Chapter 16.32
FISH AND WILDLIFE HABITAT PROTECTION
Sections:
16.32.025 Relationship to shoreline master program.
16.32.028 Coordination with adjacent jurisdictions.
16.32.045 Qualified professional habitat biologist.
16.32.050 Habitats defined and protected.
16.32.060 Habitat areas – Buffers.
16.32.065 Riparian habitat areas – Buffers.
16.32.070 Habitat areas – Allowed uses and activities.
16.32.090 Habitat areas – Protection plan.
16.32.095 Existing legal nonconforming structures, uses, and activities.
16.32.097 Reasonable use exception.
16.32.098 Exceptions – Infrastructure.
16.32.100 Violation – Penalty.
16.32.010 Short title.
This chapter shall be known and may be cited as the “fish and wildlife habitat protection ordinance” of the city of Tumwater.
(Ord. 1283, Added, 08/20/1991)
16.32.020 Purpose.
It is the policy of the city of Tumwater that the preservation of fish and wildlife habitat is critical to the protection of suitable environments for animal species and in providing a natural beauty and healthy quality of life for Tumwater and its citizens. The conservation of habitat means active land management for maintaining species within their preferred habitats and accustomed geographic distribution. In this way, isolated subpopulations are not created which are more susceptible to predation, dislocation and inadequate food supplies. Habitat protection does not require that all individuals of all species are protected, but does demand that land use planning be sensitive to the priority of saving and protecting animal-rich environments.
(Ord. 1283, Added, 08/20/1991)
16.32.025 Relationship to shoreline master program.
If there are any conflicts between the shoreline master program and the fish and wildlife habitat protection standards which apply in shoreline jurisdiction, the requirements of the shoreline master program apply.
(Ord. O2012-005, Added, 03/18/2014)
16.32.028 Coordination with adjacent jurisdictions.
Designation and protection should be coordinated with adjacent jurisdictions when habitat areas cross boundaries. See WAC 365-190-130 for specific habitat conservation areas, and factors to consider for their designation and protection such as coordination when habitat areas cross jurisdictional boundaries or provide regional benefits, or retention of large blocks of habitat.
(Ord. O2016-024, Added, 03/21/2017)
16.32.030 Definitions.
A. “Allowed uses and activities” means any authorized land use or activity allowed alone or in conjunction with another use.
B. “Anadromous fish” means fish that spawn and rear in freshwater and mature in the marine (salt water) environment.
C. “Areas with which endangered, threatened and sensitive species have a primary association” are defined as seasonal ranges and habitats with which federal- and state-listed endangered, threatened and sensitive species have a primary association and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.
D. “Buffer” is defined as an area of land used or created for the purpose of insulating or separating a structure or land use from a fish and/or wildlife habitat area in such a manner as to reduce or mitigate any adverse impacts of the developed area.
E. “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.
F. “Lakes, ponds, streams, and rivers planted with game fish” are defined to include game fish planted in these water bodies under the auspices of a federal, state, local, or tribal program or which support priority fish species as identified by the Department of Wildlife.
G. “Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish and wildlife habitat” are defined as naturally occurring ponds not including ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds (of less than three years’ duration) and landscape amenities. However, naturally occurring ponds may include those artificial ponds intentionally created from dry areas in order to mitigate conversion of ponds, if permitted by a regulatory authority.
H. “Nonconforming use or structure” means a building or use, lawfully existing on the effective date of the ordinance codified in this chapter, which does not conform with the regulations of TMC Chapter 16.32.
I. “Priority habitat, local” or “local priority habitat” means a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alteration, such as cliffs, talus and wetlands.
J. “Priority habitat, state” or “state priority habitat” means a seasonal range or habitat element, so identified by the Washington State Department of Wildlife, with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative diversity or species richness, breeding habitat, winter range and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alteration.
K. “Priority species, local” or “local priority species” means those species that may not be endangered or threatened from a statewide perspective, but are of local concern due to their population status or their sensitivity to habitat manipulation and have been designated as such.
L. “Priority species, state” or “state priority species” means those species that are so identified by the Washington State Department of Wildlife due to their population status and their sensitivity to habitat manipulation. Priority species include those which are state-listed endangered, threatened and sensitive species.
M. “Residential density” means the permissible number of dwelling units that may be developed on a specific amount of land area measured in number of dwelling units per acre.
