Chapter 17.65 REGULATIONS FOR CRITICAL AREAS

This chapter shall be known as the critical area ordinance and it is adopted to assist in orderly development, conserve the value of property, safeguard the public welfare, and provide protection for defined critical areas.

The ordinance codified in this chapter was developed under the directives of the Growth Management Act to conserve, protect, and provide no-net-loss of critical areas functions and values pursuant to RCW 36.70A.172. Critical areas are defined as wetlands, aquifer recharge areas, flood hazard areas, geologically hazardous areas, and fish and wildlife habitat conservation areas. Some of these areas, such as geologic hazards and flood hazard areas are critical because of the hazard they represent to public health. Others, such as fish and wildlife habitats and wetlands are critical because of their public value.

Critical areas will be designated by definition and then classified through site assessments so that they can be identified using scientifically based criteria, protected, or their functions and values mitigated resulting in no-net-loss. The use of site assessments to confirm the actual presence and classification of critical areas is central to the management approach developed under this chapter.

The ordinance codified in this chapter was drafted to provide regulatory structure for identification, designation, protection, and mitigation of critical areas. This chapter allows staff to provide site visits, preliminary reviews, and preapplication meetings to assist in the identification of critical areas.

Critical Area Maps. Maps are useful primarily as an indicator of the distribution and extent of critical areas. Maps will be used wherever possible as part of the screening process for evaluating individual applications. Critical areas maps may be updated as critical areas are delineated through the application process. Although a number of map resources are utilized in this chapter, regulatory measures such as buffer requirements are based upon the identification of critical areas during the permit, development authorization, or other approval processes. These maps include the location of known or potential critical areas and are based on the best available science information, and include natural resource information, gathered through field inventory, as well as information prepared by applicable state and federal agencies. These maps shall be referred to as the “Critical Areas Maps” of the city of Sedro-Woolley. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.020 Application, purpose.

A. This chapter shall apply to land use, development, structures, facilities, and platting located in the city limits of Sedro-Woolley, within the geographical areas that meet the definitions and criteria for critical areas regulation as set forth in this chapter. No development activity or alteration of land, water, or vegetation within a critical area or its standard buffer, except as specifically allowed by this chapter, shall be allowed without prior authorization by the director.

B. The purpose of these regulations is to:

1. Protect human life, property, and the public health and safety of the citizens of Sedro-Woolley;

2. Minimize the expenditure of public money;

3. Maintain the city’s flood insurance eligibility while avoiding regulations which are unnecessarily restrictive or difficult to administer;

4. Ensure that wetland, fish and wildlife habitat, and other critical area functions and values are protected or mitigated for no-net-loss to provide public benefits.

C. The following shall constitute critical areas:

1. Wetlands and Riparian Corridors, Including Brickyard Creek, Willard Creek, Hanson Creek and Tributaries. Wetlands and riparian corridors serve many important ecological and environmental functions and help to protect public health, safety and welfare by providing flood storage and conveyance, erosion control, fish and shellfish production, fish and wildlife habitat, recreation, water quality protection, water storage, education, scientific research and other public benefits. It is the purpose of this chapter to protect these functions to prevent the continual loss of wetlands and riparian corridors, and where practical to enhance or restore wetlands and riparian corridors functions and values.

2. Areas with a Critical Recharging Effect on Aquifers Used for Potable Water. Potable water is an essential life-sustaining element. Sedro-Woolley’s drinking water comes from Public Utility District No. 1, rather than groundwater supplies. Once groundwater is contaminated, it is difficult, costly, and sometimes impossible to clean up. It is the purpose of this chapter to prevent contamination and depletion, avoid exorbitant clean-up costs, hardships and potential physical harm to people. There are some existing wells used for irrigation in the city limits that are not mapped.

3. Fish and Wildlife Habitat Conservation Areas. In addition to their intrinsic value, certain species of fish and wildlife represent important historic, cultural, recreational and economic resources. Many species serve as indicators of the condition of the environment and the quality of life that local residents have invested in, enjoy and respect. It is the purpose of this chapter to protect, restore where practical, and enhance fish and wildlife populations and their associated habitats.

4. Frequently Flooded Areas. It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in the floodplain and the floodway according to the provisions established under this code; and

5. Geologically Hazardous Areas. Geologically hazardous areas include areas susceptible to the effects of erosion, sliding, earthquake, or other geologic events. They pose a threat to the health and safety of citizens when incompatible residential, commercial, industrial, or infrastructure development is sited in areas of a hazard. Geologic hazards pose a risk to life, property, and resources when steep slopes are destabilized by inappropriate activities and development or when structures or facilities are sited in areas susceptible to natural or human caused geologic events. Some geologic hazards can be reduced or mitigated by engineering, design, or modified construction practices so that risks to health and safety are acceptable. When technology cannot reduce risks to acceptable levels, building and other construction within identified geologically hazardous areas shall be prohibited.

D. Exemptions from Critical Areas Review Requirements. Subject to the limitations established in this chapter the following developments, associated uses and activities shall be exempt from the critical areas review procedures:

1. Emergency activities necessary to reduce or prevent an immediate threat to public health, safety, and welfare. Such emergency is an unanticipated, imminent threat to the public health or safety or to the environment that requires immediate action within a period of time too short to allow full compliance with this chapter. The exemption for emergencies should not eliminate the need for later mitigation to offset the impacts of emergency activity. Once the immediate threat has been addressed, any adverse impacts on critical areas should be minimized and mitigated;

2. Ongoing agriculture activities, including related development and activities that do not result in an expansion or further expansion into a critical area or its standard buffer;

3. Normal and routine maintenance or repair of existing structures, utilities, sewage disposal systems, potable water systems, drainage facilities, ponds or public and private roads and driveways associated with existing residential or commercial development; normal maintenance, repair, or operation of existing structures, facilities, and improved areas accessory to a single-family residential use; and such maintenance activities are limited to existing landscaping improvements and do not expand into critical areas or associated buffers, do not expose soils, do not alter topography, do not destroy or clear native vegetation, and do not diminish water quality or quantity;

4. Modification of any existing residence that does not add to or alter the existing use and does not expand the building footprint or increase septic effluent;

5. Activities involving artificially created wetlands or artificial watercourses intentionally created from nonwetland sites, including, but not limited to, grass-lined swales, irrigation and drainage ditches, roadside ditches, stormwater detention facilities, and landscape features, except those features that provide critical habitat for anadromous fish and those features that were created as mitigation pursuant to the provisions of this chapter;

6. Passive outdoor recreation activities that do not adversely impact critical areas or their buffers;

7. Education and scientific research activities that do not adversely impact critical areas or their buffers. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.025 Definitions.

As used in this chapter:

“Anadromous fish” refers to a fish species that ascends rivers from the sea to spawn.

“Aquifer recharge areas, critical” refers to areas where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of water.

“Artificial watercourse” refers to ditches and other water conveyance systems, not constructed from natural watercourses, which are artificially constructed and actively maintained for irrigation and drainage. Artificial watercourses include lateral field ditches used to drain farmland where the ditch did not replace a natural watercourse, roadside ditches, stormwater systems, or any other constructed drainage ditch.

“Best available science” refers to information gathered, analyzed and presented based on professional experience, expertise, and judgment, and established scientific principles and practices. Such principles and practices include peer review, use of scientific methodology, logical analysis and reasonable inference, statistical analysis, rigorous referencing within the scientific literature, and conclusions drawn from within an accepted scientific framework and placed in an appropriate scientific context.

“Best management practices (BMPs)” refers to physical, structural, and/or managerial practices, that when used singly or in combination, prevent or reduce water pollution. Source control BMPs include those which keep the pollutant from ever coming in contact with stormwater, and stormwater treatment BMPs include those which consist of various methods of treating stormwater. See also Chapters 13.36 and 13.40 (Stormwater Management).

“Biological assessment” refers to a study prepared by a qualified biologist that describes the biotic and abiotic aspects of the site and surrounding area. This includes, but is not limited to, the flora, fauna, plant communities, habitat(s), streams, wetlands, soils, and topography of and on the site and adjacent area.

“Buffer, critical area” is an area that provides a reasonable margin of safety through protection of slope stability, attenuation of surface water flows and landslide hazards reasonably necessary to minimize risk to the public from loss of life or well-being or property damage resulting from natural disasters; or an area which is an integral part of a stream or wetland ecosystem or wildlife habitat and that provides shading, input of organic debris and coarse sediments, room for variation in stream or wetland boundaries, habitat for wildlife, and protection from harmful intrusion necessary to protect the public from losses suffered when the functions and values of aquatic resources are degraded.

“Compensatory mitigation” is replacing project-induced critical area losses or impacts, and includes, but is not limited to, restoration, creation, or enhancement.

“Critical areas” means and includes the following areas and ecosystems:

1. Wetlands;

2. Areas with a critical recharging effect on aquifers used for potable water;

3. Fish and wildlife habitat conservation areas;

4. Frequently flooded areas; and

5. Geologically hazardous areas.

“Delineation” is the precise determination of wetland boundaries in the field according to the application of specific methodology as described in the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual and the Western Mountains, Valleys, and Coast Regional Supplement (May 2010).

“Development” means any manmade change to the land or improvements occurring after the effective date of the ordinance codified in this chapter including structures, mining, dredging, drilling, filling, grading, paving or excavation, storage of equipment and materials, and excluding the removal of vegetation. Where a project is dividable into parts, the entire scope of such changes or improvements constituting an integral, functional project should be considered the development for purposes of determining whether such development is allowed or requires a permit.

“Director” means the city of Sedro-Woolley planning director or his/her designee.

“Fish and wildlife habitat conservation areas (HCA)” refers to areas with which endangered, threatened, sensitive, priority species, their habitat, streams, stream corridors, or mature forested areas, as indicated by local, state, or federal governmental agencies, have a primary association.

“Geologically hazardous areas” are areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to siting commercial, residential, or industrial development consistent with public health or safety concerns.

“Habitats of local importance” means and includes a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alteration, such as cliffs, talus, mature forests, corridors, and wetlands.

“In-lieu of fee” refers to a fee paid as compensation for impacting a critical area in place of completing compensatory mitigation. Any in-lieu fee paid shall go towards protection of habitat commensurate to compensate the lost functions and values of the critical area affected by a development.

“Mean sea level” means the average height of the sea for all stages of tide, also equals National Geodetic Vertical Datum.

“Mobile home or manufactured home” means any structure designed or used as a permanent residence, built on a permanent chassis, and transportable to site of placement in one or more sections.

“Mobile home park or manufactured home park” means a parcel of land in one ownership containing two or more mobile homes or manufactured homes, sited for habitation.

“Native vegetation” refers to plant species that are indigenous to the Sedro-Woolley area.

“Natural watercourse” refers to any stream in existence prior to settlement that originated from a natural source. An example of a natural watercourse is a stream that originates in a wetland or upland area, flows through agricultural, rural, and/or urban areas, and ultimately empties into a saltwater bay or another watercourse. A natural watercourse may have been ditched or piped.

“Primary association” means the use of a habitat area by a species for breeding, nesting, rearing young, roosting, feeding, or foraging on a regular basis.

“Public facilities” means and includes streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, domestic water systems, storm and sanitary sewer systems, parks and recreation facilities, and schools.

“Public services” means and includes fire protection and suppression, law enforcement, public health, education, recreation, environmental protection, and other governmental services.

“Qualified expert” means a person having substantially demonstrated experience as a practicing specialist with a minimum of five years’ experience working full time in the profession and who has a degree in a related field from an accredited college or university or who has equivalent training.

“Residential health care facilities” means facilities caring for elderly or infirm persons wherein clients are partly or entirely residents or detainees thereof. Includes hospitals, convalescent homes and homes for the elderly where some supervision or health care is provided.

“Seismic hazard areas” are areas subject to severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement, or soil liquefaction. The city of Sedro-Woolley is located in Seismic Zone 3 and construction is required to comply with the International Building Code seismic standards.

“Species of local importance” are those species that are of local concern due to their population status or their sensitivity to habitat manipulation.

“Steep slope areas” are areas with slopes greater than fifteen percent.

“Structure” means a walled and roofed building or mobile home, or gas or liquid storage tank that is principally above ground by at least three feet.

“Substantial improvement” means any repair, reconstruction, or improvement to a structure, the cost of which equals or exceeds fifty percent of the market value of the structure either:

1. Before the improvement is started; or

2. If the structure has been damaged and is being restored, before the damage occurred.

This term does not, however, include either:

1. Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are necessary to assure safe living conditions; or

2. Any alteration of a structure listed in the National or State Register of Historic Places.

“Unavoidable impacts” refers to affecting critical areas where site conditions preclude avoidance because of density requirements, critical areas that bisect parcels such as streams or linear wetlands, or parcels that contain many small wetlands.

“Urban growth” refers to growth that makes intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of such land for the production of food, other agricultural produce, or fiber, or the extraction of mineral resources. When allowed to spread over wide areas, urban growth typically requires urban governmental services. “Characterized by urban growth” refers to land having urban growth located on it, or to land located in relationship to an area with urban growth on it as to be appropriate for urban growth.

“Wetland” or “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 l, 1990, that were unintentionally created as a result of the construction of a road, street or highway. However, wetlands may include these artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands, if permitted by the city.

“Wetland mitigation bank” means a wetland area that has been restored, created, enhanced, or (in exceptional circumstances) preserved, which is then set aside to compensate for future conversions of wetlands for development activities. A wetland bank may be created when a government agency, a corporation, or a nonprofit organization undertakes such activities under a formal agreement with a regulatory agency. The value of a bank is determined by quantifying the wetland values restored or created in terms of “credits.” (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.030 Authority.

The ordinance codified in this chapter is adopted under the authority of Chapters 36.70 and 36.70A RCW, and Article 11 of the Washington State Constitution. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.040 Applicability, jurisdiction and coordination.

A. Relationship to Other Federal, State and County Jurisdictional Agencies’ Regulations. Many state, federal and regional regulations apply to projects conducted within critical areas. Uses otherwise allowed by local codes do not eliminate other agency regulatory requirements.

1. Federal regulations include:

a. Clean Water Act, Sections 404, 401;

b. Coastal Zone Management Act;

c. Endangered Species Act;

d. Federal Water Pollution Control Act;

e. Food Security Act—Swampbuster;

f. National Environmental Policy Act;

g. National Floodplain Insurance Program;

h. River and Harbor Act, Section 10.

2. State regulations include:

a. Chapter 43.21C RCW, State Environmental Policy Act;

b. Chapter 75.20 RCW, Hydraulic Project Approval;

c. Chapter 76.09 RCW, Forest Practices Regulations;

d. Chapter 77.12 RCW, Bald Eagle Protection Rules;

e. Chapter 78.44 RCW, Surface Mining Act;

f. Chapter 86.16 RCW, Floodplains;

g. Chapter 90.03 RCW, State Water Code;

h. Chapter 90.48 RCW, State Water Pollution Control Act;

i. Chapter 90.58 RCW, Shoreline Management Act.

3. Local regulations include:

a. Chapter 2.88, Environmental Policy;

b. Chapter 13.36, Stormwater Management Standards;

c. Skagit County Shoreline Management Program.

B. Jurisdictional Substitution. In cases where other agencies possess jurisdictional control over critical areas and it is determined by the director that the permit conditions in permits issued by those other agencies satisfy the requirements of this chapter, those requirements may substitute for the requirements of this chapter. Such requirements shall be a condition of critical area approval and be enforceable under this chapter. Such agencies may include, but are not limited to, the United States Army Corps of Engineers, Environmental Protection Agency, U.S. Fish and Wildlife Service; local tribes, the Washington State Department of Ecology, Washington State Department of Natural Resources and Washington State Department of Fish and Wildlife. The applicant shall be notified in writing when any such substitution is made. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.050 Resource information and maps.

