Chapter 23.10
GENERAL
Sections:
23.10.090 Critical areas reports.
23.10.110 Mitigation plan requirements.
23.10.120 Independent review of critical areas report.
23.10.130 Substantive requirements.
23.10.150 Enforcement and inspections.
23.10.160 Record per WAC 365-195-915 and 365-195-920.
23.10.010 Finding.
The city finds that critical areas’ biological and physical functions benefit the city by protecting water quality, providing fish and wildlife habitat, supporting the food chain, storing and conveying flood waters, recharging ground water, controlling erosion, and providing aesthetic values and recreation. (Ord. 1592 § 1, 2004).
23.10.020 Purpose.
The purpose of this title is to:
A. Protect the functions and values of ecologically sensitive areas while allowing for reasonable use of private property through the application of the best available science;
B. Implement the Growth Management Act and the natural environment goals of the comprehensive plan; and
C. Protect the public from injury and loss due to slope failures, erosion, seismic events, volcanic eruptions, or flooding. (Ord. 1592 § 1, 2004).
23.10.030 Definitions.
“Alter” means to change a critical area or its buffer, including grading, filling, dredging, clearing, construction, compaction, excavation, and pollution.
“Anadromous” refers to fish that spawn and rear in freshwater and mature in saltwater.
“Applicant” means a person who applies for a development permit from the city.
“Aquifer” means a geological formation capable of yielding water to a well or spring.
“Best management practices” means actions known to protect soil, water quality, vegetation, and critical areas.
“Buffer” means an area contiguous to a critical area that provides an area for related ecological functions to take place and/or separates and protects critical areas from adverse impacts associated with adjacent land uses. Buffers shall not include areas that are functionally and effectively disconnected from the wetland by a road or other substantially developed surface of sufficient width and with use characteristics such that buffer functions are not provided.
“Channel migration zone” means the lateral extent of likely movement of a stream or river during the next 100 years as evidenced by movement over the past 100 years.
“Conservation easement” means a legal agreement that the property owner enters into to restrict uses of the land in a manner that conserves natural functions.
“Critical aquifer recharge area” means an area with a critical recharging effect on aquifers used for potable water, as discussed in WAC 365-190-080(2). Within such areas, pollutants seeping into the ground are likely to contaminate the water supply.
“Critical area” means those areas listed in PMC 23.10.060.
“Development” means any land use or action that alters a critical area or its buffer, including city approvals that establish patterns of use such as subdivisions, short subdivisions, rezones, and conditional use permits.
“Fish habitat” means habitat used by fish at any life stage at any time of the year.
“Floodplain” means the land area subject to inundation by a 100-year flood.
“Floodway” means the watercourse channel and adjacent land area that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water elevation more than one foot.
“Functions and values” means the benefits conferred by critical areas, including water quality protection, fish and wildlife habitat, food chain support, flood storage and conveyance, ground water recharge, erosion control, and protection from hazards. “Function” means the benefit; “value” means the magnitude of the benefit.
“Hazardous substance” means a liquid, solid, or gas that exhibits any of the properties described in WAC 173-303-090 or 173-303-100.
“Historic” means existing before the area was altered by human activity.
“Impact” means to adversely affect a natural system or increase the hazard which a natural system poses to human life and property.
“Impervious” refers to a hard surface area that retards the entry of water into the soil.
“Lowest floor” excludes unfinished enclosures usable only for parking, building access, or storage.
“Monitoring” means assessing the performance of mitigation measures by collection and analysis of data on changes in natural systems.
“One-hundred-year flood” means a flood having a one percent chance of being equaled or exceeded in any given year.
“Ordinary high water mark” means that mark on the bed or bank below which inundation is so common in ordinary years that the soil and/or vegetation are distinct from that of the abutting upland.
“Person” means any person, organization, or other group.
“Primary association” means a relationship between a species and a habitat area whereby the species regularly uses or otherwise needs the habitat area to thrive.
“Rill” means a small, steep-sided channel caused by erosion.
“Riparian habitat” means stream-side areas that influence the aquatic ecosystem by providing shade, debris, or insects and that provide habitat for riparian wildlife.
“Species” means a group of animals commonly classified by the scientific community as a species or subspecies.