N. “Qualified professional” means a person with experience and training in the applicable critical area. A qualified professional for habitats must have obtained a B.S. or B.A. or equivalent degree in biology, and at least two years of work experience related to the subject species or habitat.
O. “Riparian habitat” means areas adjacent to aquatic systems with flowing water that contain elements of both aquatic and terrestrial ecosystems that mutually influence each other. The width of these areas extends to that portion of the terrestrial landscape that directly influences the aquatic ecosystem by providing shade, fine or large woody material, nutrients, organic and inorganic debris, terrestrial insects, or habitat for riparian-associated wildlife.
P. “Sensitive species” means wildlife species native to the state of Washington that are vulnerable or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats.
Q. “Site” means any lot, tract, parcel, large lot holding, either owned or leased, intended to be developed.
R. “Species” means any group of animals classified as a species or subspecies as commonly accepted by the scientific community.
S. “Species, endangered” means any fish or wildlife species that is threatened with extinction throughout all or a significant portion of its range and is listed by the state or federal government as an endangered species.
T. “Species, threatened” means any fish or wildlife species that is likely to become an endangered species within the foreseeable future throughout a significant portion of its range without cooperative management or removal of threats, and is listed by the state or federal government as a threatened species.
U. “Waters of the state” are defined in WAC Title 222, the Forest Practice Rules and Regulations; further defined as the classification system established in WAC 222-16-030 and 222-16-031 as exists now or hereafter amended.
(Ord. O2012-005, Amended, 03/18/2014; Ord. O2008-011, Amended, 09/02/2008; Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Amended, 05/17/2005; Ord. 1283, Added, 08/20/1991)
16.32.040 Approval required.
No person, corporation, or other legal entity shall engage in construction on a site which supports a protected fish and wildlife habitat area as defined by this chapter without having received approval for proper protection or mitigation by the city through the environmental review process and/or applicable discretionary permit(s) and construction permit(s).
(Ord. 1283, Added, 08/20/1991)
16.32.045 Qualified professional habitat biologist.
It is expected that applications will require a qualified professional pursuant to TMC 16.32.030(M) to provide the information necessary to fulfill the requirements of this chapter. It shall be the responsibility of the applicant to acquire the services of a qualified professional.
(Ord. O2005-023, Amended, 09/06/2005; Ord. O2004-019, Added, 05/17/2005)
16.32.050 Habitats defined and protected.
The following habitats are defined and protected:
A. The following fish and wildlife habitat areas are to be protected within the city of Tumwater:
1. Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association. The U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the State Department of Fish and Wildlife should be consulted as appropriate;
2. Naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish and wildlife habitats, including artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities;
3. Lakes, ponds, streams, and rivers with naturally occurring populations, and waters planted with game fish planted by a governmental or tribal entity;
4. Waters of the state as classified in Chapter 222-16 WAC;
5. Areas of rare plant species and high quality ecosystems as identified by the Washington State Department of Natural Resources through the Natural Heritage Program.
B. Endangered, threatened, and sensitive habitats and species as identified by the Washington State Department of Fish and Wildlife and the habitat primarily associated with those species.
C. Locally significant habitats and species that have been designated as per the criteria in TMC 16.32.055.
D. All areas within Tumwater meeting one or more of the criteria in subsections A, B and C of this section are subject to the provisions of this title and shall be managed consistent with the best available science, such as the “Washington State Department of Fish and Wildlife’s Management Recommendations for Priority Habitat and Species” as written or hereafter amended.
E. “Fish and wildlife habitat conservation areas” does not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company.
(Ord. O2016-024, Amended, 03/21/2017; Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Amended, 05/17/2005; Ord. 1283, Added, 08/20/1991)
16.32.055 Habitats and species of local importance – Listing and delisting important habitats and species.
A. Locally significant species are those which are not state listed as threatened, endangered or sensitive, but which live in Tumwater, and the species is of special importance to the citizens of Tumwater for cultural or historical reasons, or the city is a critically significant portion of their range. Tumwater is a critically significant portion of the range of a species when any of the following conditions apply:
1. The species would be extirpated from the state of Washington if it is eliminated from Tumwater; or
2. The species’ population would be divided into nonviable populations if it is eliminated from Tumwater, where the isolated populations are critical to the survival of the species; or
3. The species is listed as a state monitor or candidate species and Tumwater is a significant portion of the range of the species and significant reduction or elimination of the species from Tumwater would result in changing the status of the species to that of state endangered, threatened, or sensitive.
