OMC 16.16.060. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.050 Exemptions.
The activities listed below are exempt from the provisions of this chapter. Exempt activities shall be conducted using all reasonable methods to avoid impacts to critical areas. Exemption from the regulations herein shall not be considered permission to degrade a critical area or ignore risks from natural hazards. Incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored and/or rehabilitated at the responsible party’s expense.
A. Existing and Ongoing Agricultural Activities. The activities cease to be existing when the area on which they were conducted has been converted to a nonagricultural use or has lain idle for more than five years, unless the idle land is registered in a federal or state soils conservation program. Activities which bring an area into agricultural use are not part of an ongoing activity;
B. Maintenance and operation of existing roads, streets, utilities and associated structures;
C. Passive outdoor recreational activities including fishing, hunting, bird watching or walking/hiking, nonmotorized boating and canoeing;
D. Low intensity, passive impact of educational and scientific research;
E. Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, critical area impacts should be minimized and disturbed areas shall be immediately restored;
F. Emergency activities necessary to prevent an imminent threat or danger to public health or safety, or property. Any emergency action shall be undertaken only after inquiry and approval from the city and does not eliminate the need for later mitigation to offset the impact of the emergency activity. Once the immediate threat has been addressed, any adverse impacts on critical areas should be minimized and mitigated;
G. Remodeling or maintenance of existing structures;
H. Routine maintenance of existing landscaping, within a resident’s lot boundaries, including pruning, mowing, removal of diseased trees or other diseased vegetation and replacement of individual plants when necessary to maintain a unified landscape theme;
I. Control of noxious weeds that are included on the state noxious weed list (Chapter 16-750 WAC) by the recommended methods of the county agricultural extension agent; and
J. Removal of specified invasive plant species by hand tools (manual and power):
1. Ailanthus altissima, commonly known as tree of heaven, ailanthus, or in standard Chinese as chouchun, is a deciduous tree in the Simaroubaceae family. It is native to both northeast and central China, as well as Taiwan.
2. Elaeagnus angustifolia, commonly called silver berry, oleaster, Russian olive, or wild olive, is a species of Elaeagnus, native to western and central Asia, Afghanistan, and from southern Russia and Kazakhstan to Turkey and Iran.
3. Ulmus parvifolia, commonly known as the Chinese elm or lacebark elm, is a species native to China, Japan, North Korea and Vietnam.
4. Ulmus pumila, the Siberian elm, is native to Central Asia, eastern Siberia, Mongolia, Xizang (Tibet), northern China, India (northern Kashmir) and Korea. It is also known as the Asiatic elm, dwarf elm and (erroneously) Chinese elm. It is the last tree species encountered in the semi-desert regions of central Asia. Two varieties are recognized: var. pumila and var. arborea, the latter known as Turkestan elm. Ulmus pumila has been widely cultivated throughout Asia, the Americas and, to a lesser extent, southern Europe. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.060 Reasonable use exemption.
The city may modify the requirements of this chapter in specific cases when necessary to allow reasonable use of an applicant’s property. To qualify for such relief the applicant must demonstrate all of the following:
A. That no other reasonable use can be made of the property that will have a lesser adverse impact on the critical area and adjoining and neighboring lands;
B. That the proposed use does not pose a threat to the public health, safety or welfare;
C. Any alteration is the minimum necessary to allow reasonable use of the property; and
D. The inability of the proponent to derive reasonable use of the property is not the result of actions by the applicant after the effective date of this chapter.
E. Any alteration of a critical area approved under this section shall be subject to appropriate conditions and will require mitigation under an approved mitigation plan.
A request for a reasonable use exception shall be submitted to the city with the application materials for the particular development proposal. The application shall be supplemented with an explanation as to how the reasonable use exception criteria are satisfied. The city may require additional information or studies to supplement the reasonable use exception request.
The administrator shall issue a written decision on the application with written finding of facts and conclusions to support said decision. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.070 Aquifer recharge areas.
Development, uses and activities within identified aquifer recharge areas (citywide) shall comply with the regulations contained in this chapter and be subject to best management practices in compliance with the Eastern Washington Storm Water Management Manual. Any discharges that negatively affect aquifer recharge area’s water quality are prohibited. Potential aquifer recharge areas have been classified and designated in the city of Okanogan comprehensive plan using wellhead protection regime.
A. Standards. For aquifer recharge areas found outside jurisdiction of the Okanogan shoreline master program, the following standards for development shall be required in addition to the general provisions of this chapter and the requirements of the underlying zone:
1. All projects shall comply with best management practices described in the Eastern Washington Storm Water Management Manual;
2. Projects shall be developed which utilize site plans that minimize, to the greatest extent possible, the amount of impervious surfaces associated with the project;
3. On-site storm water facilities shall be designed and installed that provide both detention and treatment of increased runoff associated with the development using storm water best management practices;
4. A hydrogeologic study may be required to assess impacts of the project on ground water;
5. Underground storage tanks for fuel and/or hazardous materials that can contaminate the potable water resource are prohibited within any aquifer recharge area classified as “critical” in the comprehensive plan. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.090 Fish and wildlife habitat conservation areas.
Development, uses and activities within or near identified fish and wildlife conservation areas and their buffer areas as identified on the comprehensive plan map appendix shall comply with the regulations contained in this chapter. The city may use the information sources in OMC 16.16.030(D) as guidance in identifying the presence of potential fish and wildlife habitat conservation areas and the subsequent need for a habitat boundary survey along with an on-site inspection, if necessary.
A. Fish and Wildlife Habitat Conservation Areas. Fish and wildlife conservation areas include:
1. Areas in which endangered, threatened, and sensitive species have a primary association;
2. Habitats and species of local importance;
3. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat;
4. Waters of the state;
5. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;
6. State natural area preserves and natural resource conservation areas;
7. Riparian areas;
8. Intermittent and perennial streams;
9. Priority habitats and species as identified by the Washington State Department of Fish and Wildlife Priority Habitats and Species Program.
B. Fish and wildlife habitat conservation areas have been classified and designated in the city of Okanogan comprehensive plan as Salmon Creek and Elgin Creek. The Okanogan River is a habitat conservation area in which development is regulated through the adopted shoreline master program for the city of Okanogan; however, these standards may be applied in the event that shoreline regulations are not adequate to address a specific site or proposal.
C. Additional Areas. In addition, the city may designate additional species, habitats of local importance, and/or wildlife corridors as follows:
1. Demonstrate a need for special consideration based on:
a. Declining population,
b. Sensitivity to habitat manipulation,
c. Commercial, recreational, cultural, or other special value, or
d. Maintenance of connectivity between habitat areas.
2. Propose relevant management strategies considered effective and within the scope of this chapter;
3. Identify effects on property ownership and use; and
4. Provide a map.
5. Submitted proposals shall be reviewed by the city and may be forwarded to the state Departments of Fish and Wildlife, Natural Resources, and/or other local, state, federal, and/or tribal agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies.
6. If the proposal is found to be complete, accurate, and consistent with the purposes and intent of this chapter and the various goals and objectives of the city’s comprehensive plan, the Growth Management Act, the Shoreline Management Act and this chapter, the city council will hold a public hearing to solicit comment. Approved nominations will then be processed as amendments to the comprehensive plan and/or the OMC in conformance with OMC Title 18, in order to be considered as designated locally important habitats, species, or corridors, and if approved will be subject to the provisions of this chapter.
D. Habitat Boundary Survey.
1. A wildlife habitat boundary survey and evaluation shall be conducted by a qualified professional biologist, as appropriate, who is knowledgeable of wildlife habitat within north central Washington. The wildlife habitat boundary shall be field staked by the biologist and surveyed by a land surveyor for disclosure on all final plats, maps, etc.
