Chapter 17.70 CRITICAL AREAS

A. The purpose of this chapter is to designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

B. This chapter is to implement the goals, policies, guidelines, and requirements of the Toppenish comprehensive plan and the Growth Management Act.

C. The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of floodwaters, ground water recharge and discharge and erosion control. These beneficial functions are not listed in order of priority.

D. Goals. By limiting development and alteration of critical areas, this chapter seeks to:

1. Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to flooding;

2. Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats;

3. Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and

4. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and habitat conservation areas.

E. The regulations of this chapter are intended to protect critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.

F. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards.

G. The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.020 Authority.

A. As provided herein, the administrator is given the authority to interpret and apply, and the responsibility to enforce, this chapter to accomplish the stated purpose.

B. The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.030 Relationship to other regulations.

A. These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city. Critical areas authorizations are required regardless of the applicability of other permits.

B. Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

C. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.

D. Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, shoreline substantial development permits, Hydraulic Permit Act (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 permits, and National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.035 Definitions.

Words not defined in this chapter shall be as defined in the city code, the Washington Administrative Code, or the Revised Code of Washington. Words not found in either code shall be as defined in the Webster’s Third New International Dictionary, latest edition.

“Adjacent” means immediately adjoining (in contact with the boundary of the influence area) or within a distance that is less than that needed to separate activities from critical areas to ensure protection of the functions and values of the critical areas. “Adjacent” shall mean any activity or development located:

1. On a site immediately adjoining a critical area;

2. A distance equal to or less than the required critical area buffer width and building setback; or

3. Bordering or within the floodway or floodplain.

“Advance mitigation” means mitigation of an anticipated critical area impact or hazard completed according to an approved critical area report and prior to site development.

“Alteration” means any human-induced change in an existing condition of a critical area or its buffer. Alterations include, but are not limited to, grading, filling, channelizing, dredging, clearing (vegetation), construction, compaction, excavation, or any other activity that changes the character of the critical area.

“Anadromous fish” means fish that spawn and rear in freshwater and mature in the marine environment. While Pacific salmon die after their first spawning, adult char (bull trout) can live for many years, moving in and out of saltwater and spawning each year. The life history of Pacific salmon and char contains critical periods of time when these fish are more susceptible to environmental and physical damage than at other times. The life history of salmon, for example, contains the following stages: upstream migration of adults, spawning, inter-gravel incubation, rearing, smoltification (the time period needed for juveniles to adjust their body functions to live in the marine environment), downstream migration, and ocean rearing to adults.

“Applicant” means a person who files an application for permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a contract purchaser, or the authorized agent of such a person.

“Aquifer” means a geological formation, group of formations, or part of a formation that is capable of yielding a significant amount of water to a well or spring.

“Aquifer recharge areas” means areas that, due to the presence of certain soils, geology, and surface water, act to recharge ground water by percolation.

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Sources of the best available science are included in Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas, published by the Washington State Department of Community, Trade and Economic Development.

“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:

1. Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxins, and sediment;

2. Minimize adverse impacts to surface water and ground water flow and circulation patterns and to the chemical, physical, and biological characteristics of wetlands;

3. Protect trees and vegetation designated to be retained during and following site construction and use native plant species appropriate to the site for revegetation of disturbed areas.

The city shall monitor the application of best management practices to ensure adherence to the standards and policies of this chapter.

“Biodiversity” means the variety of animal and plant life and its ecological processes and interconnections represented by the richness of ecological systems and the life that depends on them, including human life and economies.

“Buffer” or “buffer zone” means an area that is contiguous to and protects a critical area which is required for the continued maintenance, functioning, and/or structural stability of a critical area.

“Channel migration zone (CMZ)” means the area along a river within which the channel(s) can be reasonably predicted to migrate over time as a result of natural and normally occurring hydrological and related processes when considered with the characteristics of the river and its surroundings.

“Clearing” means the removal of timber, brush, grass, ground cover or other vegetative matter from a parcel of land.

“Compensation project” means actions necessary to replace project-induced critical area and buffer losses, including land acquisition, planning, construction plans, monitoring, and contingency actions.

“Compensatory mitigation” means replacing project-induced losses or impacts to a wetland or fish and wildlife critical area, including, but not limited to, the following:

1. Restoration. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. For the purpose of tracking net gains in wetland acres, restoration is divided into:

a. Reestablishment. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. Reestablishment results in a gain in wetland acres and functions. Activities could include removing fill material, plugging ditches, or breaking drain tiles;

b. Rehabilitation. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions of the degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain of wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland;

2. Creation (Establishment). The manipulation of the physical, chemical, or biological characteristics present to develop a wetland on an upland or deepwater site where a wetland did not previously exist. Establishment results in a gain in wetland acres. Activities typically involve excavation of upland soils to elevations that will produce a wetland hydroperiod, create hydric soils, and support the growth of hydrophytic plant species;

3. Enhancement. The manipulation of the physical, chemical, or biological characteristics of a wetland site to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water improvement, flood water retention, or wildlife habitat. Enhancement results in a change in some wetland functions and can lead to a decline in other wetland functions, but does not result in a gain of wetland acres. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities; and

4. Protection (Preservation). Removing a threat to, or preventing the decline of, wetland conditions by an action in or near a wetland. This includes the purchase of land or easements. This term also includes activities commonly associated with the term “preservation.” Preservation does not result in a gain of wetland acres, may result in a gain in functions, and will be used only in exceptional circumstances.

“Conservation easement” means a legal agreement that the property owner enters into to restrict uses of the land. Such restrictions can include, but are not limited to, passive recreation uses such as trails or scientific uses and fences or other barriers to protect habitat. The easement is recorded on a property deed, runs with the land, and is legally binding on all present and future owners of the property.

“Critical aquifer recharge area” means areas designated by WAC 365-190-080(2) that are determined to have a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2).

“Critical area tract” means land held in private ownership and retained in an open condition in perpetuity for the protection of critical areas. Lands within this type of dedication may include, but are not limited to, portions and combinations of forest habitats, grasslands, shrub steppe, on-site watersheds, 100-year floodplains, shorelines or shorelines of statewide significance, riparian areas, and wetlands.

“Critical areas” include any of the following areas or ecosystems: aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands, as defined in Chapter 36.70A RCW and this chapter.

“Cumulative impacts or effects” means the combined, incremental effects of human activity on ecological or critical areas functions and values. Cumulative impacts result when the effects of an action are added to or interact with other effects in a particular place and within a particular time. It is the combination of these effects, and any resulting environmental degradation, that should be the focus of cumulative impact analysis and changes to policies and permitting decisions.

“Department” means the city of Toppenish community development department.

“Developable area” means a site or portion of a site that may be utilized as the location of development, after application of this critical areas chapter.

“Development” means any activity upon the land consisting of construction or alteration of structures, earth movement, dredging, dumping, grading, filling, mining, removal of any sand, gravel, or minerals, driving of piles, drilling operations, bulkheading, clearing of vegetation, or other land disturbance. Development includes the storage or use of equipment or materials inconsistent with the existing use. Development also includes approvals issued by the city that binds land to specific patterns of use, including, but not limited to, subdivisions, short subdivisions, zone changes, conditional use permits, and binding site plans. Development activity does not include the following activities:

1. Interior building improvements.

2. Exterior structure maintenance activities, including painting and roofing.

3. Routine landscape maintenance of established, ornamental landscaping, such as lawn mowing, pruning, and weeding.

4. Maintenance of the following existing facilities that does not expand the affected area: septic tanks (routine cleaning); wells; individual utility service connections; and individual cemetery plots in established and approved cemeteries.

“Development permit” means any permit issued by the city, or other authorized agency, for construction, land use, or the alteration of land.

“Director” means the director of the city community development department or other responsible official, or other city staff granted the authority to act on behalf of the director.

“Emergent wetland” means a wetland with at least 30 percent of the surface area covered by erect, rooted, herbaceous vegetation extending above the water surface as the uppermost vegetative strata.

“Erosion” means the process whereby wind, rain, water, and other natural agents mobilize and transport particles.

“Exotic” means any species of plants or animals which are foreign to the planning area.

“Fish and wildlife habitat conservation areas” means areas necessary for maintaining species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created as designated by WAC 365-190-080(5). These areas include:

1. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association;

2. Habitats of local importance, including but not limited to areas designated as priority habitat by the Washington Department of Fish and Wildlife;

3. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds;

4. Waters of the state, including lakes, rivers, ponds, streams, and inland waters;

5. Underground waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington;

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

“Fish habitat” means habitat that is used by fish at any life stage at any time of the year, including potential habitat likely to be used by fish that could be recovered by restoration or management and includes off-channel habitat.

“Flood insurance study” means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood.

“Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance, and attenuation functions, as determined by the director in accordance with WAC 365-190-080(3). Frequently flooded areas perform important hydrologic functions and may present a risk to persons and property. Classifications of frequently flooded areas include, at a minimum, the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program.

“Functions and values” means the beneficial roles served by critical areas including, but not limited to: water quality protection and enhancement; fish and wildlife habitat; food chain support; flood storage, conveyance and attenuation; ground water recharge and discharge; erosion control; protection from hazards; historical, archaeological, and aesthetic value protection; educational opportunities; and recreation. These beneficial roles are not listed in order of priority. Critical area functions can be used to help set targets (species composition structure, etc.) for managed areas, including mitigation sites.

“Grading” means any excavation, filling, or combination thereof.

“Ground water” means water in a saturated zone or stratum beneath the surface of land or a surface water body.

“Growth Management Act” means Chapters 36.70A and 36.70B RCW, as amended.

“Habitat conservation areas” means areas designated as fish and wildlife habitat conservation areas.

“Hazardous substances” means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical, or biological properties described in WAC 173-303-090 or 173-303-100.

“Hydraulic project approval (HPA)” means a permit issued by the Washington Department of Fish and Wildlife for modifications to waters of the state in accordance with Chapter 75.20 RCW.

“Hydric soil” means a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined following the methods described in the Washington State Wetland Identification and Delineation Manual.

“Impervious surface” means a hard surface area that either prevents the entry of water into the soil mantle as under natural conditions prior to development or that causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development.

“In-kind compensation” means to replace critical areas with substitute areas whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity.

“Infiltration” means the downward entry of water into the immediate surface of soil.

“Isolated wetlands” means those wetlands that are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream and have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water.

“Joint aquatic resource permits application” means a single application form that may be used to apply for hydraulic project approvals, shoreline management permits, approvals of exceedance of water quality standards, water quality certifications, Coast Guard bridge permits, Washington State Department of Natural Resources use authorization, and U.S. Army Corps of Engineers permits.

“Mitigation” means avoiding, minimizing, or compensating for adverse critical areas impacts. Mitigation, in the following sequential order of preference, is:

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

2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

3. Rectifying the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;

4. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

5. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

6. Compensating for the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

7. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures.

“Monitoring” means evaluating the impacts of development proposals on the biological, hydrological, and geological elements of such systems, and assessing the performance of required mitigation measures throughout the collection and analysis of data by various methods for the purpose of understanding and documenting changes in natural ecosystems and features, including gathering baseline data.

