Chapter 19.01
GENERAL CRITICAL AREA PROVISIONS
Sections:
19.01.020 Title and authority.
19.01.060 Regulated activities.
19.01.080 General critical area regulations.
19.01.090 General mitigation requirements.
19.01.100 General critical area report requirements.
19.01.110 Unauthorized alterations and enforcement.
19.01.120 Property tax relief.
19.01.010 Purpose.
A. The purpose of this title is to comply with the Growth Management Act’s (GMA) requirement to designate critical areas and adopt development regulations to assure the protection of such areas in accordance with best available science. Critical areas serve a valuable function for people and wildlife in Skamania County, but may also pose a threat to human safety and to public and private property. Building in flood-prone or geologically hazardous areas can present humans with safety concerns. CARAs are essential to our drinking water supply. Wetlands serve multiple functions, including providing habitat, enhancing water quality, and attenuating flooding. Fish and wildlife habitat conservation areas are vital to the preservation of protected species. The identification, management, and protection of critical areas are, therefore, necessary to protect the public health, safety, and general welfare of the county’s citizens. The purposes of this title with regard to each type of critical area include:
1. Wetlands. To recognize and protect the beneficial functions performed by wetlands.
2. Critical Aquifer Recharge Areas. To protect public health, safety, and welfare by preventing the degradation of the quality or quantity of groundwater within designated CARAs.
3. Fish and Wildlife Habitat Conservation Areas. To recognize and protect important physical and biological functions that benefit the county and its residents.
4. Frequently Flooded Areas. To protect public health and safety from the hazards associated with development within frequently flooded areas.
5. Geologically Hazardous Areas. To recognize and protect the public from geologic hazards, including landslide hazards, seismic hazards, erosion hazards, and volcanic hazards.
B. In order to protect the rights of individual property owners, this title is to be administered with flexibility and attention to site-specific characteristics. This title shall not be used to deem property unusable by denying its owner reasonable economic use of the property. (Ord. 2020-03, 2-25-20)
19.01.020 Title and authority.
A. Title. This title shall be known as the Critical Areas Ordinance of Skamania County, Washington.
B. Authority. This title is established pursuant to RCW 36.70A.060 (Washington State Growth Management Act). (Ord. 2020-03, 2-25-20)
19.01.030 Applicability.
A. This title applies to development or actions taken by an applicant on land that contains any of the following:
1. Wetland;
2. Critical aquifer recharge area;
3. Fish and wildlife habitat conservation area;
4. Frequently flooded area;
5. Geologically hazardous area; and
6. Buffers for these areas, as applicable.
B. No person, company, agency, or applicant shall alter a critical area or its buffer except as consistent with this title. This title does not apply to critical areas within regulated shoreline jurisdiction that are regulated by the critical area provisions of the county’s adopted shoreline master program (SMP). In addition, this title does not apply to land subject to Title 22 (Columbia River Gorge National Scenic Area).
C. The critical area regulations in this title shall apply in addition to zoning and other regulations established by Skamania County. In the event of any conflict between these and any other regulations of Skamania County, the regulations that provide greater protection of critical areas and their buffers shall apply. (Ord. 2020-03, 2-25-20)
19.01.040 Critical area maps.
The approximate location and extent of critical areas and lands within the county planning area are identified and available on the internet through the Skamania County community development department. The mapped location of critical areas is hereby adopted and considered part of this title. The mapped location of critical areas is intended for use as a general guide for the assistance of property owners and as information for the public. Field investigation and analysis by a qualified professional may be required to confirm the existence, location, and proper classification of a critical area. These map locations of critical areas may be updated as new critical areas are identified. Maps updated and published by state and federal resource agencies may also be used to supplement the adopted maps. (Ord. 2020-03, 2-25-20)
19.01.050 Administration.
A. The Skamania County community development department, or a designee, shall serve as administrator of this title.
B. Pre-Application Conferences. An applicant may request a pre-application conference prior to submitting an application under this title. The purposes of the conference shall be to acquaint the applicant with the substantive procedural requirements of this title, to discuss the principal elements of the proposed action, and to identify opportunities and constraints associated with the proposed action. The applicant may also request that representatives from other agencies with expertise, such as the Washington Department of Fish and Wildlife (WDFW) or the Washington State Department of Ecology (Ecology), attend the pre-application meeting.
C. Permit Types.
1. Critical Areas Review. Critical areas reviews are required for all regulated activities listed in Section 19.01.060 and are reviewed administratively with a decision made by the administrator. Critical areas reviews shall be combined with any other required county land use application reviews such as short plats, subdivisions, administrative reviews, or conditional use permits.
2. Critical Areas Variance. Critical areas variances are subject to the criteria in subsection (F)(5) of this section and are reviewed by the administrator, with a recommendation made to the county hearing examiner who makes the final decision after a public hearing in accordance with Chapter 21.16.
D. Applicants for critical areas reviews or critical areas variances are responsible for complying with all state and federal regulations that may apply to the proposed activity, whether or not a review or variance is approved by the county. State and federal permits will be required for certain activities in critical areas, including but not limited to in-water or wetland work. All other relevant county permit and regulatory requirements shall also be met for the proposed activity.