2. The administrator may waive the requirement for the survey for minor development if:
a. The proposed development is not within the extended proximity of the associated wildlife habitat;
b. There is adequate information available on the area proposed for development to determine the impacts of the proposed development and appropriate mitigating measures; and
c. The applicant provides voluntary deed restrictions that are approved by the administrator.
3. The wildlife habitat boundary and any associated buffer shall be identified on all plats, maps, plans and specifications submitted for the project.
E. Fish/Wildlife Habitat Management and Mitigation Plan.
1. The administrator may waive the requirements for a habitat management and mitigation plan if the requirement for a habitat survey has been waived.
2. A fish/wildlife habitat management and mitigation plan shall be prepared by a qualified professional biologist who is knowledgeable of fish and wildlife habitat within north central Washington.
3. In determining the extent and type of mitigation appropriate for the development, the plan shall evaluate the ecological processes that affect and influence critical area structure and function within the watershed or sub-basin, the individual and cumulative effects of the action upon the functions of the critical area and associated watershed, and note observed or predicted trends regarding specific wetland types in the watershed, in light of natural and human processes.
4. Where compensatory mitigation is necessary, the plan should seek to implement restoration objectives identified in cooperation with the landowner, WDFW and the Okanogan County conservation district.
5. The fish/wildlife habitat management and mitigation plan shall demonstrate, when implemented, no net loss of ecological functions of the habitat conservation area and buffer.
6. The fish/wildlife habitat management and mitigation plan shall identify how impacts from the proposed project shall be mitigated, as well as the necessary monitoring and contingency actions for the continued maintenance of the habitat conservation area and any associated buffer.
7. Performance Standards. The following performance standards shall apply to compensatory mitigation projects:
a. Mitigation planting survival will be 100 percent for the first year, and 80 percent for each of the four years following.
b. Mitigation must be installed no later than the next growing season after completion of site improvements, unless otherwise approved by the administrator.
c. Where necessary, a permanent means of irrigation shall be installed for the mitigation plantings that are designed by a landscape architect or equivalent professional, as approved by the administrator. The design shall meet the specific needs of riparian and shrub steppe vegetation.
d. Monitoring reports by the biologist must include verification that the planting areas have less than 20 percent total nonnative/invasive plant cover consisting of exotic and/or invasive species. Exotic and invasive species may include any species on the state noxious weed list, or considered a noxious or problem weed by the Natural Conservation Services Department or local conservation districts.
e. On-site monitoring and monitoring reports shall be submitted to the administrator one year after mitigation installation, three years after mitigation installation, and five years after mitigation installation. The length of time involved in monitoring and monitoring reports may be increased by the administrator for a development project on a case-by-case basis when longer monitoring time is necessary to establish or reestablish functions and values of the mitigation site. Monitoring reports shall be submitted by a qualified professional biologist. The biologist must verify that the conditions of approval and provisions in the fish and wildlife management and mitigation plan have been satisfied.
f. Mitigation sites shall be maintained to ensure that the mitigation and management plan objectives are successful. Maintenance shall include corrective actions to rectify problems, include rigorous, as-needed elimination of undesirable plants, protection of shrubs and small trees from competition by grasses and herbaceous plants, and repair and replacement of any dead plants.
g. Sequential release of funds associated with the surety agreement shall be reviewed for conformance with the conditions of approval and the mitigation and management plan. Release of funds may occur in increments of one-third for substantial conformance with the plan and conditions of approval. Verification of conformance with the provisions of the mitigation and management plan and conditions of approval after one year of mitigation installation shall also allow for the full release of funds associated with irrigation systems, clearing and grubbing and any soil amendments. If the standards that are not met are only minimally out of compliance and contingency actions are actively being pursued by the property owner to bring the project into compliance, the city may choose to consider a partial release of the scheduled increment. Noncompliance can result in one or more of the following actions: carryover of the surety amount to the next review period, use of funds to remedy the nonconformance, or scheduling a hearing with the city council to review conformance with the conditions of approval and to determine what actions may be appropriate.
8. Prior to site development and/or building permit issuance, a performance surety agreement must be entered into by the property owner and the city. The surety agreement must include the complete costs for the mitigation and monitoring which may include but not be limited to: the cost of installation, delivery, plant material, soil amendments, permanent irrigation, seed mix, and three monitoring visits and reports by a qualified professional biologist, including Washington State sales tax. The city must approve the quote for said improvements.
F. General Standards. The following minimum standards shall apply to all development activities occurring within designated riparian and habitat conservation areas and their associated buffers outside of the jurisdiction of the Okanogan shoreline master program. The following standards for development shall be required in addition to the general provisions of this chapter and the requirements of the underlying zone:
1. Except as permitted by this chapter, habitat conservation areas and buffers will be left undisturbed, unless the development proposal demonstrates that impacts to the habitat conservation area and/or buffer are unavoidable, demonstrated by compliance with this chapter. Impacts must be addressed with appropriate mitigation and enhancement measures as determined on a site-specific basis in conformance with this chapter;
2. Habitat Conservation Areas.
a. Development occurring within a 1,000-foot radius of a state or federal threatened, endangered, or sensitive species den, nesting, or breeding site, migration corridors or feeding areas of terrestrial species shall require a habitat management and mitigation plan.
b. Cliff, cave and talus slope habitats shall have at least a 50-foot buffer for safety and resource protection.
c. Bald eagles: An approved bald eagle management plan by the Washington Department of Fish and Wildlife meeting the requirement and guidelines of the Bald Eagle Protection Rules, WAC 232-12-292, as amended, satisfies the requirements of a habitat management and/or mitigation plan.
d. Rocky Mountain mule deer habitat: Habitat connectivity and migration corridors for mule deer shall be considered in habitat management and/or mitigation plans.
e. Development in or over all surface waters shall require a habitat mitigation plan.
f. Aquatic and Vegetation Conservation Protection Standards.
i. Applicable Buffers.
(A) Salmon Creek, 10th Avenue crossing to the confluence with the Okanogan River, is delineated by the 100-year floodplain.
(B) Salmon Creek, above the 10th Avenue crossing, is delineated by the 100-year floodplain or by the Category IV wetland buffer, whichever is larger.
(C) Elgin Creek is delineated by the Category IV wetland buffer.
ii. Except as provided in this chapter, the minimum buffer and setback widths found in Table 16.16.110(1) shall apply;
3. The Washington State Department of Fish and Wildlife priority habitat and species management recommendations shall be consulted in developing specific measures to protect a specific project site;
4. Special consideration shall be given to conservation or protection measures necessary to preserve or enhance the anadromous fishery;
5. All projects shall comply with the applicable federal, state and local regulations regarding the species;
6. As determined through the site-specific study, mitigation measures shall be implemented that maintain the base line populations and reproduction rates for the particular species; and
7. As determined through the site-specific study, appropriate habitat conservation, management and monitoring plan(s) shall be developed and implemented, with any necessary surety to ensure compliance with such plan(s) being provided as described in OMC 16.16.030(K).
8. Those areas within any of the established riparian habitat areas and owned by the city of Okanogan shall be considered for restoration whenever projects are proposed, or as resources may become available for such work.
G. Specific Standards. The following standards shall apply to the activity identified below, in addition to the general standards outlined in this section:
1. Stream Crossings. Expansion or construction of stream crossings may be authorized within a designated habitat conservation area and buffer, subject to the following minimum standards:
a. Bridges are required for streams which support salmonids;
b. All crossings using culverts shall use superspan or oversize culverts;
c. Crossings shall not occur in salmonid spawning areas unless no other feasible crossing site exists;
d. Bridge piers or abutments shall not be placed in either the floodway or between the ordinary high water marks unless no other feasible alternative placement exists;
e. Crossings shall not diminish flood carrying capacity.
i. Replacement projects to all practical extent shall be designed to improve floodway passing capacity to a pre-development/encroachment condition (i.e., natural bank width); and
f. Crossings shall serve multiple properties whenever possible.
