Chapter 16.28 WETLAND PROTECTION STANDARDS

It is the declared policy of the city of Tumwater to require site planning to avoid or minimize damage to wetlands wherever possible; to require that activities not dependent upon a wetland location be located at upland sites; and to achieve no net loss of wetlands by requiring restoration or enhancement of degraded wetlands or creation of new wetlands to offset losses that are unavoidable.

(Ord. 1278, Added, 08/20/1991)

16.28.030 Definitions.

For the purposes of this chapter, the following definitions shall apply:

A. “Applicant” means a person who files an application for any permit subject to this chapter and who is either the owner of the land on which that proposed activity would be located, a contract vendee, a lessee of the land, the person who would actually control and direct the proposed activity, or the authorized agent of such a person.

B. “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 best available science are included in “Citations of Recommended Sources of Best Available Science for Designation and Protecting Critical Areas” published by the State of Washington Department of Commerce, as written or hereafter amended.

C. “Best management practices” means conservation practices or systems of practices and management measures that:

1. Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics, and sediment; and

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

D. “Bog” means a wetland that is dominated by organic soils, low nutrients and low pH (between 3.5 and 5.0). Plants growing in these sensitive wetlands are specifically adapted to such conditions and are not commonly found elsewhere. Bogs provide habitat for unique species of plants and animals.

E. “Compensation project” means actions necessary to replace project-induced wetland and/or wetland buffer losses, including land acquisition, planning, engineering, construction, monitoring and contingency actions.

F. “Compensatory mitigation” means replacing project-induced wetland losses or impacts, and includes, but is not limited to, the following:

1. “Restoration” means actions performed to reestablish wetland functional characteristics and processes which have been lost by alterations, activities, or catastrophic events within an area which no longer meets the definition of a wetland.

2. “Creation” means actions performed to intentionally establish a wetland at a site where it did not formerly exist.

3. “Enhancement” means actions performed to improve the condition of existing degraded wetlands so that the functions they provide are of a higher quality.

4. “Preservation” means actions taken to ensure the permanent protection of existing wetlands.

G. “Buildable area” means an area outside of wetlands and wetland buffers.

H. “Department” means the Washington State Department of Ecology.

I. “Emergent wetland” means a regulated wetland with at least thirty percent of the surface area covered by erect, rooted, herbaceous vegetation as the uppermost vegetative strata.

J. “Essential habitat” means habitat necessary for the survival of federally listed threatened, endangered and sensitive species and state-listed priority species.

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

L. “Existing and ongoing agriculture” includes those activities conducted on lands defined in RCW 84.34.020(2), and those activities involved in the production of crops or livestock. Activities which bring an area into agricultural use are not part of an ongoing operation. An operation ceases to be ongoing when the area on which it is conducted is converted to a nonagricultural use or has lain idle for more than five years.

M. “Extraordinary hardship” means strict application of this chapter and/or programs adopted to implement this chapter by the city when these actions would prevent all reasonable economic use of the parcel.

N. “Forested wetland” means a regulated wetland with at least twenty percent of the surface area covered by woody vegetation greater than twenty feet in height that is at least partially rooted within the wetland.

O. “Functions,” “beneficial functions,” or “functions and values” means the beneficial roles served by wetlands including, but not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, groundwater recharge and discharge, erosion control, wave attenuation, historical and archaeological and aesthetic value protection, and recreation. These beneficial roles are not listed in order of priority.

P. “High-intensity land use” includes land uses which are associated with high levels of human disturbance or substantial wetland habitat impacts including, but not limited to: commercial, industrial, institutional, residential densities of one or more units per acre, new agricultural uses (high-intensity processing such as dairies, nurseries and green houses, raising and harvesting crops requiring annual tilling, raising and maintaining animals), high-intensity recreation (golf courses, ball fields) and hobby farms.

Q. “Hydric soil” means a soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper stratum. The presence of hydric soil shall be determined following the methods described in the approved federal delineation manual and applicable regional supplements for the delineation of wetlands that are adopted in accordance with applicable state law.

R. “Hydrophytic vegetation” means macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. The presence of hydrophytic vegetation shall be determined following the methods described in the approved federal wetland delineation manual and applicable regional supplements.

S. “Infrastructure” means facilities such as water and sewer transmission lines or pipes and their appurtenances, telephone, fiber optic cable, gas and electrical transmission and distribution facilities, and streets and roads.

T. “In-kind compensation” means to replace wetlands with substitute wetlands whose characteristics closely approximate those destroyed or degraded by a regulated activity. It does not mean replacement within the same wetlands rating category.

U. “Isolated wetlands” means those regulated wetlands which:

1. Are outside of and not contiguous to any one-hundred-year floodplain of a lake, river, or stream; and

2. Have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water.

V. “Low-intensity land use” includes land uses which are associated with low levels of human disturbance or low wetland habitat impacts, including, but not limited to, passive recreation, open space, or forest management land uses.

W. “Mitigation” includes avoiding, minimizing or compensating for adverse wetland impacts. Mitigation, in the following order of preference, is defined as:

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 to the conditions existing at the time of the initiation of the project;

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

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

6. Monitoring the impact and the compensation project and taking appropriate corrective measures. Mitigation for individual actions may include a combination of the above measures.

X. “Moderate-intensity land use” means land uses which are associated with moderate levels of human disturbance or substantial habitat impacts including, but not limited to, not more than one residential dwelling unit per acre, moderate-intensity open space (parks), and moderate agricultural uses (orchards, hay fields), and paved trails.

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

Z. “Off-site compensation” means to replace wetlands away from the site on which a wetland has been impacted by a regulated activity.

AA. “On-site compensation” means to replace wetlands at or adjacent to the site on which a wetland has been impacted by a regulated activity.

BB. “Out-of-kind compensation” means to replace wetlands with substitute wetlands whose characteristics do not closely approximate those destroyed or degraded by a regulated activity. It does not refer to replacement out of the wetland rating category.

CC. “Practicable alternative” means an alternative that is available and capable of being carried out after taking into consideration costs, existing technology, and logistics in light of overall project purposes, and having fewer impacts to regulated wetlands.

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

EE. “Priority species” are those species that are of concern due to their population status and their sensitivity to habitat manipulation. Priority species include those which are state-listed endangered, threatened and sensitive species.

FF. “Regulated 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 typically adapted for life in saturated soil conditions. Regulated wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands created as mitigation and wetland modified for approved land use activities shall be considered as regulated wetlands. All category I wetlands shall be considered regulated wetlands. Regulated 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. The applicant shall bear the burden of proving that the site was not previously a wetland. For identifying and delineating a regulated wetland, the city shall consider the approved federal wetland delineation manual and applicable regional supplements.

GG. “Regulated activities” means any of the following activities which are directly undertaken or originate in a regulated wetland or its buffer:

1. The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

2. The dumping, discharging, or filling with any material;

3. The draining, flooding, or disturbing of the water level or water table;

4. The driving of pilings;

5. The placing of obstructions;

6. The construction, reconstruction, demolition, or expansion of any structure;

7. The destruction or alteration of wetlands vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland; provided, that these activities are not part of a forest practice governed under Chapter 76.09 RCW and its rules; or

8. Activities that result in a significant change of water temperature, a significant change of physical or chemical characteristics of wetlands water sources, including quantity, or the introduction of pollutants.

HH. “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 additional regulated wetlands are not included in this definition.

II. “Scrub-shrub wetland” means a regulated wetland with at least thirty percent of its surface area covered by woody vegetation less than twenty feet in height as the uppermost strata.

JJ. “Serviceable” means presently usable.

KK. “Unavoidable and necessary impacts” are impacts to regulated wetlands that remain after a person proposing to alter regulated wetlands has demonstrated that no practicable alternative exists for the proposed project.

LL. “Water-dependent” means requiring the use of surface water that would be essential to fulfill the purpose of the proposed project.

MM. “Wetlands” means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal conditions 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 conversion of wetlands. The approved federal wetland delineation manual and applicable regional supplements shall be used for identifying and delineating a wetland.

NN. “Wetland buffers” or “wetland buffer zones” is an area that surrounds and mitigates the adverse impacts to the functions and values of a regulated wetland.

OO. “Wetland rating system” is defined in TMC 16.28.090.

PP. “Wetland permit” means any permit issued, conditioned or denied specifically to implement this chapter.

QQ. “Wetland edge” means the delineation of the wetland edge as based on the approved federal wetland delineation manual and applicable regional supplements, as required by RCW 36.70A.175 and WAC 173-22-035.

RR. “Wetland mosaic” means a patchwork of wetlands that is considered one unit where each patch of wetland is less than one acre; each patch is less than one hundred feet on average; and the areas delineated as vegetated wetland are more than fifty percent of the total area of the wetlands and uplands together.