E. Submittal Requirements. Applications for critical areas reviews and critical areas variances under this title shall be made on forms provided by the administrator and shall provide a critical areas report consistent with Section 19.01.100. When a critical areas review is required for another county land use application, the critical areas review shall not require a separate land use application, but shall be reviewed according to the procedures for that application identified in Title 21 for administrative reviews and conditional use permits and Title 17 for short plats and subdivisions.
F. Review Process. The following review process applies to all critical areas variances and to critical areas reviews that are not combined with another county land use application:
1. Completeness Review. Upon submittal of all the information required by the title, the administrator shall review the application for completeness and provide notice to the applicant within twenty-eight days whether additional information is required. If the administrator does not respond within twenty-eight days, the application shall be deemed complete and review shall commence. If the application is deemed incomplete, the applicant shall provide all information requested within ninety days. Once the applicant resubmits all information, the administrator shall review the application for completeness within fourteen days. The determination of completeness shall not preclude the county from requesting additional information or studies during application review.
2. Noticing. After the application has been deemed complete, the administrator shall issue a public notice of application within fourteen calendar days after the determination of completeness to all persons owning property within three hundred feet of the parcel(s) on which the development or use would occur and to any interested persons. The notice shall contain all information required by RCW 36.70B.110.
a. If a hearing before the hearing examiner is required, then notice of the hearing shall be published in the newspaper of record at least ten days prior to the hearing and mailed at least fourteen days prior to the hearing.
b. Applications for proposals that are categorically exempted from SEPA under WAC 197-11-800 and that do not require a hearing shall not require a public notice of application.
c. When a critical areas review is combined with another county land use application, noticing shall follow the requirements for that other application process in Title 21 for administrative reviews or conditional use permits and Title 17 for short plats or subdivisions.
3. Critical Areas Review and Critical Areas Variance Process. The critical areas review and critical areas variance process shall be combined with any other county land use review processes so that applications can be reviewed expeditiously. The administrator shall review critical areas applications based on all applicable provisions in this title and the variance criteria, if applicable. In order for a critical areas variance to be approved, the hearing examiner shall find that the proposed activity, use, or development meets the criteria contained in subsection (F)(5)(a) of this section.
4. Decision on Critical Areas Reviews.
a. Following the notice of application, the county may issue a decision on a critical areas review at any time, at least fourteen days after the notice. The decision on a critical areas variance may be issued after the conclusion of the public hearing. The county shall issue its decision on critical areas reviews and variances within one hundred twenty days after issuance of completeness unless written findings specify the additional time needed for processing.
b. For applications for proposals that are categorically exempted from SEPA under WAC 197-11-800 where a public notice of application is not required, the county may issue a decision on a critical areas review at any time within one hundred twenty days after issuance of completeness unless written findings specify the additional time needed for processing. A notice of decision shall be posted to the county website for fourteen days. The notice of decision shall include notice of the right to appeal as set forth in subsection (F)(9) of this section.
c. The administrator or hearing examiner shall issue a decision on the critical areas review or variance application, including findings of fact and conclusions, and may impose such conditions as necessary to ensure consistency with the provisions of this title.
d. The administrator shall mail a copy of the decision to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision, submitted substantive comments on the application, or who testified at the public hearing. The decision shall include notice of the right to appeal as set forth in subsection (F)(9) of this section.
e. The decision of the administrator or hearing examiner shall become final unless a notice of appeal is filed consistent with this chapter. No action shall be authorized under any critical areas review or variance until the expiration of the fourteen-day appeal period.
5. Critical Areas Variances. To avoid the taking of private property without just compensation, this section establishes a variance process from standard critical area protection regulations.
a. The hearing examiner shall grant a variance if the applicant demonstrates that the requested variance conforms to all of the criteria set forth below:
i. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;
ii. That the special conditions and circumstances do not result from the actions of the applicant;
iii. That literal interpretation of the provisions of this title would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this title, and the variance requested is the minimum necessary to provide the applicant with such rights;
iv. That the granting of the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings under similar circumstances;
v. That the granting of the variance is consistent with the general purpose and intent of this title, and will not further degrade the functions or values of the associated critical area or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property; and
vi. That the decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat.
b. In granting any variance, the hearing examiner shall prescribe such conditions and safeguards as are necessary to secure the protection of critical areas from adverse impacts.
6. Permit Validity. A critical areas review or variance approval is valid for a period of two years after the date of decision, unless extended under the provisions of this section. If development action is not initiated within two years and completed within five years of the date of the decision or, once initiated, is discontinued for one year or more, the decision shall be void. The decision also shall be void if a court or other appellate body of competent jurisdiction determines there was an unconstitutional taking of private property.
7. Critical Areas Review or Variance Extensions. An applicant may request an extension of a critical areas review. An extension must be requested by the applicant prior to the expiration of the original decision. A request for an extension of a critical areas review shall be made in writing, addressed to the administrator and shall set forth the reasons why an extension is necessary and should be granted. The administrator may grant an extension of up to two years if it is determined that conditions for which the applicant is not responsible would prevent the applicant from commencing the use or development within the original two-year period.
8. Changes or Alterations to a Permitted Action. Any change or alteration to a development action approved by the county under this title shall be processed as a new action; provided, that the administrator may approve minor changes or alterations deemed consistent with the provisions of this title and the findings and conclusions on the original application.