A. Critical areas defined and identified in this chapter shall be mapped whenever possible. These maps shall be advisory and used by the director to provide guidance in determining applicability of the standards to a property. Sites which include critical areas, whether mapped or not mapped, shall be subject to the provisions of this chapter. The aerial topographic map of the city of Sedro-Woolley, October 2003 and subsequent updates, along with wetland delineation maps in the city of Sedro-Woolley land use files, are the advisory maps, along with the “Flood Insurance Study, City of Sedro-Woolley,” dated December 1, 1989, and any revisions thereto, with accompanying flood insurance rate map (FIRM), dated December 1, 1989. That document is on file at Sedro-Woolley City Hall, 720 Murdock Street. These maps are hereby adopted by reference and declared to be part of this chapter, and any subsequent revisions.

B. Recognizing the necessity for accurate geographic information, a comprehensive inventory identifying the location, size, and other characteristics of critical areas shall be compiled as new data is available.

C. The results of the inventory shall be transferred to maps and published. These maps shall be available at the planning department for public inspection.

D. When completed, critical area maps shall serve as guides to the location and extent of such critical areas.

E. Critical area maps, with the exception of the flood insurance rate map used to designate certain flood hazard areas, are provided only as a general guide to alert the user to the possible distribution, location and extent of critical areas. Map identification of critical areas provides only approximate boundaries and locations. The actual locations and boundaries of critical areas, as well as their quality and quantity, shall be based upon the presence of the features applicable to each critical area element in this chapter. Maps shall not be considered a regulatory standard or substitute for site specific assessments. The application of definitions, methodologies and performance standards pursuant to the site specific assessment requirements provided in this chapter is the controlling factor in determining the actual presence and extent of critical areas.

F. The critical area maps utilize the best information currently available and will be updated on a continual basis by the director.

G. On a regular basis, formal requests shall be made for updated information to the resource agencies responsible for updating their respective map information. Incorporation of such updated information into the critical areas maps shall be made.

H. Critical areas mapped under the site assessment requirements of this chapter shall be compiled in a database and incorporated into critical area maps. This map information shall be utilized to facilitate tracking of compliance with the requirements of this chapter to ensure long-term protection of critical areas. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.060 General requirements and authorizations required.

A. All proposals specified in Section 17.65.100 and located in critical areas shall meet the following general requirements:

1. Site. Complete stabilization of all portions of a site which are disturbed or impacted by the proposed development, including all development coverage and construction activity areas, shall be required. Complete stabilization of all portions of a site refers to the process and actions necessary to ensure that existing and proposed site improvements are stabilized, and that all on-site areas and adjacent properties which are disturbed or impacted are stabilized. The proposed development shall be limited and controlled to avoid adverse impacts and potential harm and ensure safe, stable and compatible development appropriate to site conditions. Other reasonable and appropriate solutions to solve site stability problems may be required by the director.

2. Adjacent Site, Surrounding Area, and Drainage Basin. The proposed development shall ensure safe, stable and compatible development which avoids adverse environmental impacts and potential harm to adjacent sites, the surrounding neighborhood, and the drainage basin. Detailed analysis of impacts of the development upon wetlands, riparian corridors, native vegetation and wildlife habitats, water quality, natural water temperature, slope and soil conditions, and surface water drainage may be required at the request of the director when site and area conditions indicate the need for this analysis. Supplemental technical reports may be required by the director to specify measures to preserve, protect, and maintain adjacent sites and the drainage basin and ensure safe, stable and compatible development.

B. With the exception of activities identified as exempt under Sections 17.65.020(D) and 17.65.100, any land use activity that can impair the functions and values of critical areas or their buffers through a development activity or by disturbance of the soil or water, and/or by removal of, or damage to, existing vegetation shall require critical areas review and written authorization pursuant to this chapter. Vegetation destruction or removal, other than the normal maintenance of existing landscaping identified as exempt under Section 17.65.100(L), shall be prohibited within a critical area or its required buffer, unless there is an approved mitigation plan pursuant to the requirements of the particular critical area that demonstrates there will be no adverse impact to the critical area with the proposed vegetation removal and disturbance of the soil or water and includes any mitigation or buffer enhancement necessary to address critical areas impacts. Authorizations required under this chapter overlay other permit and approval requirements of the Sedro-Woolley Municipal Code. Regardless or whether a development permit or approval is required, any proposed alteration that can adversely affect a critical area or its standard buffers’ functions must comply with the substantive and procedural requirements of this chapter. Critical areas review pursuant to this chapter shall be conducted as part of the underlying permit or approval, where applicable. It is the responsibility of the landowner, or designee, who conducts or proposes to undertake land use activities that can adversely impact critical areas or their buffers to obtain authorization prior to commencing such activities. In some cases, the typical thresholds that trigger review and permits have been reduced to zero for any development activity located within a critical area or its required buffer.

C. Procedures. No land use development permit, land division, development approval, or other authorization required shall be granted until the applicant has demonstrated compliance with the applicable provisions of this chapter.

1. The applicant shall demonstrate that the proposal submitted conforms to the purposes and standards of this chapter, assesses impacts on the critical area from activities and uses proposed, and identifies protective mechanisms adequate to meet the requirements of this chapter.

2. The director or designee shall review each proposal and determine if the proposal is consistent with applicable regulations of this chapter and if the protective mechanisms proposed are sufficient to protect the critical area, public health, safety and welfare, and if so, shall condition approval accordingly. If not, the director shall specify conditions of approval. If the director determines that there are no conditions under which the proposal could be approved, then the director shall deny the proposal.

Any proposed development or land division shall be conditioned as necessary to mitigate impacts to critical areas as required by this chapter and any project that cannot adequately mitigate its impacts to critical areas shall be denied.

Conflicts with Other Provisions. If any provision of this chapter conflicts with any other applicable code provision, the more restrictive shall apply unless specifically excepted in this chapter.

3. Satisfaction of the requirements of this chapter shall also be sufficient to satisfy the requirement for critical areas analysis and mitigation pursuant to Chapter 43.21C RCW, the State Environmental Policy Act, and Chapter 2.88, Environmental Policy.

4. SEPA Compliance. The goals, policies and purposes set forth in this chapter shall be considered policies of the State Environmental Policy Act. When applicable the applicant must meet SEPA requirements.

5. Other Permits Required. It is recognized that many local, state, and/or federal permit conditions may apply to the proposed action, and that compliance with the provisions of the chapter may not necessarily constitute compliance with other such requirements. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.065 Public notice and records.

A. Public notice for projects subject to the provisions of this chapter shall be provided pursuant to the requirements of Chapter 2.90, Consolidated Planning Procedures.

B. Records of all critical area assessments and related land use approvals and conditioning shall be maintained and be made available to the public upon request. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.070 Application submittal requirements.

In addition to the application submittal requirements specified in other codes, all development proposals subject to this chapter may include, at the director’s request, the following additional information:

A. Surveyed Site Plan. A surveyed site plan shall be prepared by a state of Washington licensed surveyor and shall include the following, all or in part when required by the director:

1. Existing topography at two-foot contour intervals on site within twenty-five feet of the site’s abutting boundaries, and within the full width of abutting public and private rights-of-way and easements.

2. Terrain and drainage flow characteristics within the site, within twenty-five feet of the site’s abutting boundaries, and within the full width of abutting public and private rights-of-way and easements.

3. Proposed location and boundaries of all required undisturbed fenced areas and buffers on site and on adjacent lands.

4. Location of all vegetation, including location and description of all trees over six inches in diameter measured five feet above the base of the trunk, shrubs over eight feet tall or six feet wide, and noting their species.

5. Location and boundaries of all existing and proposed site improvements on the site and within twenty-five feet of the site’s property boundaries, and the full width of abutting public and private rights-of-way and easements. This shall include the limits of development coverage, impervious surfaces and construction activity areas (noting total square footage and percentage of site occupied).

6. Location of all grading activities in progress or proposed, and all drainage control facilities or systems in existence in progress or proposed within twenty-five feet of the site’s property boundaries, and the full width of abutting public and private rights-of-way and easements.

7. Location of all existing and proposed utilities (water, sewer, gas, electric, phone, cable, etc.), both above and below ground, on site, on adjacent lands within twenty-five feet of the site’s property lines, and in the full width of abutting public rights-of-way, and proposed methods and locations for the proposed development to hook up to these services.

8. Such other additional site plan information as necessary to complete review of a project or waive specific submittal requirements when not necessary for project review.

B. Technical Reports. Technical reports shall be prepared as required by the director detailing geological, hydrological, drainage, and other site conditions, to comply with the development standards in Section 17.65.060 and pursuant to Chapter 13.36, Stormwater Management. The reports shall be used to condition development to prevent potential harm and to protect the critical nature of the site, adjacent properties, and the drainage basin. Technical reports prepared by consultants not contracted with the city of Sedro-Woolley for the work shall be subject to third party review by the city of Sedro-Woolley’s independent consultant/expert at the applicant’s expense. Appeals of the decision by the director in consultation with the city’s independent consultant/expert shall be subject to the administrative appeals procedures in Chapter 2.90. The city may also rely on opinions from agencies listed in Section 17.65.040(B) in making the decision. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.080 Administration.

A. The planning director in consultation with the city engineer and the building official shall be responsible for the administration of this chapter, including:

1. Review applications for development in the city limits to verify compliance with this chapter;

2. Reviewing applications for development in the city limits to assure that all necessary permits have been obtained from those federal, state or local government agencies from which prior approval is required;

3. Recording and maintaining records of:

a. As-built elevation above mean sea level of the lowest floor including basement of all new and substantially improved structures requiring a floodplain approval and whether same structure contains a basement,

b. Certification by registered professional engineer or architect as required by this chapter,

c. Floodplain approvals and other actions pursuant to the administration of this chapter;

4. Notification to adjacent communities and the Department of Ecology and the Department of Fish and Wildlife prior to any alteration or relocation of a watercourse with copy to FEMA, and maintenance within the altered or relocated portion of such watercourse so that flood-carrying capacity is not diminished;

5. When base flood elevation data has not been provided, obtaining, reviewing, and reasonably utilizing any base flood elevation and floodway data that should become available from a federal, state or other source in order to administer standards and floodways;

6. Issuance of development permits pursuant to Chapter 17.68, Home Occupation Permits, and Chapter 15.04, Building Code, before construction or development begins within the city limits;

7. Maintain for public inspection all records pertaining to the provisions of this code.

B. This chapter shall be administered in accordance with Chapter 86.16 RCW and Chapter 508-60 WAC. This chapter shall be revised as necessary to conform with any changes in state rules pertaining to flood control zones which may be adopted by the State Department of Ecology subsequent to the effective date of delegation of the state’s permit program to the city.

C. The administrative procedure for critical areas review shall be as follows:

1. Determination that an Activity Requires Standard Review. All applications for approval of activities requiring written authorization pursuant to Section 17.65.060 shall require the submission of a critical areas checklist completed and filed by the applicant on the forms provided by the planning department. If not otherwise required, all applications for critical areas review shall include a description of the proposed activity and a site plan showing the location of the proposed activity and associated area of disturbance in relation to all known critical areas or critical area indicators. Upon receipt of the application, the director shall determine whether the proposed activity fits within any of the exempt activities found in Section 17.65.100. If the proposed activity is so allowed and meets the associated conditions for such an allowance, no other critical areas review shall be required, except as necessary for the director to ensure that any conditions for such an allowance are met in practice. The director shall note this determination in the application file and provide written authorization for the project or activity to proceed as proposed in the application when undertaken in accordance with any conditions for such an allowance. Proposed activities identified under Section 17.65.100 that do not meet the conditions for such an allowance or that the director determines may result in significant adverse impacts to a critical area or its buffer shall be subject to standard critical areas review.

2. Method for Initial Determination of Critical Areas. Upon determination that the proposed activity requires detailed critical areas review, and upon receipt of a completed critical areas checklist, the director shall use the following method to determine whether critical areas or their required buffers will possibly be affected by the proposed activity:

a. Review the critical areas checklist together with the maps and other critical areas resources identified in the relevant sections of this chapter;

b. Complete the critical areas staff checklist;

c. Inspect the site; and

d. Complete the critical areas field indicator form.

3. Determination that Critical Areas Are Not Affected. If the director determines that critical area indicators are not present within two hundred feet of the proposed activity or within a distance otherwise specified in this chapter, then the review required pursuant to this chapter is complete, except as necessary for the director to ensure that the proposed activity is undertaken as described in the application and as shown on the site plan. The director shall note this determination in the application file and provide written authorization for the project or activity to proceed as proposed in the application or, where applicable, with any specific conditions of approval. This determination shall not constitute approval of any use or activity or its compliance with the requirements of this chapter, outside the scope of that stated in the application. Any proposed change in use or scope of activity from that contained in the application shall be subject to further review under this chapter. The applicant shall acknowledge in writing that this determination by the director regarding the apparent absence of critical area indicators and the likelihood that critical areas will not be affected is not intended as an expert certification regarding the presence or absence of critical areas and that the critical areas review process is subject to possible reopening if new information is received as described in subsection (C)(4) of this section. If the applicant wants greater assurance of the accuracy of any such critical area indicators determination, the applicant shall hire a qualified critical areas expert to provide such assurances.

4. Reopening of Review Process.

a. If at any time prior to completion of the public input process on the associated permit or approval, the director receives new evidence that a critical area may be present within two hundred feet of the project area or within a distance otherwise specified in this chapter, then the director shall reopen the critical areas review process pursuant to this chapter and shall require whatever level of critical areas review and mitigation as is required by this chapter.

b. Once the public input process on the associated permit or approval is completed and the record is closed, then the director’s determination regarding critical areas pursuant to this chapter shall be final; provided, however, that the director shall not be prevented from reopening the critical areas review process, if staff relied on misinformation provided by the applicant in the application or checklist. For the purposes of this subsection, “misinformation” means information regarding the nature and/or location of the proposed activity as presented in the application or regarding the presence of a critical area or critical area indicators on the subject property which the applicant knew or should have known was relevant at the time of the submittal of the checklist. Prior to reopening a critical areas review under this subsection, the director shall make a site visit. No critical areas review shall be reopened under this section unless the director determines, after the site visit, that the applicant provided misinformation.

c. If a critical areas review is reopened under this subsection after a permit or approval is granted, the burden of proof on whether the applicant submitted “misinformation” at the time of the submittal of the checklist shall be on the director. The applicant or landowner who submitted the critical areas checklist upon which the misinformation was discovered shall be the responsible party for compliance with this chapter, including any necessary mitigation.

5. Determination that Critical Areas Are Affected. If the director determines that critical area indicators are present within two hundred feet of the proposed activity or within a distance otherwise specified in this chapter, then the director shall note this determination in the application file and the applicant shall be required to provide the critical areas site assessment specified in this chapter. Development of a site assessment may precede a site visit; provided, that no disturbance of vegetation or land surface occurs prior to authorization.

6. Critical Areas Determination and Conditions of Approval. Based on the critical areas site assessment report and other available critical areas information, the director shall make a determination on the proposed activity. A determination to approve a proposed activity shall include designation of protected critical areas (PCAs) pursuant to Section 17.65.170 and stipulation of binding conditions and required mitigation, monitoring, maintenance or other conditions of approval pursuant to this chapter. If the director determines that there are no conditions under which the proposed activity could be approved, then the director shall deny the proposal. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.090 Critical areas checklist, site assessment and conditions of approval.

A. Critical Areas Checklist. Pursuant to Sections 17.65.060 and 17.65.080, every application for an activity that might alter or adversely affect a critical area or associated buffer shall include a critical area checklist on a form provided by the director. The checklist shall identify all critical area indicators and/or all known critical areas within two hundred feet of the proposed activity or within a distance otherwise specified in this chapter. The checklist shall be signed by the applicant and shall inform the applicant that if the information on the checklist is later determined incorrect, then any permit or approval issued based on misinformation (as described in Section 17.65.080(C)(4)) could be rescinded and the site required to be restored to its original condition prior to disturbance.