(Ord. O2017-018, Amended, 10/17/2017; Ord. O2012-005, Amended, 03/18/2014; Amended during 2011 reformat; O2005-023, Amended, 09/06/2005; Ord. O2004-019, Amended, 05/17/2005; Ord. O96-008, Amended, 11/05/1996; Ord. 1278, Added, 08/20/1991)

16.28.040 Abrogation and greater restrictions.

It is not intended that this chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail.

(Ord. 1278, Added, 08/20/1991)

16.28.050 Interpretation.

The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter.

(Ord. 1278, Added, 08/20/1991)

16.28.060 Applicability.

A. When any provision of any other chapter of the city of Tumwater conflicts with this chapter, that which provides more protection of wetlands and wetland buffers shall apply unless specifically provided otherwise in this chapter; provided, that if there are any conflicts between the shoreline master program and the wetland protection standards which apply in shoreline jurisdiction, the requirements of the shoreline master program apply.

B. The city is authorized to adopt written procedures for the purpose of carrying out the provisions of this chapter. The city of Tumwater shall not grant any approval or permission to conduct a regulated activity in a wetland or wetland buffer prior to fulfilling the requirements of this chapter. Such permits and approvals include but are not limited to the following:

Building permit; conditional use permit; franchise right-of-way construction permit; binding site plan; grading; land clearing permit; planned unit development; right-of-way permit; shoreline substantial development permit; shoreline variance; shoreline conditional use permit; shoreline environmental redesignation; variance; zoning code amendment; rezone; land division; or any subsequently adopted permit or required approval not expressly exempted by this chapter.

(Ord. O2012-005, Amended, 03/18/2014; Ord. 1278, Added, 08/20/1991)

16.28.070 Maps and inventory.

This chapter shall apply to all lots or parcels on which wetlands and/or wetland buffers are located within the city of Tumwater. The approximate location and extent of wetlands is displayed on the Thurston County Wetlands Inventory. The Thurston County Wetlands Inventory is to be used as a guide to the general location or extent of wetlands. Wetlands not shown on the Thurston County Wetlands Inventory are presumed to exist in the city of Tumwater and are protected under all the provisions of this chapter. In the event that any of the wetland designations shown on the maps conflict with the criteria set forth in this chapter, the criteria shall control.

(Amended during 2011 reformat; O96-008, Amended, 11/05/1996; Ord. 1278, Added, 08/20/1991)

16.28.080 Determination of regulatory wetland boundary.

A. The exact location of the wetland boundary shall be determined by the applicant through the performance of a field investigation applying the wetland definition provided in TMC 16.28.030. A qualified wetlands professional shall perform wetland delineations using the approved federal wetland delineation manual and applicable regional supplements. The applicant is required under TMC 16.28.140(C) to show the location of the wetland boundary on a scaled drawing as a part of the permit application.

B. The city, when requested by the applicant, may waive the delineation of boundary requirement for the applicant and, in lieu of delineation by the applicant, perform the delineation. The city shall consult with qualified professional scientists and technical experts or other experts as needed to perform the delineation. The applicant may be required to reimburse the city for costs incurred for this service including administration costs.

C. Where the city performs a wetland delineation at the request of the applicant, such delineation shall be considered a final determination.

D. Where the applicant has provided a delineation of the wetland boundary, the city shall verify the accuracy of, and may render adjustments to, the boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the city shall, at the applicant’s expense, obtain expert services to render a final delineation.

(Ord. O2012-005, Amended, 03/18/2014; Ord. O2005-023, Amended, 09/06/2005; Ord. O2004-019, Amended, 05/17/2005; Ord. O96-008, Amended, 11/05/1996; Ord. 1278, Added, 08/20/1991)

16.28.090 Wetlands rating system.

Wetlands shall be rated according to: (A) the Washington State Wetland Rating System for Western Washington: 2014 Update (Washington State Department of Ecology publication 14-06-029, effective January 2015), as revised; or (B) a regionally specific, scientifically based method for categorizing wetlands that evaluates the existing wetland functions and values to determine what functions must be protected (WAC 365-190-090). In the event of a conflict or discrepancy between the provisions of a regionally specific wetlands rating system and the Washington State Wetland Rating System for Western Washington, the Washington State Department of Ecology’s wetlands rating system shall control.

The Washington State Wetland Rating System categorizes wetlands based on specific attributes such as rarity, sensitivity to disturbance, and the functions they provide. The range of possible scores for a wetland category based on function is from nine to twenty-seven and includes improving water quality, hydrologic, and habitat, each of which are rated on a scale of three to nine.

According to the Washington State Department of Ecology wetland rating system, as set forth in the Washington State Wetland Rating System for Western Washington, the wetland rating categories applicable to the city are defined as follows:

A. Washington State Four-Tier Wetlands Rating System.

1. Category I Criteria.

a. Wetlands of high conservation value that are identified by scientists of the Washington Natural Heritage Program at the Washington State Department of Natural Resources;

b. Bogs;

c. Mature and old growth forested wetlands larger than one acre; or

d. Wetlands that perform many functions well (functions scoring twenty-three points or more).

2. Category II Criteria. Wetlands with a moderately high level of functions (functions scoring between twenty and twenty-two points).

3. Category III Criteria. Wetlands with a moderate level of functions (functions scoring between sixteen and nineteen points).

4. Category IV Criteria. Category IV wetlands have the lowest levels of functions (functions scoring less than sixteen points) and are often heavily disturbed.

Wetland buffer widths, replacement ratios and avoidance criteria shall be based on these rating systems.

B. Wetland rating categories shall be applied as the regulated wetland exists on the date of adoption of the rating system by the city; as the regulated wetland may naturally change in accordance with permitted activities. Wetland rating categories shall not be altered to recognize illegal modifications.

(Ord. O2018-007, Amended, 10/16/2018; Ord. O2017-018, Amended, 10/17/2017; Ord. O2004-019, Amended, 05/17/2005; Ord. 1278, Added, 08/20/1991)

16.28.095 Small wetland standards.

Small wetlands of four thousand square feet or less may or may not provide wetland functions that require protection. The following standards apply to regulating wetlands of four thousand square feet or less:

A. Wetlands of less than one thousand square feet are exempt when the applicant can show all of the following:

1. The wetland is not associated with a riparian corridor;

2. The wetland is not part of a wetland mosaic; and

3. The wetland does not contain habitat identified as essential for local populations of priority species identified by the Washington State Department of Fish and Wildlife;

B. For wetlands between one thousand and four thousand square feet, the wetland should be rated to establish the category and evaluate functions. Type III and IV wetlands may be disturbed or eliminated subject to all of the following criteria:

1. The wetland is not associated with a riparian corridor;

2. The wetland is not part of a wetland mosaic;

3. The wetland does not score thirteen points or more in the wetland rating score;

4. The wetland does not contain habitat identified as essential for local populations of priority species identified by the Washington State Department of Fish and Wildlife; and

5. Impacts allowed under this provision shall be fully mitigated as required in TMC 16.28.220.

(Ord. O2017-018, Amended, 10/17/2017; Ord. O2004-019, Added, 05/17/2005)

16.28.100 Regulated activities.

A permit shall be obtained from the city prior to undertaking the following activities in a regulated wetland or its buffer unless authorized by TMC 16.28.110:

A. The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

B. The dumping, discharging, or filling with any material;

C. The draining, flooding, or disturbing of the water level or water table;

D. The driving of pilings;

E. The placing of obstructions;

F. The construction, reconstruction, demolition, or expansion of any structure;

G. The destruction or alteration of wetlands vegetation through clearing, harvesting, or intentional burning, that would alter the character of a regulated wetland, provided that these activities are not part of a forest practice governed under Chapter 76.09 RCW and its rules; or

H. Activities that result in a significant change of water temperature, a significant change of physical or chemical characteristics of wetlands water sources, including quantity, or the introduction of pollutants.