“Native vegetation” means plant species that are indigenous to the area in question.

“Natural waters” means waters, excluding water conveyance systems, that are artificially constructed and actively maintained for irrigation.

“Nonconformity” means a legally established existing use or legally constructed structure that is not in compliance with current regulations.

Nonindigenous. See “Exotic.”

“Off-site compensation” means to replace critical areas away from the site on which a critical area has been impacted.

“On-site compensation” means to replace critical areas at or adjacent to the site on which a critical area has been impacted.

“Ordinary high water mark (OHM)” means that mark which is found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, that the soil has a character distinct from that of the abutting upland in respect to vegetation.

“Out-of-kind compensation” means to replace critical areas with substitute critical areas whose characteristics do not closely approximate those destroyed or degraded.

“Permeability” means the capacity of an aquifer or confining bed to transmit water. It is a property of the aquifer or confining bed and is independent of the force causing movement.

“Porous soil types” means soils, as identified by the National Resources Conservation Service, U.S. Department of Agriculture, that contain voids, pores, interstices, or other openings which allow the passing of water.

“Potable water” means water that is safe and palatable for human use.

“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and has less impacts to critical areas.

“Priority habitat” means habitat type or elements with unique or significant value to one or more species as classified by the state Department of Fish and Wildlife. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element.

“Project area” means all areas within the area proposed to be disturbed, altered, or used by the proposed activity or the construction of any proposed structures. When the action binds the land such as a subdivision, short subdivision, binding site plan, planned unit development, or rezone, the project area shall include the entire parcel, at a minimum.

“Qualified professional” means a person with experience and training in the pertinent scientific discipline, and who is a qualified scientific expert with expertise appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, or related field, and two years of related work experience. Also, a qualified professional must have the following license, degree or experience:

1. A qualified professional for habitats or wetlands must have a degree in biology and professional experience related to the subject species.

2. A qualified professional for critical aquifer recharge areas means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.

“Recharge” means the process involved in the absorption and addition of water to ground water.

“Reclaimed water” means municipal wastewater effluent that has been adequately and reliably treated so that it is suitable for beneficial use. Following treatment it is no longer considered wastewater. (Treatment levels and water quality requirements are given in the water reclamation and reuse standards adopted by the state Departments of Ecology and Health.)

“Repair or maintenance” means an activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.

“Restoration” means measures taken to restore an altered or damaged natural feature including:

1. Active steps taken to restore damaged wetlands, streams, protected habitat, or their buffers to the functioning condition that existed prior to an unauthorized alteration; and

2. Actions performed to reestablish structural and functional characteristics of the critical area that have been lost by alteration, past management activities, or catastrophic events.

“Riparian habitat” means areas adjacent to aquatic systems with flowing water that contain elements of both aquatic and terrestrial ecosystems that mutually influence each other. The width of these areas extends to that portion of the terrestrial landscape that directly influences the aquatic ecosystem by providing shade, fine or large woody material, nutrients, organic and inorganic debris, terrestrial insects, or habitat for riparian-associated wildlife. Widths shall be measured from the ordinary high water mark or from the top of bank if the ordinary high water mark cannot be identified. It includes the entire extent of the floodplain and the extent of vegetation adapted to wet conditions as well as adjacent upland plant communities that directly influence the stream system. Riparian habitat areas include those riparian areas severely altered or damaged due to human development activities.

River. See “Watercourse.”

“Section 404 permit” means a permit issued by the U.S. Army Corps of Engineers for the placement of dredge or fill material or clearing in waters of the United States, including wetlands, in accordance with 33 USC Section 1344. Section 404 permits may also be for endangered species consultation. They require a consultation under Section 7 of the federal Endangered Species Act.

“SEPA” means the Washington State Environmental Policy Act, Chapter 43.21C RCW.

“Serviceable” means presently usable.

“Soil survey” means the most recent soil survey for the local area or county by the National Resources Conservation Service, U.S. Department of Agriculture.

“Species” means any group of animals classified as a species or subspecies as commonly accepted by the scientific community.

“Species, endangered” means any fish or wildlife species that is threatened with extinction throughout all or a significant portion of its range and is listed by the state or federal government as an endangered species.

“Species, priority” means any fish or wildlife species requiring protective measures and/or management guidelines to ensure their persistence as genetically viable population levels as classified by the Washington Department of Fish and Wildlife, including endangered, threatened, sensitive, candidate and monitor species, and those of recreational, commercial, or tribal importance.

“Species, threatened” means any fish or wildlife species that is likely to become an endangered species within the foreseeable future throughout a significant portion of its range without cooperative management or removal of threats, and is listed by the state or federal government as a threatened species.

Stream. See “Watercourse.”

“TMC” means the Toppenish Municipal Code.

“Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.

“Vulnerability” means the combined effect of susceptibility to contamination and the presence of potential contaminants.

“Water table” means that surface in an unconfined aquifer at which the pressure is atmospheric. It is defined by the levels at which water stands in wells that penetrate the aquifer just far enough to hold standing water.

Water Typing System.

1. Type 1 streams are included within shorelines of the state under Chapter 9.58 RCW. Type 1 streams are protected by the shoreline master program.

2. Type 2 streams are natural streams not classified as a Type 1 stream with a perennial (year-round) flow that have high use by fish, wildlife or humans. Stream segments typically have a defined channel of 20 feet or greater within the bankfull width and have a gradient of less than four percent.

3. Type 3 streams include all perennial streams not classified as a Type 1 or 2 stream. Type 3 streams have moderate to slight use by fish, wildlife or humans. Stream segments typically have a defined channel of three feet or greater within the bankfull width and a gradient of 16 percent or less.

4. Type 4 streams are streams with a perennial flow that are not classified as a Type 1, 2, or 3 stream. A Type 4 stream may have intermittent dry portions of the perennial channel below the uppermost point of perennial flow. Type 4 streams are nonfish habitat streams.

5. Type 5 streams are ephemeral (intermittent flow) streams not classified as Type 1, 2, 3 or 4.

“Watercourse” means any portion of a channel, bed, bank, or bottom waterward of the ordinary high water line of waters of the state including areas in which fish may spawn, reside, or through which they may pass, and tributary waters with defined beds or banks, which influence the quality of fish habitat downstream. This definition includes watercourses that flow on an intermittent basis or which fluctuate in level during the year and applies to the entire bed of such watercourse, whether or not the water is at peak level. This definition does not include irrigation ditches, canals, stormwater runoff devices, or other entirely artificial watercourses, except where they exist in a natural watercourse that has been altered by humans.

“Well” means a bored, drilled, or driven shaft, or a dug hole whose depth is greater than the largest surface dimension for the purpose of withdrawing or injecting water or other liquids.

“Wellhead protection area (WHPA)” means the portion of a zone of contribution for a well, wellfield, or spring, as defined using criteria established by the Washington State Department of Ecology.

“Wetland classes,” “classes of wetlands,” or “wetland types” means the descriptive classes of the wetlands taxonomic classification system of the U.S. Fish and Wildlife Service.

“Wetland edge” means the boundary of a wetland as delineated based on the definitions contained in this section.

“Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. Wetlands shall be delineated in accordance with the procedures outlined in WAC 173-22-035.

“Wetlands mitigation bank” means a site where wetlands are restored, created, enhanced, or, in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.040 Administrative procedures.

A. General. Applications for development in critical areas in the city of Toppenish shall be processed in accordance with the provisions of TMC Title 14.

B. Designation of Review Classifications. Actions and approvals of this chapter are subject to review pursuant to TMC Title 14. The administrator shall use Table 17.70.040(B) to determine the class of review based on the type of decision.

Table 17.70.040(B)
– Class of Review
Type of Decision	Class of Review
Exemptions for public agency and utility pursuant to TMC 17.70.140	I
Application for variance pursuant to TMC 17.70.330	III
Application for reasonable use exception pursuant to TMC 17.70.150	III
Application for critical areas development pursuant to TMC 17.70.190	I
Appeal of administrative decisions	III

(Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.050 Fees.

A. Fees for filing of a critical area information form, critical area review processing, and other services provided by the city shall be as established in Chapter 2.85 TMC.

B. Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.060 Severability.

If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this chapter are hereby declared to be severable. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.080 Interpretation.

In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under state statute. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.090 Jurisdiction – Critical areas.

A. The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the best available science and the provisions herein.

B. Critical areas regulated by this chapter include:

1. Wetlands;

2. Frequently flooded areas;

3. Critical aquifer recharge areas;

4. Fish and wildlife habitat conservation areas;

5. Habitats and species of local importance as established in TMC 17.70.095.

C. All areas within the city meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.095 Designation of habitats and species of local importance.

A. Nominations for habitats and species of local importance shall include:

1. Precise identification of the nominated habitat;

2. A scientifically sound management plan;

3. A study, paid for by the nominator, containing sufficient information to verify compliance with the following criteria; and

4. Performance standards for the designated area which shall be determined by reference to applicable state and federal law for the protection of threatened, endangered, or sensitive priority species.

B. The designation criteria shall be as follows:

1. The species shall be local, native populations that are vulnerable, declining, or have special recreation, commercial, game, or other value;

2. The habitat shall be important for the long-term persistence of the local population;

3. The habitat shall be of high quality, or be capable of restoration to high quality, or connect otherwise isolated habitats;

4. Protection by other agencies, laws, or nonregulatory tools shall be inadequate to protect the species.

C. Designations of habitats and species of local importance together with appropriate performance standards shall form a part of these development regulations. Nominations of habitats and species of local importance shall be processed in accordance with Chapter 17.20 TMC. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.100 Protection of critical areas.

A. Any action taken pursuant to this chapter shall result in at least equivalent functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with TMC 17.70.240, Mitigation sequencing. Applicants must first demonstrate an inability to avoid impacts before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas.

B. This chapter shall be interpreted to ensure, among other things, that no harm shall occur in critical areas as a result of activities and developments, but it shall not require enhancement of critical areas where such critical areas were degraded prior to the proposed land use activity or development, or where previously existing critical areas no longer exist. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.110 Best available science.

A. Protect Functions and Values of Critical Areas with Special Consideration to Anadromous Fish. Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat.

B. Best Available Science to Be Consistent with Criteria in WACs. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals, that is consistent with criteria established in WAC 365-195-900 through 365-195-925.

C. Characteristics of a Valid Scientific Process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government’s regulatory decisions, and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the director shall determine whether the source of the information displays the characteristics of a valid scientific process. Such characteristics are as follows:

1. Peer Review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The proponents of the information have addressed the criticism of the peer reviewers. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed;

2. Methods. The methods used to obtain the information are clearly stated and reproducible. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to ensure their reliability and validity;

3. Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained;

4. Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods;

5. Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge; and

6. References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

D. Nonscientific Information. Nonscientific information may supplement scientific information, but it is not an adequate substitute for valid and available scientific information. Common sources of nonscientific information include the following:

1. Anecdotal Information. One or more observations that are not part of an organized scientific effort (for example, “I saw a grizzly bear in that area while I was hiking”);

2. Nonexpert Opinion. Opinion of a person who is not a qualified scientific expert in a pertinent scientific discipline (for example, “I do not believe there are grizzly bears in that area”); and

3. Hearsay. Information repeated from communication with others (for example, “At a lecture last week, Dr. Smith said there were no grizzly bears in that area”).