B. Site Assessment Required. If, after the site visit, the director determines that the proposed activity area is within two hundred feet, or within a distance otherwise specified in this chapter, of an area that may contain critical area indicators, or if the director determines that the proposed activity will adversely impact a critical area or its associated buffer, then a complete critical areas site assessment shall be required. Critical areas site assessments, as described in more detail in the various sections for each type of critical area, shall be submitted as part of a complete application for a development permit or other approval of land use activities having the potential to impact critical areas or their buffers, by a qualified expert.

C. Site Assessment Preparation. The critical area site assessment shall be prepared by a qualified expert for the type of critical area or areas involved and shall contain the information specified for each type of critical area. In general, the site assessment shall include critical area inventory, assessment of impacts and, where applicable, proposed mitigation, land use restrictions and landowner management, maintenance and monitoring responsibilities. The qualified expert may consult with the director prior to or during preparation of the site assessment to obtain approval of modifications to the contents of the site assessment where, in the judgment of the qualified expert, more or less information is required to adequately address the critical area impacts and required mitigation. The director shall allow for peer review and receipt of recommendations from qualified resource agency personnel as part of the process for approval of qualified experts.

D. Any site plans required by this chapter may be combined into a single site plan wherever possible.

E. Critical Areas Determination and Conditions of Approval. Upon receipt of a properly completed site assessment report, the director shall make a formal determination on the proposed activity as to whether it meets the requirements of this chapter and under what conditions. In making this determination, the director shall utilize the information provided in the site assessment report and all other resource information available. If the director determines that additional technical information or input is necessary or warranted, the director shall contact appropriate federal, state or tribal agencies to provide review and comment on the proposed activity. Formal determinations made by the director shall include the basis and rationale for the determination, as well as detailed specification of related conditions of approval, land use prohibitions, and required landowner mitigation, management, monitoring and/or maintenance. All such requirements shall be clearly shown on plans filed with the director.

F. Complete Record. A complete record of all formal determinations by the director, along with related critical areas checklists, site assessments, binding agreements, conditions of approval, land use prohibitions, required mitigation and a full record of comments received from federal, state or tribal agencies, shall be maintained and made available to the public upon request. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.100 Application of standards.

The standards of this chapter shall apply to all public and private proposals for new structures, proposed additions to structures, short subdivisions and subdivisions, and grading and drainage activity located on either public or private property. Projects may be exempted from the detailed critical area review requirements of this chapter when the following situations and/or conditions apply:

A. Emergencies that Threaten the Public Health, Safety and Welfare. An emergency is an unanticipated and imminent threat to the public health or safety or to the environment which requires immediate action within a period of time too short to allow full compliance with this chapter. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods that can address the emergency but also that have the least possible impact to the critical area or its buffer. The responsible party shall restore the critical area and buffer after the emergency to the extent feasible, as determined by the city planner. The person or agency undertaking such action shall notify the director within one working day or as soon as practical following commencement of the emergency activity. Following such notification, the director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the director determines that the action taken or any part of the action taken was beyond the scope of allowed emergency actions, then the enforcement provision shall apply. Restoration must be initiated during the subsequent planting season and completed in a timely manner.

B. Normal and routine maintenance or repair of existing structures, utilities, sewage disposal systems, potable water systems, drainage facilities, ponds, or public and private roads and driveways associated with preexisting residential or commercial development, provided any maintenance or repair activities shall use reasonable methods with the least amount of potential impact to the critical areas and any impact to a critical area or its buffer shall be restored after the maintenance to the extent feasible.

C. Normal maintenance, repair, or operation of existing structures, facilities, and improved areas accessory to a single-family residential use, provided any maintenance or repair activities shall use reasonable methods with the least amount of potential impact to the critical area and any impact to a critical area or its buffer shall be restored after the maintenance to the extent feasible.

D. Modification of an existing single-family residence that does not change the use from residential, does not expand the building footprint or increase sewer effluent, and does not adversely impact critical areas or their buffers.

E. Modification of other than a single-family use which does not expand the building footprint, alter the use or increase septic effluent, pursuant to the requirements of the nonconforming use and structure provisions, and does not adversely impact critical areas or their buffers.

F. Outdoor recreational activities which do not adversely impact critical areas or their buffers.

G. 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 soil, planting crops, or changing existing topography, water conditions or water sources and provided further that the activity does not adversely impact critical areas or their buffers.

H. The operation and maintenance of diking and drainage systems that do not alter their historic condition.

I. Education and scientific research activities that do not adversely impact critical areas or their buffers.

J. Construction or modification of navigational aids and channel markers.

K. Site investigation work necessary for land use applications such as surveys, soil logs, percolation tests and other related activities which do not adversely impact critical areas or their buffers. In every case, critical area impacts shall be minimized and disturbed areas shall be immediately restored.

L. Maintenance activities such as mowing and normal pruning or removal of nonnative plant species such as blackberries, Japanese knotweed, reed canary grass; provided, that such maintenance activities are limited to existing landscaping improvements and do not expand into critical areas or associated buffers, do not expose soils, do not alter topography, do not destroy or clear native vegetation, and do not diminish water quality or quantity.

M. Fish, wildlife, wetland and/or riparian enhancement activities not required as mitigation; provided, that the project is approved by the U.S. Department of Fish and Wildlife, the Washington State Department of Fish and Wildlife, the Washington State Department of Ecology, or the U.S. Army Corps of Engineers.

N. Developments in the floodplain other than the following shall require a floodplain approval:

1. Minor structures and additions for which a building permit is not required and which create no new residence such as a slab on grade, or a storage building less than one hundred twenty square feet in area, or other structures exempt from permits in the International Building Code;

2. Fills of less than twelve cubic yards or which will not raise the level of the land above that of the surrounding area;

3. Normal maintenance, resurfacing and rebuilding, at comparable grade of streets, and accessways;

4. Underground improvements and excavations;

5. Maintenance and minor repair of existing improvements;

6. Improvements to structures listed on the National or State Register of Historic Places, subject to Section 17.65.120;

7. Other minor developments that cause no significant impoundment or displacement of floodwaters, such as open fences, signs and small unenclosed structures.

All such activities shall be carried out in ways that cause the least impact to critical areas and their buffers. If any damage is caused to a critical area or buffer in connection with such activity, the critical area and its buffer must be restored to the extent feasible. To be exempt does not give permission to destroy a critical area or ignore risk. Proponents of such activities shall be responsible for notifying the director if any damage occurs and shall provide all necessary restoration or mitigation. For information on identifying, protecting or mitigating adverse impacts to critical areas, refer to sections in this chapter on wetlands, aquifer recharge areas, geologically hazardous areas, fish and wildlife habitat conservation areas, and flood hazard areas. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.120 General construction and maintenance standards.

All proposals specified in Section 17.65.050 and located in critical areas shall meet the following general construction and maintenance standards:

A. All buffer areas and other designated protected areas shall be fenced with a highly visible and durable protective barrier during construction to prevent access and protect critical areas.

B. All disturbed areas on the site, including development coverage and construction activity areas, shall be controlled in a manner sufficient to control drainage and prevent erosion during construction, and revegetated to promote drainage control and prevent erosion after construction. In cases where erosion potential is severe, the director may require a vegetation and revegetation report to be prepared by a qualified professional with landscaping, plant ecology and botany education and experience. All revegetation shall consist of trees, shrubs, and ground cover that is suitable for the location and does not require permanent irrigation systems for long-term survival.

C. When development is proposed in critical areas, grading activities shall be strictly limited to areas located on the most environmentally suitable portion of the site, as determined by the director in consultation with qualified experts.

D. All drainage associated with the development shall be connected to approved drainage control systems with approved discharge points in compliance with standards set by the city engineer, as specified in Title 15.

E. When calculating detention requirements, all disturbed area on the site shall be calculated as development coverage, including revegetated areas.

F. A development proposal’s design shall account for a one-in-one-hundred-year seismic and flood event, unless a design for a greater event is required by other applicable codes. The International Building Code’s construction standards for seismic design shall constitute compliance with this section.

G. All grading in critical areas shall not occur prior to March 31st and shall be stabilized by October 31st unless demonstrated to the satisfaction of the director based on approved technical analysis that no environmental harm or safety issues would result from grading between November 1st and March 31st.

H. Construction activity shall adhere to a prepared schedule to be approved by the director prior to issuance of a building permit. This schedule shall include, but not be limited to, a schedule for compliance with project conditions, limits of construction and work activities, equipment to be used, start and duration of each phase, and work sequencing.

I. The director may require additional construction practices and methods and requirements, including, but not limited to, best management practices and limitations on construction equipment permitted on the site, to protect critical areas on site, on adjacent sites, and within the drainage basin.

J. Dumping or filling is prohibited in wetlands and special flood risk areas. Dumping includes deposit of yard waste, trash, litter, refuse, dirt, concrete, asphalt, rocks or similar materials, but shall not include work authorized by approved plans and permits. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.150 Reasonable use exception.

If the application of this chapter would result in denial of all reasonable and economically viable use of a property, then a landowner may seek a reasonable use exception from the standards of this chapter, except for the flood hazard critical area where no exceptions are allowed. Reasonable use exceptions shall only apply to legal lots of record established prior to the effective date of this chapter. Reasonable use exceptions are intended as a “last resort” when no plan for mitigation can meet the requirements of this chapter and allow the applicant a reasonable economically viable use of his or her property. The reasonable use exception shall only be granted under the following conditions:

A. The application of this chapter would deny all reasonable and economically viable use of the property so that there is no reasonable and economically viable use with a lesser impact on the critical area than that proposed;

B. The proposed development does not pose a threat to the public health and safety; and any proposed modification to a critical area will be evaluated by the hearing examiner through consideration of a site assessment and mitigation plan prepared by the applicant’s qualified consultant pursuant to the requirements of this chapter, and will be the minimum necessary to allow reasonable and economically viable use of the property;

C. 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;

D. The hearing examiner may issue, as part of the findings in any decision made under this subsection, conditions of approval, including modifications to the size and placement of structures and facilities to minimize impacts to critical areas and associated buffers. As part of the findings, the hearing examiner may also specify mitigation requirements that ensure that all impacts are mitigated to the maximum extent feasible;

E. The hearing examiner shall provide opportunity for public comment before a decision on a request for a reasonable use exception is made, including comments from appropriate federal, state and tribal natural resource agencies if applicable. The director shall maintain a record of all information, including public comments, which were used in making a decision on a request for a reasonable use exception. This record shall be made available to the public upon request; and

F. Decisions of the hearing examiner may be appealed to the city council pursuant to Chapter 2.90. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.160 Critical area and buffer mitigation requirements—General provisions.

A. Buffers.

1. As described in more detail in each relevant section, buffers have in some cases been determined necessary and appropriate to protect critical areas and their functions or to prevent risk from a critical area hazard. In those sections of this chapter where specific buffers are identified, those buffers are deemed “required” or “standard” buffers. If a project or activity does not propose any alteration of those buffers or of the associated critical area and the director determines that these buffers are adequate to protect the critical area or to prevent risk of a hazard from the critical area, then subject to the provisions of Section 17.65.170, no additional mitigation will be required. Once the critical area and its buffer have properly been delineated through a critical areas assessment and any conditions of approval have been established to ensure protection of the critical area function, no further critical areas mitigation assessment is required, except as necessary to ensure that long-term protection of critical areas and buffers is met in practice through compliance with Section 17.65.170(A)(1). The applicant shall ensure the protection of critical area by performing a site assessment on the entire parcel.

2. If, however, based on a site assessment by a qualified expert, unique features of the particular critical area or its buffer or of the proposed development, the qualified expert determines that additional buffers and/or mitigation measures beyond these buffers are necessary to adequately protect the function of the critical area or to prevent risk of a hazard from the critical area, the director may impose such additional mitigation requirements, provided the qualified expert can demonstrate, based on best available science, why that additional mitigation or buffering is required to adequately protect the critical area function or to prevent hazard from a critical area.

3. Further, if the applicant proposes to reduce these buffers or to alter the critical area or its required buffer, then the applicant shall demonstrate pursuant to Section 17.65.170, based on best available science, why such buffer and/or critical area modification, together with such alternative mitigation proposed in the critical areas assessment, is sufficient to provide equal or better protection of the critical area function or provide no increased risk of a hazard from the critical area.

4. The critical areas assessment and the conditions of approval shall make adequate provision for long-term protection related to critical areas and buffers, and shall include the requirements established in Section 17.65.170. However, critical areas and/or buffers identified as protected critical areas (PCAs) as defined in this chapter do not require any provisions for public access, and appropriate restrictions may be included in the easement or title documents. Critical areas and/or buffers identified as PCAs are however subject to periodic inspection by the director, upon prior notification to the landowner, to ensure long-term protection.

5. Protected Critical Areas (PCAs).

a. For proposed land divisions, critical areas and their associated buffers identified through the site assessment and city review process shall be designated as PCAs and placed in separate tracts or easements and protected through protective covenants shown on the face of the recorded plat. (See Protected critical area (PCA) requirements, Section 17.65.170.) Protected critical areas shall be placed in separate tracts under a single owner, unless an easement or alternative method is shown to provide superior protection over time. An example of an easement that is preferable to a separate tract would be an easement conveyed to a third-party conservation advocacy group.

b. For development projects or land use activities not involving a new land division, the critical area and its associated buffer identified through the site assessment process shall instead be identified as a PCA by either easement, open space designation or permit conditions, all including restrictive covenants and recorded with the auditor on a site plan to insure long-term protection. Critical areas and/or buffers identified as PCAs are subject to periodic inspection, upon prior notification to the landowner, to ensure long-term protection.

6. Open Space—Protected Area. If a portion of a parcel contains a proposed development project that triggers a development permit, and has not had its critical areas and associated buffers delineated because it was outside the project or area affected by the project, then further critical areas assessment may be required in the future prior to any change of use, or new development permit for that portion of the site. See Section 17.65.080.

B. Mitigation. All proposed alterations to critical areas or associated buffers shall require mitigation sufficient to provide for and maintain the functional values of the critical area or to prevent risk from a critical area hazard and shall give adequate consideration to the reasonable economically viable use of the property. Mitigation of one critical area impact should not result in unmitigated impacts to another critical area. Mitigation may include, but is not limited to: buffers, setbacks, limits on clearing and grading, best management practices for erosion control and maintenance of water quality, compensatory mitigation or other conditions appropriate to avoid or mitigate identified adverse impacts.

C. Preferred Mitigation Sequence. Mitigation includes avoiding, minimizing or compensating for adverse impacts to regulated critical areas or their buffers. The preferred sequence of mitigation is defined below:

1. Avoid the impact altogether by not taking a certain action or parts of an action;

2. Minimize the impacts 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 to the conditions existing at the time of the initiation of the project or activity;

4. Reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action;

5. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments;

6. All proposed mitigation shall be included in the critical areas assessment. The critical areas mitigation shall include the following:

a. Description of existing conditions, functions, and values,

b. Description and quantification of impacts,

c. Description of proposed mitigations (critical areas lost/critical areas gained),

d. Functional analysis of mitigation/analysis of prevention of risk hazard,

e. Proposed applicant or landowner monitoring or inspection measures and schedule, including specification of method and frequency of submittal of reports on results, and

f. Contingency plan.

Such assessments must follow the Washington State Department of Ecology’s standards.

D. The director shall make the final determination regarding required mitigation. Required mitigation shall be included in an approved mitigation plan.

E. Financial Assurance. The director or his/her designee shall require the complete mitigation proposed in the site assessment to be completed prior to final approval of the development permit. For all projects with an estimated mitigation cost of four thousand dollars or over, the director shall require financial assurance that will assure compliance with the mitigation plan if the complete mitigation proposed in the site assessment cannot be completed prior to final approval of the development permit. Financial assurance shall be in the form of either a surety bond, performance bond, assignment of savings account or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney, shall be in the amount of one hundred twenty-five percent of the estimated cost of the uncompleted actions or construction, and shall be assigned in favor of the city of Sedro-Woolley. The term of the financial assurance shall remain in place until the required mitigation is complete.