(Ord. 1278, Added, 08/20/1991)

16.28.110 Allowed activities.

The following uses which require no specific permit shall be allowed within a wetland or wetland buffer to the extent that they are not prohibited by any other chapter or law and provided they are conducted using best management practices, except where such activities result in the conversion of a regulated wetland or wetland buffer to a use to which it was not previously subjected and provided further that forest practices and conversions shall be governed by Chapter 76.09 RCW and its rules:

A. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife that does not entail changing the structure or functions of the existing wetland;

B. Outdoor recreational activities, including fishing, birdwatching, hiking, boating, horseback riding, swimming, canoeing, and bicycling;

C. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, or alteration of the wetland by changing existing topography, water conditions or water sources;

D. The maintenance of drainage ditches to original specifications;

E. Education, scientific research, and use of nature trails;

F. Navigation aids and boundary markers;

G. Minimal soil disturbance for site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, wetland impacts shall be minimized and disturbed areas shall be immediately restored; and

H. The following uses which require no specific permit under this chapter can occur within wetlands and/or wetland buffers after review by the community development department; provided, that wetland impacts are minimized and that disturbed areas are immediately restored, or where no feasible alternative location exists:

1. Normal maintenance, repair, or operation of existing serviceable structures, utilities, facilities, or improved areas. Maintenance and repair does not include any modification that changes the character, scope, or size of the original structure, facility, or improved area and does not include the construction of a maintenance road; and

2. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure 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 of, addition to or replacement; provided, that restoration of the structures substantially damaged by fire, flood, or act of nature 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; and

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 increase stormwater; subject to the following:

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

4. 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 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 a regular 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 endangered species.

5. Minor Utility Projects. Utility projects which have minor or short duration impacts to critical areas, as determined by the community development director in accordance with the criteria below, and which do not significantly impact the functions 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;

c. The activity involves disturbance of no more than seventy-five square feet.

6. Emergencies. Those activities necessary to prevent an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this chapter. Emergency actions that create an impact to a critical area or its buffer shall use all 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 thirty days, the community development director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the community development director determines that the action taken was beyond the scope of an allowed emergency action, then inspection and remedial action would be required. If remedial action is required and not completed, then enforcement provisions would apply.

7. Allow the removal of beaver dams as long as the proponent has obtained hydraulic project approval from the Washington State Department of Fish and Wildlife.

I. Fish hatcheries, associated appurtenances, and related interpretive centers are permitted in accordance with an approved critical area report that demonstrates the following:

1. Natural shoreline processes will be maintained. The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-fourth mile of the project area.

2. The aquaculture facilities will not degrade fish or wildlife habitat conservation areas or associated wetlands.

3. Adequate mitigation measures ensure that there is no net loss of the functions or values of riparian habitat as a result of the proposed aquaculture facilities.

(Ord. O2016-024, Amended, 03/21/2017; Ord. O2011-002, Amended, 03/01/2011; Ord. O2004-019, Amended, 05/17/2005; Ord. 1278, Added, 08/20/1991)

16.28.115 Exceptions – Infrastructure.

A. If the application of this title would prohibit a development proposal by a public agency, public utility, or a private entity installing public or private infrastructure that is in compliance with the comprehensive transportation, capital facilities or utility plans of Tumwater, the agency or utility may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for an infrastructure exception shall be made to the city and shall include a critical area identification form; critical area report, including mitigation plan, 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). The community development director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with infrastructure exception review criteria in subsection D of this section.

C. Hearing Examiner Review. The hearing examiner shall review the application and the community development director’s recommendation, and conduct a public hearing. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the infrastructure exception review criteria in subsection D of this section.

D. Infrastructure Exception Review Criteria. The criteria for review and approval of infrastructure exceptions follow:

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

2. The application of this title 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 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. O2012-005, Amended, 03/18/2014; Ord. O2011-002, Amended, 03/01/2011; Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Added, 05/17/2005)

16.28.120 Permit requirements, compliance.

Except as specifically provided in TMC 16.28.110, no regulated activity shall occur or be permitted to occur within a regulated wetland or wetland buffer without a written permit from the city of Tumwater. Any alteration approved by such written permit shall comply fully with the requirements and purposes of this chapter, other applicable regulations, and any terms or conditions of said permit. All activities that are not exempt or permitted shall be prohibited.

(Ord. 1278, Added, 08/20/1991)

16.28.130 Wetland permits, extensions.

A. Application for a wetland permit to conduct any regulated activity not specifically authorized by TMC 16.28.110 within a wetland or wetland buffer shall be made to the city on forms furnished by that office. Permits shall normally be valid for a period of three years from the date of issue and shall expire at the end of that time unless a longer or shorter period is specified by the city upon issuance of the permit.

B. An extension of an original permit may be granted upon written request to the city by the original permit holder or the successor in title. Prior to the granting of an extension, the city shall require updated studies and/or additional hearings if, in its judgment, the original intent of the permit is altered or enlarged by the renewal, if the circumstances relevant to the review and issuance of the original permit have changed substantially, or if the applicant failed to abide by the terms of the original permit.

(Ord. 1278, Added, 08/20/1991)

16.28.140 Permit applications, requirements.

A. Request for Determination of Applicability. Any person seeking to determine whether a proposed activity or an area is subject to this chapter may request in writing a determination from the city. Such a request for determination shall contain plans, data, and other information as may be specified by the city.

B. Prepermit Consultations. Any person intending to apply for a wetland permit is strongly encouraged, but not required, to meet with the city during the earliest possible stages of project planning in order to discuss wetland impact avoidance and minimization, and compensation before large commitments have been made to a particular project design.

C. Information Requirements. Unless the city waives one or more of the following information requirements, applications for a wetland permit under this chapter shall include:

1. A description and maps overlaid on an aerial photograph at a scale no smaller than one inch equals four hundred feet showing the entire parcel of land owned by the applicant and the exact boundary pursuant to TMC 16.28.080 of the wetland on the parcel;

2. A description of the vegetative cover of the wetland and adjacent area including dominant species;

3. A site plan for the proposed activity overlaid on an aerial photograph at a scale no smaller than one inch equals four hundred feet showing the location, dimensions of all existing and proposed structures, roads, sewage treatment facilities, and installations within the wetland and its buffer on the subject parcel;

4. The exact sites and specifications for all regulated activities;

5. Existing ground contours of the site within the wetland and its buffer at contour intervals of no greater than two feet;

6. Plan view and typical cross-sectional views of that portion of the wetland located on the site and its buffer drawn to scale;

7. A discussion of measures, including avoidance, minimization and mitigation, proposed to preserve existing wetlands;

8. A habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and wetland functions;

9. A discussion of ongoing management practices that will protect wetlands after the project site has been developed, including proposed monitoring and maintenance programs;

10. Specific means to mitigate any potential adverse environmental impacts of the applicant’s proposal. The city may require additional information, including, but not limited to, an assessment of wetland functional characteristics, including a discussion of the methodology used; documentation of the ecological, aesthetic, economic, or other values of the wetland; a study of flood erosion, or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards; and any other information deemed necessary to verify compliance with the provisions of this chapter or to evaluate the proposed use in terms of the purposes of this chapter. The city shall maintain and make available to the public, all information applicable in their possession to any wetland and its buffer located within the city.

D. Filing Fees. At the time of an application or request for letter of delineation, the applicant shall pay a filing fee as provided for by resolution.

E. Notification.

1. Upon receipt of the completed permit application, the city shall notify the individuals and agencies, including federal and state agencies, having jurisdiction over or an interest in the matter to provide such individuals and agencies an opportunity to comment. This will include Department of Ecology’s wetlands section on all class I wetland permits.

2. The city shall establish a mailing list of all interested persons and agencies who wish to be notified of such applications.

F. Notice on Title.

1. The owner of any property which includes a field verified wetland or wetland buffer pursuant to TMC 16.28.080 on which a development proposal is submitted shall file for record with the Thurston County auditor a notice approved by the city in a form substantially as set forth in subsection G of this section. Such notice shall provide notice in the public record of the presence of a wetland or wetland buffer, the application of this chapter to the property, and that limitations on actions in or affecting such wetlands and their buffers may exist.

2. The applicant shall submit proof that the notice has been filed for record before the city of Tumwater shall approve any development proposal for such site.

G. Form of Notice.

WETLAND AND/OR WETLAND BUFFER NOTICE

Legal Description:

Parcel No.:

Present Owner:

NOTICE: This property contains wetlands or their buffers as defined by City of Tumwater Ordinance. The property was the subject of a development proposal for (type of permit) application #__________ filed on (date) . Restrictions on use or alteration of the wetlands or their buffers may exist due to natural conditions of the property and resulting regulations. Review of such application has provided information on the location of wetlands or wetland buffers and restrictions on their use through setback areas. A copy of the plan showing such setback areas is attached hereto.

Signature of Owner

STATE OF WASHINGTON )

) ss.

COUNTY OF THURSTON )

On this day personally appeared before me _____________ to me known to be the individual(s) described in and who executed the foregoing instrument, and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned.

Given under my hand and official seal this _____ day of ______, 20__.

Notary Public in and for the State of Washington.

Residing at _____________________.

My commission expires __________.

(Ord. O2004-019, Amended, 05/17/2005; Ord. 1278, Added, 08/20/1991)

16.28.150 Permit processing.

A. Consolidation. The city shall, to the extent practicable and feasible, consolidate the processing of wetlands related aspects of other city of Tumwater regulatory programs which affect activities in wetlands, such as subdividing, clearing and grading, floodplain, and environmentally sensitive chapter, etc., with the wetland permit process established herein so as to provide a timely and coordinated permit process.