9. Appeals. Interested persons may appeal the decision of the administrator on critical areas reviews within fourteen calendar days from the notice of decision. Appeal shall be made to the hearing examiner and shall be commenced with the filing of a notice of appeal.
a. Notice of Appeal of Administrator’s Decision. Notice of appeal forms shall be available at the administrator’s office. The notice of appeal shall be mailed to all interested parties and shall contain:
i. The name of the person filing the notice;
ii. The name of the applicant;
iii. A brief description of the action proposed by the applicant;
iv. The date upon which the administrator’s decision was issued;
v. A concise description of the grounds upon which the appeal is premised; and
vi. Proof of service upon all interested parties.
b. Hearing on Appeal of Administrator’s Decision. The hearing before the hearing examiner shall be “de novo” – it shall consider the matter from the beginning – but the hearing shall include the record submitted by the administrator. The following evidentiary rules shall apply in all hearings:
i. Evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible;
ii. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded;
iii. All evidence not objected to shall be received by the hearing examiner, subject to the hearing examiner’s power to exclude irrelevant, immaterial, or unduly repetitious matter; and
iv. Evidence objected to may be received by the hearing examiner. Rulings on the admissibility of such evidence, if not made at the hearing, shall be made at or before the time a final order is issued.
c. An order of the hearing examiner becomes appealable when it has been reduced to written findings of fact, conclusions, and order, signed by the hearing examiner.
d. Appeals from Decisions of the Hearing Examiner. A signed written final order of the hearing examiner shall be final and conclusive, unless within the time frame provided in Chapter 36.70C RCW. The applicant or any adverse party makes application to a court of competent jurisdiction for judicial review of the land use decision. (Ord. 2020-03, 2-25-20)
19.01.060 Regulated activities.
A. Skamania County shall not approve any application for a critical areas review or variance, or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first assuring compliance with the requirements of this title. The following specific developments, uses, or activities are regulated by this title and require a critical areas review prior to initiation when located within a critical area or its buffer:
1. Removing, clearing, grading, excavating, disturbing, or dredging soil, sand, gravel, minerals, organic matter, or materials of any kind;
2. Dumping, discharging, or filling with any material;
3. Subdivisions, short plats, planned unit developments (PUDs), mobile home parks, and RV parks;
4. Construction, reconstruction, demolition, or alteration of the size of any structure or infrastructure;
5. Construction of any new public or private road or driveway;
6. Destroying or altering vegetation through clearing, harvesting, cutting, intentional burning, shading, or planting nonnative species where these activities would alter the character of a critical area, or its buffer; provided, that these activities are not part of a Class I, II, or III forest practice governed under Chapter 76.09 RCW and its rules. Class IV forest practices are regulated activities under this title;
7. Draining, flooding, or altering the water level, duration of inundation, or water table;
8. Application of pesticides, fertilizers, and/or other chemicals in amounts or at times demonstrated as harmful to water quality, wetland habitat, riparian corridors associated with surface water systems, or wildlife or fish life;
9. The driving of pilings;
10. The placing of obstructions; and
11. Introductions of pollutants. (Ord. 2020-03, 2-25-20)
19.01.070 Exemptions.
A. The following general activities may be located in critical areas and buffers and are not required to obtain a critical areas review. Applicants may request a letter of exemption from the administrator for exempt activities.
1. The provisions of this title do not apply to those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, Chapter 76.09 RCW and WAC Title 222, where state law specifically limits local authority, except with regard to Class IV developments and conversions requiring local approval, when the county is lead agency for environmental review.
2. Existing and ongoing agricultural activities and structures that are in operation at the time of adoption of the ordinance codified in this title.
3. Maintenance, operation, repair, reconstruction, or replacement of the following; provided, that any such facilities within a watercourse, wetland, or associated buffer will result in no additional disturbance of any critical area or buffer and the risk to life or property will not increase as a result:
a. Existing structures;
b. Infrastructure, including existing public and private roads, streets, sidewalks, driveways, railroads, trails; and
c. Existing utility lines (electric, cable, fiber optic, telephone, gas, sewer, water, stormwater), public and private stormwater detention facilities, wastewater treatment facilities, grass-lined swales, in-stream detention facilities, and flood control and diking facilities.
4. Any remodeling of a structure that does not involve alteration to the building footprint, ground disturbance, or increased impervious surfaces.
5. Existing structures and related improvements. Structures and related improvements may continue to exist in their present form, and may be altered, including remodeled, reconstructed, replaced, or expanded, if such alteration complies with the following:
a. Existing buildings may be altered or replaced only one time within the lifetime of the structure, and:
i. The expansion of the structure’s footprint is outside a landslide hazard area or landslide hazard area buffer unless required for safety or seismic upgrades;
ii. Any expansion of the structure’s footprint is located only within a critical area buffer. No expansion of the footprint is allowed within a wetland or fish and wildlife habitat conservation area;
iii. Cantilevers over critical areas are not allowed;
iv. The expansion of the structure’s footprint at ground level does not exceed five hundred square feet;
v. Any expansion of the structure’s footprint is no closer to the critical area than its existing footprint; and
vi. An existing building damaged or destroyed by fire, flood, or other similar disaster may be replaced. Construction must commence within twelve months of the date the original building was damaged or destroyed.
b. An existing single-family dwelling may be replaced with a new dwelling (e.g., mobile or modular home replaced by a new single-family “stick-built” residence), if the new dwelling complies with all provisions of subsections (A)(5)(a)(i), (ii), (iii) and (v) of this section. The dwelling’s footprint at ground level may expand up to one hundred percent. An existing building damaged or destroyed by fire, flood, or other similar disaster may be replaced. Construction must commence within two years of the date the original building was damaged or destroyed.
c. Existing property improvements other than buildings, including driveways, parking areas, yards and landscaped areas, play areas, storage areas, decks less than five feet in height, patios, and similar improvements, may be altered if:
i. Any alteration is in substantially the same location as the original property improvement;
ii. Any expansion of the improvement’s footprint is located only within the required buffer. No expansion of the footprint is allowed within the critical area itself and cantilevers over wetlands and fish and wildlife habitat conservation areas are not allowed; and
iii. Any expansion of the improvement’s footprint is no closer to the critical area than its existing footprint.