F. Monitoring of Critical Areas Mitigation. On a regular basis, but no longer than once every two years, the director shall make a significant sampling of projects and activities for which critical area site assessments were required, including mitigation plans, potentially impacting fish-bearing streams and/or Category I, II or III wetlands. The sample shall be taken from permits or approvals issued more than ten months prior to the sampling date. The selected sites shall be inspected for critical area and buffer size and condition and for compliance with any required mitigation or other conditions of approval. Results of such sampling shall be included in the permanent record for the project or activity, shall be reported to the city council, and shall also be utilized for enforcement purposes. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.170 Protected critical area (PCA) requirements.

A. PCA Identification and Recording.

1. PCA Identification. Approval of development projects which trigger a development permit and other land use activities that can cause adverse impacts to critical areas and/or their buffers shall require the identification and designation of PCAs by the director. This section is intended to apply to unique critical area elements such as buffers or wellhead protection areas that can cause adverse impacts; location in the floodplain unless adjacent to a wetland or riparian corridor does not require recording of a PCA. PCAs shall include all critical areas and associated buffers on the proposed project site which have been identified through the site assessment process.

2. PCA Recording. All PCAs shall be recorded with the county auditor in accordance with the procedures established under this section. The applicant shall be responsible for all fees and other costs associated with recording of PCAs.

3. Binding Agreements. For each project or activity that requires recording of PCAs, the following information shall be recorded with the auditor as part of a binding agreement between the landowner and the city which shall run with the land and be readily available to the public upon request:

a. Binding agreement signed by the landowner and the director or designee which stipulates any special conditions of approval, protective covenants, binding conditions, or other requirements such as use restrictions, required mitigation, and/or landowner maintenance or monitoring requirements established at the time of approval;

b. Required final plat map or site plan clearly showing the locations of PCAs, existing vegetation and permanent buffer edge markers;

c. Additional information necessary to document the critical areas inventory at the time of approval, including descriptions of identified critical areas, their locations, functions and values, and existing critical areas or buffer vegetation;

d. Identification of any local responsibilities beyond those required by this chapter;

e. Reference to the file containing the complete record of information pertaining to approval of the project or activity.

4. Permanent Buffer Edge Markers. Except as provided under subsection (A)(4)(a) of this section, the outer edges of all PCAs, with the exception of aquifer recharge areas, shall be clearly marked on-site by the applicant or landowner with permanent rebar stakes and critical area markers. Critical area markers may be either approved critical area signs or inexpensive steel posts painted a standard color approved by the director that is clearly identifiable as a critical area marker. Installation of permanent markers shall be the responsibility of the landowner.

a. The director may waive or modify the requirement for permanent buffer edge markers; provided, that any such decision shall be based on a site-specific determination that future verification of PCA locations will not be substantially more difficult without the placement of permanent markers and that such waiver or modification will not result in reduced long-term protection of critical areas. The determination shall be included in the permanent record and made available to the public upon request.

b. Where such permanent markers are required, the director shall specify their frequency of placement and general location. Permanent markers shall be placed to locate the edge of the PCA to an approximate accuracy of within five percent of the specified buffer width or within five feet, whichever is larger. The spacing intervals of the markers shall be such as to provide comparable accuracy of line-of-sight determination of buffer edges. The locations of all required stakes/markers shall be shown on the plat map or site map recorded with the auditor.

B. Protected Critical Area (PCA) Designations for New Land Divisions.

1. For land divisions where site assessments have occurred pursuant to subsection (A)(1) of this section, all PCAs shall be placed into separate tracts or easements, whose uses shall be regulated by the provisions of this chapter and any conditions of approval, including protective covenants and binding agreements as provided for under subsection A of this section. Areas within a PCA can be included in total acreage for development purposes and may be used in lot area or density calculations. PCAs may be owned and maintained by the owner of the lot of which they are a part or transferred to the homeowners association or land trust. Protected critical areas shall be placed in separate tracts under a single owner, unless an easement or alternative method is shown to provide superior protection over time. An example of an easement that is preferable to a separate tract would be an easement conveyed to a third-party conservation advocacy group.

2. Recording. PCA designations shall be recorded with the auditor as part of the plat approval process. The auditor file number referencing the agreement shall be on the face of the plat and its provisions shall run with the land.

3. PCA Descriptions. The location of PCAs shall be clearly identified on site plans and on preliminary and final plat maps. PCAs shall be labeled using the letters A through Z, or another labeling system approved by the director. Where more than one lot is involved, each lot shall carry independent labeling as described in subsection (D)(1) of this section.

4. Ingress, Egress and Use. Owners of PCAs shall grant ingress and egress by the director or his or her agent for monitoring and evaluation of compliance with established conditions of approval, binding conditions or any required mitigation. As part of an approved land division, the use limitations required of a designated and regulated critical area according to the provisions of this chapter, including the conclusions of the critical areas site assessment report and any conditions of approval, protective covenants and other binding conditions, shall be clearly stated on the face of the recorded plat.

C. PCAs on Preexisting Lots.

1. For development proposals and other land use activities that can adversely impact critical areas on preexisting lots, not part of a proposed land division or other form of multiple lot development, PCAs shall be identified on a scaled site plan showing the location of the PCA, structures (existing and proposed) and their distances from the PCA and lot lines to show relative location within the subject parcel(s). The project or activity shall be conditioned for critical area protection and the resulting information recorded with the auditor as defined under subsection A of this section. The site plan may be prepared by the applicant and all distances and locations of structures may be measured from the established PCA boundary to within plus or minus five feet.

2. Ingress and Egress. Owners of PCAs shall grant ingress and egress to the director or designee for monitoring and evaluation of compliance with established conditions of approval, binding conditions or any required mitigation.

D. PCA Mapping, Labeling, and Area Calculations.

1. All PCAs Shall Be Mapped. The area shall be delineated on the final plat map or on a site plan to an accuracy of plus or minus five feet horizontal and monumented in the field by a qualified expert pursuant to subsection (A)(4) of this section. If a survey was not used to map the critical area, a note on the final plat map shall be recorded stating that a legal survey was not performed to delineate the critical area and that the surveyor is not incurring liability for the exact boundaries of the critical area on the plat map.

2. During construction phases of development, clear temporary marking using flagging and staking shall be maintained along the outer limits of the delineated PCA or the limits of the proposed site disturbance outside of the PCA. Prior to the start of construction activity, and as necessary during construction, temporary markings shall be inspected and approved by the director or designee. The person responsible for inspecting the temporary flagging shall provide written confirmation to be included in the record as to whether or not the flagging has been installed consistent with the permit requirements prior to commencement of the permitted activity.

3. All PCAs shall include the necessary labeling to show calculated area (in square feet or acreage), and type and/or class of critical area within each lot. This information shall be noted on the face of the approved plat or site plan.

4. Signs or Fencing Required as Part of Critical Area Mitigation. The director shall require permanent signs or fencing where the director determines that it is a necessary component of a mitigation plan. Examples include situations where variances to the dimensional requirement of this chapter have been granted and the development will occur within a PCA; or where the sensitivity of the PCA will be impacted unless access to the PCA is limited (such as changes of use to farming where livestock is involved). The intent is to provide clear and sufficient notice, identification and protection of critical areas on site where damage to a critical area or buffer by humans or livestock is probable due to the proximity of the adjacent activity.

5. Sign, Marker and Fence Maintenance. It is the responsibility of the landowner, or any subsequent landowner, to maintain the required PCA markers, signs or fences in working order throughout the duration of the development project or land use activity. Maintenance includes any necessary replacement. Removal of required signs, markers or fences without prior written approval of the director shall be considered a violation of this chapter. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.180 Incentives.

The following incentives are intended to minimize the burden to individual property owners from application of the provisions of this chapter and assist the city in achieving the goals of this chapter:

A. Open Space. Any property owner on whose property a critical area or its associated buffer is located and who proposes to put the critical area and buffer in a separate open space tract may apply for current use property tax assessment on that separate tract pursuant to Chapter 84.34 RCW.

B. Conservation Easement. Any person who owns an identified critical area or its associated buffer may place a conservation easement over that portion of the property by naming a qualified designee under RCW 64.04.130 as beneficiary of the conservation easement. This conservation easement can be used in lieu of the creation of a separate critical areas tract to qualify for open space tax assessment described in subsection A of this section.

The purpose of the easement shall be to preserve, protect, maintain, restore and limit future use of the property affected. The terms of the conservation easement may include prohibitions or restrictions on access and shall be approved by the property owner and the qualified designee. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.190 General natural resource preservation requirements.

A. For purposes of this section, natural resource lands shall be those lands designated by Skagit County as agricultural, forest or mineral resource lands of long-term commercial significance, and those lands within the city’s urban growth area which are currently managed as natural resource lands but which may be designated as an urban reserve area or transitional area, and those lands designated as mineral resource sites within the city limits.

B. All short plats, subdivisions, development permits and building permits issued for development activities on, or within five hundred feet of, lands designated as agricultural lands, forest lands or mineral resource lands, shall contain a notice that: “The subject property is within or near designated agricultural, forest or mineral resource lands on which a variety of commercial activities and management practices may occur that are not compatible with residential development for certain periods of limited duration.”

C. To protect natural resource lands from conflicting uses, such as residential subdivisions, mobile home parks, multifamily residential or other such uses, and to provide a buffer for such uses from the incompatible activities associated with natural resource uses, subdivisions, mobile home parks, planned developments, and multifamily or cluster residential developments shall provide an open space buffer on the perimeter of the development next to the natural resource site(s). This buffer shall be at least fifty feet in width, planted with appropriate vegetation based upon the existing site conditions and adjacent uses, and shall include a fence as required by the director. This buffer area shall be designated as a separate tract within the plat or development, to be maintained through a homeowner’s association, or may be preserved through a conservation easement through private individual lots, as provided under Section 17.65.170. In either case, setbacks for structures, as required under the zoning ordinance, shall be from the property line or easement delineating the edge of the buffer area. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.195 Natural resource area covenants, tracts, notices and dedications.

A. Covenants. All natural resource buffers established in compliance with this chapter shall be placed in a protective covenant.

B. Tracts. The city may require that any area classified as a natural resource area be placed in a separate tract, rather than included in a protective covenant. Such a tract shall be:

1. Placed in the same ownership as the parcel it was segregated from;

2. Placed into an undivided common ownership of all lots within a proposed subdivision, short plat, planned development or binding site plan; or

3. Dedicated to a public agency who is willing to accept the tract for long-term management of the protected resource.

C. Notice on Title. The owner of property adjacent to a natural resource site, on which a development proposal is submitted shall file with the Skagit County auditor a notice in the public record of the presence of a natural resource area, or buffer area easement or tract, the limitations on actions in or affecting such areas, and the applicability of this chapter to the property. The applicant shall submit proof that the notice has been filed for recording before the city may approve any development proposal on the site. The notice shall run with the land and failure to provide such notice to any purchaser prior to transferring any interest in the property shall be a violation of this chapter.

D. The covenant requirements of this section shall not apply to activities permitted, under the provisions of this chapter, within utility easements or street rights-of-way. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

Article II. Wetlands

17.65.200 Wetlands designations.

Wetlands shall be identified and designated through a site visit and/or a site assessment utilizing the definitions, methods and standards set forth in the U.S. Army Corps of Engineers 1987 Manual and the Western, Mountains, Valleys, and Coast Regional Supplement (May 2010). (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.210 Wetlands initial project review.

A. A site visit shall be conducted to confirm the presence of wetland indicators listed in the critical areas checklist or identified on critical areas map references as being within two hundred feet of a proposed project or activity. A positive confirmation by the director that site indicators are present or that the proposed project may impact the wetland area will then require a professional site assessment.

B. The director shall use the following map references to assist in making a determination:

1. Wetlands mapped under the National Wetland Inventory by the U.S. Department of the Interior; Fish and Wildlife Service;

2. Areas mapped as hydric soils under the Soil Survey of Skagit County Area, Washington, by the United States Department of Agriculture; Soil Conservation Service;

3. A water of the state as defined under WAC 222-16-030 and maintained in the Washington State Department of Natural Resources Stream Type Maps;

4. Wetlands previously identified through the methodology specified under Section 17.65.200 for another project; and

5. City of Sedro-Woolley critical areas map as updated periodically by the planning department. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.220 Wetlands site assessment requirements.

If a wetlands site assessment is required, it shall meet the following requirements:

A. A wetland reconnaissance shall be performed by a qualified wetlands professional. The reconnaissance shall identify the presence of wetlands within two hundred feet of the project or activity area, if practicable. If this wetland reconnaissance demonstrates no wetlands within two hundred feet of the activity area, then no further study is required;

B. A wetland delineation shall be performed as part of a site assessment where a wetland reconnaissance confirms the presence of a wetland or the applicant chooses to perform a delineation instead of a wetland reconnaissance. The delineation shall be performed by a qualified wetland professional trained in conducting delineations in accordance with the methodology specified under Section 17.65.200;

C. Wetlands Site Assessment. The site assessment shall be prepared by a qualified expert wetland professional consistent with this section and Section 17.65.200. The site assessment shall include the following:

1. Site plan prepared in accordance with the requirements of this chapter indicating the presence of wetlands within two hundred feet of the project or activity area. This site plan information may be prepared by the applicant with review by the qualified wetlands professional. If the applicant together with assistance from the director cannot obtain permission for access to properties within two hundred feet of the activity area then an approximation of the extent of off-site wetlands within two hundred feet of the area may be completed based on aerial interpretation and/or visual observation from nearby vantage points,

2. Wetland community description including Cowardin classification and wetland rating based upon Washington State Department of Ecology’s Washington State Wetland Rating System for Western Washington—2014 Update or subsequent revisions,

3. Delineation report including a site map indicating wetland boundaries and the locations of all data points,

4. Values and functions assessments shall include but not be limited to discussion of water quality, fish and wildlife habitat, flood and stream flow attenuation, recreation and aesthetics,

5. Project description and impact assessment shall include a detailed narrative describing the project, its relationship to the wetland and its potential impact to the wetland,

6. Any proposed mitigation plan shall include a discussion on how the project has been designed to avoid and minimize adverse impacts to wetlands, compensate for the loss of existing functions and values of wetlands, and should follow the general mitigation plan requirements described in Section 17.65.240 and Guidance on Wetlands Mitigation in Washington—Parts 1 and 2, March 2006, or subsequent revisions, and shall be consistent with the city of Sedro-Woolley comprehensive plan, and

7. Approval of any activity that can adversely affect regulated wetlands shall conform to the requirements set forth in Section 17.65.170(A). (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.230 Alteration of wetlands.

A. A regulated wetland or its required buffer can only be altered if the wetlands site assessment shows that the proposed alteration does not degrade the quantitative and qualitative functioning of the wetland, or any degradation can be adequately mitigated to protect or compensate for the wetland functions that are lost. Any alteration approved pursuant to this section shall include mitigation necessary to mitigate the impacts of the proposed alteration on the wetland as described in Section 17.65.240.

B. Stormwater discharges to wetlands shall be controlled and treated to provide all known and reasonable methods of prevention, control, and treatment as mandated in the State Water Quality Standards, Chapter 173-201A WAC, as required by state law and implemented in Title 15, Buildings and Construction. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.240 Wetland mitigation standards.

A. Mitigation Plan Requirements. Along with the other provisions of the other subsections below, the following items are required as part of a mitigation plan:

1. Description of project or activity and impact assessment shall include a detailed narrative describing the project or activity, its relationship to the wetland and its potential impact to the wetland.

2. Any proposed mitigation plan shall include a discussion on how the project or activity has been designed to avoid and minimize adverse impacts to wetlands and should follow the general mitigation plan requirements described in this section and in Guidance on Wetlands Mitigation in Washington—Parts 1 and 2, March 2006, and subsequent revisions.