B. Completeness of Application. After receipt of the permit application, the city shall notify the applicant as to the completeness of the application in accordance with the procedures outlined in TMC Chapter 14.02. An application shall not be deemed complete until and unless all information necessary to evaluate the proposed activity, its impacts, and its compliance with the provisions of the chapter have been provided to the satisfaction of the city. Such determination of completeness shall not be construed as approval or denial of the permit application.

(Ord. O96-008, Amended, 11/05/1996; Ord. 1278, Added, 08/20/1991)

16.28.160 Standards for permit decisions.

A. A permit shall only be granted if the permit, as conditioned, is consistent with the provisions of this chapter. Additionally, permits shall only be granted if:

1. A proposed action avoids adverse impacts to regulated wetlands or their buffers or takes affirmative and appropriate measures to minimize and compensate for unavoidable impacts;

2. The proposed activity results in no net loss of wetland functions and/or values; or

3. Denial of a permit would cause an extraordinary hardship on the applicant.

B. Wetland permits shall not be effective and no activity thereunder shall be allowed during the time provided to file a permit appeal.

(Ord. 1278, Added, 08/20/1991)

16.28.170 Wetland buffers.

A. Standard Buffer Zone Widths. Wetland buffer zones shall be required for all regulated activities adjacent to regulated wetlands.

1. Any wetland created, restored or enhanced as compensation for approved wetland alterations shall also include the standard buffer required for the category of the created, restored, or enhanced wetland.

2. All buffers shall be measured from the wetland boundary as surveyed in the field pursuant to the requirements of TMC 16.28.080.

3. The width of the wetland buffer zone shall be determined according to wetland category, the functions and special characteristics of the wetland, and the proposed land use.

4. Wetlands of high conservation value, bogs, and forested wetlands shall have the buffers shown in the table below independent of points scored for habitat in the rating system.

5. If a wetland meets more than one of the characteristics listed in Tables 16.28.170(1) to 16.28.170(4), the buffer recommended to protect the wetland is the widest one.

Table 16.28.170(1): Category I Wetland Buffer Widths
(Buffers for wetlands scoring twenty-three points or more for all functions or having the “special characteristics” identified in the rating system)
Wetland Characteristics	Buffer Widths by Impact of Proposed Land Use (Apply Most Protective if More Than One Criterion Is Met)	Other Measures Recommended for Protection
Wetlands of high conservation value	Low – 125 ft Moderate – 190 ft High – 250 ft	No additional surface discharges to wetland or its tributaries No septic systems within 300 ft of wetland Restore degraded parts of buffer
Bogs	Low – 125 ft Moderate – 190 ft High – 250 ft	No additional surface discharges to wetland or its tributaries Restore degraded parts of buffer
Forested	Buffer width to be based on score for habitat functions or water quality functions	If forested wetland scores high for habitat, need to maintain connections to other habitat areas Restore degraded parts of buffer
High level of function for habitat (score for habitat 8 – 9 points)	Low – 150 ft Moderate – 225 ft High – 300 ft	Maintain connectivity to other habitat areas Restore degraded parts of buffer
Moderate level of function for habitat (score for habitat 5 – 7 points)	Low – 75 ft Moderate – 110 ft High – 150 ft	No recommendations at this time (1)
High level of function for water quality improvement (8 – 9 points) and low for habitat (less than 5 points)	Low – 50 ft Moderate – 75 ft High – 100 ft	No additional discharges of untreated runoff
Not meeting any of the above criteria	Low – 50 ft Moderate – 75 ft High – 100 ft	No recommendations at this time (1)

Table 16.28.170(1) Explanatory Notes:

(1) No information on other measures for protection was available at the time the 2014 Washington State Wetland Rating System for Western Washington was written. The Washington State Department of Ecology will continue to collect new information for future updates of the 2014 rating system.

Table 16.28.170(2): Category II Wetland Buffer Widths
(Buffers for wetlands scoring twenty to twenty-two points for all functions or having the “special characteristics” identified in the rating system)
Wetland Characteristics	Buffer Widths by Impact of Proposed Land Use (Apply Most Protective if More Than One Criterion Is Met)	Other Measures Recommended for Protection
High level of function for habitat (score for habitat 8 – 9 points)	Low – 150 ft Moderate – 225 ft High – 300 ft	Maintain connections to other habitat areas
Moderate level of function for habitat (score for habitat 5 – 7 points)	Low – 75 ft Moderate – 110 ft High – 150 ft	No recommendations at this time (1)
High level of function for water quality improvement and low for habitat (score for water quality 8 – 9 points; habitat less than 5 points)	Low – 50 ft Moderate – 75 ft High – 100 ft	No additional discharges of untreated runoff
Not meeting above criteria	Low – 50 ft Moderate – 75 ft High – 100 ft	No recommendations at this time (1)

Table 16.28.170(2) Explanatory Notes:

Table 16.28.170(3): Category III Wetland Buffer Widths
(Buffers for wetlands scoring sixteen to nineteen points for all functions)
Wetland Characteristics	Buffer Widths by Impact of Proposed Land Use	Other Measures Recommended for Protection
Moderate level of function for habitat (score for habitat 5 – 7 points) If wetland scores 8 – 9 habitat points, use Table 16.28.170(2): Category II Wetland Buffer Widths	Low – 75 ft Moderate – 110 ft High – 150 ft	No recommendations at this time (1)
Score for habitat 3 – 4 points	Low – 40 ft Moderate – 60 ft High – 80 ft	No recommendations at this time (1)

Table 16.28.170(3) Explanatory Notes:

Table 16.28.170(4): Category IV Wetland Buffer Widths
(Buffers for wetlands scoring less than sixteen points for all functions)
Wetland Characteristics	Buffer Widths by Impact of Proposed Land Use	Other Measures Recommended for Protection
Score for all three functions less than 16 points	Low – 25 ft Moderate – 40 ft High – 50 ft	No recommendations at this time (1)

Table 16.28.170(4) Explanatory Notes:

B. Increased Wetland Buffers Zone Width.

1. The recommended buffer widths are based on the assumption that the buffer is vegetated with a native plant community appropriate for the ecoregion or with one that performs similar functions. If the existing buffer is not vegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer shall either be planted with appropriate species or widened to ensure that adequate functions of the buffer are provided. Generally, improving the vegetation will be more effective than widening the buffer.

2. If the buffer for a wetland is based on the score for its ability to improve water quality rather than habitat or other criteria, then the buffer should be increased by fifty percent if the slope is greater than thirty percent.

3. If the wetland provides habitat for a species that is particularly sensitive to disturbance, such as a threatened or endangered species, the width of the buffer should be increased to provide adequate protection for the species based on its particular life-history needs.

C. Buffer Width Reduction. The buffer widths recommended for land uses with high-intensity impacts to wetlands can be reduced to those widths recommended for moderate-intensity impacts under the following conditions:

1. For wetlands that score moderate or high for habitat (five points or more), the width of the buffer around the wetland can be reduced if both the following criteria are met:

a. A relatively undisturbed vegetated corridor at least one hundred feet wide is protected between the wetland and any other priority habitats as defined by the Washington State Department of Fish and Wildlife. The corridor must be protected for the entire distance between the wetland and the priority habitat via some type of legal protection such as a conservation easement; and

b. Measures to minimize the impacts of different land uses on wetlands, such as the examples summarized in Table 16.28.170(5), are applied.

2. For wetlands that score less than five points for habitat, the buffer width can be reduced to that required for moderate land use impacts if measures to minimize impacts of different land uses on wetlands, such as the examples summarized in Table 16.28.170(5), are applied.

Table 16.28.170(5): Measures to Minimize Impacts to Wetlands
Examples of Disturbance	Examples of Measures to Minimize Impacts	Activities That Cause the Disturbance
Lights	Direct lights away from wetland	Parking lots, warehouses, manufacturing, residential
Noise	Locate activity that generates noise away from wetland	Manufacturing, residential
Toxic runoff (1)	Route all new runoff away from wetland while ensuring that wetland is not dewatered Establish covenants limiting use of pesticides within 150 ft of wetland Apply integrated pest management	Parking lots, roads, manufacturing, residential areas, application of agricultural pesticides, landscaping
Stormwater runoff	Retrofit stormwater detention and treatment for roads and existing adjacent development Prevent channelized flow from lawns that directly enters the buffer	Parking lots, roads, manufacturing, residential areas, commercial, landscaping
Change in water regime	Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns	Impermeable surfaces, lawns, tilling
Pets and human disturbance	Use privacy fencing Plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion Place wetland and its buffer in a separate tract	Residential areas
Dust	Utilize best management practices to control dust	Tilled fields

Table 16.28.170(5) Explanatory Notes:

(1) These examples are not necessarily adequate to meet the rules for minimizing toxic runoff if threatened or endangered species are present at the site.