B. Locally significant habitats are those habitats in which significant species live, or which are of special importance to the citizens of Tumwater because they have been determined to contribute to the variety of habitats or diversity of species.
C. The process for listing or delisting an important habitat or species in Tumwater shall be an amendment to this section. This action may be initiated by request of the State Department of Fish and Wildlife, the Squaxin Island Tribe, or city staff. Any such request shall be in writing and shall include:
1. The common and scientific names for species under consideration;
2. Habitat location on a map (scale one to twenty-four thousand);
3. The reasons for the request, including:
a. Declining or increasing population,
b. Sensitivity to habitat manipulation;
4. Habitat management recommendations, including potential uses and restrictions of the habitat areas, seasonally sensitive areas, and other guidelines necessary for the protection of the nominated species;
5. Other supporting documentation, including an analysis which weighs the nonenvironmental impacts of the proposal, addressing economics and land use, against the benefits of the proposed listing;
6. The written request and supporting data may be evaluated by a qualified wildlife biologist or equivalent professional selected by the city;
7. In addition to the above, the city shall consider the following factors when evaluating the request:
a. The specificity and scientific validity of the information about the nominated species needs and behaviors;
b. The sufficiency of habitat areas currently available to sustain the species over time; and
c. The versatility of the proposed habitat area to sustain species other than the one being nominated for local species of importance designation.
(Ord. O2006-026, Added, 04/03/2007)
16.32.060 Habitat areas – Buffers.
To retain and protect adequate urban wildlife habitats, buffers will be established on a case-by-case basis to be defined by a habitat protection plan prepared by a qualified professional. Buffers shall consist of an undisturbed area of native vegetation or areas identified for restoration established to protect the integrity, functions, and values of the affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and type and intensity of human activity proposed to be conducted nearby and shall be consistent with the management recommendations issued by the Washington State Department of Fish and Wildlife. If management recommendations are not available, the consultant shall use best available science to delineate buffers for Department of Fish and Wildlife review.
(Ord. O2004-019, Amended, 05/17/2005; Ord. 1283, Added, 08/20/1991)
16.32.065 Riparian habitat areas – Buffers.
Recommended riparian habitat area widths are shown in the table below. A riparian habitat shall have the width recommended, unless a greater width is required pursuant to subsection A of this section, or a lesser width is allowed pursuant to subsection B of this section. Widths shall be measured outward in each direction, from the ordinary high water mark or the top of the bank if the ordinary high water mark cannot be identified. Riparian areas should be sufficiently wide to achieve the full range of riparian and aquatic ecosystem functions. Such functions include but are not limited to protection of instream fish habitat through control of temperature and sedimentation in streams; preservation of fish and wildlife habitat; and connection of riparian habitat to other habitats.
|
Stream Type |
Recommended RHA Widths |
|---|---|
|
Type 1 and 2; or shorelines of the state, or shorelines of statewide significance |
250 feet |
|
Type 3; or other perennial or fish bearing streams, 5 – 20 feet wide |
200 feet |
|
Type 3; or other perennial or fish bearing streams, < 5 feet wide |
100 feet |
|
Type 4 and 5 |
50 feet |
A. Increased Riparian Habitat Area Widths. The recommended riparian habitat area widths as shown in Table 1 shall be increased as follows:
1. When the community development director determines, using best available science, that the recommended width is insufficient to prevent habitat degradation and to protect the structure and functions of the habitat area;
2. When the one-hundred-year floodplain exceeds the recommended riparian habitat area width, the riparian habitat area shall be extended to the outer edge of the one-hundred-year floodplain;
3. When the habitat area is within a channel migration zone, the riparian habitat area width shall be as recommended in Table 1, or the distance of the channel migration zone, whichever is greater;
4. When the habitat area is in an area of high blowdown potential, the riparian habitat area width shall be expanded an additional fifty feet on the windward side;
5. When the habitat area is within an erosion or landslide hazard area or buffer, the riparian habitat area width shall be as recommended in Table 1, or the distance of the erosion or landslide area, whichever is greater.