B. Standard Wetland Buffers Requirements. Buffers satisfy the first step in the mitigation sequence set forth in this section. They are necessary in order to avoid potential project generated impacts. Buffers help maintain water quality and habitat diversity while stabilizing hydrology and minimizing direct human disturbance to wetlands. Buffer widths are based on wetland rating, the functions that the buffer is expected to perform, and the intensity of the proposed land use. The following standard buffers shall be required for regulated wetlands unless otherwise provided for in this section:

Category I	150
Category II	110
Category III	50
Category IV	25

1. Wetland buffers shall be measured horizontally in a landward direction from the wetland edge, as delineated in the field, pursuant to the requirements of Section 17.65.220. Where lands adjacent to a wetland display a continuous slope of twenty-five percent or greater, the buffer shall include such sloping areas. Where the horizontal distance of the sloping area is greater than the required standard buffer, the buffer shall be extended to a point twenty-five feet beyond the top of the bank of the sloping area;

2. Except as otherwise specified, wetland buffers shall be retained in their natural condition;

3. Where buffer disturbance or alteration has or will occur in conjunction with regulated activities, revegetation with native vegetation shall be required and completed as per a mitigation plan approved by the director.

C. As described generally in subsection A of this section, if an applicant does not propose to alter the required buffer, then no additional wetland impact mitigation shall be required.

D. If an applicant proposes to decrease or alter a required buffer or alter a wetland pursuant to Section 17.65.150, the applicant shall demonstrate why such buffer and/or wetland modification, together with such alternative mitigation proposed in the wetland area assessment, is sufficient to adequately protect the wetland functions and values or compensate for disturbance to the functions and values of the wetland.

E. Performance Based Buffer Alternatives. Buffer widths may be increased, decreased or averaged in accordance with the following provisions. In implementing alternative buffer widths, the director may require fourteen days for review and comment from appropriate federal, state or tribal natural resource agencies to ensure the use of best available science and relevant comments will be conditions of project approval. All comments shall be included in the public record along with the basis and rationale for requirement or approval of any such alternative buffer widths.

1. Buffer Width Increasing. Standard buffers may be increased upon a determination by the qualified wetland expert with confirmation from the Washington State Departments of Ecology and/or Fish and Wildlife that buffer width averaging is not adequate to protect the functions and values of the wetland and increased buffer widths are necessary to:

a. Maintain viable populations of existing species listed by the federal or state government as endangered, threatened or sensitive;

b. Maintain critical habitat for those species referenced in subsection (E)(1)(a) of this section;

c. Protect wetlands against severe erosion that standard erosion control measures will not effectively address; or

d. If the wetland contains variations in sensitivity, increasing the buffer widths will only be done where necessary to preserve the structure, function and value of the wetland.

2. Buffer Width Decreasing. Decreasing of standard buffer widths will be allowed pursuant to Section 17.65.150; provided, that in decreasing a standard buffer width, the functions and values of the wetland are not decreased.

3. Buffer Width Averaging. Wetland buffers may be averaged; provided, that the total buffer area on the lot is not less than that required within the standard buffer, and that averaging will not reduce the wetland functional values. The city may require buffer width averaging in order to protect a particular portion of the wetland or buffer which is especially sensitive, or to incorporate existing significant vegetation or habitat areas into the buffer. Any reduction in buffer width as part of buffer width averaging shall not exceed twenty-five percent of the standard buffer width.

F. Allowed Uses in Buffers. Low impact uses and activities which are consistent with the purpose and function of the habitat buffer and do not detract from its integrity may be permitted within the buffer depending on the sensitivity of the habitat involved; provided, that such activity shall not result in a decrease in wetland functional values and shall not prevent or inhibit the buffer’s recovery to at least prealtered condition or function. Examples of uses and activities which may be permitted in appropriate cases, as long as the activity does not retard the overall recovery of the buffer, include removal of noxious vegetation, pedestrian trails, revegetation of stormwater facilities, and viewing platforms. Pedestrian trails should consist of permeable surfaces, be not more than five feet in width, minimize wetlands crossings, be located in the outer twenty-five percent of a wetlands buffer, and be designed to minimize impact on a wetland. Buffer widths should be increased to compensate for the loss due to the width of the trail if the buffer is less than fifty feet in width.

G. Establishment of Limits of Clearing. The location of the outer extent of the wetland buffer and the limits of the areas to be disturbed shall be marked in the field and be included as a condition of a development permit or approval. Such field markings may be field-approved by the director prior to the commencement of permitted activities. Markings shall be maintained throughout the duration of any construction activities.

H. Exceptions to Mitigation Requirements. Requirements for mitigation do not apply under the following circumstances:

1. When a wetland alteration is intended exclusively for the enhancement or restoration of an existing regulated wetland and the proposal will not result in a loss of wetland function and value, subject to the following conditions:

a. The enhancement or restoration project shall not be associated with a development activity;

b. An enhancement or restoration plan shall be submitted for site plan review. The restoration or enhancement plan must include the information required under Section 17.65.220.

2. When a wetland is a part of a development activity that is permitted by the Corps of Engineers NWP 14 permitting crossing of wetlands as part of road construction; provided, that the applicant shall comply with any compensatory mitigation required by the NWP 14.

I. Compensatory Mitigation.

1. General Provisions.

a. In selection of compensation actions, applicants should consider the following order of preference:

i. Restoring wetlands on upland sites which were formerly wetlands,

ii. Creating wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of exotic introduced species,

iii. Enhancing significantly degraded wetlands,

iv. Preserving high-quality wetlands which are under imminent threat,

v. In-lieu fees,

vi. Preservation of other habitat;

b. Compensatory mitigation shall be conducted on property which shall be protected and managed to avoid further loss or degradation. The applicant shall provide for long-term preservation of the compensation area;

c. Compensatory mitigation shall follow an approved compensatory mitigation plan pursuant to this section and reflect the restoration/creation ratios specified in subsection (I)(2) of this section;

d. Enhancement of existing wetlands may be considered for compensation as further described in subsection (I)(2) of this section;

e. Compensation shall be completed prior to, concurrently with, or bonded to enable mitigation to occur after wetland loss, or, in the case of an enforcement action, prior to further development of the site.

2. On-Site Compensation. As a condition of any development permit or approval which results in on-site loss or degradation of regulated wetlands and/or wetland buffers, the director shall require of the applicant compensatory mitigation to offset impacts resulting from the actions of the applicant. On-site compensation is generally preferred over off-site compensation if practicable unless the applicant can demonstrate that off-site mitigation is ecologically preferable. When considering off-site mitigation, preference should be given to using alternative mitigation, such as a mitigation bank, an in-lieu-fee program, or advance mitigation.

Except under subsection H of this section, any person who alters or proposes to alter regulated wetlands shall restore or create areas of wetland in order to compensate for wetland losses. The following ratios in the table below apply to creation or restoration which is in kind (i.e., the same type of wetland), on site, and is accomplished prior to or concurrently with loss. The first number specifies the acreage of wetlands to be restored or created and the second specifies the acreage of wetlands lost:

Wetland On-Site Restoration/Creation Ratios:

Wetland Created: Wetland Area Lost
Category I	6:1
Category II	3:1
Category III	2:1
Category IV	1.5:1

These ratios apply to creation or restoration of a nonwetland area, which is the same category as the impacted wetland, timed prior to or concurrent with the alteration, and has a high probability of success.

These ratios may be increased under the following circumstances:

a. Uncertainty as to the probable success of the proposed restoration or creation;

b. Significant period of time between impact and replication of wetland functions;

c. Proposed mitigation will result in lower category wetland or reduced functions than the wetland being impacted; or

d. The impact was an unauthorized impact.

These ratios may be decreased under the following circumstances:

a. Documentation by a qualified wetland specialist demonstrates that the proposed mitigation actions have a very high likelihood of success;

b. Documentation by a qualified wetlands specialist demonstrates that the proposed mitigation actions will provide significantly greater functions and values than the wetland being impacted; or

c. The proposed mitigation actions are conducted in advance of the impact and are shown to be successful.

Wetlands Enhancement. Any applicant proposing to impact wetlands may propose to enhance existing significantly degraded wetlands in order to compensate for wetland losses. Applicants proposing to enhance wetlands must produce a report that identifies how enhancement will increase the functions of the degraded wetland and how this increase will adequately compensate for the loss of wetland area and function at the impact site. An enhancement proposal must also show whether existing wetland functions will be reduced by the enhancement actions.

At a minimum, enhancement acreage shall be four times the acreage required for creation or restoration unless it is demonstrated that the enhancement proposal would result in no loss of wetlands area or wetlands functions, in which case it may be reduced, but not below the acreage required for creation or restoration.

Wetland On-Site Enhancement Ratios:

Wetland Enhanced: Wetland Area Lost
Category I	24:1
Category II	12:1
Category III	8:1
Category IV	6:1

3. Off-Site Compensation. Off-site compensation allows replacement of wetlands away from the site on which the wetland has been impacted by a regulated activity. Off-site compensation will be conducted in accordance with the restoration/creation ratios described in subsection (I)(2) of this section and selecting compensation sites in subsection (I)(5) of this section. Off-site compensation should occur within the same drainage basin of the same watershed where the wetland loss occurs. In such instances, the stormwater storage function provided by a wetlands must be provided for within the design of the development project. Off-site compensation can be allowed only under one or more of the following circumstances:

a. On-site compensation is not feasible due to hydrology, soils, or other factors;

b. On-site compensation is not practical due to probable adverse impacts from surrounding land uses or would conflict with a federal, state or county public safety directive;

c. Potential functional values at the site of the proposed restoration are greater than the lost wetland functional values;

d. When the wetland to be altered is of a limited functional value and is degraded, compensation shall be of the wetland community types needed most in the location of compensation and those most likely to succeed with the highest functional value possible.

4. Out-of-kind compensation can be allowed when out-of-kind replacement will best meet the provisions of subsection (I)(1) of this section and the mitigation sequence outlined in this section.

5. Selecting Compensation Sites. General provisions.

a. Except in the case of cooperative compensation projects in selecting compensation sites, applicants shall pursue locations in the following order of preference:

i. Filled, drained, or cleared sites which were formerly wetlands and where appropriate hydrology exists,

ii. Upland sites, adjacent to wetlands, if the upland is significantly disturbed and does not contain a mature forested or shrub community of native species, and where the appropriate natural hydrology exists,

iii. Within wildlife corridors;

b. Where out-of-kind replacement is accepted, greater restoration/creation ratios may be required.

J. 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 ten 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.

K. Timing. Construction of compensation projects shall be timed to reduce impacts to existing wildlife and plants. Construction shall be timed to assure that grading and soil movement occur during the dry season and planting of vegetation shall be specifically timed to needs of the target species.

L. Alternative Compensation Projects. The director may encourage, facilitate and approve innovative wetland mitigation projects. Advance compensation or mitigation banking are examples of alternative compensation projects allowed under the provisions of this section wherein one or more applicant(s), or an organization with demonstrated capability, may undertake a compensation project together if it is demonstrated that all of the following circumstances exist:

1. Creation of one or several larger wetlands may be preferable to many small wetlands;

2. The group demonstrates the organizational and fiscal capability to act cooperatively;

3. The group demonstrates that long-term management of the compensation area will be provided;

4. There is a clear potential for success of the proposed compensation at the identified compensation site;

5. Conducting compensation as part of a cooperative process does not reduce or eliminate the required replacement ratios outlined in subsection (I)(2) of this section. Exception: (a) where a compensatory mitigation plan including a five-year monitoring agreement is included as a condition of approval where woody vegetation is not a part of the replacement plan, such plan shall allow for one is to one resulting replacement ratios upon successful completion of the monitoring agreement; and (b) where a compensatory mitigation plan including a ten-year monitoring agreement is included as a condition of approval where woody vegetation is part of the replacement plan, such plan shall allow for one is to one resulting replacement ratios upon successful completion of the monitoring agreement. Provided further, no reduction of the required replacement ratios outlined in subsection (I)(2) of this section shall be allowed unless the applicant can demonstrate that there will be no loss of resulting wetlands function or area over time. The applicant may be required to provide additional replacement area to allow for probable loss of area during the period of establishment;

6. Wetland mitigation banking programs consistent with the provisions outlined in the Department of Ecology’s 2009 publication Selecting Wetland Mitigation Sites Using a Watershed Approach and publication Guidance on Wetlands Mitigation in Washington—Parts 1 and 2, March 2006, or subsequent revisions will be considered.

Wetland Mitigation Banks. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the mitigation bank instrument. Use of credits from a wetland mitigation bank certified under Chapter 173-700 WAC is allowed if:

a. The approval authority determines that it would provide appropriate compensation for the proposed impacts;

b. The impact site is located in the service area of the bank;

c. The proposed use of credits is consistent with the terms and conditions of the certified mitigation bank instrument; and

d. Replacement ratios for projects using bank credits are consistent with replacement ratios specified in the certified mitigation bank instrument. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

Article III. Aquifer Recharge Areas

17.65.300 Aquifer recharge areas.

A. Intent. This section establishes areas determined to be critical in maintaining both groundwater quantity and quality. This section specifies regulatory requirements to be enacted when development within these areas is proposed to occur and provides a methodology by which the level of review and any mitigation required is determined. The intent of this section is to:

1. Define minimum regulatory requirements to protect groundwater quality and quantity for existing and future use;

2. Identify the practices, alternatives, or mitigations that can minimize the adverse impacts of proposed projects; and

3. Insure adequate design, construction, management, and operations to protect groundwater quality and quantity.

B. Existing and future beneficial uses of groundwater shall be maintained and protected and degradation of groundwater quality that would interfere with or become injurious to beneficial uses shall be avoided or minimized.

C. Wherever groundwaters are determined to be of a higher quality than the criteria established for such waters under this section, the existing water quality shall be protected, and contaminants that will reduce the existing quality thereof shall not be allowed to enter such waters, except in those instances where it can be demonstrated that:

1. An overriding consideration of the public interest will be served; and

2. All contaminants proposed for entry into such groundwater(s) shall be provided with all known, available, and reasonable methods of prevention, control, and treatment prior to entry.

D. It is the intent of this regulation to be consistent with and implement the requirements of Chapters 90.48 and 90.54 RCW and Chapters 173-200, 173-201A, 173-160, 246-290, and 246-291 WAC, as the same may hereafter be amended. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.310 Aquifer recharge area designations.

Two categories are designated for aquifer recharge areas. These categories are designated to assist the director in determining the level of assessment necessary to evaluate specific land use proposals. The categories are based on the determination that certain areas require additional scrutiny of the potential impacts of a proposed land use with consideration given to hydrogeologic vulnerability. All designated areas are subject to change as data and information are updated or become available.

A. Designation Categories.

1. Category I areas are those so designated because of the need to provide them special protection due to a specific preexisting land use, or because they are identified by the local, state or federal government as areas in need of special aquifer protection where a proposed land use may pose a potential risk which increases aquifer vulnerability.

Category I includes areas served by groundwater which have been designated as a “Sole Source Aquifer Area” under the Federal Safe Drinking Water Act; areas identified within a “closed” or “low-flow” stream watershed designated by the Department of Ecology pursuant to Chapter 90.22 RCW; areas identified by the Department of Ecology as seawater intrusion areas; and areas designated as “Wellhead Protection Areas” pursuant to WAC 246-290-135(4) and the groundwater contribution area in WAC 246-291-100(2)(e). Wellhead protection areas shall, for the purpose of this regulation, include the identified recharge areas associated with either Group A public water supply wells, those Group B wells with a wellhead protection plan filed with the Skagit County Health Department, or plats served by five or more individual wells where the average lot size is equal to or less than two acres for which a wellhead protection plan has been completed and filed with the Skagit County Health Department. Category I areas are shown on the aquifer recharge area map.