D. Reductions in Buffer Widths Where Existing Roads or Structures Lie Within the Buffer. Where a legally established, nonconforming use of the buffer exists, such as a road or structure that lies within the width of buffer recommended for that wetland, proposed actions in the buffer may be permitted as long as they do not increase the degree of nonconformity. This means no significant increase in the impacts to the wetland from activities in the buffer.

E. Standard Wetland Buffer Width Averaging. Standard wetland buffer zones may be modified by averaging buffer widths if it will improve the protection of wetland functions, or if it is the only way to allow for reasonable use of a parcel. Averaging cannot be used in conjunction with the provisions for reductions in buffer widths. Wetland buffer width averaging shall be allowed to improve wetland protection only where a qualified wetlands professional demonstrates all of the following:

1. The wetland has significant differences in characteristics that affect its habitat functions, such as a wetland with a forested component adjacent to a degraded emergent component or a “dual-rated” wetland with a category I area adjacent to a lower rated area;

2. The buffer is increased adjacent to the higher functioning area of habitat or more sensitive portion of the wetland and decreased adjacent to the lower functioning or less sensitive portion;

3. The total area contained in the buffer area after averaging is not less than that which would be contained within the standard buffer; and

4. The buffer at its narrowest point is never less than three-fourths of the required width.

F. Averaging to allow reasonable use of a parcel may be permitted when all of the following are met:

1. There are no feasible alternatives to the site design that could be accomplished without buffer averaging;

2. The averaged buffer will not result in degradation of the wetland’s functions and values as demonstrated in the critical area report;

3. The total buffer area after averaging is equal to the area required without averaging; and

4. The buffer at its narrowest point is never less than three-fourths of the required width.

G. Except as otherwise specified, wetland buffer zones shall be retained in their natural undisturbed condition. Where buffer disturbance has occurred during construction, revegetation with native vegetation may be required.

H. Permitted Uses in a Wetland Buffer Zone. Regulated activities shall not be allowed in a buffer zone except for the following:

1. Activities having minimal adverse impacts on buffers and no adverse impacts on regulated wetlands. These may include low-intensity, passive recreational activities such as pervious trails, nonpermanent wildlife watching blinds, short-term scientific or educational activities, and sports fishing or hunting.

2. With respect to category III and IV wetlands, surface level stormwater management facilities may be allowed in the outer twenty-five percent of the wetland buffer using best management practices; provided the community development director makes all of the following determinations:

a. No other location is feasible.

b. The location of such facilities will not degrade the functions or values of the wetland.

3. Stormwater management facilities are not allowed in buffers of category I or II wetlands.

I. Signs and Fencing of Wetlands.

1. Temporary Markers. The outer perimeter of the wetland 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 is subject to inspection by the community development director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

2. Permanent Signs. As a condition of any permit or authorization issued pursuant to these requirements, the community development director may require the applicant to install permanent signs along the boundary of a wetland or buffer. Permanent signs shall be made of an enamel coated metal face and attached to a metal post, or another untreated material of equal durability. Signs must be posted at an interval of one per lot or every fifty feet, whichever is less, and must be maintained by the property owner in perpetuity. The sign shall be worded as follows or with alternative language approved by the community development director:

Protected Wetland Area

Do Not Disturb

Contact Tumwater Community Development 754-4180

Regarding Uses and Restrictions

3. Fencing. The community development director shall determine if fencing is necessary to protect the functions and values of the critical area. If found to be necessary, the community development director shall condition any permit or authorization issued pursuant to these regulations to require the applicant to install a permanent fence at the edge of the wetland buffer, when fencing will prevent future impacts to the wetland. The applicant will be required to install a permanent fence around the wetland or buffer when domestic grazing animals are present or may be introduced on site.

(Ord. O2017-018, Amended, 10/17/2017; Ord. O2012-005, Amended, 03/18/2014; Ord. O2011-002, Amended, 03/01/2011; Ord. O2004-019, Amended, 05/17/2005; Ord. O96-008, Amended, 11/05/1996; Ord. 1278, Added, 08/20/1991)

16.28.180 Avoiding wetland impacts.

A. Regulated activities shall not be authorized in a regulated wetland or wetland buffer except where it can be demonstrated that the impact is both unavoidable and necessary or that all reasonable economic uses are denied.

B. With respect to category I wetlands, an applicant must demonstrate that denial of the permit would impose an extraordinary hardship on the part of the applicant brought about by circumstances peculiar to the subject property.

C. With respect to category II and III wetlands, the following provisions shall apply:

1. For water-dependent activities, unavoidable and necessary impacts can be demonstrated where there are no practicable alternatives which would not involve a wetland or which would not have less adverse impact on a wetland, and would not have other significant adverse environmental consequences;

2. Where non-water-dependent activities are proposed, it shall be presumed that adverse impacts are avoidable. This presumption may be rebutted upon a demonstration that:

a. The basic project purpose cannot reasonably be accomplished utilizing one or more other sites in the general region that would avoid, or result in less, adverse impact on a regulated wetland;

b. A reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs of the project as proposed that would avoid, or result in less, adverse impact on a regulated wetland or its buffer will not accomplish the basic purpose of the project; and

c. In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as zoning, deficiencies of infrastructure, or parcel size, the applicant has made reasonable attempt to remove or accommodate such constraints.

D. With respect to category IV wetlands, unavoidable and necessary impacts can be demonstrated where the proposed activity is the only reasonable alternative which will accomplish the applicant’s objectives.

E. If the city determines that alteration of a wetland and/or wetland buffer is necessary and unavoidable, the city shall set forth in writing its findings with respect to each of the items listed in this section.

(Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Amended, 05/17/2005; Ord. 1278, Added, 08/20/1991)

16.28.190 Reasonable use exception.

A. After it has been determined by the city pursuant to TMC 16.28.180 that all reasonable economic use has been denied, an exception may be applied for pursuant to this section.

B. An application for a reasonable use exception shall be made to the city and shall include a critical area report and mitigation plan if necessary, and any other project related documents, such as permit applications to other agencies, special studies and environmental documents. The application must be submitted with payment of the necessary fee as established in the city’s fee resolution, as written or hereafter amended. The community development director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection D of this section.

C. The hearing examiner shall review the application and conduct a public hearing. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all the reasonable use exception criteria in subsection D of this section.

D. The criteria for review and approval of reasonable use exceptions are:

1. The application of this title would deny all reasonable use of the property;

2. No other reasonable use consistent with existing zoning of the property has less impact on the critical area;

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

4. 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 this title, or its predecessor;

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

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

(Ord. O2012-005, Amended, 03/18/2014; Ord. O2011-002, Amended, 03/01/2011; Ord. O2006-026, Amended, 04/03/2007; Ord. O2005-023, Amended, 09/06/2005; Ord. O2004-019, Amended, 05/17/2005; Ord. 1278, Added, 08/20/1991)

16.28.210 Acting on the application.

A. Land Division Conditions for Wetland Permits.

1. Sensitive Area Tracts/Easements. As a condition of any permit issued pursuant to this section, the permit holder shall be required to create a separate sensitive area tract(s)/easement(s) containing the areas determined to be wetland and/or wetland buffer in field investigations performed pursuant to TMC 16.28.080. Sensitive area tracts/easements are legally created tracts/easements containing wetlands and their buffers that shall remain undeveloped as long as wetland functions and values are present. Loss of wetland functions due to human impacts will result in sensitive area tracts/easements being maintained.

a. Protection of Sensitive Area Tracts/Easements. The city shall require, as a condition of any permit issued pursuant to this section, that the sensitive area tract or tracts created pursuant to this section be protected by one of the following methods:

i. The permit holder shall convey an irrevocable offer to dedicate to the city of Tumwater or other public or nonprofit entity specified by the city an easement for the protection of native vegetation within a wetland and/or its buffer; or

ii. The permit holder shall establish and record a permanent and irrevocable deed restriction on the property title of all lots containing a sensitive area tract or tracts created as a condition of this permit. Such deed restriction(s) shall prohibit, as long as wetland function exists, the development, alteration, or disturbance of vegetation within the sensitive area except for purposes of habitat enhancement as part of an enhancement project which has received prior written approval from the city of Tumwater, and any other agency with jurisdiction over such activity.