B. Riparian Habitat Area Width Averaging. In degraded areas along type 1 through 3 streams where forest cover has been removed, the community development director may reduce the width of riparian habitat areas twenty-five percent in exchange for habitat restoration if:
1. It is determined that the reduction in habitat width, coupled with the proposed restoration, would result in better stream/riparian habitat functions than the standard riparian habitat area without such restoration. This determination shall be made in consultation with Washington State Department of Fish and Wildlife based on a comparative analysis of the existing and enhanced riparian habitat submitted by the applicant. This comparative analysis, prepared by a qualified biologist, shall address stream habitat, water quality and all riparian habitat functions (i.e., large woody debris recruitment; stream shading/leaf litter inputs; filtration of sediments and pollution; nutrient regulation; erosion control/bank stabilization; regulation of stream flow/moderation of stormwater impacts; providing cover, refuge, foraging and breeding habitat for wildlife; wildlife travel corridors; and micro-climate effects); and
2. The degradation was not caused while the property was in the applicant’s ownership or within the previous seven years, whichever is greater. This does not apply to habitat damage from lawful land use prior to June 17, 2005; and
3. The applicant submits a performance surety consistent with standards in this section. This does not apply to projects performed by a public agency.
a. Surety. Applicants for proposals involving restoration of degraded wildlife habitat areas or installation of vegetative filter strips as a condition of permit approval shall submit to the city a performance bond approved by the city in the amount equal to one hundred twenty-five percent of the cost to purchase and install the plants and other materials used in those components of the project. Prior to making a demand under the bond, the community development department shall notify the applicant in writing and give them at least thirty days to replace the materials. The community development department shall accept the enhancement/restoration project if the plantings have survived for five years following installation.
4. Components of restoration projects that qualify for riparian habitat area width reduction include, but are not limited to:
a. Planting field grown conifer trees at least two feet in height within the riparian habitat area of a type 1 through 3 steam or a type 4 stream draining to a type 1 through 3 stream that lacks sufficient conifer trees to shade the stream and/or provide eventual sources of large woody debris. The trees shall be planted between October 1 and April 1. The applicant shall provide a watering plan indicating how the trees will be watered during the first two years following planting to ensure survival.
b. Replacing invasive or nonnative plant species with native vegetation that occurs in the riparian corridor.
c. Replacing rip-rap, concrete, tires or similar armoring along a type 1 through 3 stream with more productive habitat; for example, anchored logs or some appropriate form of “bioengineering” consistent with the latest edition of the Washington State Department of Fish and Wildlife’s Integrated Stream Bank Protection Guidelines as written or hereafter amended.
d. Planting appropriate vegetation to increase root density along stream banks that are eroding or are vulnerable to erosion, as determined by the approval authority. Such vegetation shall be planted between October 1 and April 1. The applicant shall provide a watering plan indicating how the plants will be watered during the first two years following planting to ensure survival.
e. Where the stream is vulnerable to pollution and/or sedimentation from existing uses, installing an approved vegetative filter strip along the outer twenty-five to fifty feet of the riparian habitat area, to significantly mitigate sediment and pollution from adjacent upland development. The applicant shall provide a watering and maintenance plan that ensures long-term survival and effective performance.
f. Off channel habitat restoration or enhancement.
g. Installing rot free, conifer tree trunks with root balls (e.g., red cedar, Douglas fir, or other trees slow to decompose), and/or large rocks in the streambed in appropriate locations of reaches of type 1 through 3 streams that lack such structure, as determined by the approval authority in consultation with the Washington State Department of Fish and Wildlife. The approval authority may require review of the proposed project by a qualified engineer to assure that it will function as intended without posing undue risks for structures or property.
Logs placed in streams between sixteen and thirty-two feet wide shall be at least twenty-two inches in diameter. Trees placed in streams wider than thirty-two feet shall be at least twenty-six inches in diameter.
Large woody debris shall not be installed in the following locations unless it is anchored:
i. Channels that have a history of and high potential for debris torrents and other mass wasting activity;
ii. Immediately above culverts or bridges;
iii. Confined channels where the width of the valley floor is less than twice the bankfull width (Source: Forest Practices Board Manual, Section 26, “Guidelines for Large Woody Debris Placement Strategies”); or
iv. In streams with significant upstream inputs of logs (e.g., the Deschutes River) in areas that are prone to log jams that threaten structures or roads.
(For guidance on tree selection and placement, see the Forest Practices Board Manual, dated August 2001 or as hereafter amended, Section 26, “Guidelines for Large Woody Debris Placement Strategies.”)
h. Removal of roads within the riparian habitat area and revegetation of the former road beds with appropriate native vegetation. Soil amendment may be required to facilitate plant growth and drainage in compacted roadbeds.
i. Removal of structures within the riparian habitat area and revegetation of the building site with appropriate native vegetation. Soil amendment may be required on the compacted building site to enable plant survival and to facilitate drainage.
j. Removal or replacement of inadequate culverts or other barriers to fish migration.