E. Absence of Valid Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the director shall:

1. Take a precautionary or a no-risk approach that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and

2. Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:

a. Address funding for the research component of the adaptive management program;

b. Change course based on the results and interpretation of new information that resolves uncertainties; and

c. Commit to the appropriate timeframe and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. (Ord. 2011-6 § 2 (Exh. A), 2011).

Article II. Applicability, Exemptions, Exceptions and General Standards

17.70.120 Applicability.

A. The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a separate permit or authorization is required under other regulations. These standards shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

B. Critical Areas Review. Critical areas review shall be required for all development occurring within or adjacent to a wetland, or wetland buffer, and within or adjacent to a stream or stream buffer and within a wellhead protection area.

C. All development within the vulnerable ground water recharge area is subject to the standards of TMC 17.70.710 through 17.70.730.

D. The city shall not approve any permit 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 ensuring compliance with the requirements of this chapter, including, but not limited to, the following (as applicable):

1. Building permit;

2. Conditional use permit;

3. Special property use permit;

4. Short subdivision;

5. Subdivision;

6. Sign permit;

7. Commercial or industrial binding site plan;

8. Manufactured home or travel trailer park;

9. Planned unit development or planned residential development;

10. Shoreline management substantial development or conditional use permit;

11. Flood development permit;

12. Clearing and grading in fish and wildlife habitat buffers and wetlands including wetland buffers. If no specific permit is required under other regulations, authorization of any clearing and grading activity under this chapter prior to undertaking this activity is required;

13. Any other adopted permit or required approval not expressly exempted by this chapter.

E. Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.130 Exemptions.

A. Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the administrator that describes the activity and states the exemption listed in this section that applies. The administrator shall review the exemption request to verify that it complies with this chapter and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the community development department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.

B. Exempt Activities and Impacts to Critical Areas. Parties conducting exempt activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s sole expense.

C. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

1. Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or which pose an immediate risk of damage to private property and which require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this chapter. Emergency actions which create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within 30 days, the administrator shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the administrator determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of TMC 17.70.340, Unauthorized critical area alterations and enforcement, shall apply. After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical area report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical area report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner; provided, however, the restoration, mitigation, planning and financial requirements set forth in this subsection shall not apply to public safety or volunteer emergency services providers who, in good faith, render emergency response services, and while in the course and scope of such services determine it necessary to damage, destroy or alter property falling under the jurisdiction of this chapter; provided further, this exception from responsibility shall not extend to the landowner or to any persons other than such public safety or volunteer emergency services providers;

2. Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species; and

3. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. Trails must be constructed pursuant to TMC 17.70.160(C)(5), Public and Private Pedestrian Trails. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.140 Exception – Public agency and utility.

A. If the application of this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a public agency and utility exception shall be made to the city and shall include a critical area information form; critical area report (TMC 17.70.210 and 17.70.220), including mitigation plan (TMC 17.70.250), if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW).

C. Review. The administrator shall approve, approve with conditions, or deny the request based on the compliance of the proposal with all of the public agency and utility exception criteria in subsection D of this section.

D. Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions are as follows:

1. There is no other practical alternative to the proposed development with less impact on the critical areas;

2. The application of this chapter would unreasonably restrict the ability to provide utility services to the public;

3. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

4. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

5. The proposal is consistent with other applicable regulations and standards.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.150 Exception – Reasonable use.

A. If the application of this chapter would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include a critical area information form; critical area report (TMC 17.70.210 and 17.70.220), including mitigation plan (TMC 17.70.250), if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW and WAC 197-11-158). The administrator shall prepare a report and recommendation, based on review of the submitted information, a site inspection, and the compliance of the proposal with reasonable use exception criteria in subsection D of this section.

C. Review. The request shall be reviewed pursuant to the provisions of TMC 17.70.040. The application shall be approved, approved with conditions, or denied based on compliance of the proposal with all of the reasonable use exception review criteria as follows.

D. Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions:

1. No other reasonable economic use of the property has less impact on the critical area; and

2. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property; and

3. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor; and

4. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site; and

5. The proposal will result in no net loss of critical area functions and values consistent with the best available science; and

6. The proposal is consistent with other applicable regulations and standards.

17.70.160 Allowed activities.

A. Critical Area Report (TMC 17.70.210 and 17.70.220). Activities allowed under this chapter shall have been reviewed and permitted or approved by the city or other agency with jurisdiction, but do not require submittal of a separate critical area information form or critical area report, unless such submittal was required previously for the underlying permit. The administrator may apply conditions to the underlying permit or approval to ensure that the allowed activity is consistent with the provisions of this chapter to protect critical areas.

B. Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Allowed Activities. The following activities are allowed:

1. Permit Requests Subsequent to Previous Critical Area Review. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits), and construction approvals (such as building permits) if all of the following conditions have been met:

a. The provisions of this chapter have been previously addressed as part of another approval;

b. There have been no material changes in the potential impact to the critical area or buffer since the prior review;

c. There is no new information available that is applicable to any critical area review of the site or particular critical area;

d. The permit or approval has not expired or, if no expiration date, no more than five years have elapsed since the issuance of that permit or approval; and

e. Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

2. Modification to Existing Structures. Structural modification of, addition to, demolition of or replacement of an existing legally constructed structure (undertaken pursuant to an issued permit, if required) that does not further alter or increase the impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of structures or demolition pursuant to an approved demolition permit must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit, and diligently pursued to completion;

3. Activities within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a city-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater, subject to the following:

a. Critical area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

b. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance;

4. Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the administrator in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased stormwater. Such allowed minor utility projects shall meet the following criteria:

a. There is no practical alternative to the proposed activity with less impact on critical areas;

b. The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and

c. The activity involves disturbance of an area less than 75 square feet;

5. Public and Private Pedestrian Trails. Public and pedestrian trails in wetlands, wetland buffers and fish and wildlife habitat conservation buffers are subject to the standards of TMC 17.70.430(F)(8)(b);

6. Select Vegetation Removal Activities. The following vegetation removal activities; provided, that except for these activities no vegetation shall be removed from a critical area or its buffer without approval from the administrator:

a. The removal of invasive and noxious weeds and vegetation with hand labor and light equipment;

b. The removal of trees that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

i. The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;

ii. Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

iii. All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease or pest transmittal to other healthy vegetation;

iv. 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 in accordance with an approved restoration plan. Replacement trees may be planted at a different, nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum of one inch in diameter-at-breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball;

v. Hazardous trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this chapter;

c. Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;

7. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the city; provided, that their use shall be restricted in accordance with Washington State Department of Fish and Wildlife Management Recommendations and the regulations of the Washington State Department of Agriculture, Washington State Department of Ecology, and the U.S. Environmental Protection Agency;

8. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, archaeological shovel tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored; and

9. Boundary Markers. Construction or modification of boundary markers. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.170 General requirements.

A. As part of this review, the city shall:

1. Verify the information submitted by the applicant;

2. Evaluate the project area and vicinity for critical areas;

3. Determine whether the proposed project is likely to impact the functions or values of critical areas; and

4. Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.

B. If the proposed project is within or is likely to impact a critical area, the city shall:

1. Require a critical area report from the applicant that has been prepared by a qualified professional;

2. Review and evaluate the critical area report;

3. Determine whether the development proposal conforms to the purposes and performance standards of this chapter, including the criteria in TMC 17.70.280, Review criteria;

4. Assess the potential impacts to the critical area and determine if they can be avoided or minimized;

5. Determine if mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter; and

6. Assess all residential and commercial redevelopment according to the following criteria and requirements. Standard buffer widths on legal lots or parcels recorded prior to the effective date of the ordinance codified in this chapter may be reduced by the administrator upon the receipt and consideration of a critical area report as required under TMC 17.70.210 and 17.70.220. In addition to the requirements of such critical area report, the report shall include recommendations for the buffer width and mitigation from the experienced, qualified professional who produced the critical area report, provided the applicant for a development permit or other city approval demonstrates:

a. The lot was improved with a legally constructed structure prior to the effective date of the ordinance codified in this chapter. Current or continued occupancy is not required to meet this standard.

b. The legally constructed structure is currently present on the lot or was removed pursuant to a demolition permit approved by the city prior to the effective date of the ordinance codified in this chapter.

c. The existing buffer or critical area has been degraded by past legal land uses and is currently in a degraded state.

d. The applicant mitigates for the proposed buffer to result in no net loss of buffer functions per best available science.

e. The applicant provides in the critical areas report a discussion comparing the functions provided by the existing buffer and the functions provided by the proposed buffer with mitigation demonstrating no net loss of function.

f. The applicant provides for the protection of the reestablished buffer and critical area in perpetuity through one or more of the following measures:

i. Subdivisions, commercial developments, and multifamily residential developments completed under this section shall dedicate all buffers and critical areas as a critical area tract recorded prior to the issuance of an occupancy permit or other final city approval.

ii. Single-family development and boundary line adjustments shall record a notice of the title of affected properties identifying the presence and location of buffer widths and adjoining critical areas. Recording the notice on title shall occur prior to occupancy permits or other final city approvals and follow the procedure and requirements contained in TMC 17.70.360. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.180 Critical area pre-application consultation.

Any person preparing to submit an application for development or use of land that may be regulated by the provisions of this chapter may request a consultation meeting with the administrator prior to submitting an application for development or other approval. At this meeting, the administrator shall discuss the requirements of this chapter; provide critical area maps, scientific information, and other source materials; outline the review process; and work with the activity proponent to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.190 Critical area information form.

A. Submittal. Prior to the city’s consideration of any proposed activity not found to be exempt under TMC 17.70.130, Exemptions, or allowed pursuant to TMC 17.70.160, Allowed activities, the applicant shall submit to the department complete information regarding the critical area on the application for the underlying development, on forms provided by the city.

B. Site Inspection. Upon receipt of a project application and the necessary information regarding the critical area, the administrator shall conduct a site inspection to review critical area conditions on site. The administrator shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

C. Critical Area Information Review Process. The administrator and/or his/her designee shall review the critical area information form, conduct a site inspection, and review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal and if a more detailed critical area report shall be submitted.

1. Decision Indicators. The administrator may use the following indicators to assist in determining the need for a critical area report:

a. Indication of a critical area on the city critical areas maps that may be impacted by the proposed activity;

b. Information and scientific opinions from appropriate agencies, including but not limited to the Washington State Department of Fish and Wildlife and the Yakama Nation;

c. Documentation, from a scientific or other reasonable source, of the possible presence of a critical area;

d. A finding by a qualified professional, or a reasonable belief by the administrator, that a critical area may exist on or adjacent to the site of the proposed activity.

D. Decision on Critical Area.

1. No Critical Areas Present. If after a site visit the administrator’s analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the administrator shall rule that the critical area review is complete and note on the underlying application the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

2. Critical Areas Present, But No Impact – Waiver. If the administrator determines there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the administrator may waive the requirement for a critical area report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

a. There will be no alteration of the critical area or buffer;

b. The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter; and

c. The proposal is consistent with other applicable regulations and standards. A summary of this analysis and the findings shall be included in any staff report or decision on the underlying permit.