2. Developments authorized within a designated habitat conservation area or buffer resulting in a greater percentage of use than allowed by Table 16.16.110(1) shall comply with the following minimum standards:
a. A habitat management and mitigation plan shall be required.
b. Designated habitat conservation areas and their associated buffers shall be delineated and disclosed on final plats, maps, documents, etc., as critical area tracts, nonbuildable lots, buffer areas or common areas. Ownership and control may be transferred to a homeowner’s association or designated as an easement or covenant encumbering the property.
c. All lots within a major subdivision, short plat or binding site plan shall have the outer edge of all required buffers clearly marked on site with permanent buffer edge markers. Buffer markers may be either buffer signs or steel posts painted with a standard color and label, as approved by the Administrator. The markers shall be field verified by the surveyor or biologist of record prior to final plat approval. Each lot shall contain a minimum of three buffer area markers located at the landward edge of the buffer perimeter for each habitat type; one located at each side property line and one midway between side property lines. Covenants for the subdivision shall incorporate a requirement stating that buffer area markers shall not be removed, or relocated, except as may be approved by the administrator. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.110 Wetlands.
Development, uses and activities allowed within designated wetlands (see map appendix to comprehensive plan) or associated wetland buffers are those uses authorized by, and subject to, the provisions of this chapter in general and this section specifically.
A. Purpose. The purposes of this section are to:
1. Recognize and protect the beneficial functions performed by many wetlands, which include, but are not limited to, providing food, breeding, nesting and/or rearing habitat for fish and wildlife; recharging and discharging ground water; contributing to stream flow during low flow periods; stabilizing stream banks and shorelines; storing storm and flood waters to reduce flooding and erosion; and improving water quality through biofiltration, adsorption, and retention and transformation of sediments, nutrients, and toxicants.
2. Regulate land use to avoid adverse effects on wetlands and maintain the functions and values of wetlands throughout the nonshoreline areas of the city of Okanogan.
3. Establish review procedures for development proposals in and adjacent to wetlands that lie outside of shoreline jurisdiction.
B. Classification. The city uses the 2004 Washington State 4-Tier Rating System for Eastern Washington to classify wetlands. Wetlands within the city and its UGA are identified on Map III-6 in map appendix to comprehensive plan.
C. Identification and Rating.
1. Wetlands shall be identified and delineated by a qualified wetland professional or by the permit administrator or designee of the permit administrator with the consent of the applicant, subject to additional buffer setback(s). Wetland delineations are valid for five years and shall be conducted using the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1987, as amended) and the U.S. Army Corps of Engineers (2006) Regional Supplement to the 1987 Delineation Manual: Arid West Region. The city may use the following information sources as guidance in identifying the presence of wetlands and the subsequent need for a wetland delineation study:
a. Hydric soils, soils with significant soil inclusions, and “wet spots” identified within the local soil survey;
b. National wetlands inventory;
c. Previous wetland rating evaluation; and
d. On-site inspection.
2. Wetlands shall be rated according to the Washington Department of Ecology wetland rating system, as set forth in the Washington State Wetland Rating System for Eastern Washington (Ecology Publication No. 14-06-030, or as revised and approved by Ecology). Wetlands in Okanogan shall be classified into the following categories in accordance to the above referenced manual:
a. Category I wetlands are:
i. Alkali wetlands;
ii. Wetlands that are identified by scientists of the Washington Natural Heritage Program (2014 update: name changed to Wetlands of High Conservation Value)/DNR as high quality wetlands;
iii. Bogs (2014 update: bogs and calcareous fens);
iv. Mature and old-growth forested wetlands over one-fourth acre with slow-growing trees;
v. Forests with stands of aspen;
vi. Wetlands that perform many functions very well (2014 wetland scores of 22 to 27).
These wetlands are those that:
i. Represent a unique or rare wetland type; or
ii. Are more sensitive to disturbance than most wetlands; or
iii. Are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or
iv. Provide a high level of function.
b. Category II wetlands are:
i. Forested wetlands in the floodplains of rivers;
ii. Mature and old-growth forested wetlands over one-fourth acre with fast-growing trees;
iii. Vernal pools;
iv. Wetlands that perform functions well (2014 wetland scores of 19 to 21 points).
c. Category III wetlands are:
i. Vernal pools that are isolated;
ii. Wetlands with a moderate level of functions (2014 scores of 16 to 18 points)
Wetlands scoring 16 to 18 points generally have been disturbed in some ways and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.
d. Category IV wetlands have the lowest level of functions (scores of nine to 15 points) and are often heavily disturbed. These are wetlands that we should be able to replace, and in some cases be able to improve. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions and also need to be protected.
e. Illegal Modifications. Wetland rating categories shall not change due to illegal modifications made by the applicant or with the applicant’s knowledge.
D. Regulated Activities.
1. For any regulated activity, a critical areas report or wetland critical areas report (see OMC 16.16.030(H)) may be required to support the requested activity.
2. The following activities are regulated if they occur in a regulated wetland or its buffer:
a. The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind.
b. The dumping of, discharging of, or filling with any material.
c. The draining, flooding, or disturbing of the water level or water table.
d. Pile driving.
e. The placing of obstructions.
f. The construction, reconstruction, demolition, or expansion of any structure.
g. The destruction or alteration of wetland vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland.
h. “Class IV – General Forest Practices” under the authority of the “1992 Washington State Forest Practices Act Rules and Regulations,” WAC 222-12-030, or as thereafter amended.
i. Activities that result in:
i. A significant change of water temperature.
ii. A significant change of physical or chemical characteristics of the sources of water to the wetland.
iii. A significant change in the quantity, timing or duration of the water entering the wetland.
iv. The introduction of pollutants.
3. Subdivisions. The subdivision and/or short subdivision of land in wetlands and associated buffers are subject to the following:
a. Land that is located wholly within a wetland or its buffer may not be subdivided.
b. Land that is located partially within a wetland or its buffer may be subdivided; provided, that an accessible and contiguous buildable portion of each new lot is:
i. Located outside of the wetland and its buffer; and
ii. Meets the minimum lot size requirements for the underlying zone.
E. Exemptions and Allowed Uses in Wetlands.
1. The following wetlands are exempt from the buffer provisions and mitigation sequencing process contained in this chapter. They may be filled if impacts are fully mitigated based on provisions in OMC 16.16.030(H) and (I). In order to verify the following conditions, a critical area report for wetlands meeting the requirements in OMC 16.16.030(H) must be submitted.
a. All isolated Category III and IV wetlands less than 1,000 square feet that:
i. Are not associated with riparian areas or buffer.
ii. Are not part of a wetland mosaic.
iii. Do not contain habitat identified as essential for local populations of priority species identified by Washington Department of Fish and Wildlife or species of local importance identified in the maps contained in Appendix C.
iv. Are not a vernal pool.
v. Are not an alkali wetland.
vi. Do not contain aspen stands.
2. Activities Allowed in Wetlands. The activities listed below are allowed in wetlands. These activities do not require submission of a critical area or wetland critical area report, except where such activities result in a loss of the functions and values of a wetland or wetland buffer. These activities include:
a. Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class 4 – general forest practice permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
b. Conservation or preservation of soil, water, vegetation, fish, shellfish, and/or other wildlife that does not entail changing the structure or functions of the existing wetland.
c. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.
d. Drilling for utilities/utility corridors under a wetland, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column will be disturbed.
e. Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.
f. Educational and scientific research activities.
g. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not expand the footprint or use of the facility or right-of-way.