6. Structures under two hundred square feet in area, which are exempt from building permit requirements, that are residential accessory structures and are not plumbed, provided the structure is placed in an area of the buffer where no woody vegetation exists and will not impact the functions and values of the critical area or its buffer substantially. No more than one such structure is permitted for each existing lot.
7. Installation, construction, or replacement of utility facilities located inside road, utility, or railroad rights-of-way or easements that have been disturbed in the past.
8. Maintenance of existing and ongoing landscaping, including normal and nondestructive pruning and trimming of vegetation and thinning of limbs or individual trees in a critical area or buffer area; provided, that no further disturbance is created and the landscaping was not created in violation of this title.
9. The following vegetation removal activities:
a. Removal and disposal of any invasive vegetation designated by the Skamania County noxious weed control program and, in addition, English ivy (Hedera helix), Himalayan blackberry (Rubus armeniacus), evergreen blackberry (Rubus laciniatus), giant knotweed (Polygonum sachalinense), Himalayan knotweed (Polygonum polystachyum), and Japanese knotweed (Polygonum cuspidatum). The removal and disposal must be conducted using best management practices for the species present and in compliance with the following provisions:
i. If the removal of invasive vegetation occurs in wetlands or other water bodies, use of chemical herbicides is allowed only when using those approved by the United States Environmental Protection Agency (EPA), the Washington State Department of Ecology (Ecology), and the Washington State Department of Agriculture (WSDA) for application in aquatic environments.
ii. Aquatic herbicides can be used or applied only by certified applicators or persons under the direct supervision of a certified applicator, and only for those uses covered by the certified applicator’s license category.
iii. Planting nonnative species in areas from which invasive vegetation has been removed is prohibited.
b. The removal of hazard or diseased trees from critical areas and buffers using hand tools, including chainsaws or handheld, gas-powered and electric equipment, and low-impact machinery where the machinery is designed to be surface-friendly to minimize or eliminate turf damage and soil compaction issues; provided, that:
i. Where the hazard is not immediately apparent to the administrator, the applicant shall submit a report from a qualified professional that documents the hazard and provides a replanting schedule for the replacement trees. The landowner shall replace any trees that are removed with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year. Replacement trees shall be of a native species at least four feet in height;
ii. All nonnoxious weed vegetation and cut wood (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted because of the potential for fire hazard or disease or pest transmittal to healthy vegetation; and
iii. If a tree to be removed provides critical habitat for a species with federal or state protected status, a qualified wildlife biologist shall be consulted to determine timing and methods of removal that will minimize impacts.
c. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed vegetation shall be replaced in kind or with similar native species within one year in accordance with an approved restoration plan.
10. Minimal site investigative work required for a future development or associated with scientific or archaeological research, such as surveys, soil explorations, percolation tests, and other related activities; provided, that impacts on critical areas are minimized, and disturbed areas are restored to the preexisting level of function and value as soon as possible, and at most within one year after investigative work is concluded.
11. Low-impact passive recreational uses, sport fishing or hunting, scientific or educational review, or similar minimum-impact, nondevelopment activities, such as conservation or preservation of soil, water, vegetation, fish, and other wildlife.
12. 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 the soil, planting crops, applying chemicals, or altering the critical area by changing existing topography, water conditions, or water sources.
13. Maintenance of intentionally created artificial wetlands or surface water systems, including irrigation and drainage ditches, grass-lined swales and canals, detention facilities, farm ponds, and landscape or ornamental amenities. Wetlands, streams, lakes, or ponds created as mitigation for approved land use activities or that provide critical habitat shall be regulated according to the mitigation plan.
14. Fish habitat enhancement projects, watershed restoration projects, and plans in compliance with WAC 173-27-040 shall be exempt from this chapter.
15. Any projects currently under review and “vested” as that term is used in RCW 19.27.095 and 58.17.033 by local, state, or federal agencies prior to official adoption of the ordinance codified in this title are exempt from this chapter and will be processed under previous critical areas protection measures.
16. Emergency actions that must be undertaken immediately when time is insufficient for full compliance with this chapter may be taken only when it is necessary to prevent threat to/of:
a. Public health, safety, or welfare;
b. Public or private property;
c. Serious environmental degradation.
The person or agency undertaking such action shall notify the administrator within one working day following the commencement of the emergency activity. Following such notification, the administrator shall determine whether the action taken was within the scope of the emergency actions allowed in this subsection. If the administrator determines that the action taken or part of the action taken is beyond the scope of allowed emergency actions, enforcement action is authorized, as outlined in Section 19.01.050.