2. The deed restriction shall also contain the following language:

a. “Before, beginning, and during the course of any grading, building construction, or other development activity on a lot or development site subject to this deed restriction, the common boundary between the area subject to the deed restriction and the area of development activity must be fenced or otherwise marked to the satisfaction of City of Tumwater.”

b. Regardless of the legal method of protection chosen by the city, responsibility for maintaining tracts shall be held by a property owner’s association, adjacent lot owners, the permit applicant or designee, or other appropriate entity as approved by the city.

c. The following note shall appear on the face of all plats, short plats, PUDs, or other approved site plans containing separate sensitive area tracts/easements, and shall be recorded on the title of record for all affected lots:

NOTE: All lots adjoining separate sensitive areas identified as Native Vegetation Protection Easements or protected by deed restriction are responsible for maintenance and protection. Maintenance includes insuring that no alterations occur within the separate tract and that all vegetation remains undisturbed unless the express written authorization of the City of Tumwater has been received.

The common boundary between a separate sensitive area tract/easement and the adjacent land must be permanently identified. This identification shall include permanent wood or metal signs on treated or metal posts.

Sign locations and size specifications shall be approved by the city. The city shall require permanent fencing of the sensitive area when there is a substantial likelihood of the presence of domestic grazing animals within the development proposal. The city shall also require as a permit condition that such fencing be provided if, subsequent to approval of the development proposal, domestic grazing animals are in fact introduced.

3. Additional Conditions.

a. The location of the outer extent of the wetland buffer and the areas to be disturbed pursuant to an approved permit shall be marked in the field, and such field marking shall be approved by the city prior to the commencement of permitted activities. Such field markings shall be maintained throughout the duration of the permit.

b. The city may attach such additional conditions to the granting of a wetland permit as deemed necessary to assure the preservation and protection of affected wetlands and to assure compliance with the purposes and requirements of this chapter.

B. Bonding.

1. Performance Bonds. The city may require the applicant of a development proposal to post a cash performance bond or other security acceptable to the city in an amount and with surety and conditions sufficient to fulfill the requirements of this section. In addition, the city may secure compliance with other conditions and limitations set forth in the permit. The amount and the conditions of the bond shall be consistent with the purposes of this chapter. In the event of a breach of any condition of any such bond, the city may institute an action in a court of competent jurisdiction upon such bond and prosecute the same to judgment and execution. The city shall release the bond upon determining that:

a. All activities, including any required compensatory mitigation, have been completed in compliance with the terms and conditions of the permit and the requirements of this chapter;

b. Upon the posting by the applicant of a maintenance bond.

Until such written release of the bond, the principal or surety cannot be terminated or canceled.

2. Maintenance Bonds. The city may require the holder of a wetland permit issued pursuant to this chapter to post a cash performance bond or other security acceptable to the city in an amount and with surety and conditions sufficient to guarantee that structures, improvements, and mitigation required by the permit or by this chapter perform satisfactorily for a minimum of two years after they have been completed. The city shall release the maintenance bond upon determining that performance standards established for evaluating the effectiveness and success of the structures, improvements, and/or compensatory mitigation have been satisfactorily met for the required period. For compensation projects, the performance standards shall be those contained in the mitigation plan developed and approved during the permit review process to TMC 16.28.220. The maintenance bond applicable to a compensation project shall not be released until the city determines that performance standards established for evaluating the effect and success of the project have been met.

C. Other Laws and Regulations. No permit granted pursuant to this chapter shall remove an applicant’s obligation to comply in all respects with the applicable provisions of any other federal, state, or local law or regulation, including but not limited to the acquisition of any other required permit or approval.

D. Suspension, Revocation. In addition to other penalties provided for elsewhere, the city may suspend or revoke a permit if it finds that the applicant or permittee has not complied with any or all of the conditions or limitations set forth in the permit, has exceeded the scope of work set forth in the permit, or has failed to undertake the project in the manner set forth in the approved application.

(Ord. 1278, Added, 08/20/1991)

16.28.220 Compensating for wetlands impacts.

A. As a condition of any permit allowing alteration of wetland and/or wetland buffers, or as an enforcement action pursuant to TMC 16.28.280, the city shall require that the applicant demonstrate that wetland impact avoidance is not possible and engage in the restoration, creation or enhancement of wetlands and their buffers in order to offset the impacts resulting from the applicant’s or violator’s actions. Mitigation for alterations to wetlands shall achieve equivalent or greater biologic functions. Mitigation plans shall be consistent with the Washington State Department of Ecology “Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans,” 2006, as revised. The applicant shall develop a plan that provides for land acquisition, construction, maintenance and monitoring of replacement wetlands that recreate as nearly as possible the original wetlands in terms of acreage, function, geographic location and setting, and that are larger than the original wetlands. Compensatory mitigation shall be completed prior to wetland destruction, where possible. Mitigation shall result in no net loss of wetlands function and acreage and seeks a net resource gain in wetlands over present conditions with the exception of enforcement actions.

B. Mitigation actions shall address functions affected by the alteration in order to achieve functional equivalency or improvement, and shall provide similar wetland functions as those lost except when the lost wetland provides minimal functions as determined by a site specific function assessment and the proposed mitigation action(s) will provide equal or greater functions.

C. Mitigation actions that require compensation mitigation 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. 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 due to development pressures, adjacent land uses, or on-site buffers or connectivity are inadequate;

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 and the same water resource inventory area unless:

a. The impact is located near the boundary of a water resource inventory area;

b. Established regional or 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

c. 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 projects, where feasible, shall be completed 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 wildlife and flora. The community development director may authorize a one-time temporary delay, up to one hundred twenty 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 temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the mitigation plan. The justification must be verified and approved by the city, and include a financial guarantee.

F. Surface Area Replacement Ratio. The ratios in Table 16.28.220(6) apply to creation or restoration which is in kind, on site, timed prior to or concurrent with alteration, and has a high probability of success. These ratios do not apply to remedial actions resulting from illegal alterations. The first number specifies the area of wetlands requiring replacement and the second specifies the area of wetlands altered.

The ratios in Table 16.28.220(6) are based on the type of compensatory mitigation proposed, such as restoration, creation, and enhancement. In its Regulatory Guidance Letter 02-02, the U.S. Army Corps of Engineers provided definitions for these types of compensatory mitigation, which the Washington State Department of Ecology used in their Guidance on Buffers and Ratios for Western Washington as part of the Wetlands in Washington State Volume 2 – Protecting and Managing Wetlands in October 2014 and are provided below.

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 or degraded wetland. For the purpose of tracking net gains in wetland acres, restoration is divided into two categories:

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 a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland.

2. Creation (Establishment). The manipulation of the physical, chemical, or biological characteristics present to develop a wetland on an upland or deep-water 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 quality 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 in wetland acres. Activities typically consist of planting vegetation, controlling non-native or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities.

Table 16.28.220(6): Mitigation Ratios for Projects in Western Washington
Category and Type of Wetland Impacts (1)	Reestablishment or Creation	Rehabilitation (2)	Enhancement (2)
Category I – bogs or wetlands of high conservation value	Not considered possible (3)	6:1	Case-by-case
Category I – mature forested	6:1	12:1	24:1
Category I based on score for functions	4:1	8:1	16:1
All category II	3:1	6:1	12:1
All category III	2:1	4:1	8:1
All category IV	1.5:1	3:1	6:1

Table 16.28.220(6) Explanatory Notes:

(1) Preservation is discussed in subsection J of this section.

(2) These ratios are based on the assumption that the rehabilitation or enhancement actions implemented represent the average degree of improvement possible for the site. Proposals to implement more effective rehabilitation or enhancement actions may result in a lower ratio, while less effective actions may result in a higher ratio. The distinction between rehabilitation and enhancement is not clear-cut. Instead, rehabilitation and enhancement actions span a continuum. Proposals that fall within the gray area between rehabilitation and enhancement will result in a ratio that lies between the ratios for rehabilitation and the ratios for enhancement.

(3) Wetlands of high conservation value and bogs are considered irreplaceable wetlands because they perform some special functions that cannot be replaced through compensatory mitigation. Impacts to such wetlands would therefore result in a net loss of some functions no matter what kind of compensation is proposed.

4. Increased Replacement Ratio. The city may increase the ratios under any of the following circumstances:

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

b. Significant period of time between destruction and replication of wetland functions at the mitigation site;

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

d. The impact was unauthorized.

5. Decreased Replacement Ratio. The city may decrease these ratios for category II, III, and IV wetlands under the following circumstances:

a. Documentation by a qualified wetlands specialist demonstrates that the proposed mitigation actions have a very high likelihood of success based on prior experience;

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

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

6. In wetlands where several hydrogeomorphic classes are found within one delineated boundary, the areas of the wetlands within each hydrogeomorphic class can be scored and rated separately and the ratios adjusted accordingly, if all of the following apply:

a. The wetland does not meet any of the criteria for wetlands with “special characteristics” as defined in the rating system;

b. The rating and score for the entire wetland are provided along with the scores and ratings for each area with a different hydrogeomorphic class;

c. Impacts to the wetland are all within an area that has a different hydrogeomorphic class from the one used to establish the initial category; and

d. The proponents provide adequate hydrologic and geomorphic data to establish that the boundary between hydrogeomorphic classes lies at least fifty feet outside of the footprint of the impacts.