F. Wetland Buffers.
1. Buffer Requirements. The standard buffer widths in Table 16.16.110(1) have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State Wetland Rating System for Eastern Washington.
a. The use of the standard buffer widths requires the implementation of the measures in Table 16.16.110(2), where applicable, to minimize the impacts of the adjacent land uses.
b. If an applicant chooses not to apply the mitigation measures in Table 16.16.110(2), then a 33 percent increase in the width of all buffers is required. For example, a 75-foot buffer with the mitigation measures would be a 100-foot buffer without them.
c. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the ecoregion. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should either be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.
d. Additional buffer widths are added to the standard buffer widths. For example, a Category I wetland scoring eight to nine points for habitat function would require a buffer of 150 feet (75 plus 75).
e. Increased Wetland Buffer Area Width. Buffer widths shall be increased on a case-by-case basis as determined by the administrator when a larger buffer is necessary to protect wetland functions and values. This determination shall be supported by appropriate documentation showing that it is reasonably related to protection of the functions and values of the wetland. The documentation must include but not be limited to the following criteria:
i. The wetland is used by a plant or animal species listed by the federal government or the state as endangered, threatened, candidate, sensitive, monitored or documented priority species or habitats, or essential or outstanding habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees; or
ii. The adjacent land is susceptible to severe erosion, and erosion-control measures will not effectively prevent adverse wetland impacts; or
iii. The adjacent land has minimal vegetative cover or slopes greater than 30 percent.
f. Buffer averaging to improve wetland protection may be permitted when all of the following conditions are met:
i. The wetland has significant differences in characteristics that affect its habitat functions, such as a wetland with a forested component adjacent to a degraded emergent component or a “dual-rated” wetland with a Category I area adjacent to a lower-rated area.
ii. The buffer is increased adjacent to the higher functioning area of habitat or more sensitive portion of the wetland and decreased adjacent to the lower functioning or less sensitive portion as demonstrated by a critical areas report from a qualified wetland professional.
iii. The total area of the buffer after averaging is equal to the area required without averaging.
iv. The buffer at its narrowest point is never less than either three-fourths of the required width or 75 feet for Category I and II, 50 feet for Category III and 25 feet for Category IV, whichever is greater.
g. Averaging to allow reasonable use of a parcel may be permitted when all of the following are met:
i. There are no feasible alternatives to the site design that could be accomplished without buffer averaging.
ii. The averaged buffer will not result in degradation of the wetland’s functions and values as demonstrated by a critical areas report from a qualified wetland professional. The total buffer area after averaging is equal to the area required without averaging.
iii. The buffer at its narrowest point is never less than either three-fourths of the required width or 75 feet for Category I and II, 50 feet for Category III and 25 feet for Category IV, whichever is greater.
|
Wetland Category |
Buffer width if wetland scores 3 – 4 habitat points |
Additional buffer width if wetland scores 5 habitat points |
Additional buffer width if wetland scores 6 – 7 habitat points |
Additional buffer width if wetland scores 8 – 9 habitat points |
|---|---|---|---|---|
|
Category I: Based on total score |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category I: Forested |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category I: Bogs and wetlands of high conservation value |
190 ft |
|||
|
Category I: Alkali |
150 ft |
|||
|
Category II: Based on total score |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category II: Vernal pool |
150 ft |
|||
|
Category II: Forested |
75 ft |
Add 15 ft |
Add 45 ft |
Add 75 ft |
|
Category III (all) |
60 ft |
Add 30 ft |
Add 60 ft |
140 ft |
|
Category IV (all) |
40 ft |
|||
|
Disturbance |
Required Measures to Minimize Impacts |
|---|---|
|
Lights |
Direct lights away from wetland |
|
Noise |
Locate activity that generates noise away from wetland |
|
If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source |
|
|
For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10-ft heavily vegetated buffer strip immediately adjacent to the outer wetland buffer |
|
|
Toxic runoff |
Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered |
|
Establish covenants limiting use of pesticides within 150 ft of wetland |
|
|
Apply integrated pest management |
|
|
Storm water runoff |
Retrofit storm water detention and treatment for roads and existing adjacent development |
|
Prevent channelized flow from lawns that directly enters the buffer |
|
|
Use low intensity development techniques (per PSAT publication on LID techniques) |
|
|
Change in water regime |
Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns |
|
Pets and human disturbance |
Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion |
|
Place wetland and its buffer in a separate tract or protect with a conservation easement |
|
|
Dust |
Use best management practices to control dust |
|
Disruption of corridors or connections |
Maintain connections to off-site areas that are undisturbed |
|
Restore corridors or connections to off-site habitats by replanting |
2. To facilitate long-range planning using a landscape approach, the administrator may identify and preassess wetlands using the rating system and establish appropriate wetland buffer widths for such wetlands. The administrator will prepare maps of wetlands that have been preassessed in this manner.
3. Measurement of Wetland Buffers. All buffers shall be measured perpendicular from the wetland boundary as surveyed in the field. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. Only fully vegetated buffers will be considered. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers or included in buffer area calculations.
4. Buffers on Mitigation Sites. All mitigation sites shall have buffers consistent with the buffer requirements of this section. Buffers shall be based on the expected or target category of the proposed wetland mitigation site.
5. Buffer Maintenance. Except as otherwise specified or allowed in accordance with this section, wetland buffers shall be retained in an undisturbed or enhanced condition. In the case of compensatory mitigation sites, removal of invasive nonnative weeds is required for the duration of the mitigation bond.
6. Impacts to Buffers. Requirements for the compensation for impacts to buffers are provided in subsection I of this section.
7. Overlapping Critical Area Buffers. If buffers for two contiguous critical areas overlap (such as buffers for a stream and a wetland), the wider buffer applies.
8. Allowed Buffer Uses. The following uses may be allowed within a wetland buffer in accordance with the review procedures of this chapter provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent wetland:
a. Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife.
b. Passive Recreation. Passive recreation facilities designed and in accordance with an approved critical area report, including:
i. Walkways and trails; provided, that those pathways are limited to minor crossings having no adverse impact on water quality. They should be generally parallel to the perimeter of the wetland, located only in the outer 25 percent of the wetland buffer area, and located to avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width for pedestrian use only. Raised boardwalks utilizing nontreated pilings may be acceptable.
ii. Wildlife-viewing structures.
c. Educational and scientific research activities.
d. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not increase the footprint or use of the facility or right-of-way.
e. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.
f. Drilling for utilities/utility corridors under a buffer, with entrance/exit portals located completely outside of the wetland buffer boundary; provided, that the drilling does not interrupt the ground water connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the ground water connection to the wetland or percolation of surface water down through the soil column is disturbed.
g. Enhancement of a wetland buffer through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.
h. Storm Water Management Facilities. Storm water management facilities are limited to storm water dispersion outfalls and bioswales. They may be allowed within the outer 25 percent of the buffer of Category III or IV wetlands only; provided, that:
i. No other location is feasible; and
ii. The location of such facilities will not degrade the functions or values of the wetland; and
iii. Storm water management facilities are not allowed in buffers of Category I or II wetlands.
i. Nonconforming Uses. Repair and maintenance of nonconforming uses or structures, where legally established within the buffer, provided they do not increase the degree of nonconformity.