3. Critical Areas May Be Affected by Proposal. If the administrator determines that a critical area or areas may be affected by the proposal, then the administrator shall notify the applicant that a critical area report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report.

E. Effect of Administrator’s Determination. A determination regarding the apparent absence of one or more critical areas by the administrator is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received. If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.210 Critical area report – Requirements.

A. Preparation by Qualified Professional. If required by the administrator in accordance with TMC 17.70.190(D)(3), the applicant shall submit a critical area report prepared by a qualified professional as defined herein.

B. Incorporation of Best Available Science. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical area report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

C. Minimum Report Contents. At a minimum, the report shall contain the following:

1. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

2. A copy of the site plan for the development proposal including:

a. A map to scale depicting critical areas, buffers, the development proposal, and any areas to be cleared; and

b. A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;

3. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

4. Identification and characterization of all critical areas, water bodies, and buffers adjacent to the proposed project area;

5. Identification of the channel migration zone if applicable;

6. A statement specifying the accuracy of the report, and all assumptions made and relied upon;

7. An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

8. A description of reasonable efforts made to apply mitigation sequencing pursuant to TMC 17.70.240, Mitigation sequencing, to avoid, minimize, and mitigate impacts to critical areas;

9. Plans for adequate mitigation, as needed, to offset any impacts, in accordance with TMC 17.70.250, Mitigation plan requirements, including, but not limited to:

a. The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

b. The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

10. A discussion of the performance standards applicable to the critical area and proposed activity;

11. Financial guarantees to ensure compliance; and

12. Any additional information required for the critical area as specified in the corresponding chapter.

D. Unless otherwise provided, a critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the administrator. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.220 Critical area report – Modifications to requirements.

A. Limitations to Study Area. The administrator may limit the required geographic area of the critical area report as appropriate if:

1. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

2. The proposed activity will affect only a limited part of the subject site.

B. Modifications to Required Contents. The applicant may consult with the administrator prior to or during preparation of the critical area report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

C. Additional Information Requirements. The administrator may require additional information to be included in the critical area report when determined to be necessary to the review of the proposed activity in accordance with this chapter. Additional information that may be required includes, but is not limited to:

1. Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

2. Grading and drainage plans; and

3. Information specific to the type, location, and nature of the critical area. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.230 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas when possible. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated using the best available science in accordance with an approved critical area report and SEPA documents, so as to result in no net loss of critical area functions and values.

B. Mitigation shall be in kind and on site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

C. Mitigation shall not be implemented until after the administrator’s approval of a critical area report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical area report. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.240 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas in the following order. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential order of preference:

A. Avoiding the impact altogether by not taking a certain action or parts of an action;

B. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

C. Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;

D. Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

E. Mitigation for individual actions may include a combination of the above measures. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.250 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical area report. The mitigation plan shall include:

A. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

1. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation goals; identification of resource functions; and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

2. A description of the report author’s experience to date in restoring or creating the type of critical area proposed;

3. A review of the best available science supporting the proposed mitigation; and

4. An analysis of the likelihood of success of the compensation project.

B. 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 chapter have been met.

C. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

1. The proposed construction sequence, timing, and duration;

2. Grading and excavation details;

3. Erosion and sediment control features;

4. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

5. Measures to protect and maintain plants until established.

D. These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings and topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

E. Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, and seven after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years, but monitoring of sensitive target communities such as forested and scrub-shrub communities may be required for 10 years or more.

F. Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

G. Estimates of Cost. The mitigation plan shall include an estimate of the costs to implement the required activities under the proposed plan to include both labor and materials. Any required financial guarantees shall be posted in accordance with TMC 17.70.390, Bonds to ensure mitigation, maintenance, and monitoring. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.260 Innovative mitigation.

A. The city should encourage, facilitate, and approve innovative mitigation projects that are based on the best available science. Advance mitigation and mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

1. Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

2. The applicant(s) demonstrates the organizational and fiscal capability to act cooperatively;

3. The applicant(s) demonstrates that long-term management of the habitat area will be provided; and

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

B. Conducting mitigation as part of a cooperative process does not reduce or eliminate the required replacement ratios. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.270 Determination.

The administrator shall make a determination as to whether the proposed activity and mitigation, if any, are consistent with the provisions of this chapter. The administrator’s determination shall be based on the criteria of TMC 17.70.280, Review criteria. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.280 Review criteria.

A. The review of any alteration to a critical area, unless otherwise provided for in this chapter, shall be based on the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with TMC 17.70.240, Mitigation sequencing;

2. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

3. The proposal is consistent with the general purposes of this chapter and the public interest;

4. Any alterations permitted to the critical area are mitigated in accordance with TMC 17.70.230, Mitigation requirements;

5. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and

6. The proposal is consistent with other applicable regulations and standards.

B. The city may approve a project application and attach such conditions necessary to mitigate impacts to critical areas in order to conform to the standards required by this chapter.

C. Except as provided for by this chapter a project shall be denied if impacts to critical areas cannot be adequately mitigated in the sequencing order of preferences of TMC 17.70.240. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.290 Report acceptance.

If the administrator determines that the report together with proposed mitigation meets the criteria in TMC 17.70.280 (Review criteria) and complies with the applicable provisions of this chapter, the administrator shall prepare a written notice of determination and identify any required conditions of approval. Any conditions of approval included in a notice of determination shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous determination pending re-review of the proposal and conditions of approval by the administrator. A favorable determination should not be construed as endorsement or approval of any underlying permit or approval. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.300 Report rejection.

A. If the administrator determines that the report and/or proposed mitigation does not adequately mitigate impacts of the proposed project in accordance with the criteria set forth in TMC 17.70.280 (Review criteria) and the provisions of this chapter, the administrator shall prepare written notice of the determination that includes findings of noncompliance. No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the provisions of this chapter.

B. Following notice of determination that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this chapter, the applicant may request consideration of a revised critical area report. If the revision is found to be substantial and relevant to the critical area review, the administrator may reopen the critical area review and make a new determination based on the revised report. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.310 Completion of the critical area review.

The city’s determination regarding critical areas pursuant to this chapter shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.320 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.330 Variances.

A. Variances from the standards of this chapter may be authorized by the city in accordance with the procedures set forth in TMC 17.70.040. The decision to approve, approve with conditions or deny the request shall be based on written findings that the request meets or fails to meet the variance criteria.

B. Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

1. 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;

2. The special conditions and circumstances do not result from the actions of the applicant;

3. A literal interpretation of the provisions of this chapter 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 chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;

4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;

5. The granting of the variance is consistent with the general purpose and intent of this chapter, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

6. 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; and

7. The granting of the variance is consistent with the general purpose and intent of the city’s comprehensive plan and adopted development regulations.

C. Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

D. Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.340 Unauthorized critical area alterations and enforcement.

A. When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

B. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared. The plan is subject to approval by the city. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The administrator may, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum Performance Standards for Restoration. For alterations to wetlands and habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that the administrator may modify these standards if the violator can demonstrate that greater functional and habitat values can be obtained:

1. The functional values that existed prior to the unauthorized alteration shall be restored, including water quality and habitat functions;

2. The soil types and configuration that existed prior to the unauthorized alteration shall be replicated;

3. The disturbed critical area and buffers shall be replanted with vegetation in species types, sizes, and densities chosen from an approved restoration plant list. The functions and values that existed prior to the unauthorized alteration should be replicated at the location of the alteration; and

4. Information demonstrating compliance with the requirements in TMC 17.70.250 (Mitigation plan requirements) must be submitted to the administrator.

D. Site Investigations. The administrator is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The administrator shall present proper credentials and make a reasonable effort to contact any property owner before entering onto any property which may be subject to an investigation that could potentially lead to a critical area enforcement action. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.350 Critical area markers and signs.

A. The boundary at the outer edge of critical area tracts and easements shall be delineated with permanent survey stakes, using iron or concrete markers as established by local survey standards.

B. The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

C. These provisions may be modified by the administrator as necessary to ensure protection of sensitive features or wildlife needs. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.360 Notice on title.

A. In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall record a notice with the county auditor. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall “run with the land.”

B. The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.370 Subdivisions.

A. The subdivision of land within wetlands, wetland buffers and fish and wildlife habitat conservation areas shall be subject to the following:

1. Each proposed lot must have sufficient area outside of the critical area and associated buffer to accommodate all development outside of the critical area and buffer. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.380 Critical area tracts.

A. Critical area tracts shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below that total 5,000 or more square feet:

1. All landslide hazard areas and buffers;

2. All wetlands and buffers;

3. All habitat conservation areas; and

4. All other lands to be protected from alterations as conditioned by project approval.

B. Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C. Critical area tracts shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restriction:

1. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

2. The right of the city to enforce the terms of the restriction.

D. The city may require that any required critical area tract be dedicated to the city, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity (such as a land trust, which ensures the ownership, maintenance, and protection of the tract). (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.390 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

B. The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C. The bond shall be in the 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 city attorney and with a company authorized to do business in the state of Washington.

D. Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or require other action authorized by the city code or any other law.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation and reimburse the city for its costs relating to the enforcement action. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.400 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.405 Enforcement and penalties.

A. Rights of Entry.

1. For Permitting or Inspection of Work Conducted under Permit. Whenever a person applies for a permit or approval under any section of this chapter, the administrator shall have a limited right of entry to conduct studies necessary to determine whether to approve the proposal or to inspect work being conducted under the permit or approval. The property owner’s failure to grant permission for the administrator to enter the property shall be grounds for denial of the permit or issuance of a stop work order.

2. To Investigate Violations and Corrections. The administrator is authorized to enter upon property to determine whether the provisions of this chapter are being obeyed and to make any examinations, surveys, and studies as may be necessary in the performance of his or her duties. The administrator shall obtain the property owner’s permission prior to entry. If the property owner declines to give permission or cannot be located, the administrator shall enter upon the property only in a manner consistent with the Constitutions and laws of the United States and the state of Washington. If so required by the Constitutions and laws of the United States and the state of Washington, the administrator shall apply to a court of competent jurisdiction for a search warrant authorizing access to such property for such purpose.

B. Violations and Penalties. Any person who violates or fails to comply with any of the provisions of this chapter, or who counsels, aids or abets any such violation or failure to comply, shall be deemed to have committed a civil infraction, punishable as set forth in Chapter 2.90 TMC, Civil Infractions.

C. Stop Work Orders.

1. Whenever any work or development is being done or use is being conducted contrary to the provisions of this chapter, the administrator may issue a stop work order requiring that all work on the project be stopped or that the use be discontinued.

2. Issuance of a stop work order shall not bar the imposition of a civil or criminal penalty under this chapter or the use of any other provision of this chapter.