“Substantial improvement” means any repair, reconstruction, or improvement of a structure, the cost of which exceeds 50 percent of the structure’s market value before the improvement, or, if the structure was damaged, before the damage occurred.
“Watercourse” means flowing waters of the state, perennial or intermittent, excluding artificial waterways such as ditches or canals not created by human alteration of a natural watercourse.
“Wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and 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 include artificial wetlands created from nonwetland areas to mitigate the conversion of wetlands.
“Wetland mitigation bank” means a site where wetlands are restored, created, or enhanced to mitigate in advance authorized impacts to similar resources. (Ord. 2002 § 5 (Exh. C § 1), 2019; Ord. 1592 § 1, 2004).
23.10.040 Administration.
The director, as defined in PMC 16.10.020(B)(1), shall administer and interpret this title. (Ord. 1592 § 1, 2004).
23.10.050 Fees.
The city shall, by resolution, establish fees by which the city shall recover its cost of reviewing development proposals, including the cost of engineering review, planning review, inspections, and administration. The applicant shall be responsible for all required reports, assessments, studies, and plans. (Ord. 1592 § 1, 2004).
23.10.060 Applicability.
Unless exempted in PMC 23.10.070, this title shall apply to all developments (see definition in PMC 23.10.030) within one or more of the following critical areas or their associated buffers or building setback areas, regardless of whether the site has been previously identified as a critical area:
A. Wetlands as designated in Chapter 23.20 PMC;
B. Critical aquifer recharge areas as designated in Chapter 23.30 PMC;
C. Floodplains as designated in Chapter 23.40 PMC;
D. Geologically hazardous areas as designated in Chapter 23.50 PMC; and
E. Fish and wildlife habitat conservation areas as designated in Chapter 23.60 PMC. (Ord. 1592 § 1, 2004).
23.10.070 Exemptions.
The following shall be exempt from this title:
A. Emergency actions immediately necessary to prevent injury or property damage, provided the action minimizes impact to critical areas and buffers. The person undertaking the action shall notify the director(s) within one day following commencement of the emergency action. The director(s) shall determine if the action was allowable under this subsection and commence enforcement if not. Within one year of the date of the emergency, the person undertaking the action shall fully mitigate any resulting impacts to the critical area and buffers in accordance with an approved critical areas report and mitigation plan.
B. Normal operation, maintenance, or repair of existing structures, utilities, roads, levees, drainage systems, or similar improvements, including vegetation management, if the action does not alter or increase the impact to or encroach upon the critical area or buffer, and if the action accords with best management practices and maintenance, and does not impact an endangered or threatened species.
C. Passive outdoor activities such as recreation, education, and scientific research that do not degrade the critical area.
D. Forest practices in accordance with Chapter 76.09 RCW and WAC Title 222, other than forest practice conversions.
E. Structural modifications of, additions to, or replacements of existing legal structures without altering or increasing the impact to the critical area; provided, that the city’s regulations regarding legal nonconforming uses are complied with.
F. The following work within improved public rights-of-way or private street easements: construction, replacement, or modification of streets, utilities, lines, mains, equipment, or appurtenances, excluding electrical substations; provided, that actions that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased storm water, shall be subject to the following requirements wherever possible:
1. Critical area and/or buffer widths shall be increased equal to the width of the right-of-way improvement, including disturbed areas; and
2. Native vegetation shall be retained and replanted along the right-of-way improvement.
G. Minor utility projects such as placement of a utility pole, street sign, anchor, or vault, which do not significantly impact critical areas function or values, if constructed using best management practices.
H. Removal with hand labor and light equipment of invasive or noxious plants as designated by the director(s), including:
1. English ivy (Hedera helix);
2. Himalayan blackberry (Rubus discolor, R. procerus); and
3. Evergreen blackberry (Rubus laciniatus).
I. Thinning or removal of trees which a qualified arborist, landscape architect, or forester has documented as posing a threat to public safety and which do not provide critical habitat such as eagle perches; provided, that removed trees and thinnings are left on-site, and for each tree removed, two replacement trees shall be planted in the same or nearly same location within one year in accordance with a plan approved by the director(s). The replacement trees shall be of species native and indigenous to the site. Deciduous trees shall be at least one inch in diameter at breast height. Evergreen trees shall be at least six feet in height measured from the top of the root ball.