9. Signs and Fencing of Wetlands and Buffers.
a. Temporary Markers. The outer perimeter of the wetland buffer and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary “clearing limits” fencing in such a way as to ensure that no unauthorized intrusion will occur. The marking is subject to inspection by the administrator prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.
b. Permanent Signs. As a condition of any permit or authorization issued pursuant to this section, the administrator may require the applicant to install permanent signs along the boundary of a wetland or buffer.
i. Permanent signs shall be made of an enamel-coated metal face and attached to a metal post or another non-treated material of equal durability. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner in perpetuity. The signs shall be worded as follows or with alternative language approved by the administrator:
Protected Wetland Area Do Not Disturb
Contact City of Okanogan Regarding Uses, Restrictions, and Opportunities for Stewardship
ii. The provisions of subsection (F)(9)(b)(i) of this section may be modified as necessary to assure protection of sensitive features or wildlife.
c. Fencing.
i. The applicant shall be required to install a permanent fence around the wetland or buffer when domestic grazing animals are present or may be introduced on site.
ii. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat.
G. Critical area report requirements for wetlands are found in OMC 16.16.030(H).
H. Mitigation and Compensatory Mitigation Requirements.
1. Compensatory mitigation for alterations to wetlands shall be used only for impacts that cannot be avoided or minimized and shall achieve equivalent or greater biologic functions. Compensatory mitigation plans shall be consistent with Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans – Version 1 (Ecology Publication No. 06-06-011b, Olympia, WA, March 2006 or as revised), and Selecting Wetland Mitigation Sites Using a Watershed Approach (Eastern Washington) (Publication No. 10-06-07, November 2010).
2. Mitigation ratios shall be consistent with subsection M of this section.
3. Mitigation requirements may also be determined using the credit/debit tool described in “Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Eastern Washington: Final Report” (Ecology Publication No. 11-06-015, August 2012), consistent with subsection N of this section.
I. Compensating for Lost or Affected Functions. Compensatory mitigation shall address the functions affected by the proposed project, with an intention to achieve functional equivalency or improvement of functions. The goal shall be for the compensatory mitigation to provide similar wetland functions as those lost, except when either:
1. The lost wetland provides minimal functions, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal Washington State watershed assessment plan or protocol; or
2. Out-of-kind replacement of wetland type or functions will best meet watershed goals formally identified by the city, such as replacement of historically diminished wetland types.
J. Preference of Mitigation Actions. Mitigation for lost or diminished wetland and buffer functions shall rely on the types below in the following order of preference:
1. Restoration (reestablishment and rehabilitation) of wetlands.
a. The goal of reestablishment is returning natural or historic functions to a former wetland. Reestablishment results in a gain in wetland acres (and functions). Activities could include removing fill material, plugging ditches, or breaking drain tiles.
b. The goal of rehabilitation is repairing natural or historic functions of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland.
2. Creation (establishment) of wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative species. Establishment results in a gain in wetland acres. This should be attempted only when there is an adequate source of water and it can be shown that the surface and subsurface hydrologic regime is conducive to the wetland community that is anticipated in the design.
a. If a site is not available for wetland restoration to compensate for expected wetland and/or buffer impacts, the approval authority may authorize creation of a wetland and buffer upon demonstration by the applicant’s qualified wetland scientist that:
i. The hydrology and soil conditions at the proposed mitigation site are conducive for sustaining the proposed wetland and that creation of a wetland at the site will not likely cause hydrologic problems elsewhere;
ii. The proposed mitigation site does not contain invasive plants or noxious weeds or that such vegetation will be completely eradicated at the site;
iii. Adjacent land uses and site conditions do not jeopardize the viability of the proposed wetland and buffer (e.g., due to the presence of invasive plants or noxious weeds, storm water runoff, noise, light, or other impacts); and
iv. The proposed wetland and buffer will eventually be self-sustaining with little or no long-term maintenance.
3. Enhancement of significantly degraded wetlands in combination with restoration or creation. Enhancement should be part of a mitigation package that includes replacing the altered area and meeting appropriate ratio requirements. Enhancement is undertaken for specified purposes such as water quality improvement, flood water retention, or wildlife habitat. Enhancement alone will result in a loss of wetland acreage and is less effective at replacing the functions lost. Applicants proposing to enhance wetlands or associated buffers shall demonstrate:
a. How the proposed enhancement will increase the wetland’s/buffer’s functions;
b. How this increase in function will adequately compensate for the impacts; and
c. How all other existing wetland functions at the mitigation site will be protected.
4. Preservation. Preservation of high quality, at-risk wetlands as compensation is generally acceptable when done in combination with restoration, creation, or enhancement; provided, that a minimum of 1:1 acreage replacement is provided by reestablishment or creation. Ratios for preservation in combination with other forms of mitigation generally range from 10:1 to 20:1, as determined on a case-by-case basis, depending on the quality of the wetlands being altered and the quality of the wetlands being preserved.
Preservation of high quality, at-risk wetlands and habitat may be considered as the sole means of compensation for wetland impacts when the following criteria are met:
a. The area proposed for preservation is of high quality. The following features may be indicative of high quality sites:
i. Category I or II wetland rating (using the wetland rating system for eastern Washington).
ii. Rare wetland type (for example, bogs, mature forested wetlands, and estuarine wetlands).
iii. The presence of habitat for priority or locally important wildlife species.
iv. Priority sites in an adopted watershed plan.
b. Wetland impacts will not have a significant adverse impact on habitat for listed fish, or other ESA listed species.
c. There is no net loss of habitat functions within the watershed or basin.
d. Mitigation ratios for preservation as the sole means of mitigation shall generally start at 20:1. Specific ratios should depend upon the significance of the preservation project and the quality of the wetland resources lost.
e. Permanent preservation of the wetland and buffer will be provided through a conservation easement or tract held by a land trust.
f. The impact area is small (generally less than one-half acre) and/or impacts are occurring to a low-functioning system (Category III or IV wetland).
All preservation sites shall include buffer areas adequate to protect the habitat and its functions from encroachment and degradation.
K. Location of Compensatory Mitigation. Compensatory mitigation actions shall be conducted within the same subdrainage basin and on the site of the alteration except when all of subsections (K)(1) through (4) of this section apply. In that case, mitigation may be allowed off site within the subwatershed of the impact site. When considering off-site mitigation, preference should be given to using alternative mitigation, such as a mitigation bank, an in-lieu fee program, or advanced mitigation.
1. There are no reasonable opportunities on site or within the subdrainage basin (e.g., on-site options would require elimination of high functioning upland habitat), or opportunities on site or within the subdrainage basin do not have a high likelihood of success based on a determination of the capacity of the site to compensate for the impacts. Considerations should include: anticipated replacement ratios for wetland mitigation, buffer conditions and proposed widths, available water to maintain anticipated hydrogeomorphic classes of wetlands when restored, proposed flood storage capacity, and potential to mitigate riparian fish and wildlife impacts (such as connectivity).
2. On-site mitigation would require elimination of high quality upland habitat.
3. Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the altered wetland.
4. Off-site locations shall be in the same subdrainage basin unless:
a. Established watershed goals for water quality, flood storage or conveyance, habitat, or other wetland functions have been established by the city and strongly justify location of mitigation at another site; or
b. Credits from a state-certified wetland mitigation bank are used as compensation, and the use of credits is consistent with the terms of the certified bank instrument;
c. Fees are paid to an approved in-lieu fee program to compensate for the impacts.
The design for the compensatory mitigation project needs to be appropriate for its location (i.e., position in the landscape). Therefore, compensatory mitigation should not result in the creation, restoration, or enhancement of an atypical wetland. An atypical wetland refers to a compensation wetland (e.g., created or enhanced) that does not match the type of existing wetland that would be found in the geomorphic setting of the site (i.e., the water source(s) and hydroperiod proposed for the mitigation site are not typical for the geomorphic setting). Likewise, it should not provide exaggerated morphology or require a berm or other engineered structures to hold back water. For example, excavating a permanently inundated pond in an existing seasonally saturated or inundated wetland is one example of an enhancement project that could result in an atypical wetland. Another example would be excavating depressions in an existing wetland on a slope, which would require the construction of berms to hold the water.