3. It is unlawful for any person with actual or constructive knowledge of the issuance of a stop work order pursuant to this chapter to do work or an activity prohibited by the order until the administrator has removed or lifted the order and issued written authorization for the work or activity to be continued. Any person issued a stop work order who believes the issuance of such order was the result of a mistaken determination may appeal its issuance at an informal hearing before the administrator or his designee. To be timely, such appeal shall be filed in writing at the community development department within five business days of the date of issuance of the stop work order. The hearing will be conducted within three business days of the administrator’s receipt of the written appeal, unless the appellant requests additional time not to exceed 10 business days following receipt of the appeal. At the hearing, the appellant will be provided: (a) an explanation of, and opportunity to ask questions about, the reasons for and evidence supporting issuance of the stop work order; (b) an opportunity to give any statements, reasons or documentation, personally or through others, explaining why the order was wrongfully or mistakenly issued; (c) an opportunity to identify any mitigating circumstances the appellant believes would justify withdrawal of the order; and (d) the right to have legal counsel present. The administrator shall issue a written decision within five days following the conclusion of the hearing.

D. Nuisance. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. (Ord. 2011-6 § 2 (Exh. A), 2011).

Article III. Wetlands

17.70.410 Designation, rating, and mapping wetlands.

A. Designating Wetlands. Wetlands are those areas meeting the definition of “wetland” in accordance with TMC 17.70.035. All areas within the city meeting the definition of wetland are hereby designated as critical areas and are subject to the provisions of this article.

B. Wetland Ratings. Wetlands shall be rated according to the Washington State Department of Ecology Wetland Rating System found in the Washington State Wetland Rating System documents Washington State Wetland Rating System for Eastern Washington – Revised (Publication No. 04-06-015, Hruby, T., 2004) or as revised. These documents contain the definitions and methods for determining if the criteria below are met.

1. Category I.

a. Characteristics of Category I wetlands are as follows:

i. Represent a unique or rare wetland type; or

ii. Are more sensitive to disturbance than most wetlands; or

iii. Are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; and

iv. Provide a high level of function.

b. Category I wetlands are:

i. Alkali wetlands; or

ii. Wetlands that are identified by scientists of the Washington Natural Heritage Program/DNS as high quality wetlands; or

iii. Bogs; or

iv. Mature and old-growth forested wetlands over one-fourth acre with slow-growing trees; or

v. Forests with stands of aspen; and

vi. Wetlands that perform many functions very well (scores of 70 points or more).

2. Category II.

a. Characteristics. These wetlands are difficult, though not impossible, to replace, and provide high levels of some functions.

b. Category II wetlands are:

i. Forested wetlands in the floodplains of rivers; or

ii. Mature and old-growth forested wetlands over one-fourth acre with fast-growing trees; or

iii. Vernal pools; and

iv. Wetlands that perform functions well (scores between 51 and 69 points).

3. Category III.

a. Characteristics. Wetlands having a moderate level of function which do not satisfy Category I, II, or IV criteria.

b. Category III wetlands are:

i. Vernal pools that are isolated; and

ii. Wetlands with a moderate level of functions (scores between 30 and 50 points).

4. Category IV.

a. Characteristics. These are wetlands with the lowest level of function but still provide functions that warrant protection. Often the low function is because they have been heavily disturbed. Replacement of these wetlands can sometimes provide improved function.

b. Category IV wetlands have a function score of less than 30.

5. Date of Wetland Rating. Wetland rating categories shall be applied as the wetland exists on the date of adoption of the rating system by the local government, as the wetland naturally changes thereafter, or as the wetland changes in accordance with permitted activities. Wetland rating categories shall not change due to illegal modifications.

C. Mapping. The approximate location and extent of potential wetlands are shown on the critical area maps adopted with this chapter and listed below. Other maps may also be used as they are developed and subsequently adopted by the city. Soil maps produced by the U.S. Department of Agriculture National Resources Conservation Service may be useful in helping to identify potential wetland areas. These maps are to be used as a guide for the city, project applicants, and/or property owners, and may be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical area designation:

1. City of Toppenish Wetlands and Water Bodies Inventory Map – Figure 1.5 of the Toppenish comprehensive plan.

2. The exact location of a wetland’s boundary shall be determined in accordance with the procedure outlined in WAC 173-22-035 through the performance of a field investigation by a qualified professional wetland scientist applying the Washington State Wetlands Identification and Delineation Manual as required by RCW 36.70A.175 (Ecology Publication No. 96-94, 1997). (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.420 Critical area report – Additional requirements for wetlands.

A. All critical areas located within or near the project area that have been designated by the city and are shown on city, state, or federal government agency maps and/or reports shall be addressed in a critical area report for wetlands.

B. Wetland Analysis. A written assessment of the wetland, the appropriate wetland type, and required buffer under the provisions of this chapter.

C. As provided for under TMC 17.70.220, the administrator may require additional information to be included in the critical area report when determined to be necessary for the review of the proposed activity. Additional information for wetlands that may be required includes, but is not limited to, the following:

1. Vegetative, faunal, and hydrologic characteristics;

2. Soil and substrate characteristics;

3. Topographic elevations;

4. A discussion of water sources supplying the wetland and documentation of the hydrologic regime. Such discussion shall include an analysis of existing and future hydrologic regimes and proposed hydrologic regime for enhanced, created, or restored mitigation areas, if provided for in the project. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.430 Performance standards – General requirements.

A. Activities may only be permitted in a wetland or wetland buffer if the applicant can show that the proposed activity will not degrade the functions and functional performance of the wetland and other critical areas. Full compensation for the acreage and loss functions will be provided under the terms established under TMC 17.70.440(F) and (G).

B. Activities and uses shall be prohibited in wetlands and wetland buffers, except as provided for in this chapter.

C. Category I Wetlands. Activities and uses shall be prohibited from Category I, except as provided for in the public agency and utility exception, reasonable use exception, and variance sections of this chapter.

D. Category II and III Wetlands. With respect to activities proposed in Category II and III wetlands, the following standards shall apply:

1. Water-dependent activities, as defined by the city’s shoreline master program, may be allowed where there are no practicable alternatives that would have a less adverse impact on the wetland, its buffers and other critical areas.

2. Where non-water-dependent activities are proposed, it shall be presumed that alternative locations are available, and activities and uses shall be prohibited, unless the applicant demonstrates that:

a. The basic project purpose cannot reasonably be accomplished and successfully avoid, or result in less adverse impact on, a wetland on another site or sites in the general region; and

b. All alternative designs of the project as proposed, that would avoid or result in less of an adverse impact on a wetland or its buffer, such as a reduction in the size, scope, configuration, or density of the project, are not feasible.

E. Category IV Wetlands. Activities and uses that result in unavoidable and necessary impact may be permitted in Category IV wetlands and associated buffers in accordance with an approved critical area report and mitigation plan, but only if the proposed activity is the only reasonable alternative that will accomplish the applicant’s objectives.

F. Wetland Buffers.

1. Buffer Requirements. The standard buffer widths in Table 17.70.430(F)(1) have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State Wetland Rating System for Eastern Washington.

a. The use of the standard buffer width requires the implementation of the measures in Table 17.70.430(F)(2), where applicable.

b. When an applicant chooses not to apply the mitigation measures in Table 17.70.430(F)(2) then a 33 percent increase in the width of all buffers is required. For example, a 75-foot buffer with mitigation measures would become a 100-foot buffer without them.

c. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the eco-region. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

d. Based on the wetland score, additional buffer widths may be required. For example, a Category I wetland scoring of 32 points for habitat function would require a buffer of 150 feet (75 + 75).

Table 17.70.430(F)(1)
– Required Wetland Buffers
Wetland Category	Standard Buffer Width	Additional Buffer Width if Wetland Scores 21 – 25 Habitat Points	Additional Buffer Width if Wetland Scores 26 – 29 Habitat Points	Additional Buffer Width if Wetland Scores 30 – 36 Habitat Points
Category I: Based on total score	75 ft.	Add 15 ft.	Add 45 ft.	Add 75 ft.
Category I: Forested	75 ft.	Add 15 ft.	Add 45 ft.	Add 75 ft.
Category I: Bogs	190 ft.	N/A	N/A	N/A
Category I: Alkali	150 ft.	N/A	N/A	N/A
Category I: Natural heritage wetlands	190 ft.	N/A	N/A	N/A
Category II: Based on total score	75 ft.	Add 15 ft.	Add 45 ft.	Add 75 ft.
Category II: Vernal pool	150 ft.	N/A	N/A	N/A
Category II: Forested	75 ft.	Add 15 ft.	Add 45 ft.	Add 75 ft.
Category III:	60 ft.	Add 30 ft.	Add 60 ft.	N/A
Category IV:	40 ft.	N/A	N/A	N/A

Table 17.70.430(F)(2)
– Source-Specific Wetland Mitigation Requirements
Disturbance	Required Measures to Minimize Impact
Lights	• Direct lights away from wetland
Noise	• Locate activity that generates noise away from wetland • If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source • For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10' heavily vegetated buffer strip immediately adjacent to the outer wetland buffer


Toxic runoff	• Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered • Establish covenants limiting use of pesticides within 150 ft. of wetland • Apply integrated pest management practices


Stormwater runoff	• Retrofit stormwater detention and treatment of roads and existing adjacent development • Prevent channelized flow from lawns that directly enters the buffer • Use low intensity development techniques (per Puget Sound Action Team (PSAT) publication 05-3 or as updated)


Change in water regime	• Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns
Pets and human disturbance	• Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the eco-region • Place wetland and its buffer in a separate tract or protect with a conservation easement
Pets and human disturbance
Dust	• Use best management practices to control dust
Disruption of corridors or connections	• Maintain connections to off-site areas that are undisturbed • Restore corridors or connections to off-site habitats by replanting

2. Measurement of Wetland Buffers. All buffers shall be measured from the wetland boundary as surveyed in the field. The width of the wetland buffer shall be determined according to the wetland category and the proposed land use. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. Only fully vegetated buffers will be considered. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers.

3. Increased Wetland Buffer Widths. In those situations in which a SEPA checklist discloses that the above buffer widths may not be sufficient to mitigate the significant adverse environmental impacts of the proposal on the wetland, the administrator may invoke the procedures in Chapter 18.04 TMC and WAC 197-11-158. The administrator may require increased buffer widths in accordance with the recommendations of the experienced, qualified professional wetland scientist who produced the required critical areas report and best available science on a case-by-case basis when a larger buffer is necessary to protect wetland functions and values based on site-specific characteristics. The increased buffer width shall not exceed a maximum of 100 percent increase over the buffer width that would otherwise be required by subsection (F)(1) of this section. This determination shall be based on one or more of the following criteria:

a. A larger buffer is needed to protect other critical areas;

b. The adjacent land is susceptible to severe erosion, and erosion-control measures will not effectively prevent adverse wetland impacts; or

c. The adjacent land has minimal vegetative cover or slopes greater than 30 percent. The standard buffer is less than that which is necessary to protect documented endangered, threatened, or sensitive wildlife species which have a primary association with the wetland;

d. The wetland contains plant and/or animal species listed by the federal and/or state government as sensitive, endangered, threatened, candidate monitored or documented priority species habitats or essential or outstanding habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees.