The person or agency undertaking such action, upon abatement of the emergency situation, will be required to apply for a critical areas review that would have been required, absent an emergency, pursuant to this title. The person or agency has sixty days from the abatement of the emergency to apply for a critical areas review. The emergency action shall be the minimum possible and use reasonable methods, and restoration and mitigation for impacts shall be initiated within three months of the approval of critical areas reviews. (Ord. 2020-03, 2-25-20)
19.01.080 General critical area regulations.
A. The applicant shall determine and the county shall verify, on a case-by-case basis, whether any critical areas exist on or in close proximity to the subject property and the setback or buffer required under this title.
B. Financial Guarantee for High-Value Projects. The county may require a financial guarantee ensuring fulfillment of the mitigation project, monitoring program, and any contingency measures authorized by this title for mitigation projects exceeding five hundred thousand dollars in cost. The guarantee shall be in accordance with the following:
1. The financial guarantee shall be in a form of 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 county attorney.
2. Bonds or other security authorized by this section shall remain in effect until the county determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the county for a minimum of the length of the time specified for monitoring in the plan and shall be released after a request by the applicant and a final inspection, but may be held for longer periods when necessary.
C. Inspection and Right of Entry. The administrator may inspect any development activity or mitigation site to enforce the provisions of this title. By submitting a signed permit application, the applicant consents to entry upon the site by the administrator during regular business hours for the purposes of making reasonable inspections to verify information provided by the applicant and to verify that work is being performed in accordance with the approved plans, permits, and requirements of this title. Applicants may request that the administrator make an appointment prior to any site visits.
D. Buffers.
1. All buffers shall be measured from the critical area boundary as determined in the field. The width of the buffer shall be determined according to the requirements of this title and the findings of a critical areas report.
2. When a road, railroad, levee, other improvement or vertical separation completely functionally isolates the buffer from the critical area, the regulated critical area buffer shall not extend beyond the edge of the road, railroad, levee, other improvement, or vertical separation closest to the critical area. Whether a buffer is functionally isolated shall be determined by the administrator subject to a critical area report and review.
3. When one type of critical area overlaps with or is contained within another type of critical area or buffer, the buffer width shall be the greatest distance required by the buffer width of the most restrictive critical area.
4. Standard Buffers. The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the critical area functions and values at the time of the proposed activity. If the vegetation or protection area is inadequate, the county may require an increase in the buffer width or additional native plantings within the standard buffer width.
5. Buffer Averaging. The administrator authorizes averaging for wetland and fish and wildlife habitat conservation buffers only when the buffer area and width after averaging will not impact the critical area and/or buffer functions and values adversely and such averaging does not exceed twenty-five percent of the buffer width. At a minimum, any proposed buffer averaging shall meet all of the following criteria, as demonstrated in the applicant’s critical areas report:
a. The buffer area after averaging shall be no less than the area required without averaging.
b. The buffer width shall not be reduced by more than twenty-five percent.
c. There are no feasible alternatives to the site design that could be accomplished without buffer averaging.
d. The critical area has significant differences in characteristics that affect its habitat functions, so that the buffer is increased adjacent to the higher-functioning area and decreased adjacent to the lower-functioning portion.
e. Best management practices are implemented during construction as recommended by a critical areas report.
f. The additional buffer area is contiguous with the standard buffer.
g. A reduced buffer is not located waterward of the top of an associated steep slope or geologically hazardous area, or a frequently flooded area.
6. Buffer Reduction. The administrator may authorize a wetland or fish and wildlife habitat conservation buffer reduction not to exceed twenty-five percent of the standard critical area buffer width and only if the reduction will not adversely impact the critical area and/or buffer functions and values. Unless otherwise stipulated elsewhere in this title, the buffer reduction shall be subject to a critical area study performed by a qualified professional who finds that:
a. There are no feasible alternatives to the site design that could be accomplished without buffer reduction.
b. Buffer impacts have been avoided and minimized to the greatest extent possible, and degraded portions of the remaining buffer are enhanced to protect critical areas functions and values.
c. Best management practices are implemented during construction as recommended by a critical areas report.
d. The reduction will not adversely affect water quality or disrupt a priority habitat.
e. If buffer averaging or reductions are requested exceeding twenty-five percent of the buffer width, a critical areas variance is required consistent with Section 19.01.050(F)(5).
7. Density Transfer for Residential Land Divisions. The county shall allow transfer of density for residential uses from lands containing critical areas, as defined by this title. In order to accommodate the density transfer, the county may allow reductions in setbacks and lot dimensions and sizes.
a. The basis for the density transfer will be calculated for the entire property as if it did not have the critical area, subject to the provisions of the underlying zoning designation.
b. Residential density may be transferred only from a critical area to an area on the same site that is not a critical area.
c. The critical area shall be permanently protected as undeveloped land by an easement or other similar restriction acceptable to the county.
d. Requests for density bonuses shall be subject to the cluster development standards in Section 21.70.150.
E. Marking and/or Fencing.
1. Temporary Markers. In order to prevent unauthorized intrusion during construction activities, the administrator may require, as a condition of any review or variance, that the outer perimeter of a critical area or buffer, whichever is greater, and the limits of the areas to be disturbed pursuant to an approved review or authorization be marked in the field in a manner approved by the county as appropriate to the type of critical area. This temporary marking shall be maintained throughout construction and shall not be removed until directed by the county or its agent, or until permanent signs and/or fencing, if required, are in place.