J. Measures to control fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed vegetation shall be replaced with the same or similar native species within one year in accordance with an approved plan.
K. Application of herbicides, pesticides, or fertilizers, if necessary; provided, that their use shall conform to Department of Fish and Wildlife management recommendations and the regulations of the Department of Agriculture and the U.S. Environmental Protection Agency.
L. Minor clearing or digging necessary for surveys, soil logs, percolation tests, and similar activities, provided critical area impacts are minimized and disturbed areas are immediately restored.
M. Navigational aids and boundary markers.
N. Proposed developments that have undergone critical areas review at a previous stage of permit review, provided the earlier permit has not expired.
O. Harvesting of wild crops without injuring their natural reproduction, tilling the soil, planting crops, applying chemicals, or altering the critical area.
P. Conservation measures of soil, water, vegetation, fish, and other wildlife that do not adversely impact ecosystems.
Q. Required environmental impact remediation.
R. Existing and ongoing agricultural activities where the land has not lain idle for so long that modifications to the hydrological regime are necessary to resume operations; and
S. Development of Category III wetlands less than 250 square feet in size and Category IV wetlands less than 1,000 square feet in size, if a critical areas report demonstrates that:
1. The wetland does not provide suitable habitat for amphibians; and
2. The wetland does not possess unique characteristics that would be difficult to replicate. (Ord. 1592 § 1, 2004).
23.10.080 Review process.
The director’s general sequence for administering this title shall be per the following table, which shows questions the director shall answer, and actions he or she shall take depending on the answer.
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Step 1 |
Is the development proposal in a critical area or its buffer? The director shall check maps, review the environmental checklist, visit the site, and require scientific determinations as necessary to make this determination. |
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Yes |
No |
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Go to Step 2 |
Go to Step 4 |
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Step 2 |
Is the development proposal exempt per PMC 23.10.070? |
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Yes |
No |
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Go to Step 4 |
Require a critical areas report. Don’t issue determination of completeness until critical areas report is received. Reference critical areas report in any public notice. |
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Step 3 |
Does the proposal, with conditions of approval as necessary, conform to PMC 23.10.130, Substantive requirements? |
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Yes |
No |
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Go to Step 4 |
Go to Step 4 |
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Step 4 |
Document the review process in a manner appropriate to, and filed with, the permit(s) required for the proposed development, and act on the permit application in accordance with the findings. |
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(Ord. 1592 § 1, 2004).
23.10.090 Critical areas reports.
Unless waived by the director(s), critical areas reports shall be prepared for nonexempt proposed developments located within critical areas or their buffers. Said critical areas reports shall:
A. Be prepared by qualified professionals as defined in WAC 365-195-905(4). The following list shows the type of critical areas report and the related professional discipline.
1. Wetlands: wetland biologist.
2. Critical aquifer recharge areas: hydrogeologist, geologist, or engineer.
3. Floodplains: hydrologist or engineer.
4. Geologically hazardous areas: engineer or geologist.
5. Fish and wildlife habitats: biologist.
B. Incorporate best available science.
C. Cover a study area large enough to understand relationships with important off-site factors and identify any off-site critical area so near that its required buffer covers part of the project site.
D. Contain the following unless waived by the director:
1. Name and contact information of the applicant, description of the proposed development, and identification of required permits;
2. Site plan drawn to scale showing critical areas, buffers, existing structures, and proposed structures, clearing, grading, and storm water management;
3. Characterization of critical areas and buffers;
4. Assessment of the probable impact to critical areas;
5. Analysis of site development alternatives;
6. Description of efforts to avoid, minimize, and mitigate impacts to critical areas pursuant to PMC 23.10.130(E), sequencing;
7. Mitigation plans as needed, in accordance with PMC 23.10.110;
8. Evaluation of compliance with this title’s substantive requirements applicable to the proposed development;
9. Financial guarantees to ensure compliance, such as a performance bond or deposit, if necessary;
10. Additional information as required in the chapter corresponding to the type of critical area;
11. Documentation of who prepared the report and when, with fieldwork and data sheets;
12. Statement specifying the accuracy of the report and assumptions relied upon; and
13. Additional information as required by the director. (Ord. 1592 § 1, 2004).
23.10.100 Previous studies.
Critical areas reports may rely upon, without duplication of effort, valid previous studies prepared for the site, taking into account any change in the site, the proposed development, or the surrounding area. (Ord. 1592 § 1, 2004).