L. Timing of Compensatory Mitigation. It is preferred that compensatory mitigation projects be completed prior to activities that will disturb wetlands. At the least, compensatory mitigation shall be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.
The administrator may authorize a one-time temporary delay in completing construction or installation of the compensatory mitigation when the applicant provides a written explanation from a qualified wetland professional as to the rationale for the delay. An appropriate rationale would include identification of the environmental conditions that could produce a high probability of failure or significant construction difficulties (e.g., project delay lapses past a fisheries window, or installing plants should be delayed until the dormant season to ensure greater survival of installed materials). The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety, or general welfare of the public. The request for the temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the compensatory mitigation plan. The justification must be verified and approved by the city.
M. Wetland Mitigation Ratios.1
|
Category and Type of Wetland |
Creation or Reestablishment |
Rehabilitation |
Enhancement |
|---|---|---|---|
|
Category I: Bog, Natural Heritage site |
Not considered possible |
Case by case |
Case by case |
|
Category I: Mature forested |
6:1 |
12:1 |
24:1 |
|
Category I: Based on functions |
4:1 |
8:1 |
16:1 |
|
Category II |
3:1 |
6:1 |
12:1 |
|
Category III |
2:1 |
4:1 |
8:1 |
|
Category IV |
1.5:1 |
3:1 |
6:1 |
N. Credit/Debit Method. To more fully protect functions and values, and as an alternative to the mitigation ratios found in the joint guidance “Wetland Mitigation in Washington State Parts I and II” (Ecology Publication Nos. 06-06-011a and 06-06-011b, Olympia, WA, March 2006), the administrator may allow mitigation based on the “credit/debit” method developed by the Department of Ecology in “Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Eastern Washington: Final Report” (Ecology Publication No. 11-06-015, August 2012, or as revised).
O. Compensatory Mitigation Plan. When a project involves wetland and/or buffer impacts, a compensatory mitigation plan prepared by a qualified professional shall be required, meeting the following minimum standards:
1. Wetland Critical Area Report. A critical area report for wetlands must accompany or be included in the compensatory mitigation plan and include the minimum parameters described in Minimum Standards for Wetland Reports (OMC 16.16.030(H)).
2. Compensatory Mitigation Report. The report must include a written report and plan sheets that must contain, at a minimum, the following elements. Full guidance can be found in Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans (Version 1) (Ecology Publication No. 06-06-011b, Olympia, WA, March 2006 or as revised).
a. The written report must contain, at a minimum:
i. The name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the compensatory mitigation report; a description of the proposal; a summary of the impacts and proposed compensation concept; identification of all the local, state, and/or federal wetland-related permit(s) required for the project; and a vicinity map for the project.
ii. Description of how the project design has been modified to avoid, minimize, or reduce adverse impacts to wetlands.
iii. Description of the existing wetland and buffer areas proposed to be impacted. Include acreage (or square footage), water regime, vegetation, soils, landscape position, surrounding lands uses, and functions. Also describe impacts in terms of acreage by Cowardin classification, hydrogeomorphic classification, and wetland rating, based on wetland ratings (subsection C of this section).
iv. Description of the compensatory mitigation site, including location and rationale for selection. Include an assessment of existing conditions: acreage (or square footage) of wetlands and uplands, water regime, sources of water, vegetation, soils, landscape position, surrounding land uses, and functions. Estimate future conditions in this location if the compensation actions are not undertaken (i.e., how would this site progress through natural succession?).
v. A description of the proposed actions for compensation of wetland and upland areas affected by the project. Include overall goals of the proposed mitigation, including a description of the targeted functions, hydrogeomorphic classification, and categories of wetlands.
vi. A description of the proposed mitigation construction activities and timing of activities.
vii. A discussion of ongoing management practices that will protect wetlands after the project site has been developed, including proposed monitoring and maintenance programs (for remaining wetlands and compensatory mitigation wetlands).
viii. A bond estimate for the entire compensatory mitigation project, including the following elements: site preparation, plant materials, construction materials, installation oversight, maintenance twice per year for up to five years, annual monitoring field work and reporting, and contingency actions for a maximum of the total required number of years for monitoring.
ix. Proof of establishment of notice on title for the wetlands and buffers on the project site, including the compensatory mitigation areas.
b. The scaled plan sheets for the compensatory mitigation must contain, at a minimum:
i. Surveyed edges of the existing wetland and buffers, proposed areas of wetland and/or buffer impacts, location of proposed wetland and/or buffer compensation actions.
ii. Existing topography, ground-proofed, at two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed to create the compensation area(s). Also existing cross-sections of on-site wetland areas that are proposed to be impacted, and cross-section(s) (estimated one-foot intervals) for the proposed areas of wetland or buffer compensation.
iii. Surface and subsurface hydrologic conditions, including an analysis of existing and proposed hydrologic regimes for enhanced, created, or restored compensatory mitigation areas. Also, illustrations of how data for existing hydrologic conditions were used to determine the estimates of future hydrologic conditions.
iv. Conditions expected from the proposed actions on site, including future hydrogeomorphic types, vegetation community types by dominant species (wetland and upland), and future water regimes.
v. Required wetland buffers for existing wetlands and proposed compensation areas. Also, identify any zones where buffers are proposed to be reduced or enlarged outside of the standards identified in this chapter.
vi. A plant schedule for the compensation area, including all species by proposed community type and water regime, size and type of plant material to be installed, spacing of plants, typical clustering patterns, total number of each species by community type, timing of installation.
vii. Performance standards (measurable standards reflective of years post-installation) for upland and wetland communities, monitoring schedule, and maintenance schedule and actions by each biennium.
P. Buffer Mitigation Ratios. Impacts to buffers shall be mitigated at a 1:1 ratio. Compensatory buffer mitigation shall replace those buffer functions lost from development.
Q. Monitoring. Mitigation monitoring shall be required for a period necessary to establish that performance standards have been met, but not for a period less than five years. If a scrub/shrub or forested vegetation community is proposed, monitoring may be required for 10 years or more. The project mitigation plan shall include monitoring elements that ensure certainty of success for the project’s natural resource values and functions. If the mitigation goals are not obtained within the initial five-year period, the applicant remains responsible for restoration of the natural resource values and functions until the mitigation goals agreed to in the mitigation plan are achieved.
R. Wetland Mitigation Banks.
1. Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:
a. The bank is certified under state rules;
b. The administrator determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and
c. The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.
2. Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.
3. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.
S. In-Lieu Fee. To aid in the implementation of off-site mitigation, the city may develop an in-lieu fee program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in-lieu fee mitigation, and state water quality regulations. An approved in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in-lieu fee program may be used when subsections (S)(1) through (6) of this section apply:
1. The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.
2. The mitigation will occur on a site identified using the site selection and prioritization process in the approved in-lieu fee program instrument.
3. The proposed use of credits is consistent with the terms and conditions of the approved in-lieu fee program instrument.
4. Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three years of the credit sale.
5. Projects using in-lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified wetland scientist using the method consistent with the credit assessment method specified in the approved instrument for the in-lieu fee program.
6. Credits from an approved in-lieu fee program may be used to compensate for impacts located within the service area specified in the approved in-lieu fee instrument.
T. Advance Mitigation. Mitigation for projects with preidentified impacts to wetlands may be constructed in advance of the impacts if the mitigation is implemented according to federal rules, state policy on advance mitigation and state water quality regulations.
U. Alternative Mitigation Plans. The administrator may approve alternative critical areas mitigation plans that are based on best available science, such as priority restoration plans that achieve restoration goals identified in the SMP. Alternative mitigation proposals must provide an equivalent or better level of protection of critical area functions and values than would be provided by the strict application of this chapter.