4. Wetland Buffer Width Averaging. The administrator may allow modification of the standard wetland buffer width in accordance with an approved critical area report and the best available science on a case-by-case basis by averaging buffer widths. Averaging of buffer widths may only be allowed where a qualified professional wetland scientist demonstrates that:

a. It will not reduce wetland functions or functional performance;

b. The wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation, and the wetland would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;

c. The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer; and

d. The buffer at its narrowest point is never less than either three-fourths of the required width or 75 feet for Category I and II, 50 feet for Category III and 25 feet for Category IV, whichever is greater.

5. Interrupted Buffer.

a. Where a legally established, pre-existing use of the buffer exists, those proposed activities that are within the wetland or stream buffer, but are separated from the critical area by an existing permanent substantial improvement which serves to eliminate or greatly reduce the impact of the proposed activity upon the critical area, are exempt; provided, that the detrimental impact to the critical area does not increase. However, if the impacts do increase, the city shall determine if additional buffer may be required along the impact area of the interruption. Substantial improvements may include developed public infrastructure such as roads and railroads. Substantial improvements may not include paved trails, sidewalks, or parking areas. An allowance for activity in an interrupted buffer may require a critical areas report for the type of critical areas buffer that is affected. In determining whether a critical areas report is necessary, the city shall consider the hydrologic, geologic and/or biological habitat connection potential and the extent and permanence of the interruption.

b. Where a legally established, pre-existing structure or use is located within a regulated wetland or stream buffer and where the regulated buffer is fully paved and does not conform to the interrupted buffer provision above, the buffer will end at the edge of the pavement, adjacent to the wetland or stream.

6. Buffer Consistency. All mitigation sites shall have buffers consistent with the buffer requirements of this chapter.

7. Buffer Maintenance. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers and buffers of mitigation sites shall be retained in an undisturbed condition, or shall be maintained as enhanced pursuant to any required permit or approval. Removal of invasive nonnative weeds is required for the duration of the mitigation bond.

8. Buffer Uses. The following uses may be permitted within a wetland buffer in accordance with the review procedures of this chapter, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize impacts to the buffer and adjacent wetland:

a. Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife.

b. Passive Recreation. Passive recreation facilities designed in accordance with an approved critical area report, including:

i. Walkways and trails; provided, that those pathways which are generally parallel to the perimeter of the wetland shall be located in the outer 25 percent of the buffer area, and should be designed to avoid the removal of significant trees. Trails must be constructed with a surface that does not interfere with the permeability. Raised boardwalks utilizing nontreated pilings may be acceptable;

ii. Wildlife viewing structures; and

iii. Fishing access areas down to the water’s edge that shall be no larger than six feet.

c. Stormwater Management Facilities. Stormwater management facilities, limited to stormwater dispersion outfalls and bioswales, may be allowed within the outer 25 percent of the buffer of Category III or IV wetlands only; provided, that:

i. No other location is feasible; and

ii. The location of such facilities will not degrade the functions or values of the wetland. Stormwater management facilities are not allowed in buffers of Category I or II wetlands.

G. Signs and Fencing of Wetlands.

1. Temporary Markers. The outer perimeter of the wetland and buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and is subject to inspection by the administrator prior to the commencement of permitted activities. The administrator shall have the authority to require that temporary fencing be placed on site to mark the outer perimeter of the wetland and its associated buffer area. This temporary marking, and any required temporary fencing, shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

2. Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the administrator may require the applicant to install permanent signs along the boundary of a wetland or buffer.

a. Permanent signs shall be made of a metal face with a green color background and white letters; attached to a metal post, or another nontreated material of equal durability; made with a sign face no smaller than one foot by one foot square and no larger than two feet by two feet square; and mounted with the bottom of the sign face no less than three feet above and no more than five feet above adjacent grade. Signs must be posted at a minimum of one per lot of record, or on large parcels every 300 feet, or additional signs as required by the administrator and must remain unobstructed and be maintained by the property owner in perpetuity. The sign(s) shall be worded as follows or with alternative language approved by the administrator:

Protected Critical Area

Do Not Disturb

Contact the City of Toppenish

Regarding Uses and Restrictions

b. The provisions of subsection (G)(2)(a) of this section may be modified by the administrator as necessary to assure protection of sensitive features or wildlife. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.440 Performance standards — Compensatory mitigation requirements.

Compensatory mitigation for alterations to wetlands shall achieve equivalent or greater biologic functions. Compensatory mitigation plans shall be consistent with the state Department of Ecology Guidelines for Wetland Mitigation in Washington State, Parts 1 and 2, Publication Nos. 06-06-011a and 06-06-011b, March 2006.

A. Mitigation shall be required in the following order of preference:

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

2. Minimizing 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. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

4. Reducing or eliminating the impact over time by preservation and maintenance operations.

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

B. Mitigation for Affected Functions or Functions Lost as a Result of the Proposed Activity. Compensatory mitigation actions shall address functions affected by the alteration to achieve functional equivalency or improvement and shall provide similar wetland functions as those lost by the proposed activity, except when:

1. The lost wetland provides minimal functions as determined by a site-specific function assessment, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal Washington State watershed assessment plan or protocol; or

2. Out-of-kind replacement will best meet formally identified watershed goals, such as replacement of historically diminished wetland types.

C. Preference of Mitigation Actions. Mitigation actions that require compensation by replacing, enhancing, or substitution shall occur in the following order of preference:

1. Restoring wetlands on upland sites that were formerly wetlands.

2. Creating wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative introduced species. This should only be attempted when there is a consistent source of hydrology and it can be shown that the surface and subsurface hydrologic regime is conducive for the wetland community that is being designed.

3. Enhancing significantly degraded wetlands in combination with restoration or creation. Such enhancement should be part of a mitigation package that includes replacing the impacted area meeting appropriate ratio requirements.

D. Type and Location of Mitigation. Unless it is demonstrated that a higher level of ecological functioning would result from an alternate approach, compensatory mitigation for ecological functions shall be either in kind and on site, or in kind and within the same stream reach, subbasin, or drift cell. Mitigation actions shall be conducted within the same subdrainage basin and on the same site as the alteration except when all of the following apply:

1. There are no reasonable on-site or in-subdrainage basin opportunities or on-site and in-subdrainage basin opportunities do not have a high likelihood of success, after a determination of the natural capacity of the site to mitigate for the impacts. Consideration should include: anticipated wetland mitigation replacement ratios, buffer conditions and proposed widths, hydrogeomorphic classes of on-site wetlands when restored, proposed flood storage capacity, potential to mitigate riparian fish and wildlife impacts (such as connectivity);

2. Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the impacted wetland; and

3. Off-site locations shall be in the same subdrainage basin unless:

a. Established watershed goals for water quality, flood or conveyance, habitat, or other wetland functions have been established and strongly justify location of mitigation at another site; or

b. Credits from a state certified wetland mitigation bank are used as mitigation and the use of credits is consistent with the terms of the bank’s certification.

E. Mitigation Timing.

1. Mitigation projects shall be completed with an approved monitoring plan prior to activities that will disturb wetlands. In all other cases, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.

2. The administrator may authorize a one-time temporary delay, up to 120 days, in completing minor construction and landscaping when environmental conditions could produce a high probability of failure or significant construction difficulties. The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety, and general welfare of the public. The request for the temporary delay must include a written justification that documents the environmental constraints which preclude implementation of the mitigation plan. The justification must be verified and approved by the city and include a financial guarantee.

F. Wetland Mitigation Ratios. Wetland mitigation ratios shall be as established in Table 17.70.440(F).

Table 17.70.440(F)
– Wetland Mitigation Ratios
Category and Type of Wetland	Creation or Reestablishment	Rehabilitation	Enhancement	Preservation
Category I: Bog, natural heritage site	Not permitted	6:1	Case by case	10:1
Category I: Mature forested	6:1	12:1	24:1	24:1
Category I: Based on functions	4:1	8:1	16:1	20:1
Category II	3:1	6:1	12:1	20:1
Category III	2:1	4:1	8:1	15:1
Category IV	1.5:1	3:1	6:1	10:1

G. Compensatory Mitigation Plan. When a project involves wetland and/or buffer impacts, a compensatory mitigation plan prepared by a qualified professional shall be required, meeting the following standards:

1. Wetland Critical Area Report. A critical area report for wetlands must accompany or be included in the compensatory mitigation plan and include the minimum parameters described in TMC 17.70.210, 17.70.220 and 17.70.420.

2. Compensatory Mitigation Report. The report must include a written report and plan sheets that must contain, at a minimum, the following elements:

a. A written report consisting of:

i. The name and contact information of the applicant; the name, qualifications, and contact information for the primary author(s) of the compensatory mitigation report; a description of the proposal; identification of all the local, state, and/or federal wetland related permit(s) required for the project; and a vicinity map for the project.

ii. Description of how the project design has been modified to avoid, minimize, or reduce adverse impacts to wetlands.

iii. Description of the existing wetland and buffer areas proposed to be impacted. Include acreage (or square footage), water regime, vegetation, soils, landscape position, surrounding land uses, and functions. Also describe impacts in terms of acreage by Cowardin classification, hydrogeomorphic classification, and wetland rating, based on wetland ratings of this chapter.

iv. Description of the compensatory mitigation site, including location and rationale for selection. Include an assessment of existing conditions: acreage (or square footage) of wetlands and uplands, water regime, sources of water, vegetation, soils, landscape position, surrounding land uses, and functions. Estimate future conditions in this location if the compensation actions are not undertaken (i.e., how would the site progress through natural succession?).

v. A description of the proposed mitigation construction activities and timing of activities.

vi. A description of the proposed actions for compensation of wetland and upland areas affected by the project. Include overall wetland and upland areas affected by the project. Include overall goals of the proposed mitigation, including a description of the targeted functions, hydrogeomorphic classification, and categories of wetlands.

vii. A discussion of ongoing management practices that will protect wetlands after the project site has been developed, including proposed monitoring and maintenance programs for remaining wetlands and compensatory mitigation wetlands.

viii. A bond estimate for the entire compensatory mitigation project, including the following elements: site preparation, plant materials, construction materials, installation oversight, maintenance twice per year for up to five years, annual monitoring field work and reporting, and contingency actions for a maximum of the total required number of years for monitoring.

ix. Proof of establishment of notice on title for the wetlands and buffers on the project site, including the compensatory mitigation areas.

b. Scaled plan sheets for the compensatory mitigation depicting:

i. Surveyed edges of the existing wetland and buffers, proposed areas of wetland and/or buffer impacts, location of proposed wetland and/or buffer compensation actions.

ii. Existing topography, ground-proofed, at two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed to create the compensation area(s). Also existing cross-sections of the on-site wetland areas that are proposed to be impacted, and cross-section(s) (estimated one-foot intervals) for the proposed areas of wetland or buffer compensation.

iii. Surface and subsurface hydrologic conditions including an analysis of existing and proposed hydrologic regimes for enhanced, created, or restored compensatory mitigation areas. Also, illustrations of how data for existing hydrologic conditions were used to determine the estimates of future hydrologic conditions.

iv. Conditions expected from the proposed actions on site including future hydrogeomorphic types, vegetation community types by dominant species (wetland and upland), and future water regimes.

v. Required wetland buffers for existing wetlands and proposed compensation areas. Also, identify any zones where buffers are proposed to be reduced or enlarged outside of the standards identified in this chapter.

vi. A plant schedule for the compensation area including all species by proposed community type and water regime, size and type of plant material to be installed, spacing of plants, typical clustering patterns, total number of species by community type, and the timing of installation.

vii. Performance standards (measurable standards reflective of years post-installation) for upland and wetland communities, monitoring schedule, and maintenance schedule and actions by each biennium.