2. Category II is designated as areas not identified as Category I areas.

3. When any portion of the proposed project area lies partly within a Category I area, the proposed project shall be subject to the level of scrutiny provided for Category I areas. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.320 Aquifer recharge applicability and prohibited activities.

A. Applicability. All development projects are subject to the provisions of this section except for the following:

1. Existing activities that currently and legally exist at the time this chapter became effective. However, expansions or changes in use are subject to this section and the review process contained in this chapter.

2. Single-family residential building permits, including accessory building permits, which are outside Category I areas.

3. Residential short plats outside Category I areas where each lot is two and one-half acres or greater.

4. Single-family residential building permits where a site assessment report was required to be completed for the land division, in which case, to meet the conditions of this exemption, the applicant must comply with the recorded plat notes and the applicable mitigations contained in the site assessment report.

B. Prohibited Activities. The following activities are prohibited in Category I areas due to the probability and/or potential magnitude of their adverse effects on groundwater:

1. Landfill activities as defined in Chapters 173-304 and 173-351 WAC;

2. Class V injection wells, including:

a. Agricultural drainage wells,

b. Untreated sewage waste disposal wells,

c. Cesspools,

d. Industrial process water and disposal wells, and

e. Radioactive waste disposal;

3. Radioactive disposal sites. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.330 Aquifer recharge initial project review.

A. General Procedures. Applicants for all development projects not allowed under Section 17.65.100 or 17.65.320 shall be required, through a site assessment report prepared pursuant to Section 17.65.340, to evaluate potential impacts to aquifer recharge areas, and appropriate mitigation measures to reduce or eliminate the potential for adversely impacting aquifer recharge areas shall be identified. The level of study and report detail required will be determined by the director based on the type of land use being proposed, the designated aquifer recharge area category, and the vulnerability of the underlying aquifer(s) to contamination. The goal of this section is to require applicants to identify and characterize vulnerability only to the level necessary to determine appropriate mitigation measures necessary, to either reduce potential adverse impacts to established parameters or eliminate potential adverse impacts to underlying aquifer(s).

B. Scoping. The level of study which will be required of the applicant by the director for a given development will be based on an initial project review that may include staff from the planning and health departments, and a hydrogeologist.

Elements for the report that are required at a minimum and other elements that may be required as part of the scope for the study are listed in Section 17.65.340. Subsequent findings from the study or other information made available after the initial project review may obligate the applicant to additional evaluation, development of a mitigation plan, and/or development of a groundwater monitoring plan. The following outlines the review process:

1. The director and health officer shall review the project and determine the required scope of the site assessment report. The scope of site assessment required shall be conveyed to the applicant and/or his or her representative in writing. The applicant may present evidence to the director and health officer to justify reduction in the scope for the site assessment report.

2. The site assessment report shall be submitted for review. The director and/or health officer shall either approve the site assessment report as submitted, require additional evaluation, or require development of a mitigation plan. If additional information is required beyond the initial site assessment report, the applicant and/or his or her representative shall be notified in writing of the specifics of the information required. The applicant may present evidence in writing to the reviewing official to justify modification of the requirement for additional information or present alternative or additional mitigation measures in lieu of further study.

3. When, to the satisfaction of the director, all information is provided and mitigation(s) established as being in compliance with this section, the director shall make appropriate recommendations for project permit approval. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.340 Aquifer recharge site assessment report.

A. The scope of the site assessment report shall be determined based on the initial project review specified in Section 17.65.330. The scope of the report may be reduced by utilizing appropriate mitigation measures, or if the water quality or quantity issue(s) are already known.

B. The site assessment report shall be prepared by, or under the direction of, and signed by a professional engineer, licensed in the state of Washington, trained and qualified to analyze geologic, hydrologic, and groundwater flow systems; or by a geologist or hydrogeologist who earns his or her livelihood from the field of geology and/or hydrogeology and has received a degree in geological sciences from an accredited four-year institution of higher education and who has relevant training and experience analyzing geologic, hydrologic, and groundwater flow systems.

C. Site Assessment Report Requirements. A site plan shall be prepared in accordance with the requirements of this code. In addition, a site assessment report shall include:

1. A description of the project including those activities, practices, materials, or chemicals that have a potential to adversely affect the quantity or quality of underlying aquifer(s);

2. Identification of appropriate mitigation measures and description of how they will prevent degradation of underlying aquifer(s);

3. A site plan or another appropriately scaled map showing the approximate location of known or geologically representative well(s) (abandoned and active), spring(s), and surface watercourses within one thousand feet of the subject project property. All well logs available through the health department for identified wells within one thousand feet of the project property shall be included;

4. A description of the site-specific hydrogeologic characteristics regarding impact to the quantity or quality of underlying aquifer(s). At a minimum this will include a description of the lithology, depth to and static water level of known underlying aquifer(s), and depiction of groundwater flow direction and patterns on the appropriate map;

5. Identification of the initial receptors of potential adverse impacts located hydraulically downgradient from the project within one thousand feet or as otherwise directed by the director and/or health officer.

D. Additional Site Assessment Elements. After the initial project review, one or more of the site assessment elements listed below may be required based upon the proposed project activity, aquifer recharge area classification, complexity of underlying hydrogeologic conditions, and/or the perceived potential to adversely impact hydraulically downgradient receptors. One or more of these additional elements may also be required if the applicant chooses to demonstrate that certain mitigation measures are not necessary to protect the quantity or quality of the underlying aquifer(s), or that the project does not pose a detrimental risk to hydraulically downgradient receptors:

1. Lithologic characteristics and stratigraphic relationships of the affected aquifer(s) and overlying geologic units (includes soil types) including thickness, horizontal and vertical extent, permeability, and infiltration rates of surface soils;

2. Delineation of identified structural features such as faults, fractures, and fissures;

3. Aquifer characteristics including determination of recharge and discharge areas, transmissivity, storage, hydraulic conductivity, porosity, and estimate of groundwater flow direction, velocity and patterns for the affected aquifer(s);

4. Estimate of precipitation, evaporation, and evapotranspiration rates for the project area;

5. Preparation of appropriate hydrogeologic cross sections depicting at a minimum underlying lithology and stratigraphy, aquifer(s), and potential or probable contaminant pathways from a chemical release;

6. Contaminant fate and transport including probable migration pathways and travel time of potential contaminant release(s) from the site through the unsaturated zone to the aquifer(s) and through the aquifer(s), and how the contaminant(s) may be attenuated within the unsaturated zone and the aquifer(s). Includes consideration of advection, dispersion, and diffusion of contaminants in the groundwater;

7. Delineation of areas potentially affected by contaminant migration on the ground surface and/or through the affected aquifer(s);

8. Determination of background or existing groundwater quality underlying the project area;

9. Development of a groundwater monitoring program to measure potential impacts of the development to underlying aquifer(s);

10. Development of a spill plan and/or contingency plan describing the specific actions, which will be taken if a release of a contaminant(s) occurs, or if groundwater monitoring results indicate a contaminant(s) from the site has entered the underlying aquifer(s);

11. The degree of continuity between groundwater and nearby surface water including potential impact to “closed” or “low-flow” streams (as described in Section 17.65.350) from proposed groundwater withdrawals, and potential impacts to surface water quality from site runoff or contaminated groundwater discharge;

12. In conjunction with the Department of Ecology Seawater Intrusion Policy and subsequent policies or ordinances, applicable projects shall be required to determine appropriate pumping rates and schedules that maintain dynamic drawdown levels above mean sea level;

13. Applicable projects such as special use permits, short plats, or long plats shall test existing and/or test wells for nitrate levels and where appropriate calculate the nitrate loading rate at full build-out of the project. If the calculated nitrate loading in the intended water supply equals or exceeds five mg/L nitrate as nitrogen, the proposal will need to develop a mitigation plan. The point of compliance shall be determined based on project specifics. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.350 Aquifer recharge area mitigation.

The health department shall review development proposals to assess aquifer(s) vulnerability and establish needed mitigation. Where determined to be necessary through the site assessment process, development approvals shall include conditions designed to prevent significant degradation of water quality or reduction in water quantity in aquifer recharge areas. The project shall not cause degradation of the groundwater quality below the standards described in Chapter 173-200 WAC or Department of Ecology’s seawater intrusion policy.

Wellhead Protection Mitigation. Where a wellhead protection plan that addresses the project area exists, the director and/or health officer shall use the recommendations contained in the wellhead protection plan as a basis for formulating mitigations. In the absence of such a mitigation plan, the health department and Public Utility District No. 1 shall jointly develop mitigations, a summary of which shall be signed by the applicant and recorded with the applicant’s property title. All new development shall be required to connect to the Public Utility District No. 1 Water System. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.360 Aquifer recharge public notice and review.

In addition to the provisions for public notice provided under Section 17.65.065, the director shall make the site assessment report available for public review upon approval of the following projects which have undergone critical areas review pursuant to this chapter:

A. All projects occurring in Category I areas, except single-family residence or accessory building permits, and short subdivisions;

B. All activities identified under Section 17.65.320(B), regardless of location; and

C. Commercial or industrial projects or subdivisions that have the potential to adversely affect the quality or availability of potable water. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

Article IV. Geologically Hazardous Areas

17.65.400 Geologically hazardous area designations.

Geologically hazardous areas include erosion hazards, landslide hazards, mine hazards, volcanic hazards and seismic hazards, and shall be designated consistent with the definitions provided in WAC 365-190-080(4).

Geologically hazardous areas shall be classified as “known or suspected risk,” or “unknown risk.” (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.410 Geologically hazardous area initial project review.

A site visit shall be conducted by the director to determine whether: (1) “areas of known or suspected risk” identified below are or may be present within two hundred feet of the project or activity; (2) the proposed project or activity is or may be within a distance from the base of an adjacent landslide hazard area equal to the vertical relief of such hazard area; (3) the proposed activity may result in or contribute to an increase in hazard; and (4) whether the project or hazard areas pose a risk to life, property, or other critical areas on or off the project area sufficient to require a site assessment. Areas of known or suspected risk:

A. Erosion Hazard Indicators.

1. Those project areas located within two hundred feet of map unit delineations No. 51 Dystic Xerorthents, No. 99 Mundt and No. 117 Saxon or mapped as moderate to severe, severe or very severe erosion hazard or as having severe rill and inter-rill erosion hazard as identified in the U.S. Department of Agriculture Natural Resources Conservation Service Soil Survey of Skagit County Area, Washington (1989).

2. Those project areas that fall within any soil sloping greater than or equal to thirty percent.

3. The project area falls within areas designated in the Department of Ecology, Coastal Zone Atlas, Washington, Volume Two Skagit County (1978) as U (Unstable), UB (Unstable Bluff), URS (Unstable Recent Slide), or UOS (Unstable Old Slide).

4. Those project areas that may be considered to have an erosion hazard as a result of rapid stream incision or stream bank erosion.

B. Landslide Hazards Indicators.

1. The project area falls within or two hundred feet from areas designated in the Department of Ecology, Coastal Zone Atlas, Washington, Volume Two, Skagit County (1978) as U (Unstable), UB (Unstable Bluff), URS (Unstable Recent Slide), or UOS (Unstable Old Slide).

2. The project area falls within or two hundred feet from slopes having the following characteristics: Gradients of fifteen percent or greater intersecting geologic contacts with permeable sediments overlying low permeability sediment or bedrock and springs or groundwater seepage are present.

3. The project area falls within or two hundred feet from any area having a forty percent slope or steeper and with a vertical relief of ten feet or more.

4. The project area falls within or two hundred feet from any areas of historic failure such as areas designated as quaternary earth slumps, earthflows, mudflows, lahars, debris flows, rock slides, landslides or other slope failures on maps or technical reports published by the U.S. Geological Survey such as topographic or geologic maps, or the Geology and Earth Resources Division of the Washington Department of Natural Resources, or other documents authorized by government agencies.

5. The project area falls within or two hundred feet from any areas potentially unstable as a result of rapid stream incision, stream bank erosion, and undercutting by wave action shall be addressed as a flood hazard consistent with this chapter.

6. Areas that have shown movement during the Holocene epoch or which are underlain or covered by wastage debris of that epoch.

7. The project area falls within or two hundred feet from any slopes that are parallel or sub-parallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials.

8. The project area falls within or two hundred feet from any slopes with a gradient greater than eighty percent and subject to rock fall during seismic shaking.

9. The project area falls within or two hundred feet from any areas that show evidence of or are at risk from snow avalanches.

C. Seismic Hazards. Seismic hazard areas shall include areas that are subject to severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement, soil liquefaction or surface faulting.

1. The project includes structures (as defined in the International Building Code) proposed to be located in any of the areas described in subsection A or B of this section or located in areas known to have a potential for soil liquefaction and soil strength loss during ground shaking as identified on the U.S. Geologic Survey Relative Slope Stability Map of the Port Townsend Quadrangle, Puget Sound Region, Washington (1985), or as identified in the field. A geologic hazard site assessment is not required for soil liquefaction and soil strength loss resulting from seismic activity unless other criteria provided in this section apply. The building official shall require evaluation using the provisions set forth in the adopted building code.

2. The structures or critical facilities are proposed to be located on a Holocene fault line. (No critical facilities shall be located on a Holocene fault line as indicated on investigative maps or described in studies by the U.S. Geologic Survey, Geology and Earth Resources Division of the Washington Department of Natural Resources, or other documents authorized by government agencies, or as identified in the field.) All developments on a Holocene fault line shall require a disclosure statement indicating the property is located on an active fault and may be geologically hazardous.

D. Volcanic Hazards. The project area is located in a volcanic hazard zone for Glacier Peak, Washington (Open-File Report 95-499); or in a volcanic hazard area of Mount Baker, Washington (Open-File Report 95-498). A site assessment is not required for volcanic hazard areas unless other criteria provided in this section apply.

E. Other Geologic Hazard Indicators.

1. The project area falls within or two hundred feet from an alluvial fan as designated on the Skagit County Alluvial Fan Study Orthophoto Maps;

2. The project area falls within or two hundred feet from a mine hazard area as designated on the Department of Natural Resources Map: Coal Measures of Skagit County (1924), or within two hundred feet of any other current or historic mine operations determined to be geologic hazards as described by the title and purpose of the critical areas ordinance Section 17.65.020(C)(5), Geologically Hazardous Areas;

3. Areas of Unknown Geologic Hazards. As part of any development application where no current information is available to confirm that the items identified in this section are present on the project area, the critical areas review required by Section 17.65.060 will provide a description of the known and visible site features and be used by the director in evaluating whether a geologically hazardous area site assessment is required pursuant to this section. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.420 Geologically hazardous area site assessment requirements.

A. Site Visit Determination. The director shall make a determination using the following progressive order:

1. No Site Assessment. Where the director determines that the project or activity area has no potential for impacting adjacent ownership and property, other types of critical areas, public property (such as roads and other facilities) or living quarters of any kind, including any existing or proposed off-site, the director shall not require additional site assessments prior to approval under the provisions of this chapter.

2. Site Assessment Required. If the director determines during the site visit described in Section 17.65.410 that the proposed development activity falls within two hundred feet of an “area of known or suspected risk” and the geologic condition may pose a risk to life and property on or off the project area, then a geologically hazardous area site assessment of the project area by a qualified professional as described in subsection (B)(2) of this section shall be required as part of the complete development permit application.

B. Geologically Hazardous Area Site Assessment. When required by the director, a site assessment report shall be prepared by a qualified professional. Portions of the report relating to recommended design or mitigation shall be prepared under supervision of a licensed professional engineer. A qualified professional shall mean an engineer, licensed in the state of Washington, with training and experience analyzing geologic, hydrologic, and groundwater flow systems in Washington State; or by a geologist who earns his or her livelihood from the field of geology and/or geotechnical analysis, with training and experience analyzing geologic, hydrologic and groundwater flow systems in Washington State, who has received a relevant degree from an accredited four-year institution of higher education.