2. Permanent Markers. The administrator may require, as a condition of any review or variance, that the perimeter of the critical area or buffer be permanently identified. If required, this identification shall include permanent wood or metal signs on wood or metal posts, or affixed to stone boundary markers at ground level. Sign content and spacing shall be determined by the administrator as necessary to meet the purposes of this section.
3. Permanent Fencing. The administrator shall require permanent fencing where there is a substantial likelihood of intrusion into the critical area/buffer with the development proposal or when domestic grazing animals are present or may be introduced on site. The administrator may also require such fencing when, subsequent to approval of the development proposal, intrusions result in damage to critical areas. Fencing shall be designed and constructed in a manner that minimizes impacts to the critical area/buffer. (Ord. 2020-03, 2-25-20)
19.01.090 General mitigation requirements.
A. Skamania County will use the following general methods and mechanisms to accomplish the purposes of the critical areas regulations. This section shall apply to all uses and developments that result in critical area impacts. These provisions do not apply to CARAs; mitigations for proposed impacts to CARAs shall be in compliance with the findings of a hydrogeological study required by Section 19.04.060.
B. Use and development in or near critical areas and all mitigation actions that require compensation shall observe the mitigation sequence in the following order of priority:
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; and
6. Monitor the impact and the compensation projects and take appropriate corrective measures.
C. When a critical area is created, restored, or enhanced as compensation for an approved alteration, the following shall apply:
1. The required buffer distance is determined by this title. Buffers must be maintained as required by this title.
D. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and water quality.
E. General Mitigation Requirements. This subsection provides general mitigation requirements applicable to alteration of critical areas. Additional specific mitigation requirements are found under the sections for the particular type of critical area.
1. Mitigation is required when a critical area or its buffer has been altered in violation of county regulations and, as a consequence, its functions and values have been degraded. Mitigation is also required when the alteration occurs in violation of county regulations during the construction of an approved development proposal. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan.
2. Restoration is required when the critical area or its buffer will be temporarily impacted during the construction of an approved development proposal. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan. A qualified professional should determine whether restoration is possible before any temporary disturbance occurs.
3. Compensation. The goal of compensation is to protect critical area/or buffer functions and values. Compensation includes replacement, restoration, or enhancement of the critical area or its buffer depending on the scope of the approved alteration and what is needed to maintain or improve the critical area and/or buffer functions. Compensation for approved critical area or buffer alterations shall meet the following minimum performance standards and shall occur pursuant to an approved mitigation plan:
a. On Site. Unless otherwise approved, compensation for all critical area impacts shall be in kind, on site, and of the same or higher critical area category.
b. Off Site. The county or its agent may consider and approve off-site compensation where the applicant demonstrates that greater ecological functions will be achieved. The compensation may include restoration, creation, or enhancement of critical areas. Off-site mitigation banking is permitted at a bank approved through the interagency review team.
c. The compensation ratios specified by this title shall apply for both on-site and off-site compensation.
d. Increased Replacement Ratios. The county or its agent may increase the mitigation ratios under the following circumstances:
i. Uncertainty exists as to the probable success of the proposed compensation due to an unproven methodology or proponent; or
ii. A significant period will elapse between impact and compensation of critical area functions; or
iii. The impact was unauthorized.
e. Decreased Replacement Ratios. When all of the following criteria are met, the county or its agent may decrease the mitigation ratios required by the on-site ratios specified under the compensation section of each critical area:
i. Minimum replacement ratio of 1:1 will be maintained;
ii. Documentation by a qualified specialist demonstrates that the proposed mitigation actions will provide functions and values that are greater than the critical area being impacted; and
iii. The proposed mitigation actions are conducted in advance of the impact and have been shown to be successful. If a specific critical area has a greater ratio than the general ratio, then the more stringent ratio would apply.
f. Restoration Credits. Restoration and enhancement completed in advance of critical area development may be used for future development-related mitigation purposes when:
i. The restoration and enhancement are either demonstrably related to the impacts of the proposed development (i.e., in kind), or not demonstrably related to the impacts of the proposed development (i.e., out of kind), provided the restoration and enhancement will result in equal or greater levels of ecological processes or functions than would in-kind restoration and enhancement;
ii. The restoration was initiated after the effective date of this title;
iii. The applicant/property owner can provide conclusive evidence of the pre- and post-restoration conditions using photographs, reports, plans, affidavits, or similar evidence;
iv. The county can verify through a site inspection, photographs, affidavits or other evidence that the restoration actions have improved ecological conditions; and
v. Protective measures are applied to the restored and enhanced area in the form of a tract, conservation easement, or similar preservation mechanism approved by the county.
g. Critical Area Enhancement as Mitigation. Unless otherwise specified by this title, impacts to critical areas may be mitigated by enhancement of existing significantly degraded critical areas for areas impacted at a required mitigation ratio of 2:1. For any remaining impacts not offset by mitigation, a 1:1 replacement mitigation ratio is required. Applicants proposing to enhance critical areas must produce a critical areas report that identifies how enhancement will increase the functions and values of the degraded critical areas and how this increase will adequately compensate for the loss of critical area function at the impact site.
4. Mitigation shall be completed prior to, concurrently with, or immediately following impacts and prior to use or occupancy of the activity or development, or as soon as is seasonally appropriate and shall have a high probability of success, as verified during mitigation plan review. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, water quality, and vegetation.