H. Wetland Mitigation Banks.

1. Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:

a. The bank is certified under Chapter 173-700 WAC;

b. The administrator determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

c. The proposed use of credits is consistent with the terms and conditions of the bank’s certification.

2. Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the bank’s certification.

3. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the bank’s certification. In some cases, bank service areas may include portions of more than one adjacent drainage basin for specific wetland functions. (Ord. 2011-6 § 2 (Exh. A), 2011).

Article IV. Frequently Flooded Areas

17.70.500 Designation and mapping of frequently flooded areas.

All areas within the city meeting the frequently flooded designation criteria are hereby designated critical areas and are subject to the provisions of this chapter. Frequently flooded areas have been accurately delineated based on hydrologic and hydraulic studies completed as part of the National Flood Insurance Program by the Federal Emergency Management Agency in the Flood Insurance Study for Yakima County, Washington, and incorporated areas dated November 18, 2009, and any subsequent amendment. The methodology and detail of these studies is accepted as the best available science. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.510 Classification of frequently flooded areas.

A. The flood areas in the city are classified as either one of two types:

1. Floodway. “Floodways” are defined as the channel of a stream and adjacent land areas which are required to carry and discharge the flood water or flood flows of any river or stream associated with a regulatory flood.

2. Flood Fringe. The “flood fringe” is defined as that land area which is outside a stream’s floodway, but is subject to periodic inundation due to flooding, associated with a regulatory flood. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.520 Existing regulations pertaining to frequently flooded areas.

Chapter 15.30 TMC regulates proposed activities within frequently flooded areas. If allowed, any structures permitted in the designated flood areas are subject to flood-proofing regulations of this chapter. The existing regulations were adopted after careful study and fulfill the requirements of the Growth Management Act for protection of frequently flooded areas. (Ord. 2011-6 § 2 (Exh. A), 2011).

Article V. Fish and Wildlife Habitat Conservation Areas

17.70.640 Designation of fish and wildlife habitat conservation areas.

A. Fish and wildlife habitat conservation areas include:

1. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association.

a. Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status.

b. State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington and identified by the Washington Department of Fish and Wildlife which are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The state Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.

2. Waters of the State. Waters of the state include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-031 (or WAC 222-16-030 depending on classification used).

3. Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity.

B. Appendix “A” identifies stream corridors subject to protection; however, all areas within the city meeting one or more of these criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter and shall be managed consistent with the best available science.

C. Mapping. The approximate location and extent of habitat conservation areas are shown on the critical area maps adopted with the ordinance codified in this chapter by the city, as most recently updated. The following maps and data are hereby adopted and are available from the city and/or the listed governmental agency:

1. Washington Department of Fish and Wildlife Priority Habitat and Species Maps;

2. Washington State Department of Natural Resources, Official Water Type Reference Maps, as amended; and

3. Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors Reports published by the Washington Conservation Commission.

The above maps are to be used as a guide for the city, project applicants, and/or property owners and should be continuously updated as new critical areas are identified. The above maps are a reference and do not provide a final critical area designation. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.650 Critical area report – Additional requirements for habitat conservation areas.

B. Habitat Analysis. A habitat assessment to include at a minimum the following:

1. Detailed description of vegetation on the project area and its associated buffer.

2. Identification of any endangered, threatened, or candidate species that have a primary association with habitat on the project area, and assessment of potential project impacts to use of the buffer and critical area on the site by the species.

3. A detailed discussion of the direct and indirect potential impacts on habitat by the project. Such discussion shall include a discussion of the ongoing management practices that will protect habitat after the project site has been developed. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.660 Performance standards – General requirements.

A. Nonindigenous Species. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a habitat conservation area unless authorized by a state or federal permit or approval.

B. Mitigation and Contiguous Corridors. Mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical area report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

C. Approvals of Activities. The administrator shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers as necessary to minimize or mitigate any potential adverse impacts. Conditions shall be based on the best available science and may include, but are not limited to, the following:

1. Establishment of buffer zones;

2. Preservation of critically important vegetation and/or habitat features such as snags and downed wood;

3. Limitation of access to the habitat area, including fencing to deter unauthorized access;

4. Seasonal restriction of construction activities;

5. Establishment of a duration and timetable for periodic review of mitigation activities; and

6. Requirement of a performance bond, when necessary, to ensure completion and success of proposed mitigation.

D. Mitigation to Equivalent Biological Functions. Mitigation of alterations to habitat conservation areas shall achieve at least equivalent biologic and hydrologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

E. Approvals and the Best Available Science. Any approval of alterations or impacts to a habitat conservation area shall be supported by the best available science.

F. Buffers.

1. Establishment of Buffers. The administrator shall require the establishment of buffer areas for activities adjacent to habitat conservation areas when needed to protect habitat conservation areas. Buffers shall consist of an undisturbed area of native vegetation or areas identified for restoration established to protect the integrity, functions, and values of the affected habitat. Required buffer widths shall be designed to address the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby and shall consider the management recommendations issued by the Washington Department of Fish and Wildlife. Habitat conservation areas and their buffers shall be preserved in perpetuity through the use of critical area tracts in accordance with TMC 17.70.380.

2. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply.

G. Signs and Fencing of Habitat Conservation Areas.

1. Temporary Markers. The outer perimeter of the habitat conservation area or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and verified by the administrator prior to the commencement of permitted activities. The administrator shall have the authority to require that temporary fencing be placed on site to mark the outer perimeter of the habitat conservation area and its associated buffer area. This temporary marking, and any required temporary fencing, shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

a. Permanent signs shall be made of a metal face with a green color background and white letters; attached to a metal post or another nontreated material of equal durability; made with a sign face no smaller than one foot by one foot and no larger than two feet by two feet; and mounted with the bottom of the sign face no less than three feet above and no more than five feet above adjacent grade. Signs must be posted at a minimum of one per lot of record, or on large parcels every 300 feet, or additional signs as required by the administrator and must remain unobstructed and be maintained by the property owner in perpetuity. The sign(s) shall be worded as follows or with alternative language approved by the administrator:

Protected Critical Area

Do Not Disturb

Contact the City of Toppenish

Regarding Uses and Restrictions

(Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.670 Performance standards – Specific habitats.

A. Endangered, Threatened, and Sensitive Species.

1. No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association, except that which is provided for by a management plan established by the Washington Department of Fish and Wildlife, the Yakama Nation and other applicable state or federal agencies.

B. Anadromous Fish.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or where such fish have a primary association shall give special consideration to the preservation of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a. Activities shall be timed to occur only during the allowable work window as designated by the Washington Department of Fish and Wildlife and Yakama Nation for the applicable species;

b. An alternative alignment or location for the activity is not feasible;

c. The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas;

d. Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques, according to an approved critical area report; and

e. Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report.

2. Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed.

C. Wetland Habitats. All proposed activities within or adjacent to habitat conservation areas containing wetlands shall conform to the wetland development performance standards set forth in TMC 17.70.440, wetlands. If nonwetlands habitat and wetlands are present at the same location, the provisions of this article or Article III of this chapter, Wetlands, whichever provides greater protection to the habitat, apply.

D. Riparian Habitat Areas. Unless otherwise allowed in this chapter, all structures and activities shall be located outside of the stream buffers.

1. Establishment of Stream Buffer Areas. Stream buffers shall be established for habitats that include aquatic and terrestrial ecosystems that mutually benefit each other and that are located adjacent to rivers, perennial or intermittent streams, seeps, and springs.

2. Stream Buffer Widths. Required stream buffer widths shown in Table 17.70.670(D)(1) have been established in accordance with the best available science. Buffers are subject to the following:

a. Widths shall be measured outward in each direction, on the horizontal plane from the channel migration zone if delineated, the ordinary high water mark, or from the top of bank if the ordinary high water mark cannot be identified.

b. Stream buffers must be sufficiently wide to achieve the full range of riparian and aquatic ecosystem functions, which include but are not limited to protection of in-stream fish habitat through control of temperature and sedimentation in streams; preservation of fish and wildlife habitat; and connection of riparian wildlife habitat to other habitats.

c. The buffer width may be reduced or averaged by the administrator upon recommendation of the wetland report and consultation with affected agencies and tribes.

d. Increased Stream Buffer Widths. In those situations in which a SEPA checklist discloses that the buffer widths as established in Table 17.70.670(D)(1) may not be sufficient to mitigate the significant adverse environmental impacts of the proposal, the administrator may invoke the procedures in Chapter 18.04 TMC and WAC 197-11-158. The administrator may require increased buffer widths in accordance with the recommendations of the experienced, qualified professional wetland scientist who produced the required critical areas report and best available science on a case-by-case basis when a larger buffer is necessary to protect stream functions and values based on site-specific characteristics. The increased buffer width shall not exceed a maximum of 100 percent increase over the buffer width that would otherwise be required by subsection (D)(2) of this section. This determination shall be based on one or more of the following criteria:

i. A larger buffer is needed to protect other critical areas;

ii. The adjacent land is susceptible to severe erosion, and erosion-control measures will not effectively prevent adverse stream impacts; or

iii. The adjacent land has minimal vegetative cover or slopes greater than 30 percent. The standard buffer is less than that which is necessary to protect documented endangered, threatened, or sensitive wildlife species which have a primary association with the stream or its buffer;

iv. The stream or its buffer contains plant and/or animal species listed by the federal and/or state government as sensitive, endangered, threatened, candidate monitored or documented priority species habitats or essential or outstanding habitat for those species or has unusual nesting or resting sites such as heron rookeries or raptor nesting trees.

e. The use of the standard buffer width requires the implementation of the measures in Table 17.70.670(D)(2), where applicable.

f. When an applicant chooses not to apply the mitigation measures in Table 17.70.670(D)(2), then a 33 percent increase in the width of all buffers is required. For example, a 75- foot buffer with mitigation measures would become a 100-foot buffer without them.

g. The standard buffer widths assume that the buffer is vegetated with a native plant community appropriate for the eco-region. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

Table 17.70.670(D)(1)
– Required Stream Buffers
Stream Classification	Minimum Buffer Width	Minimum Width of Mitigated Buffer
Type 1	200	100
Type 2	75	50
Type 3	75	50
Type 4	50	25
Type 5	25	15

Table 17.70.670(D)(2)
– Source-Specific Stream Buffer Mitigation Requirements
Disturbance	Required Measures to Minimize Impact
Lights	• Direct lights away from buffer area
Noise	• Locate activity that generates noise away from buffer area • If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source • For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10' heavily vegetated buffer strip immediately adjacent to the outer edge of the buffer


Toxic runoff	• Route all new, untreated runoff away from the buffer while ensuring the buffer area is not dewatered • Establish covenants limiting use of pesticides within 150 ft. of the ordinary high water mark of the stream • Apply integrated pest management practices


Stormwater runoff	• Retrofit stormwater detention and treatment of roads and existing adjacent development • Prevent channelized flow from lawns that directly enters the buffer • Use low intensity development techniques (per Puget Sound Action Team (PSAT) publication 05-3 or as updated)


Change in water regime	• Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns
Pets and human disturbance	• Use privacy fencing or plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the eco-region • Place buffer in a separate tract or protect with a conservation easement
Pets and human disturbance
Dust	• Use best management practices to control dust
Disruption of corridors or connections	• Maintain connections to off-site areas that are undisturbed • Restore corridors or connections to off-site habitats by replanting

3. Buffer Maintenance. Except as otherwise specified or allowed in accordance with this chapter, stream buffers shall be retained in an undisturbed condition, or shall be maintained as enhanced pursuant to any required permit or approval. Removal of invasive nonnative weeds is required for the duration of the mitigation bond.