7. In all cases, a minimum acreage replacement ratio of one-to-one shall be required.

G. Replacement Ratios for Temporal Impacts and Conversions.

1. When impacts to wetlands are not permanent, the city will require compensation for the temporal loss of wetland functions. Temporal impacts refer to impacts to those functions that will eventually be replaced but cannot achieve similar functionality in a short time.

2. In addition to restoring the affected wetland to its previous condition, the city will require compensation to account for the risk and temporal loss of wetland functions. The ratios for temporal impacts to forested and scrub-shrub wetlands are one-quarter of the recommended ratios for permanent impacts found in Table 16.28.220(6); provided, that the following measures are satisfied:

a. An explanation of how hydric soil, especially deep organic soil, is stored and handled in the areas where the soil profile will be severely disturbed for a fairly significant depth or time;

b. Surface and groundwater flow patterns are maintained or can be restored immediately following construction;

c. A ten-year monitoring and maintenance plan is developed and implemented for the restored forest and scrub-shrub wetlands;

d. Disturbed buffers are revegetated and monitored; and

e. Where appropriate, the hydroseed mix to be applied on reestablishment areas is identified.

3. When impacts are to a native emergent community and there is a potential risk that its reestablishment will be unsuccessful, compensation for temporal loss and the potential risk will be required in addition to restoring the affected wetland and monitoring the site. If the impacts are to wetlands dominated by nonnative vegetation, such as blackberry, reed canarygrass, or pasture grasses, restoration of the affected wetland with native species and monitoring after construction is required.

4. Loss of functions due to the permanent conversion of wetlands from one type to another requires compensation. When wetlands are not completely lost but are converted to another type, such as a forested wetland converted to an emergent or shrub wetland, such as for a utility right-of-way, some functions are lost or reduced.

5. The ratios for conversion of wetlands from one type to another will vary based on the degree of the alteration, but they are generally one-half of the recommended ratios for permanent impacts found in Table 16.28.220(6).

H. Wetlands Enhancement.

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

2. A wetlands enhancement compensation project shall be determined pursuant to this section; provided, that enhancement for one function and value will not degrade another function or value and that acreage replacement ratios shall be in accordance with Table 16.28.220(6).

I. Wetland Type. In-kind compensation shall be provided except where the applicant can demonstrate that:

1. The wetland system is already significantly degraded and out-of-kind replacement will result in a wetland with greater functional value;

2. Scientific problems such as exotic vegetation and changes in watershed hydrology make implementation of in-kind compensation impossible;

3. Out-of-kind replacement will best meet identified regional goals, such as replacement of historically diminished wetland types;

4. Where out-of-kind replacement is accepted, greater acreage replacement ratios may be required to compensate for lost functional values.

J. Wetland Preservation as Mitigation. Impacts to wetlands may be mitigated by preservation of wetland areas, in a separate tract or easement when used in combination with other forms of mitigation such as creation, restoration, or enhancement at the preservation site or at a separate location. Preservation may also be used by itself, but more restrictions as outlined below will apply.

Preservation as mitigation is acceptable when done in combination with restoration, creation, or enhancement providing that a minimum of one-to-one acreage replacement is provided by restoration or creation and the criteria below are met:

1. The impact area is small, and impacts are to a category III or IV wetland;

2. Preservation of a high-quality system occurs in the same water resource inventory area or watershed basin as the wetland impact;

3. Acceptable sites for preservation include those that are important due to their landscape position, are rare or limited wetland types, and provide high levels of functions;

4. Preservation sites include buffer areas adequate to protect the habitat and its functions from encroachment and degradation; and

5. Mitigation ratios for preservation in combination with other forms of mitigation shall range from ten-to-one to twenty-to-one, as determined on a case-by-case basis by the city, depending on the quality of the wetlands being mitigated and the quality of the wetlands being preserved. Specific ratios will depend upon the significance of the preservation project and the quality of the wetland resources lost.

K. Cooperative Restoration, Creation or Enhancement Projects.

1. The city may encourage, facilitate, and approve cooperative projects wherein a single applicant or other organization with demonstrated capability may undertake a compensation project with funding from other applicants under the following circumstances:

a. Restoration, creation or enhancement at a particular site may be scientifically difficult or impossible; or

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

2. Persons proposing cooperative compensation projects shall:

a. Submit a joint permit application;

b. Demonstrate compliance with all standards;

c. Demonstrate the organizational and fiscal capability to act cooperatively; and

d. Demonstrate that long-term management can and will be provided.

(Ord. O2017-018, Amended, 10/17/2017; Ord. O2011-002, Amended, 03/01/2011; Ord. O2004-019, Amended, 05/17/2005; Ord. 1278, Added, 08/20/1991)

16.28.230 Mitigation plans.

All wetland restoration, creation and/or enhancement projects required pursuant to this chapter either as a permit condition or as the result of an enforcement action shall follow a mitigation plan prepared by qualified wetland professionals approved by the city. The applicant or violator shall receive written approval of the mitigation plan by the city prior to commencement of any wetland restoration, creation or enhancement activity. Unless the city, in consultation with qualified wetland professionals, determines that based on the size and nature of the development proposal, the nature of the impacted wetland, and the degree of cumulative impacts on the wetland from other development proposals, that the scope and specific requirements of the mitigation plan may be reduced from what is listed below. The mitigation plan shall contain at least the following components:

A. Baseline Information. A written assessment and accompanying maps of the:

1. Impacted wetland including, at a minimum, wetland delineation; existing wetland acreage; vegetative, faunal and hydrologic characteristics; soil and substrate conditions; topographic elevations; and

2. Compensation site, if different from the impacted wetland site, including at a minimum: Existing acreage; vegetative faunal and hydrologic conditions; relationship within watershed and to existing water bodies; soil and substrate conditions, topographic elevations; existing and proposed adjacent site conditions; buffers; and ownership.

B. Environmental Goals and Objectives. A written report shall be provided identifying goals and objectives describing:

1. The purposes of the compensation measures including a description of site selection criteria, identification of compensation goals; identification of target evaluation species and resource functions, dates for beginning and completion, and a complete description of the structure and functional relationships sought in the new wetland. The goals and objectives shall be related to the functions and values of the original wetland or if out-of-kind, the type of wetland to be emulated; and

2. A review of the available literature and/or experience to date in restoring or creating the type of wetland proposed shall be provided. An analysis of the likelihood of success of the compensation project at duplicating the original wetland shall be provided based on the experiences of comparable projects, if any. An analysis of the likelihood or persistence of the created or restored wetland shall be provided based on such factors as surface and ground water supply and flow patterns, dynamics of the wetland ecosystem; sediment or pollutant influx and/or erosion, periodic flooding and drought, etc., presence of invasive flora or fauna, potential human or animal disturbance, and previous comparable projects, if any.

C. Performance Standards. Specific criteria shall be provided for evaluating whether or not the goals and objectives of the project and for beginning remedial action or contingency measures. Such criteria may include water quality standards, survival rates of planted vegetation, species abundance and diversity targets, habitat diversity indices, or other ecological, geological or hydrological criteria.

D. Detailed Construction Plans. Written specifications and descriptions of compensation techniques shall be provided including the proposed construction sequence, grading and excavation details, erosion and sediment control features needed for wetland construction and long-term survival, a planting plan specifying plant species, quantities, locations, size, spacing, and density; source of plant materials, propagules, or seeds; water and nutrient requirements for planting; where appropriate, measures to protect plants from predation; specification of substrate stockpiling techniques and planting instructions; descriptions of water control structures and water-level maintenance practices needed to achieve the necessary hydrocycle/hydroperiod characteristics, etc. These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome. The plan shall provide for elevations which are appropriate for the desired habitat type(s) and which provide sufficient tidal prism and circulation data.

E. Monitoring Program. A program outlining the approach for monitoring construction of the compensation project and for assessing a completed project shall be provided. Monitoring may include, but is not limited to:

1. Establishing vegetation plots to track changes in plant species composition and density over time;

2. Using photo stations to evaluate vegetation community response;

3. Sampling surface and subsurface waters to determine pollutant loading, and changes from the natural variability of background conditions (pH, nutrients, heavy metals);

4. Measuring base flow rates and stormwater runoff to model and evaluate water quality predictions, if appropriate;

5. Measuring sedimentation rates, if applicable; and

6. Sampling fish and wildlife populations to determine habitat utilization, species abundance and diversity.

A protocol shall be included outlining how the monitoring data will be evaluated by agencies that are tracking the progress of the compensation project. A monitoring report shall be submitted annually, at a minimum, documenting 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.