F. Mitigation Plans.
1. Mitigation or alterations to critical areas shall achieve equal or greater ecological functions. Mitigation sites for wetlands, streams, and fish and wildlife habitat conservation critical areas should be located to achieve contiguous habitat corridors in accordance with an approved mitigation plan in order to minimize the isolating effects of development on habitat areas. Mitigation of aquatic habitat shall be located within the same aquatic ecosystem as the area disturbed. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.
2. At a minimum, the following components shall be included in a complete mitigation plan:
a. Name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the compensatory mitigation report; a description of the proposal; a summary of the impacts and proposed compensation concept; identification of all the local, state, and/or federal wetland-related permit(s) required for the project; and a vicinity map for the project.
b. Baseline Information. Provide existing conditions information for both the impacted critical areas and the proposed mitigation site.
c. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed, and including:
i. A description of the anticipated impacts to the critical areas, the mitigating actions proposed, and the purposes of the compensation measures, including the site selection criteria, identification of compensation goals, identification of resource functions, and dates for beginning and completing mitigation site construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area; and
ii. A review of the science supporting the proposed mitigation.
d. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this title have been met. They may include water quality standards, species diversity targets, habitat diversity indices, or other ecological, geological, or hydrological criteria.
3. In addition to the minimum requirements listed above, additional scope and content of a mitigation plan shall be decided on a case-by-case basis by the county or its consultant. As the impacts to the critical area increase, the mitigation measures to offset these impacts will increase in number and complexity. Key factors in this determination shall be the size and nature of the development proposal, the nature of the impacted critical area, the magnitude of the impacts, and the degree of cumulative impacts on the critical area from other existing or anticipated development proposals.
4. Detailed Construction Plans. These are the written specifications and descriptions of mitigation technique. This plan should include the proposed construction sequencing, grading and excavation details, erosion and sedimentation control features, a native planting plan, and detailed site diagrams and any other drawings appropriate to show construction techniques and anticipated final outcome.
5. Contingency Plan. This section identifies potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates that performance standards have not been met.
G. Monitoring.
1. The county will require long-term monitoring of mitigation sites where alteration of critical areas or their buffers are approved. Such monitoring shall be an element of the required mitigation plan and shall document and track impacts of development on the functions and values of critical areas, and the success and failure of mitigation requirements. The applicant remains responsible for the restoration of the natural resource values and functions until the mitigation goals agreed to in the mitigation plan have been achieved. Monitoring may include, but is not limited to:
a. Documenting the percentage of plants that have survived and replanting to replace dead plants;
b. Establishing vegetation transects or plots to track changes in plant species composition over time;
c. Using aerial or other photography to evaluate vegetation community response;
d. Sampling surface and ground waters to determine pollutant loading;
e. Measuring base flow rates and stormwater runoff to model and evaluate water quantity predictions;
f. Measuring sedimentation rates;
g. Sampling fish and wildlife populations to determine habitat use, species abundance, and diversity;
h. Sampling of water temperatures for wetlands and streams;
2. The applicant or property owner is required to submit monitoring data and reports to the county on an annual basis or other schedule as required by the county or its agent. Monitoring shall continue for a minimum period of three years or for a longer period if necessary to establish that the mitigation performance standards have been met or as specified under the specific chapters of this title.
H. Contingencies/Adaptive Management.
1. When monitoring reveals a significant deviation from predicted impacts or a failure of mitigation measures, the applicant shall be responsible for appropriate corrective action. Contingency plans developed as part of the original mitigation plan shall apply, but may be modified to address a specific deviation or failure. Contingency plan measures shall be subject to the monitoring requirement to the same extent as the original mitigation measures. (Ord. 2020-03, 2-25-20)
19.01.100 General critical area report requirements.
A. In addition to the information required for any other type of permit (subdivision, conditional use, variance, etc.), or for any development activity that will impact a critical area and/or critical area buffer, or if an applicant proposes buffer averaging or reductions, the applicant is required to submit a critical areas report.
B. When sufficient information is not available to determine whether a critical area exists on a site based on critical area maps, development project files, or publicly available data (the WDFW, the National Wetland Inventory (NWI), etc.) as determined by the county, county staff or its agent shall notify the applicant that a critical areas study and report are required. The county may rely on input from a qualified representative of the appropriate resource agency to assist with the determination that a critical areas report is necessary. (For example, the WDFW regional representative may be consulted to determine whether the presence of a fish and wildlife conservation area requires a critical areas study.)
C. Early Disclosure and Verification. When an applicant submits an application for any development proposal, the application shall indicate whether any critical areas or buffers are located on or within three hundred feet of the development. If the applicant states there are no known critical areas, the county should review and confirm whether critical areas exist, and, if critical areas or buffers are present that would be impacted, require the applicant to complete a critical areas report.
D. Professional Review and Preparation.
1. Critical area reports shall be written by a qualified professional, as defined in the definitions section of this title. A critical areas report shall include all information required pursuant to this section.
2. Studies generated as part of State Environmental Policy Act (SEPA) review or prepared for other federal or state permit processes (such as biological opinions or biological evaluations) shall be provided and may be determined by the administrator as adequate to satisfy the critical areas report requirements of this title if the project has been developed in enough detail to have evaluated the site-specific impacts and mitigation measures.