23.10.110 Mitigation plan requirements.
If the city allows conformance with this title’s substantive requirements to be achieved by mitigation, the critical areas report shall include a mitigation plan consisting of:
A. An analysis of the anticipated impacts;
B. A strategy for mitigating the impacts, including site selection factors;
C. An analysis of the anticipated functions and values that will result from the mitigation, including an assessment of risks;
D. A review of the best available science relative to the proposed mitigation;
E. Specific standards for evaluating whether the mitigation is successful;
F. Detailed construction plans, including:
1. Construction timing;
2. Grading and excavation details;
3. Erosion and sediment control features;
4. Planting plan; and
5. Measures to protect plants until established;
G. A program for monitoring the mitigation over at least five years; and
H. Potential corrective measures should the monitoring indicate standards are not being met. (Ord. 1592 § 1, 2004).
23.10.120 Independent review of critical areas report.
The director(s) may have the critical areas report evaluated by an independent qualified professional and/or request consultation from an agency with expertise. If the report and evaluations disagree, the director(s) shall determine which to utilize. (Ord. 1592 § 1, 2004).
23.10.130 Substantive requirements.
A. All treatment of critical areas shall be in accordance with best available science as defined in WAC 365-195-900 through 365-195-925, which are hereby adopted by reference, along with the Washington State Department of Community Development’s Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas.
B. Critical areas and their buffers shall be left undisturbed, except the following may be permitted if best management practices are used:
1. Authorized functional restoration;
2. In buffers: utility poles and utility lines which do not require excavation;
3. Permeable-surfaced walkways, trails, and minimal wildlife viewing structures;
4. Developments for which mitigation is allowed per subsection E of this section; and
5. Other uses specifically authorized by this critical areas code.
C. No development shall occur which results in a net loss of the functions or values of any critical area except reasonable use variances per PMC 23.10.140. The pre- and postdevelopment functional comparison shall be on a per-function basis unless otherwise authorized by this title.
D. No development shall occur in critical areas and their buffers which results in an unreasonable hazard to the public health and safety.
E. These substantive requirements shall be met via one or more of the following methods, listed in preferential sequence (commonly known as “sequencing”). The methods used shall be those which are highest on the list yet consistent with the objectives of the proposed development.
1. Avoid the impact altogether by not taking a certain action or parts of an action;
2. Minimize the impact by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
3. Rectify the impact by repairing, rehabilitating, or restoring the affected environment;
4. Reduce or eliminate the impact over time by preservation and maintenance operations;
5. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments. Mitigation should occur near the site of impact and should replace values on a function-by-function basis unless it is more cost-effective to mitigate lost functions at a larger scale, such as at a wetland mitigation bank within the impacted wetland’s drainage basin. The city reserves the right to disallow mitigation that would be located outside the UGA;
6. Monitor the required compensation and take remedial or corrective measures when necessary.
F. As a condition of any permit approval, the city may require that:
1. The outer edge of the critical area or buffer be marked, signed, or fenced to protect the resource. Such protection may be temporary, during construction, or permanent such as to protect the resource from livestock or people. The director shall specify the design and sign message, if applicable, of such markers, signs, and fencing;
2. The applicant file a notice with the county records and elections division stating the presence of the critical area or buffer and the application of this title to the property to inform subsequent purchasers of the property;
3. The critical area and/or buffer be placed in a critical areas tract or conservation easement, the purpose of which is to set aside and protect the critical area. The critical areas tract or conservation easement shall be:
a. Held by the city, a homeowner’s association, a land trust or similar conservation organization, or by each lot owner within the development in an undivided interest;
b. Recorded on all documents of title of record for the affected parcels;
c. Noted on the face of any plat or recorded drawing; and
d. Delineated on the ground with permanent markers and/or signs in accordance with local survey standards.