The administrator shall consider the following for approval of an alternative mitigation proposal:
1. The proposal uses a watershed approach consistent with Selecting Wetland Mitigation Sites Using a Watershed Approach (Eastern Washington) (Publication No. 10-06-07, Olympia, WA, November 2010).
Creation or enhancement of a larger system of natural areas and open space is preferable to the preservation of many individual habitat areas.
2. Mitigation according to Section E is not feasible due to site constraints such as parcel size, stream type, wetland category, or geologic hazards.
3. There is clear potential for success of the proposed mitigation at the proposed mitigation site.
4. The plan shall contain clear and measurable standards for achieving compliance with the specific provisions of the plan. A monitoring plan shall, at a minimum, meet the provisions in Section I.
5. The plan shall be reviewed and approved as part of overall approval of the proposed use.
6. A wetland of a different type is justified based on regional needs or functions and values; the replacement ratios may not be reduced or eliminated unless the reduction results in a preferred environmental alternative.
7. Mitigation guarantees shall meet the minimum requirements as outlined in subsection (V)(7) of this section.
8. Qualified professionals in each of the critical areas addressed shall prepare the plan.
9. The city may consult with agencies with expertise and jurisdiction over the resources during the review to assist with analysis and identification of appropriate performance measures that adequately safeguard critical areas.
V. Performance Standards. The following performance standards shall apply to compensatory mitigation projects:
1. Specific criteria shall be provided in the mitigation plan for evaluating whether or not the goals and objectives of the mitigation project are being met. Such criteria may include percent aerial cover and survival rates of planted vegetation, species abundance and diversity targets, habitat diversity indices, water quality improvement, flood retention, or other ecological, geological or hydrological criteria. Unless the site-specific criteria dictate otherwise, default performance standards for the site shall meet mitigation planting survival of 100 percent for the first year and 80 percent plant survival for each of the four years following initial planting.
2. Mitigation must be installed no later than the next growing season after completion of site improvements, unless otherwise approved by the administrator.
3. Success of a mitigation site is dependent upon site selection which supports the establishment of an appropriate wetland hydroperiod that permanently maintains the mitigation site, rather than on continued irrigation. To help ensure successful wetland mitigation, where necessary, a temporary means of irrigation shall be installed for the mitigation plantings within the wetland, that are designed by a landscape architect or equivalent professional, as approved by the administrator. Where necessary, the administrator may require a permanent means of irrigation be installed for mitigation plantings within the wetland buffer, given the arid conditions of the region. The design shall meet the specific needs of the wetland, riparian and shrub steppe vegetation, as may be applicable.
4. Monitoring reports by the biologist must include verification that the planting areas have less than 20 percent total nonnative/invasive plant cover consisting of exotic and/or invasive species. Exotic and invasive species may include any species on the state noxious weed list, or considered a noxious or problem weed by the Natural Resource Conservation Service or local conservation district.
5. On-site monitoring and monitoring reports shall be submitted to the administrator one year after mitigation installation, three years after mitigation installation, and five years after mitigation installation. Monitoring reports shall be submitted by a qualified professional biologist. The biologist must verify that the conditions of approval and provisions in the wetland management and mitigation plan have been satisfied.
6. Mitigation sites shall be maintained to ensure that the mitigation and management plan objectives are successful. Maintenance shall include corrective actions to rectify problems, include rigorous, as-needed elimination of undesirable plants; protection of shrubs and small trees from competition by grasses and herbaceous plants, and repair and replacement of any dead plants.
7. Prior to site development and/or building permit issuance, a performance surety agreement in conformance with OMC 16.16.030(K), must be entered into by the property owner and the city. The surety agreement must include the complete costs for the mitigation and monitoring which may include but not be limited to: the cost of installation, delivery, plant material, soil amendments, permanent irrigation, seed mix, and three monitoring visits and reports by a qualified professional biologist, including Washington State sales tax. The administrator must approve the quote for said improvements.
8. Sequential release of funds associated with the surety agreement shall be reviewed for conformance with the conditions of approval and the mitigation and management plan. Release of funds may occur in increments of one-third for substantial conformance with the plan and conditions of approval. Verification of conformance with the provisions of the mitigation and management plan and conditions of approval after one year of mitigation installation shall also allow for the full release of funds associated with irrigation systems, clearing and grubbing and any soil amendments. If the standards that are not met are only minimally out of compliance and contingency actions are actively being pursued by the property owner to bring the project into compliance, the city may choose to consider a partial release of the scheduled increment. Noncompliance can result in one or more of the following actions: carryover of the surety amount to the next review period, use of funds to remedy the nonconformance, or scheduling a hearing with the city’s planning commission to review conformance with the conditions of approval and to determine what actions may be appropriate.
W. General Standards. The following minimum standards shall apply to all development activities occurring within designated wetlands and/or their buffers:
1. Except where permitted by this chapter, wetlands and wetland buffers will be left undisturbed, unless the development proposal demonstrates that impacts to the wetland and/or buffer are unavoidable, demonstrated by compliance with this section. Impacts must be addressed with appropriate mitigation and enhancement measures as determined on a site-specific basis in conformance with this section.
2. Wetland Buffers. Appropriate buffer areas shall be maintained between all permitted uses and activities and the designated wetland. Provisions to identify the type of wetland and delineate its boundary are established in this section and must be conducted by a qualified professional biologist.
a. The width of a wetland buffer, as measured from the wetland edge established in the approved wetland boundary survey, shall be as found in Table 16.16.110(1).
b. Where a wetland is located within a riparian buffer, the buffer width, riparian or wetland, which provides the greatest degree of protection shall apply.
c. All buffers shall be measured from the wetland edge, as established by the approved wetland boundary survey.
d. All buffer areas shall be temporarily fenced between the construction activity and the buffer with a highly visible and durable protective barrier during construction to prevent access and protect the designated wetland and associated buffer. The administrator may waive this requirement if an alternative to fencing which achieves the same objective is proposed and approved.
e. Except as otherwise allowed, buffers shall be retained in their natural condition. Any habitat created, restored or enhanced as compensation for approved wetland alterations shall have the standard buffer required for the category of the created, restored or enhanced wetland.
f. Land divisions within designated wetland areas shall require a minimum lot frontage along the protective buffer as outlined in this program.
g. The width of the buffer shall be increased by the administrator for a development project on a case-by-case basis when a larger buffer is necessary to protect the designated wetland function and value. The determination shall be based on site-specific and project-related conditions which include, without limitation:
i. The designated wetland is used for feeding, nesting and resting by species proposed or listed by the federal or state government as endangered, threatened, sensitive, candidate, monitor or critical; or if it is outstanding potential habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees;
ii. The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts.
X. Specific Standards. The following standards shall apply to the activity identified below, in addition to the general standards outlined in this chapter:
1. Developments which contain a wetland or wetland buffer on site shall comply with the following minimum standards:
a. All plats shall disclose the presence on each residential lot of one building site, including access, that is suitable for development and which is not within the designated wetland or its associated buffer;
b. All designated wetland areas and their proposed buffers shall be clearly identified on all final plats, maps, documents, etc.;
c. Designated wetlands and their associated wetland buffers shall be designated and disclosed on the final plats, maps, documents, etc., as critical area tracts, nonbuildable lots and buffer areas or common areas. Ownership and control may be transferred to a homeowner’s association or designated as an easement or covenant encumbering the property;
d. All lots within a major subdivision, short plat or binding site plan shall have the outer edge of all required buffers clearly marked on site with permanent buffer edge markers. Buffer markers may be either buffer signs or steel posts painted with a standard color and label, as approved by the administrator. The markers shall be field verified by the surveyor or biologist of record prior to final plat approval. Each lot shall contain a minimum of three buffer area markers located at the landward edge of the buffer perimeter for each habitat type, one located at each side property line and one midway between side property lines. Covenants for the subdivision shall incorporate a requirement stating that buffer area markers shall not be removed, or relocated, except as may be approved by the administrator;
e. Residential developments with the potential for two or more dwelling units shall disclose on the face of the plat whether the development will be served by joint use or community dock facilities or a combination thereof. Access easements and dock locations shall be identified by a qualified professional biologist who will address the standards of this master program. The identification of access easements and dock locations is not a substitute for permitting required in order to develop moorage facilities and in no way guarantees such an approval.