3. The county or its agent may retain independent qualified consultants, at the applicant’s expense, to assist in review of studies that are outside the range of staff expertise. The county may develop a list of pre-qualified consultants that can be used by an applicant in order to preclude the need for peer review of submitted reports.
E. Report Contents. The administrator has the authority to determine the applicability of individual critical areas report requirements and may waive report requirements determined to be unnecessary on a case-by-case basis.
1. A critical areas report shall have three components: (a) a site analysis; (b) an impact analysis, including assessment of cumulative impacts; and (c) proposed mitigation measures. More or less detail may be required for each component depending on the size and intensity of the project and the degree of potential impacts. The county or its agent may waive the requirement of any component when adequate information is otherwise available.
2. In addition to the requirements specified under each critical area, all studies shall contain the following information unless the information has been determined not to apply to the site by the administrator:
a. A scaled site map or set of maps of the project, including:
i. Reference streets and property lines.
ii. Existing and proposed easements, rights-of-way, trail corridors, and structures.
iii. Contour lines.
iv. All critical areas and their buffers.
v. All mitigation areas.
vi. Hydrology. Surface water features both on and adjacent to the site, showing any water movement into, through, and off the project area; all stream and wetland classifications (e.g., hydrogeomorphic class, Cowardin class, etc.); seeps, springs, and saturated soil zones; and wetlands not found on the county inventory maps labeled “un-inventoried.”
vii. Identification of all site preparation, grading activities, and dimensioned location of proposed structures, roads, stormwater facilities, impervious surfaces, and landscaping.
viii. All drainage plans for discharge of stormwater runoff from developed areas.
ix. Location of critical area tract and/or easement.
b. A written report, including:
i. The name and contact information of the applicant and identification of the permit requested.
ii. The dates, names, and qualifications of the persons preparing the report, and documentation of any fieldwork performed on the site.
iii. Description of the project site and its existing condition, including identification and characterization of all critical areas within the proposed project area and the total acreage of the site in each type of critical area(s) and associated buffers.
iv. The proposed action, including, but not limited to, descriptions of filling, dredging, modification for stormwater management, clearing, grading, restoring, enhancing, grazing or other physical activities that will change the existing vegetation, hydrology, soils, or habitat.
v. A description of reasonable efforts made to avoid, minimize, and mitigate impacts to critical areas.
vi. A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.
vii. Description of local, state, and federal regulations applicable to the critical area and permit requirements.
c. The county may waive selected components of the report or accept an alternative form of the required information if the county determines, in consultation with the appropriate resource agency, that sufficient detail will be provided to determine whether all applicable criteria and standards have been met. (Ord. 2020-03, 2-25-20)
19.01.110 Unauthorized alterations and enforcement.
A. The provisions of the SCC shall govern the enforcement of these critical area regulations.
B. Adherence to the provisions of this title and/or to any project conditions shall be required throughout the construction of the development. Should the county or its agent determine that a development is not in compliance with the approved plans, a stop work order may be issued for the violation.
C. When a stop work order has been issued, construction shall not continue until such time as the violation has been corrected and the county determines that the same or similar violation is not likely to reoccur.
D. When a critical area or its buffer has been altered in violation of this title, all ongoing development work shall stop and the applicant shall obtain all the federal, state, and local permits that would have been required had the applicant first obtained permits. Further, this requirement applies to mitigating for all impacts, including temporal loss of functions. The county shall have the authority to issue a stop-work order to cease all ongoing development work and to order restoration, rehabilitation, or replacement measures at the applicant’s or other responsible party’s expense to compensate for the violation of the provisions of this title.
E. When the county or its agent determine that complete restoration is required, the owner or responsible party shall submit a restoration plan. Such a plan shall be prepared by a qualified professional using currently accepted scientific principles and shall describe how the actions proposed meet the minimum requirements described in subsection (F) of this section. At the expense of the applicant or responsible party, the county or its agent shall seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.
F. Minimum Performance Standards for Restoration. The following minimum performance standards shall be met for the restoration of a critical area; provided, that if the applicant or responsible party can demonstrate that greater functions and habitat values can be obtained, these standards may be modified:
1. The historical structure, functions, and values of the affected critical area shall be restored, including water quality and habitat functions.
2. The historical soil types and configuration shall be restored to the extent practicable.
3. The critical areas and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historical functions and values should be replicated at the location of the alteration.
4. Information demonstrating compliance with other applicable provisions of this title shall be submitted to the county or its agent.
G. Site Investigations. The county or its agent is authorized to make site inspections and take such actions as are necessary to enforce this title. The county or its agent shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property. If entry is refused, the county or its agent shall obtain permission from a court prior to entry. (Ord. 2020-03, 2-25-20)
19.01.120 Property tax relief.
A. The county assessor shall consider the wetlands and wetland buffer areas, fish and wildlife habitat conservation areas and geologically hazardous areas contained within this title when determining the fair market value of land.
B. Any owner of a wetland, wetland buffer area, or fish and wildlife habitat conservation area who has dedicated a conservation easement or entered into a perpetual conservation restriction with a department of the local, state, or federal government; or a nonprofit organization to permanently control some or all the uses and activities within these areas may request that the county assessor reevaluate that specific area consistent with those restrictions and provisions of open space land current use taxation. (Ord. 2020-03, 2-25-20)