4. Stream Buffer Width Averaging. The administrator may allow the recommended stream buffer width to be reduced in accordance with a critical area report only if:

a. The width reduction will not reduce stream or habitat functions, including those of non-fish habitat;

b. The width reduction will not degrade the habitat, including habitat for anadromous fish;

c. The proposal will provide additional habitat protection;

d. The total area contained in the riparian habitat area of each stream on the development proposal site is not decreased;

e. The recommended stream buffer width is not reduced by more than 25 percent in any one location;

f. The width reduction will not be located within another critical area or associated buffer; and

g. The reduced stream buffer width is supported by the best available science.

5. Interrupted Buffer.

6. Riparian Habitat Mitigation. Mitigation of adverse impacts to stream buffers shall result in equivalent functions and values on a per function basis, be located as near the alteration as feasible, and be located in the same subdrainage basin as the habitat impacted.

7. Alternative Mitigation for Stream Buffers. The performance standards set forth in this subsection may be modified at the city’s discretion if the applicant demonstrates that greater habitat functions, on a per function basis, can be obtained in the affected subdrainage basin as a result of alternative mitigation measures.

E. Aquatic Habitat. The following specific activities may be permitted within a stream buffer, pond, lake, water of the state, and associated buffer when the activity complies with the provisions set forth in the applicable shoreline management program and subject to the standards of this subsection. The standards that provide the most protection to protected habitat and species shall apply.

1. Stream Bank Stabilization. Stream bank stabilization to protect new structures from future channel migration is not permitted except when such stabilization is achieved through bioengineering or soft armoring techniques in accordance with an approved critical area report.

2. Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, and minor road bridging, less than or equal to 30 feet wide, may be permitted in accordance with an approved critical area report subject to the following standards:

a. There is no other feasible alternative route with less impact on the environment;

b. The crossing minimizes interruption of downstream movement of wood and gravel;

c. Roads in stream buffers shall not run parallel to the water body;

d. Trails shall be located on the outer edge of the buffer, except for limited viewing platforms, crossings and limited trails;

e. Crossings, where necessary, shall only occur as near to perpendicular with the water body as possible;

f. Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical area report;

g. Road bridges are designed according to the Washington Department of Fish and Wildlife Fish Passage Design at Road Culverts, 1999, and the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000; and

h. Trails and associated viewing platforms shall not be made of continuous impervious materials.

3. Utility Facilities. New utility lines and facilities may be permitted to cross watercourses in accordance with an approved critical area report, if they comply with the following standards:

a. Fish and wildlife habitat areas shall be avoided to the maximum extent possible;

b. Installation shall be accomplished by boring beneath the scour depth and hyporheic zone of the water body and channel migration zone, where feasible;

c. The utilities shall cross at an angle greater than 60 degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;

d. Crossings shall be contained within the footprint of an existing road or utility crossing where possible;

e. The utility route shall avoid paralleling the stream or following a down-valley course near the channel; and

f. The utility installation shall not increase or decrease the natural rate of shore migration or channel migration.

4. Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to the city’s review and approval of a critical area report and the approval of a federal biological assessment by the federal agency responsible for reviewing actions related to a federally listed species.

5. In-Stream Structures. In-stream structures, such as, but not limited to, high flow bypasses, sediment ponds, in-stream ponds, retention and detention facilities, dams, and weirs, shall be allowed only as part of an approved watershed basin restoration project approved by the agency with jurisdiction and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect habitat conservation areas.

6. Stormwater Conveyance Facilities. Conveyance structures may be permitted in accordance with an approved critical area report subject to the following standards:

a. No other feasible alternatives with less impact exist;

b. Mitigation for impacts is provided;

c. Stormwater conveyance facilities shall incorporate fish habitat features; and

d. Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds in order to retard erosion, filter out sediments, and shade the water. (Ord. 2011-6 § 2 (Exh. A), 2011).

Article VI. Critical Aquifer Recharge Areas

17.70.700 Designation of critical aquifer recharge areas.

A. The Growth Management Act (Chapter 36.70A RCW) requires local jurisdictions to protect areas with a critical recharging effect on aquifers used for potable water or areas where drinking aquifers are vulnerable to contamination. These areas are referred to as critical aquifer recharge areas (CARAs) in this section. Potable water is an essential life sustaining element. The city of Toppenish sources its municipal water exclusively from ground water supplies. Once ground water is contaminated it can be difficult and costly to clean. The quality of ground water in an aquifer is inextricably linked to its recharge area.

B. Critical aquifer recharge areas (CARAs) are those areas with a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2). CARAs have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water. The following areas have been identified based on local conditions:

1. Vulnerable Ground Water Recharge Areas. Soils throughout the city of Toppenish have a moderate to high permeability rate. In addition, the depth to ground water throughout the city is shallow. Accordingly, contaminants released on the ground may infiltrate into and pollute the ground water table. The entire city of Toppenish has been designated as a vulnerable ground water recharge area.

2. Wellhead Protection Areas. Wellhead protection areas shall be defined by the boundaries of the 10-year time of ground water travel, or boundaries established using alternate criteria approved by the Department of Health in those settings where ground water time of travel is not a reasonable delineation criterion, in accordance with WAC 246-290-135. The city of Toppenish wellhead protection plan is a component of the water systems plan. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.710 Regulations pertaining to critical aquifer recharge areas.

The following provisions are in place to protect critical aquifer recharge areas and regulate activities that might potentially impact these areas:

A. Eastern Washington Stormwater Design Manual as published by the State of Washington Department of Ecology.

B. City of Toppenish wellhead protection plan.

C. State and federal regulations applicable to specific uses including but not limited to those provided in TMC 17.70.730(G). (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.720 General requirements pertaining to critical aquifer recharge areas.

A. Activities in a critical aquifer recharge area must be conducted in such a manner as to not adversely affect the recharging of the aquifer and such that the activity will not cause contaminants to enter the aquifer.

B. Activities within a wellhead protection area pursuant to TMC 17.70.700(B)(2) must comply with the water source protection requirements and recommendations of the federal Environmental Protection Agency, state Department of Health, and the city’s wellhead protection plan.

C. Developments must be designed and constructed in accordance with surface/stormwater management requirements of the Eastern Washington Stormwater Management Manual as published by the State of Washington Department of Ecology. (Ord. 2011-6 § 2 (Exh. A), 2011).

17.70.730 Development standards for specific activities in critical aquifer recharge areas.

A. Connection to Public Sewer. Pursuant to Chapter 13.28 TMC, all new development must be connected to public sewer.

B. Connection to Public Water. Pursuant to Chapter 13.08 TMC, all new development must source its potable water from the city of Toppenish municipal water system.

C. Storage Tanks. All storage tanks must comply with local building code requirements and must conform to the following requirements:

1. Underground Tanks. All new underground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

a. Prevent releases due to corrosion or structural failure for the operational life of the tank;

b. Be protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substances; and

c. Use materials in the construction or lining of the tank that is compatible with the substance to be stored.

2. Aboveground Tanks. All new aboveground storage facilities proposed for use in the storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

a. Not allow the release of a hazardous substance to the ground, ground waters, or surface waters;

b. Have a primary containment area enclosing or underlying the tank or part thereof; and

c. Have a secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks.

D. Stormwater Disposal. Systems for the disposal of stormwater from impervious surfacing of all new development must be designed in accordance with the provisions of the Eastern Washington stormwater design standards.

E. Vehicle Repair and Servicing. Vehicle repair and servicing must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Chemicals used in the process of vehicle repair and servicing must be stored in a manner that protects them from weather and provides containment should leaks occur.

F. Spreading or Injection of Reclaimed Water. Water reuse projects for reclaimed water must be in accordance with the adopted water or sewer comprehensive plans that have been approved by the Departments of Ecology and Health including:

1. Surface spreading must meet the ground water recharge criteria given in RCW 90.46.010(10) and 90.46.080.

2. Direct injection must be in accordance with the standards developed by authority of RCW 90.46.042.

G. State and Federal Regulations. The uses listed in Table 17.70.730(G) shall be conditioned as necessary to protect critical aquifer recharge areas in accordance with the applicable state and federal regulations.

Table 17.70.730(G)
– State and Federal Aquifer Recharge Regulations
Activity	Statute Regulation Guideline
Above Ground Storage Tanks	WAC 173-303-640
Animal Feedlots	Chapters 173-216 and 173-220 WAC
Automobile Washers	Chapter 173-216 WAC, Best Management Practices for Vehicle and Equipment Discharges (WDOE WQ-R-95-56)
Below Ground Storage Tanks	Chapter 173-360 WAC
Chemical Treatment Storage and Disposal Facilities	WAC 173-303-182
Hazardous Waste Generator (Boat Repair Shops, Biological Research Facility, Dry Cleaners, Furniture Stripping, Motor Vehicle Service Garages, Photographic Processing, Printing and Publishing Shops, etc.)	Chapter 173-303 WAC
Injection Wells	Federal 40 CFR Parts 144 and 146, Chapter 173-218 WAC
Junk Yards and Salvage Yards	Chapter 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Vehicles Recycler Facilities (WDOE 94-146)
Oil and Gas Drilling	WAC 332-12-450, Chapter 173-218 WAC
Pesticide Storage and Use	Chapters 15.54 and 17.21 RCW
Sawmills	Chapters 173-303 and 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Log Yards (WDOE 95-53)
Solid Waste Handling and Recycling Facilities	Chapter 173-304 WAC
Surface Mining	WAC 332-18-015
Waste Water Application to Land Surface	Chapters 173-216 and 173-200 WAC, WDOE Land Application Guidelines, Best Management Practices for Irrigated Agriculture

(Ord. 2011-6 § 2 (Exh. A), 2011).

APPENDIX “A”

Toppenish Critical Areas Standards

STREAMS IDENTIFIED AS FISH AND WILDLIFE HABITAT CONSERVATION CORRIDORS

The following stream reaches within the city of Toppenish and its urban growth area are designated as critical areas. Any stream segments abutting federal lands or any Indian trust lands within the Yakama Indian Reservation are excluded.


STREAM NAME	STREAM CLASS
1. Wanity Slough	3
2. Toppenish Drain	3

(Ord. 2011-6 § 2 (Exh. A), 2011).