The geologically hazardous area site assessment report shall classify the type of hazard in accordance with Sections 17.65.400 and 17.65.410. The site assessment report shall include the following as appropriate:

1. A site plan must be prepared in accordance with the development permit requirements. The site plan shall depict the height of slope, slope gradient and cross section of the site. The site plan shall indicate the location of all existing structures, proposed structures and any significant known geologic features on the subject site. The site plan shall also include the location of springs, seeps, or other surface expressions of groundwater. The site plan shall also depict any evidence of surface or stormwater runoff;

2. A detailed description of the project, its relationship to potential geologic hazard(s), and its potential impact upon the hazard area(s), the subject property and adjacent properties. The description shall make a determination if a geologically hazardous area(s), as described in Section 17.65.020(C)(5), is present on the subject site. The narrative shall include a full discussion of the geologic factors and conditions on the subject site resulting in the qualified professional’s conclusions;

3. An assessment of the geologic characteristics and engineering properties of the soils, sediments, and/or rock of the subject property and potentially affected adjacent properties. Soils analysis shall be accomplished in accordance with the Unified Soil Classification System;

4. A description of load intensity including surface and groundwater conditions, public and private sewage disposal systems, fills and excavations and all structural development;

5. An assessment describing the extent and type of vegetative cover to include tree attitude;

6. For Potential Landslide Hazards. Estimate slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure. Quantitative analysis of slope stability or slope stability modeling may be required by the director;

7. Additional site assessment standards may be required by the director.

C. Site Assessment Conclusions.

1. Where the qualified professional determines that a geologically hazardous condition is not present on the subject site and/or will not occur as a result of the proposed project, will have no potential for impacting adjacent ownership and property, other types of critical areas, public property (such as roads and other facilities) or living quarters of any kind, including any existing or proposed off site, the director shall not require additional site assessments prior to approval under the provisions of this chapter. The qualified professional shall be required to certify that a geologic hazard is not present on the subject parcel as described in Section 17.65.020(C)(5).

2. Properties identified by the director and the qualified professional containing geologically hazardous conditions shall require a geologically hazardous area mitigation plan. Critical facilities as defined under Chapter 17.66 shall not be sited within designated geologically hazardous areas (exception: volcanic hazard areas). No residential structures shall be located in geologically hazardous areas or their buffers that cannot be fully mitigated. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.430 Geologically hazardous area mitigation standards.

The mitigation plan shall be prepared by a professional engineer or geologist under supervision of a professional engineer and include a discussion on how the project has been designed to avoid and minimize the impacts discussed under Section 17.65.420(B)(2). The plan shall also make a recommendation for the minimum building setback from any bluff or slope edge and/or other geologic hazard shall be based upon the geotechnical analysis under Sections 17.65.420(B)(2) and (B)(3) required. Mitigation plans shall include the location and methods of drainage, locations and methods of erosion control, a vegetation management and/or restoration plan and/or other means for maintaining long-term stability of geologic hazards. The plan shall also address the potential impact of mitigation on the hazard area, the subject property and affected adjacent properties. The mitigation plan must be approved by the director and be implemented as a condition of project approval.

Within designated geologic hazards, mitigation plans shall address the appropriate items listed below as required by the site assessment. One or more of the following mitigation standards, as required by the director, shall be included as components of a mitigation plan pursuant to the requirements of Section 17.65.420 (site assessment report). Other mitigation standards, other than those listed below, may be required by the director depending on the geologic hazard and the site conditions.

A. Mitigation Standards.

1. A temporary erosion and sedimentation control plan prepared in accordance with the requirements of Title 15, Buildings and Construction, as amended.

2. A drainage plan for the collection, transport, treatment, discharge and/or recycle of water in accordance with the requirements of Title 15, Buildings and Construction, as amended.

3. All proposals involving excavations and placement of fills shall be subject to structural review under the appropriate provisions as found in the International Building Code.

4. Critical facilities shall not be sited within designated geologically hazardous areas. (Exception: volcanic hazard areas.)

5. Surface drainage shall not be directed across the face of a landslide hazard (including ravines). If drainage must be discharged from the hazard area into adjacent waters, it shall be collected above the hazard and directed to the water by tight line drain and provided with an energy dissipating device at the point of discharge.

6. All infiltration systems such as stormwater detention and retention facilities, and curtain drains utilizing buried pipe or French drain are prohibited in geologically hazardous areas and their buffers unless a site assessment report indicates such facilities or systems will not affect slope stability and the systems are designed by a licensed civil engineer. The engineer shall also certify that the system and/or facilities are installed as designed.

7. Vegetation Removal and Replanting. Removal of vegetation in landslide hazard, erosion hazard and coastal bluff hazard areas shall be minimized. Any replanting that occurs shall consist of trees, shrubs, and ground cover that is compatible with the existing surrounding vegetation, meets the objectives of erosion prevention and site stabilization, and does not require permanent irrigation for long-term survival.

8. A minimum buffer with a width of thirty feet shall be established from the top, toe and all edges of all landslide hazardous areas. Existing native vegetation shall be maintained in accordance with mitigation recommendations within the buffer area. Any modifications to the buffer requirement shall be based on the report and recommendations of the professional geologist under supervision of a licensed professional engineer. The buffer may be reduced to a minimum of ten feet when, supported by a geotechnical report, and the applicant demonstrates to the director that the reduction will adequately protect the proposed development, adjacent developments and uses and the subject critical area. The buffer may be increased by the director for development adjacent to a ravine which is designated as unstable on the Coastal Zone Atlas, Washington, Volume Two Skagit County (1978) or where the director determines a larger buffer is necessary to prevent risk of damage to proposed and existing development (as in the case where the area potentially impacted by a landslide exceeds thirty feet). Normal nondestructive pruning and trimming of vegetation for maintenance purposes; or thinning of limbs of individual trees to provide a view corridor, shall not be subject to these buffer requirements.

9. Seismic Hazard Areas. Structural development proposals shall meet all applicable provisions of the International Building Code.

The director shall evaluate documentation submitted pursuant to Section 17.65.420(B)(2) (site assessment report) and condition permit approvals to minimize the risk on both the subject property and affected adjacent properties. All conditions on approvals shall be based on known, available, and reasonable methods of prevention, control and treatment. Evaluation of geotechnical reports may also constitute grounds for denial of the proposal.

B. Alterations of the Buffer and/or Geologically Hazardous Area. Alterations of the buffer and/or geologically hazardous area may occur for development meeting the following criteria:

1. No reasonable alternative exists; and

2. A site assessment report is submitted and certifies that:

a. There is a minimal hazard as proven by evidence of no landslide activity in the past in the vicinity of the proposed development and a qualitative analysis of slope stability indicates no significant risk to the development proposal and adjacent properties; or the geologically hazardous area can be modified or the development proposal can be designed so that the hazard is eliminated or mitigated so that the site is as safe as a site without a geologically hazardous area,

b. The development will not significantly increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions,

c. The development will not decrease slope stability on adjacent properties, and

d. Such alterations will not adversely impact other critical areas.

C. Noncompliance and Failed Mitigation Plans.

1. Projects found to be in noncompliance with the mitigation conditions issued as part of the development approval are subject to enforcement actions necessary to bring the development into compliance with this chapter.

2. Mitigation plans which do not fulfill the performance required based on the site assessment/geotechnical report findings or otherwise fail to meet the intent of this chapter shall be revised and the subject development brought into compliance with the revised mitigation plan.

3. Mitigation Plan Certification. Upon completion of the project, a qualified professional shall certify that the mitigation plan has been properly implemented. The certification shall be required prior to final approval of the project by the director. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.440 Geologically hazardous area public review and record.

In addition to the provisions for public notice provided under Section 17.65.065, the director shall provide official notice of decision and make the site assessment report available for public review upon approval of any project requiring a geologically hazardous area site assessment pursuant to Section 17.65.420(B)(2) and shall maintain a public record of all materials pertinent to approval decisions. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

Article V. Fish and Wildlife Habitat Conservation Areas

17.65.500 Fish and wildlife habitat conservation area designations.

A. Fish and wildlife habitat conservation areas (HCA) shall be designated and classified as provided for in the definition section of this chapter. The map and species references indicated are intended to serve only as a guide during development review. A site assessment completed by a qualified professional shall be completed to confirm actual conditions.

B. In addition to the HCAs identified in Section 17.65.020(C)(l), additional species and habitats of local importance may be designated by the director based on declining populations, sensitivity to habitat manipulation or special value including, but not limited to, commercial, game or public appeal.

C. In order to nominate an area or a species to the category of habitats and species of local importance, an individual or organization must:

1. Demonstrate a need for special consideration based on:

a. Declining population,

b. Sensitivity to habitat manipulation, or

c. Commercial or game value or other special value, such as public appeal;

2. Propose relevant management strategies considered effective and within the scope of this chapter;

3. Provide species habitat location(s) on a map (scale 1:24,000). Submitted proposals will be reviewed by the director and may be forwarded to the Departments of Fish and Wildlife, Natural Resources, and/or other county and state agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies. A public hearing may be held for proposals found to be complete, accurate, potentially effective and within the scope of this chapter. Approved nominations will become designated “habitats/species of local importance” and will be subject to the provisions of this chapter.

D. The following species and habitats have been designated on a site-specific basis according to the official species and habitats of local significance map:

1. Great blue heron nest sites;

2. Vauxs swifts communal roosts;

3. Pileated woodpecker nest sites;

4. Osprey nest sites;

5. Townsend big-eared bat communal roosts;

6. Cavity nesting ducks breeding areas;

7. Trumpeter swan concentrations;

8. Harlequin duck breeding areas;

9. Waterfowl concentrations. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.510 Fish and wildlife habitat conservation areas initial project review.

A. A site visit shall be conducted by the director to determine whether HCAs identified on a critical area checklist or on available map resources or whether HCAs not previously identified are present within two hundred feet of the project or activity site.

B. Habitat conservation areas are designated by definition in Section 17.65.020(C)(3) and are referenced as follows:

1. An area with which anadromous fish, endangered, threatened or sensitive species have a primary association and/or their habitat such as those designated and mapped by the Washington State Department of Fish and Wildlife, Priority Habitats and Species Program;

2. A water of the state as defined under WAC 222-16-030;

3. A critical biological area as designated and mapped by the Department of Ecology Coastal Zone Atlas dated June 1978 and/or the maps;

4. Designated species and habitats of local importance pursuant to Section 17.65.500;

5. Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish or wildlife habitat;

6. Lakes, ponds, streams, and rivers planted with game fish by a government or tribal entity;

7. Areas with which anadromous fish species have a primary association; and

8. State natural area preserves and natural resource conservation areas.

C. If the director determines through the site visit described in subsection (A)(1) of this section that a fish and wildlife habitat conservation area (HCA) may be present within two hundred feet of the proposed project or activity area, then a site assessment/habitat management plan as described in Section 17.65.520 shall be required as part of the complete application. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.520 Fish and wildlife habitat conservation area site assessment requirements.

Site assessment/habitat management plans shall be prepared by a qualified fish and wildlife biologist with experience assessing the relevant species and habitats and include at a minimum, the following requirements:

A. Site plan prepared in accordance with the permit requirements indicating all fish and wildlife habitat conservation areas falling within two hundred feet of the subject property. This site plan may be prepared by the applicant subject to review by the qualified fish and wildlife biologist;

B. Project narrative describing the proposal including, but not limited to, associated grading and filling, structures, utilities, adjacent land uses, description of vegetation both within and adjacent to the habitat conservation area, and when deemed necessary by the administrative officer, surface and subsurface hydrologic analysis;

C. Impact analysis identifying and documenting the presence of all habitat conservation areas and discussing the project’s effects on the fish and wildlife habitat conservation areas;

D. Regulatory analysis including a discussion of any federal, state, tribal, and/or local requirements or special management recommendations which have been developed for species and/or habitats located on the site;

E. Mitigation report including a discussion of proposed measures of mitigating adverse impacts of the project and an evaluation of their potential effectiveness. Measures may include, but are not limited to, establishment of buffer zones, preservation of critically important plants, and trees, limitation of access to habitat areas, seasonal restrictions of construction activities, establishment of a timetable for periodic review of the plan and/or establishment of performance or maintenance bonds;

F. Management and maintenance practices including a discussion of ongoing maintenance practices that will assure protection of all fish and wildlife habitat conservation areas on site after the project has been completed. This section should include a discussion of proposed monitoring criteria, methods and schedule;

G. Approval of any activity that can adversely affect fish and wildlife habitat conservation areas shall conform to the requirements set forth in Section 17.65.170(A). (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.530 Fish and wildlife habitat conservation area mitigation standards.

Fish and wildlife habitat conservation areas shall be protected in accordance with local determination of appropriate conditions considering the site-specific recommendations from agencies with jurisdictions over the specific area, which may include, but not be limited to, the Washington State Department of Fish and Wildlife, Department of Ecology, federally recognized Indian Tribes located within Skagit County, WDFW Management Recommendations for Washington Priority Habitats and Species, and site-specific information supplied by the applicant.

Development proposals shall be reviewed for potential impacts to fish and wildlife habitat conservation areas. The determination of potential impacts shall be dictated by site conditions and made by the director. The director may consult with the Washington State Departments of Ecology, Fish and Wildlife and Natural Resources and federally recognized Indian Tribes located in Skagit County to determine potential impacts a proposed project may have on a fish and wildlife habitat. If it is determined that a proposed project may have an adverse effect on a fish and wildlife habitat conservation area, the applicant shall implement a habitat management plan including mitigation measures in conformity with the performance standards outlined below:

A. Riparian Performance Standards. Riparian buffer areas shall be established from the ordinary high water mark. The intent of riparian buffers is to protect five basic riparian forest functions that influence in-stream and near-stream habitat quality. These are:

1. Recruitment of Large Woody Debris (LWD) to the Stream. LWD recruitment creates habitat structures necessary to maintain salmon/trout productive capacity and species diversity.

2. Shade. Shading by the forest canopy maintains cooler water temperatures and influences the availability of oxygen for salmon/trout.

3. Bank Integrity (Root Reinforcement). Bank integrity helps maintain habitat quality and water quality by reducing bank erosion and creating habitat structure and instream hiding cover for salmon and trout.

4. Runoff Filtration. Filtration of nutrients and sediments in runoff (surface and shallow subsurface flows) helps maintain water quality.

5. Wildlife Habitat. Functional wildlife habitat for riparian-dependent species is based on sufficient amounts of riparian vegetation to provide protection for nesting and feeding.

B. Standard Riparian Buffers. Riparian areas have the following standard buffer requirements (Note: riparian areas do not extend beyond the toe of the slope on the landward side of existing dikes or levees unless specifically exempt from federal vegetation management requirements. See also Section 17.65.100 for list of activities allowed within critical areas, including riparian areas.):

Water Type Riparian Buffer
Type 1 and 2	200 feet
Type 3	110 feet
Type 4 and 5	50 feet

Once buffers are established, they shall not be altered except as allowed below. Riparian buffers not currently meeting the minimum standards shall be restored; provided, that such restoration does not conflict with other provisions of this chapter. In implementing buffer widths other than the standard riparian buffers identified above, the director may provide opportunity for review and comment from appropriate federal, state or tribal natural resource agencies to ensure the use of best available science. These comments shall be included in the public record along with the basis and rationale for requirement or approval of any such nonstandard buffers.

1. Increasing Buffer Widths. The director has the authority to increase the standard buffer widths on a case-by-case basis, or to establish nonriparian buffer widths, when such buffers are necessary to protect priority fish or wildlife (e.g., great blue heron nesting colonies, osprey or cavity nesting ducks) using the HCA. This determination shall be supported by appropriate documentation from the Departments of Ecology and Fish and Wildlife, showing that the increased buffer width is reasonably related to the protection of the fish and/or wildlife using the HCA.