2. Stream Crossings. Expansion or construction of stream crossings may be authorized within a designated wetland or wetland buffer, subject to the following minimum standards:
a. Bridges are required for streams which support salmonids;
b. All crossings using culverts shall use superspan or oversize culverts;
c. Crossings shall not occur in salmonid spawning areas unless no other feasible crossing site exists;
d. Bridge piers or abutments shall not be placed in either the floodway or between the ordinary high water marks unless no other feasible alternative placement exists;
e. Crossings shall not diminish flood carrying capacity; and
f. Crossings shall serve multiple properties whenever possible.
3. Trails and Trail-Related Facilities. Construction of public and private trails and trail-related facilities, such as picnic tables, benches, interpretive centers and signs, viewing platforms and campsites, may be authorized within designated wetlands, subject to the standards contained in Tables 16.16.110(1) and 16.16.110(2).
Y. Prior Establishment. A use or structure established prior to the effective date of this chapter which does not conform to standards set forth in this section is allowed to continue and be reasonably maintained; provided, that such activity or structure shall not be expanded or enlarged in any manner that increases the extent of its nonconformity. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.130 Frequently flooded areas.
Development, uses and activities within identified frequently flooded areas (see Okanogan comprehensive plan map appendix) shall comply with the regulations contained in Chapter 15.28 OMC. When a project location includes one or more other designated critical areas the following regulations apply in addition to Chapter 15.28 OMC:
A. Purpose. It is the purpose of this section to provide regulations intended to protect the functions and values of designated critical areas resulting from development in flood hazard areas.
B. General Standards. In all areas of special flood hazards, the following standards are required:
1. Development in floodplains should not significantly or cumulatively increase flood hazards or be inconsistent with comprehensive flood hazard management plans adopted pursuant to Chapter 86.12 RCW.
2. New development or new uses in critical areas, including the subdivision of land, should not be permitted when it would be reasonably foreseeable that the development or use would require structural flood hazard reduction measures within the channel migration zone or floodway. (Ord. 1149 § 1 (Exh. A), 2015)
16.16.150 Geologically hazardous areas.
Development, uses and activities within identified geologically hazardous areas (see map appendix of the Okanogan comprehensive plan) shall comply with the regulations contained in this chapter.
A. Determination Process – Geologically Hazardous Area. The city shall review each land use permit application to determine if the provisions of this section shall be initiated. In making the determination, the city may use any resources identified in this chapter, as well as any previously completed special reports conducted in the vicinity of the subject proposal. The following progressive steps shall occur upon a determination by the city that a geologically hazardous area may exist on a site proposed for a development permit:
1. Step One. City staff shall determine if there is any possible geologically hazardous area on site designated by this section. This determination shall be made following a review of information available and a site inspection if appropriate. If no hazard area is determined to be present, this chapter shall not apply to the review of the proposed development.
2. Step Two. If it is determined that a geologically hazardous area may be present, the applicant shall submit a geologic hazard area risk assessment prepared by an engineer or a geologist. The risk assessment (geotechnical report) shall include a description of the geology of the site and the proposed development; an assessment of the potential impact the project may have on the geologic hazard; an assessment of what potential impact the geologic hazard may have on the project; appropriate mitigation measures, if any; and a conclusion as to whether further analysis is necessary. The assessment shall be signed by and bear the seal of the engineer or geologist that prepared it. No further analysis shall be required if the geologic hazard area risk assessment concludes that there is no geologic hazard present on the site, nor will the project affect or be affected by any potential geologic hazards that may be nearby.
3. Step Three. If the professional preparing the risk assessment in step two concludes that further analysis is necessary, the applicant shall submit a geotechnical report.
4. The geotechnical report shall include a certification from the engineering geologist or geotechnical engineer preparing the report, including the professional’s stamp and signature. The geotechnical report shall include the following:
a. A description of the geology of the site;
b. Conclusions and recommendations regarding the effect of geologic conditions on the proposed development;
c. Conclusions and recommendations on the suitability of the site to be developed;
d. An evaluation of the actual presence of geologic conditions giving rise to the geologic hazard;
e. An evaluation of the safety of the proposed project;
f. Identification of construction practices, monitoring programs and other mitigation measures necessary;
g. A bibliography of scientific citations shall be included as necessary;
h. A statement regarding:
i. The risk of damage from the project, both on and off site;
ii. Whether or not the project will materially increase the risk of occurrence of the hazard;
iii. The specific measures incorporated into the design and operational plan of the project to eliminate or reduce the risk of damage due to the hazard.
B. Standards. The following standards for development shall be required in addition to the general provisions of this chapter:
1. All mitigation measures, construction techniques, recommendations and technical specifications provided in the geotechnical report shall be applied during the implementation of the proposal. The engineer of record shall submit sealed verification at the conclusion of construction that development occurred in conformance with the approved plans.
2. A proposed development cannot be approved if it is determined by the geotechnical report that either the proposed development or adjacent properties will be at risk of damage from the geologic hazard, or that the project will increase the risk of occurrence of the hazard, and there are no adequate mitigation measures to alleviate the risks.
3. New development or the creation of new lots that would cause foreseeable risk from geological conditions to people or improvements during the life of the development shall be prohibited.
4. New development that would require structural stabilization over the life of the development shall be prohibited. Exceptions may be made for the limited instances where stabilization is necessary to protect allowed uses where no alternative locations are available and no net loss of ecological functions will result. The stabilization measures shall conform to WAC 173-26-231.
5. Where no alternatives, including relocation or reconstruction of existing structures, are found to be feasible, and less expensive than the proposed stabilization measure, stabilization structures or measures to protect existing primary residential structures may be allowed in strict conformance with WAC 173-26-231 requirements and then only if no net loss of ecological functions will result.
6. All projects shall comply with the applicable federal, state and local regulations, including the adopted building code per OMC Title 15;
a. As determined through the site-specific study, appropriate buffers shall be maintained between all permitted uses and activities and the designated geologically hazardous area(s);
b. The existing native vegetation within the buffer area(s) shall be maintained, except that normal, nondestructive pruning and trimming of vegetation for maintenance purposes is allowed;
c. As determined through the site-specific study, appropriate drainage, grading, excavation and erosion control measures shall be implemented in the geologically hazardous area(s);
d. As determined through the site-specific study, mitigation measures shall be implemented that maintain the integrity of the geologically hazardous area(s);
e. As determined through the site-specific study, appropriate management and monitoring plan(s) shall be developed and implemented to preserve and protect both the geologically hazardous area(s) and the project, with any necessary surety to ensure compliance with such plan(s) being provided as described in OMC 16.16.030(K); and
f. A use or structure established prior to the effective date of this chapter, which does not conform to standards set forth herein, is allowed to continue and be reasonably maintained; provided, that such activity or structure shall not be expanded or enlarged in any manner that increases the extent of its nonconformity. (Ord. 1149 § 1 (Exh. A), 2015)
Ratios for rehabilitation and enhancement may be reduced when combined with 1:1 replacement through creation or reestablishment. See Table 1b, Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance – Version 1 (Ecology Publication No. 06-06-011a, Olympia, WA, March 2006 or as revised). See also Paragraph D.4 for more information on using preservation as compensation.