F. Contingency Plan. Identification of potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates project performance standards are not being met.

G. Permit Conditions. Any compensation project prepared pursuant to this section and approved by the city shall become part of the application for the permit.

H. Performance Bonds and Demonstration of Competence. A demonstration of financial resources, administrative, supervisory, and technical competence and scientific expertise of sufficient standing to successfully execute the compensation project shall be provided. A compensation project manager shall be named and the qualifications of each team member involved in preparing the mitigation plan and implementing and supervising the project shall be provided, including educational background and areas of expertise, training and experience with comparable projects. In addition, bonds ensuring the fulfillment of the compensation project, monitoring program, and any contingency measure shall be posted pursuant to TMC 16.28.210 in the amount of one hundred twenty percent of the expected cost of compensation.

I. Regulatory authorities are encouraged to consult with and solicit comments of any federal, state, regional, or local agency, including tribes, having special expertise with respect to any environmental impact prior to approving a mitigation proposal which includes wetlands compensation. The compensation project proponents should provide sufficient information on plan design and implementation in order for such agencies to comment on the overall adequacy of the mitigation proposal.

J. Compensatory mitigation is not required for regulated activities as follows:

1. For which a permit has been obtained for activities that occur only in the buffer or expanded buffer and which have no adverse impacts to regulated wetlands; or

2. Allowed activities pursuant to TMC 16.28.110 provided such activities utilize best management practices to protect the functions and values of regulated wetlands.

(Ord. 1278, Added, 08/20/1991)

16.28.240 Appeals.

Any administrative decision made in the administration of this chapter is appealable to the city hearing examiner and subsequently to the city council as per provisions of TMC 2.58.090(D) and 2.58.150. Appeal fees are established by city council resolution.

(Ord. 1278, Added, 08/20/1991)

16.28.250 Modification of wetland permits.

A wetland permit holder may request and the city may approve modification of a previously issued wetland permit.

(Ord. 1278, Added, 08/20/1991)

16.28.260 Resubmittal of denied permit applications.

A wetland permit application which has been denied may be modified and resubmitted.

(Ord. 1278, Added, 08/20/1991)

16.28.270 Temporary emergency permit.

A. Notwithstanding the provisions of this chapter or any other laws to the contrary, the city may issue a temporary emergency wetlands permit if:

1. The city determines that an unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted; and

2. The anticipated threat or loss may occur before a permit can be issued or modified under the procedures otherwise required by this act and other applicable laws.

B. Any emergency permit granted shall incorporate, to the greatest extent practicable and feasible but not inconsistent with the emergency situation, the standards and criteria required for nonemergency activities under this chapter and shall:

1. Be limited in duration to the time required to complete the authorized emergency activity, not to exceed ninety days; and

2. Require, within this ninety-day period, the restoration of any wetland altered as a result of the emergency activity, except that if more than the ninety days from the issuance of the emergency permit is required to complete restoration, the emergency permit may be extended to complete this restoration.

C. The emergency permit may be terminated at any time without process upon a determination by the city that the action was not or is no longer necessary to protect human health or the environment.

(Ord. 1278, Added, 08/20/1991)

16.28.280 Enforcement.

The city shall have authority to enforce this chapter, any rule or regulation adopted, and any permit or order issued pursuant to this chapter, against any violation or threatened violation thereof. The city is authorized to issue violation notices and administrative orders, levy fines, and/or institute legal actions in court. Recourse to any single remedy shall not preclude recourse to any of the other remedies. Each violation of this chapter, or any rule or regulation adopted, or any permit, permit condition, or order issued pursuant to this chapter, shall be a separate offense, and, in the case of continuing violations, each day’s continuance shall be deemed to be a separate and distinct offense. All costs, fees, and expenses in connection with enforcement actions may be recovered as damages against the violator.

A. Enforcement actions shall include:

1. Civil Penalties, Administrative Orders and Actions for Damages and Restoration.

a. The city may bring appropriate actions at law or equity, including actions for injunctive relief, to ensure that no uses are made of a regulated wetland or its buffers which are inconsistent with this chapter or an applicable wetlands protection program.

b. The city may serve upon a person a cease and desist order if an activity being undertaken on regulated wetlands or its buffer is in violation of this chapter. Whenever any person violates this chapter or any permit issued to implement this chapter, the city may issue an order reasonably appropriate to cease such violation and to mitigate any environmental damage resulting therefrom.

i. Content of Order. The order shall set forth and contain:

(A) A description of the specific nature, extent, and time of violation and the damage or potential damage;

(B) A notice that the violation or the potential violation cease and desist or, in appropriate cases, the specific corrective action to be taken within a given time. A civil penalty may be issued with the order;

(C) Effective Date. The cease and desist order issued under this section shall become effective immediately upon receipt by the person to whom the order is directed; and

(D) Compliance. Failure to comply with the terms of a cease and desist order can result in enforcement actions including, but not limited to, the issuance of a civil penalty.

B. Any person who undertakes any activity within a regulated wetland or its buffer without first obtaining a permit required by this chapter, except as allowed in TMC 16.28.110, or any person who violates one or more conditions of any permit required by this chapter or of any order issued pursuant to subsection (A)(1)(b) of this section shall incur a penalty allowed per violation. In the case of a continuing violation, each permit violation and each day of activity without a required permit shall be a separate and distinct violation. The penalty shall constitute a misdemeanor.

C. Aiding or Abetting. Any person who, through an act of commission or omission procures, aids or abets in the violation shall be considered to have committed a violation for the purposes of the penalty.

D. Notice of Penalty. Civil penalties imposed under this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the department and/or the city or from both jointly. The notice shall describe the violation, approximate the date(s) of violation, and shall order the acts constituting the violation to cease and desist, or, in appropriate cases, require necessary corrective action within a specific time.

E. Application for Remission or Mitigation. Any person incurring a civil penalty may apply in writing within thirty days of receipt of the penalty to the city for remission or mitigation of such penalty. Upon receipt of the application, the city may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty.

F. Orders and civil penalties issued pursuant to this subsection may be appealed as provided for in TMC 16.28.240.

G. Criminal penalties may be imposed on any person who willfully or negligently violates this chapter or who knowingly makes a false statement, representation, or certification in any application, record or other document filed or required to be maintained under this chapter or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device, record or methodology required to be maintained pursuant to this chapter or pursuant to a wetland permit.

(Ord. O2011-007, Amended, 07/19/2011; Ord. 1278, Added, 08/20/1991)

16.28.290 Existing legal nonconforming structures, uses, and activities.

A regulated structure, use or activity that legally existed or was approved prior to the passage of this chapter but which is not in conformity with the provisions of this chapter may be continued subject to the following:

A. No such structure, use or activity shall be expanded, changed, enlarged or altered in any way that increases the extent of its nonconformity without a permit issued pursuant to the provisions of this chapter;

B. Except for cases of discontinuance as part of normal agricultural practices, if a nonconforming activity is discontinued for twelve consecutive months, any resumption of the activity shall conform to this chapter;

C. If a nonconforming structure, use or activity is destroyed by human activities or an act of God, it shall not be resumed except in conformity with the provisions of this chapter;

D. Structures, uses or activities or adjunct thereof that are or become nuisances shall not be entitled to continue as nonconforming activities.

(Ord. 1278, Added, 08/20/1991)

16.28.300 Judicial review.

Any decision or order issued by the city pursuant to this chapter, including decisions concerning denial, approval, or conditional approval of a wetland permit, may be appealed to the city hearing examiner, according to the provisions of TMC 16.28.240 and TMC Chapter 2.58.

Judicial review, following exhaustion of administrative remedies, is commenced according to the provisions of Chapter 36.70C RCW, as written or hereafter amended.

(Ord. O2005-023, Amended, 09/06/2005; Ord. 1278, Added, 08/20/1991)

16.28.310 Amendments.

These regulations and the National Wetlands Inventory or subsequent Thurston County Wetlands Inventory may from time to time be amended in accordance with the procedures and requirements in the general statutes and as new information concerning wetland location, soils, hydrology, flooding, or wetland plants and wildlife become available.

(Ord. 1278, Added, 08/20/1991)

16.28.320 Severability.

If any clause, sentence, paragraph, section or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such order or judgement shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances and to this end the provisions of each clause, sentence, paragraph, section or part of this chapter are declared to be severable.

(Ord. 1278, Added, 08/20/1991)

16.28.330 Nonregulatory incentive program.

Reserved.

(Ord. 1278, Added, 08/20/1991)