G. The city may allow averaging of buffer widths if a qualified professional demonstrates that:
1. Functions and values are not adversely affected;
2. The total buffer area is not reduced; and
3. At no location is the buffer width reduced more than 40 percent.
H. Unless otherwise provided, buildings and other structures shall be set back a distance of 10 feet from the edges of all critical areas and critical area buffers. The same protrusions into this setback area shall be allowed as the zoning code allows into property line setback areas.
I. Lots created through subdivisions or short plats may contain critical areas and buffers, provided they contain adequate buildable area to build upon. Subdivision and short plats shall show, on their face, any applicable critical areas limitations.
J. When any existing regulation, easement, covenant, or deed restriction conflicts with this title, that which provides more protection to the critical areas shall apply.
K. When critical areas of two or more types coincide, the more restrictive buffer and requirements shall apply.
L. The substantive requirements peculiar to the type of critical area shall also be complied with. See the following chapters in this title. (Ord. 2002 § 5 (Exh. C § 2), 2019; Ord. 1592 § 1, 2004).
23.10.140 Variances.
The city may grant variances from this title’s standards in accordance with PMC 21.50.170 for critical areas within shoreline jurisdiction and Chapter 16.90 PMC for all other areas of the city if the criteria in subsection A or B of this section are met.
A. The variance conforms with the variance criteria stated in PMC 21.50.170, WAC 173-27-170 for critical areas within shoreline jurisdiction, and PMC 16.90.045 for all other areas of the city, plus the variance:
1. Conforms with the purpose of this title;
2. Does not impact anadromous fish habitat; and
3. Is justifiable in light of the best available science.
B. Reasonable Use (Conformance with PMC 16.90.045 Criteria Is Not Required).
1. The application of this critical areas code would otherwise deny all reasonable economic use of the property;
2. The city does not offer to compensate the owner for the denial of reasonable economic use;
3. No other reasonable economic use of the property or development design has less impact on the critical area;
4. The proposal does not pose an unreasonable threat to the public health, safety, or welfare;
5. The proposal conforms with other applicable regulations;
6. Impacts to critical areas are mitigated;
7. The inability to derive reasonable economic use is not the result of the applicant’s actions or that of a previous property owner, such as by segregating or dividing the property and creating an undevelopable condition;
8. 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; and
9. The application is sufficiently documented (for example, critical areas report, mitigation plan, permit applications, and environmental documents) to make a determination regarding these criteria.
The reasonable use provisions of subsection B of this section shall not apply within the jurisdiction of the Shoreline Management Act. A shoreline variance under PMC 21.50.170 is required to accomplish the purposes of this subsection. The procedures and criteria under PMC Title 21 shall also apply. (Ord. 2002 § 5 (Exh. C § 3), 2019; Ord. 1592 § 1, 2004).
23.10.150 Enforcement and inspections.
A. In enforcing this title per Chapter 16.130 PMC, the director may require a restoration plan prepared by a qualified professional. Historic functions and values, soil configurations, and native vegetation shall be used as a guide for restoration. Flood and geological hazards shall be reduced to the predevelopment level.
B. Reasonable access to the development shall be provided to agents of the city for critical areas inspections, monitoring, restoration, or emergency action. (Ord. 1592 § 1, 2004).
23.10.160 Record per WAC 365-195-915 and 365-195-920.
A. This title is designed to implement the city’s comprehensive plan’s natural environment element policies regarding protection functions and values of critical areas.
B. This title is based on best available science. See PMC 23.10.130(A). This title largely derives from the Example Code Provisions for Designating and Protecting Critical Areas prepared by the Washington Department of Communities, Trade, and Economic Development, which in turn is based on documented best available science. This title is also based on Guidance Document for the Establishment of Critical Aquifer Recharge Areas Ordinances, published by the Washington Department of Ecology.
C. The city took special consideration to preserve or enhance anadromous fisheries, as evidenced in PMC 23.10.140(A), 23.60.030(E), and 23.60.050(H).
D. In addition to scientific information, economic, political, and legal factors were also considered in determining certain substantive requirements. Where this critical areas code’s buffer widths differ from those in the Example Code Provisions for Designating and Protecting Critical Areas, the purpose is to develop the economy and protect property rights. The city identifies no substantial risk to critical areas in enacting these alternative substantive requirements. (Ord. 1592 § 1, 2004).