2. Decreasing Buffer Widths. Decreasing standard buffers will be allowed pursuant to Section 17.65.150 only if the applicant demonstrates that all of the following criteria are met:

a. A decrease is necessary to accomplish the purposes of the proposal and no reasonable alternative is available;

b. Decreasing width will not adversely affect the fish and wildlife habitat functions and values;

c. If a portion of a buffer is to be reduced, the remaining buffer area will be enhanced, using native vegetation, artificial habitat features, vegetative screening and/or barrier fencing as appropriate to improve the functional attributes of the buffer and to provide equivalent or better protection for fish and wildlife habitat functions and values;

d. The buffer width shall not be reduced below fifty percent of the standard buffer width unless the director determines that no other reasonable alternative exists and that no net loss of HCA riparian functional values will result, based on a functional assessment provided by the applicant utilizing a methodology approved by the director.

C. Allowed Uses in HCAs or Buffers.

1. Docks. Docks designed to facilitate low-impact uses, such as education and/or private, noncommercial recreation may be permitted within fish and wildlife HCAs under the following conditions:

a. The activity will have minimum adverse impact to the fish and wildlife habitat conservation area;

b. The activity will not significantly degrade surface or groundwater;

c. The intrusion into the fish and wildlife habitat conservation area and its buffers is mitigated; and

d. The director may provide opportunity for review and comment by federal, state and tribal natural resource agencies.

2. Limited park or recreational access to a fish and wildlife habitat area or its required buffer; provided, that all of the following are satisfied:

a. The access is part of a public park or a recreational resort development that is dependent on the access for its location and recreational function;

b. The access is limited to the minimum necessary to accomplish the recreational function;

c. The access and the balance of the development is consistent with other requirements of the Sedro-Woolley Municipal Code and the Skagit County Shoreline Management Master Program; and

d. The proponent obtains a written approval from the city council for the limited access and associated mitigation.

3. Low impact uses and activities which are consistent with the purpose and function of the habitat buffer and do not detract from its integrity may be permitted within the buffer depending on the sensitivity of the habitat involved; provided, that such activity shall not result in a decrease in riparian functional values and shall not prevent or inhibit the buffer’s recovery to at least prealtered condition or function. Examples of uses and activities which may be permitted in appropriate cases, as long as the activity does not retard the overall recovery of the buffer, include removal of noxious vegetation, pedestrian trails, viewing platforms, and stormwater management facilities such as grass-lined swales and wet ponds or stormwater wetlands.

4. In the riparian buffer, removal of hazardous, diseased or dead trees and vegetation when necessary to control fire, or to halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW, or when the removal is necessary to avoid a hazard such as landslides or pose a threat to existing structures, may be permitted with prior written approval. Any removed tree or vegetation shall be replaced with appropriate species. Replacement shall be performed consistent with accepted restoration standards for riparian areas within one calendar year. The director may approve alternative tree species to promote fish and wildlife habitat.

Prior to commencement of tree or vegetation removal and/or replacement, the landowner must obtain written approval from the director.

5. To allow for greater flexibility in a development proposal, an applicant has the opportunity to remove timber within the standard buffer widths shown above if the applicant’s mitigation measures incorporate all of the performance standards based upon water type listed in the table below. In conformance with professional standards used by the Washington Department of Natural Resources for forest practices in sensitive areas, all removal of timber within HCA buffers shall be subject to conditioning specified by the director and may be made in conjunction with an on-site review in which participation by representatives of the proponent, Ecology, WDFW, WDNR and natural resource representatives of affected Indian Tribes is solicited.

The intent of this section is to provide an additional opportunity for an applicant to propose some level of timber removal within the riparian habitat zone as long as it can be demonstrated that the function of the buffer can be maintained at the levels described below. If the buffer, in its current state, cannot meet these standards, then the director will not be able to give its approval for any activity which would inhibit recovery of or degrade the current buffer.

The current performance of a given buffer area is compared to its potential performance as rated by the Soil Conservation Service, Soil Survey of Skagit County, 1989. In consultation with a representative from the Natural Resource Conservation Service, Soil Conservation District or professional forester, the applicant will determine the capability of the site for woodland management using the most suitable tree species according to the soil survey and establish the stand characteristics that would be expected from a mature stand of those species established on site. If the current stand can exceed the riparian protection that could be expected based on site potential, then additional activity may be allowed provided the following performance standards can be met. For Type 1 and 2 streams, an alternative method may be utilized to allow limited timber harvest within the outer one hundred feet of a buffer:

Performance-Based Riparian Standards*

(These Standards Must Be Exceeded Before Additional Activity Can Be Permitted Within the Riparian Zone)

Watertype Performance Standards.

Type 1 and 2 (Fish Bearing).

a. Maintain ninety-five percent of total LWD recruitment expected to enter the stream from a mature stand;

b. Maintain eighty-five percent of the trees which are greater than twenty-four inches DBH within one hundred feet of stream;

c. Maintain an average of seventy-five percent canopy cover (based on canopy densitometer readings at stream edge); and

d. The applicant may further request some limited timber harvest of up to thirty percent of the merchantable timber within the outer one hundred feet of any two hundred-foot required buffer provided the harvest:

i. Does not reduce the LWD and canopy requirements,

ii. The applicant will increase the total buffer size by fifty feet to mitigate for the limited timber harvest in the required buffer to provide additional wildlife habitat. The additional fifty-foot buffer shall retain a minimum of fifty percent of the total number of trees with twenty-five percent of the total trees left having a diameter at breast height (DBH—four and one-half feet) greater than twelve inches, and

iii. No more than fifty percent of the dominant trees in the outer one hundred feet may be harvested.

Type 3 (Fish Bearing).

a. Maintain eighty-five percent of total LWD recruitment expected to enter the stream from a mature stand;

b. Maintain eighty-five percent of the trees which are greater than eighteen inches DBH within one hundred feet of stream; and

c. Maintain an average of seventy-five percent canopy cover (based on canopy densitometer readings at stream edge).

Type 4 and 5 (Nonfish Bearing).

a. Maintain fifty percent of total LWD recruitment expected to enter the stream from a mature stand;

b. Maintain eighty-five percent of the trees which are greater than twenty-four inches DBH within fifty feet of stream; and

c. Maintain an average of seventy-five percent canopy cover (based on canopy densitometer readings at stream edge).

* Note: Applicants electing to employ performance based mitigation in accordance with the above matrix shall include appropriate analysis and justification in their site assessment/habitat management plan.

D. Bald eagle habitats shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292). A cooperative habitat management plan shall be developed in coordination with the Department of Fish and Wildlife whenever activities that alter habitat are proposed near a verified nest territory or communal roost.

E. Wetlands that are identified as a fish and wildlife habitat conservation area shall be protected according to the provisions in subsection (B)(1) of this section. If the wetland buffer widths called for under subsection B of this section conflict with this section, the buffer widths providing the greatest protection shall apply.

F. All other fish and wildlife habitat conservation areas, including habitats/species of local importance, shall be protected on a case by case basis by means of a habitat management plan based on the PHS program, as set forth in Sections 17.65.510 and 17.65.520, initial project review and site assessment/habitat management plan.

Article VI. Flood Hazard Area

17.65.600 Standards for flood hazard areas.

Development proposed in flood hazard areas, in addition to the provisions of Chapter 17.66 (Flood Damage Prevention), shall be limited to the extent that:

A. Clearing, stripping of vegetation and coverage of the site by roads and structures shall be no more than necessary in order to maintain water quality.

B. Buildings are sited to minimize alteration of terrain and other natural features, and minimize the need for fill. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

Article VII. Compliance and Enforcement

17.65.710 Compliance with critical area regulations.

No permit for a development proposal described in Section 17.65.060 shall be issued unless it also complies with the regulations of this chapter. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.720 Construction.

In any case where the provisions of this chapter conflict with the provisions of the underlying zoning, the provisions of this chapter shall apply. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.730 Severability.

The provisions of this chapter are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this chapter, or the invalidity of the application thereof to any person, owner, or circumstance shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons, owners or circumstances. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.740 State Environmental Policy Act.

This chapter establishes minimum standards which are to be applied to specific land use and platting actions in order to prevent further degradation of critical areas in the city, and is not intended to limit the application of the State Environmental Policy Act (SEPA). Projects subject to SEPA shall be reviewed and may also be conditioned or denied. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.750 Liability disclaimer—Flood hazard areas.

Since floods more severe than the one-hundred-year flood occur on rare occasions, reliance on this chapter will not altogether guarantee freedom from flood damage, nor shall this chapter create liability on the part of the city for such damage. It is further noted that other data regarding one-hundred-year floodplain elevations may exist which indicate a more severe threat than the data established by FEMA. Information on these other data sources shall be kept and made available at Sedro-Woolley City Hall. (Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)

17.65.760 Enforcement of the critical areas regulations.

A. Violations.

1. It is a violation of this chapter for any person to initiate or maintain or cause to be initiated or maintained the use of any structure, land or property within the city without first obtaining the permits or authorization required for the use by this chapter.

2. It is a violation of this chapter for any person to use, construct, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the city in any manner that is not permitted by the terms of any permit or authorization issued pursuant to this chapter; provided, that the terms or conditions are explicitly stated on the permit or the approved plans.

3. It is a violation of this chapter to remove or deface any sign, notice, complaint or order required by or posted in accordance with this chapter.

4. It is a violation of this chapter to misrepresent any material fact in any application, plans or other information submitted to obtain any critical areas authorization.

5. It is a violation of this chapter for anyone to fail to comply with the requirements of this chapter.

B. Duty to Enforce.

1. It shall be the duty of the director to enforce this chapter. The director may call upon the police, fire, health or other appropriate city departments to assist in enforcement.

2. Upon presentation of proper credentials, the director or duly authorized representative of the director may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any building or premises subject to the consent or warrant to perform the duties imposed by the critical areas code.

3. The critical areas code shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.

4. It is the intent of this critical areas code to place the obligation of complying with its requirements upon the owner, occupier or other person responsible for the condition of the land, wetlands, shorelines, and buildings within the scope of this code.

5. No provision of or term used in this code is intended to impose any duty upon the city or any of its officers or employees which would subject them to damages in a civil action.

C. Investigation and Notice of Violation.

1. The director shall investigate any structure or use which the director reasonably believes does not comply with the standards and requirements of the critical areas code.

2. If after investigation the director determines that the standards or requirements have been violated, the director shall serve a notice of violation upon the owner, tenant or other person responsible for the condition. The notice of violation shall state separately each standard or requirement violated; shall state what corrective action, if any, is necessary to comply with the standards or requirements; and shall set a reasonable time for compliance. The notice shall state that any subsequent violation may result in criminal prosecution as provided in Section 17.65.170. In the event of violation of the standards or requirements of this chapter, required corrective action shall include, if appropriate, but shall not be limited to, mitigating measures such as restoration of the area and replacement of damaged or destroyed trees.

3. The notice shall be served upon the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after a reasonable search and reasonable efforts are made to obtain service, the whereabouts of the person or persons is unknown or service cannot be accomplished and the director makes an affidavit to that effect, then service of the notice upon such person or persons may be made by:

a. Publishing the notice once each week for two consecutive weeks in the city official newspaper; and

b. Mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known, or if unknown, to the address of the property involved in the proceedings.

4. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.

5. Nothing in this section shall be deemed to limit or preclude any action or proceeding pursuant to Section 17.65.170.

6. The director may mail, or cause to be delivered to all residential and/or nonresidential rental units in the structure or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, stop work order or emergency order and the applicable requirements and procedures.

7. A notice or order may be amended at any time in order to:

a. Correct clerical errors; or

b. Cite additional authority for a stated violation.

D. Time to Comply.

1. When calculating a reasonable time for compliance, the director shall consider the following criteria:

a. The type and degree of violation cited in the notice;

b. The stated intent, if any, of a responsible party to take steps to comply;

c. The procedural requirements for obtaining a permit to carry out corrective action;

d. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and

e. Any other circumstances beyond the control of the responsible party.

2. Unless a request for review before the director is made in accordance with Section 17.65.170, the notice of violation shall become the final order of the director. A copy of the notice shall be filed with the Skagit County auditor. The director may choose not to file a copy of the notice or order if the notice or order is directed only to a responsible person other than the owner of the property.

E. Stop Work Order. Whenever a continuing violation of this code will materially impair the director’s ability to secure compliance with this code, or when the continuing violation threatens the health or safety of the public, the director may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. A failure to comply with a stop work order shall constitute a violation of this land use code.

F. Emergency Order.

1. Whenever any use or activity in violation of this code threatens the health and safety of the occupants of the premises or any member of the public, the director may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible. A failure to comply with an emergency order shall constitute a violation of this land use code.

2. Any condition described in the emergency order which is not corrected within the time specified is declared to be a public nuisance and the director is authorized to abate such nuisance summarily by such means as may be available. The cost of such abatement shall be recovered from the owner or person responsible or both in the manner provided by law.

G. Review by the Director.

1. Any person significantly affected by or interested in a notice of violation issued by the director pursuant to Section 17.65.170 may obtain a review of the notice by requesting such review within fifteen days after service of the notice. When the last day of the period so computed is a Saturday, Sunday or federal or city holiday, the period shall run until five p.m. on the next business day. The request shall be in writing, and upon receipt of the request, the director shall notify any persons served the notice of violation and the complainant, if any, of the date, time and place set for the review, which shall be not less than ten nor more than twenty days after the request is received, unless otherwise agreed by all persons served with the notice of violation. Before the date set for the review, any person significantly affected by or interested in the notice of violation may submit any written material to the director for consideration at the review.

2. The review will consist of an informal review meeting held at the department. A representative of the director who is familiar with the case and the applicable ordinances will attend. The director’s representative will explain the reasons for the director’s issuance of the notice and will listen to any additional information presented by the persons attending. At or after the review, the director may:

a. Sustain the notice of violation;

b. Withdraw the notice of violation;

c. Continue the review to a date certain for receipt of additional information; or

d. Modify the notice of violation, which may include an extension of the compliance date.

3. The director shall issue an order of the director containing the decision within seven days of the date of completion of the review and shall cause the same to be mailed by regular first class mail to the person or persons named on the notice of violation, mailed to the complainant, if possible, and filed with the Skagit County auditor.

H. Extension of Compliance Date.

1. The director may grant an extension of time for compliance with any notice or order, whether pending or final, upon the director’s finding that substantial progress toward compliance has been made and that the public will not be adversely affected by the extension.

2. An extension of time may be revoked by the director if it is shown that the conditions at the time the extension was granted have changed, the director determines that the conditions at the time the extension was granted have changed, the director determines that a party is not performing corrective actions as agreed, or if the extension creates an adverse effect on the public. The date of revocation shall then be considered as the compliance date. The procedures for revocation, notification of parties, and appeal of the revocation shall be established by rule.

I. Civil Penalty.

1. In addition to any other sanction or remedial procedure which may be available, any person violating or failing to comply with any of the provisions of this chapter shall be subject to a cumulative penalty in the amount listed in the master fee schedule adopted by resolution of the city council per day for each violation from the date set for compliance until the order is complied with.

2. The penalty imposed by this section shall be collected by civil action brought in the name of the city. The director shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the director, take appropriate action to collect the penalty.

3. The violator may show as full or partial mitigation of liability:

a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to gain access to the subject structure, or other condition or circumstance beyond the control of the defendant.

J. Criminal Penalties. Any person violating or failing to comply with any of the provisions of this critical areas code, this chapter, shall be subject to criminal prosecution for a gross misdemeanor, and upon conviction of a subsequent violation shall be fined in a sum not exceeding five thousand dollars or be imprisoned in the city jail for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance with any of the provisions of this critical areas code shall constitute a separate offense.

K. Additional Relief. The director may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of this critical areas code when civil or criminal penalties are inadequate to effect compliance. (Ord. 2013-22 § 52, 2022; Ord. 1849-16 § 3 (Exh. B) (part), 2016: Ord. 1523-05 § 1 (part), 2005)