C. Isolated Riparian Areas. If topographic breaks (e.g., bluffs) or a legally established road, railroad or other lineal facility or barrier (not including logging roads) functionally isolates a portion of the riparian area, the approval authority may allow the riparian habitat area width to be reduced to the minimum extent needed to exclude the isolated area established prior to the effective date of these regulations if:
1. It does not perform any biological, geological or hydrological functions related to the undisturbed portions of the riparian habitat area or stream; and
2. It does not provide protection of the riparian habitat area.
D. Riparian Habitat Mitigation. Mitigation of adverse impacts to riparian habitat areas shall result in equivalent functions and values on a per function basis, be located as near the alteration as feasible, and be located in the same subdrainage basin as the habitat impacted.
E. Alternative Mitigation for Riparian Habitat Areas. The performance standards set forth in this subsection may be modified at the city’s discretion if the applicant demonstrates that greater habitat functions, on a per function basis, can be obtained in the affected subdrainage basin as a result of alternative mitigation measures.
(Amended during 2011 reformat; O2011-002, Amended, 03/01/2011; Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Added, 05/17/2005)
16.32.070 Habitat areas – Allowed uses and activities.
The following activities may be permitted within a riparian habitat area, pond, lake, water of the state, or associated buffer when the activity complies with the provisions set forth in the city of Tumwater shoreline regulations and wetland protection standards, if applicable, and subject to the standards of this section. The standards that provide the most protection to protected habitat and species shall apply.
A. Clearing and Grading. When clearing and grading are permitted as part of an authorized activity or as otherwise allowed in these standards, the following shall apply:
1. Grading is allowed only during the dry season, which is typically regarded as beginning on May 1 and ending on October 31 of each year. This period may be extended or shortened by the community development director on a case-by-case basis, determined by weather conditions, soil types and topography.
2. Filling or modification of a wetland or wetland buffer is permitted only if it is conducted as part of an approved wetland alteration.
3. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the project area.
4. The moisture holding capacity of the topsoil layer shall be maintained by minimizing soil compaction or reestablishing natural soil structure and infiltrative capacity on all areas of the project area not covered by impervious surfaces.
5. Erosion and sediment control that meets or exceeds the standards set forth in the Drainage Design and Control Manual for the Thurston Region, as exists now or hereafter amended, shall be provided.
B. 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.
C. Vegetation management within an authorized lake management district and with a vegetation management plan approved by the city is 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 vegetation management will not degrade fish or wildlife habitat conservation areas or associated wetlands.
3. A minimum of forty percent of the native vegetation must be retained within the area proposed for treatment.
4. Adequate mitigation measures ensure that there is no net loss of the functions or values of riparian habitat as a result of the proposed vegetation management activities.
D. Shoreline Erosion Control Measures. New, replacement, or substantially improved shoreline erosion control measures may be 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 shoreline erosion control measures 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 shoreline erosion control measures.
4. The proposed shoreline erosion control measures do not result in alteration of intertidal migration corridors.
E. Stream Bank Stabilization. Stream bank stabilization to protect new structures from future channel migration is not permitted except when such stabilization is achieved through bioengineering or soft armoring techniques in accordance with an approved critical area report. An engineered plan and mitigation plan are also required.
F. Launching Ramps – Public or Private. Launching ramps may be permitted in accordance with an approved critical area report that has demonstrated the following:
1. The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-fourth mile of the site;
2. The ramp will not adversely impact critical fish or wildlife habitat areas or associated wetlands; and
3. Adequate mitigation measures ensure that there is no net loss of the functions or values of riparian habitat as a result of the ramp.
G. Docks. Repair and maintenance of an existing dock or pier may be permitted in accordance with an approved critical area report subject to the following:
1. There is no increase of shade for predator species or eelgrass;
2. There is no expansion in over water coverage;
3. There is no new spanning of waters between three and thirteen feet deep;
4. There is no increase in the size and number of pilings; and
5. There is no use of toxic materials (such as creosote) that come in contact with the water.
a. New docks on lakes and ponds may be allowed, provided there is no use of toxic materials and in accordance with an approved critical area report.
H. Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, roadway expansions and minor road bridging may be permitted in accordance with an approved critical area report subject to the following standards:
1. There is no other feasible alternative route with less impact on the environment;
2. The crossing minimizes interruption of downstream movement of wood and gravel;
3. Roads in riparian habitat areas or their buffers shall not run parallel to the water body;
4. Trails may be located within the riparian area or buffer to provide public access for viewing wildlife and other recreational activities, provided they are located and designed to minimize impacts on the riparian habitat;
5. Crossings, where necessary, shall only occur as near to perpendicular with the water body as possible;
6. Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical area report;
7. Stream crossing structures (bridges and culverts) are designed according to the Washington State Department of Fish and Wildlife “Fish Passage Design at Road Culverts,” 2003, as written or hereafter amended, and the National Marine Fisheries Service “Guidelines for Salmonid Passage at Stream Crossings,” 2000; and
8. Trails and associated viewing platforms shall not be made of continuous impervious materials.
I. Utility Facilities. New utility lines and facilities may be permitted to cross watercourses in accordance with an approved critical area report, if they comply with the following standards:
1. Fish and wildlife habitat areas shall be avoided to the maximum extent possible;
2. Installation shall be accomplished by boring beneath the scour depth and hyporheic zone of the water body and channel migration zone, where feasible;
3. The utilities shall cross at an angle less than thirty degrees of the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;
4. Crossings shall be contained within the footprint of an existing road or utility crossing where possible;
5. The utility route shall avoid paralleling the stream or following a down-valley course near the channel; and
6. The utility installation shall not increase or decrease the natural rate of shore migration or channel migration.
J. Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to review and approval of a critical area report and the approval of a federal biological assessment by the federal agency responsible for reviewing actions related to a federally listed species.
K. Instream Structures. Instream structures, such as, but not limited to, high flow bypasses, sediment ponds, instream ponds, retention and detention facilities, tide gates, dams, and weirs, shall be allowed only as part of an approved watershed basin restoration project approved by the city and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect habitat conservation areas.
L. Stormwater Conveyance Facilities. Conveyance structures may be permitted in accordance with an approved critical area report subject to the following standards:
1. No other feasible alternatives with less impact exist;
2. Mitigation for impacts is provided;
3. Stormwater conveyance facilities shall incorporate fish habitat features; and
4. Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds to retard erosion, filter out sediments, and shade the water.
M. On-Site Sewage Systems and Wells. New on-site sewage systems and individual wells may be permitted in accordance with an approved critical area report only if accessory to an approved residential structure for which it is not feasible to connect to a public sanitary sewer system. Repairs to failing on-site sewage systems associated with an existing structure shall be accomplished by utilizing one of the following methods that result in the least impact:
1. Connection to an available public sanitary sewer system;
2. Replacement with a new on-site sewage system located in a portion of the site that has already been disturbed by development and is located landward as far as possible, provided the proposed sewage system is in compliance with Thurston County health department regulations; or
3. Repair to the existing on-site septic system.
N. Activities within the improved right-of-way including but not limited to construction of new utility facilities or improvements or upgrades to existing utility facilities that take place within existing improved right-of-way or existing impervious surface.
O. Operation, Maintenance or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, 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.
P. 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:
1. There is no practical alternative to the proposed activity with less impact on critical areas;
2. The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility;
3. The activity involves disturbance of no more than seventy-five square feet.
Q. 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.
R. 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.
(Ord. O2016-024, Amended, 03/21/2017; Ord. O2012-005, Amended, 03/18/2014; Amended during 2011 reformat; O2011-002, Amended, 03/01/2011; Ord. O2008-011, Amended, 09/02/2008; Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Amended, 05/17/2005; Ord. 1283, Added, 08/20/1991)
16.32.090 Habitat areas – Protection plan.
When a protected habitat is located on a site to be developed, a habitat protection plan will be submitted by the permit applicant. The habitat protection plan shall contain the following information as a minimum and will be subsequently used as part of the environmental review process and is a condition of approval for discretionary permit(s) and/or construction permits:
A report which contains:
A. A description of the nature, density and intensity of the proposed development in sufficient detail to allow analysis of such land use change upon the protected fish or wildlife habitat.
B. The applicant’s analysis of the effect of the proposed development, activity or land use change upon the fish and/or wildlife species.
C. A plan by the applicant which shall explain how he will mitigate any adverse impacts to protected fish or wildlife habitats created by the proposed development.
A map(s) prepared at an easily readable scale, showing:
1. The location of the proposed development site.
2. The relationship of the development to the adjacent habitat area.
3. The nature and density of the proposed development or land use change.
D. Proposed building locations and arrangements.
E. A legend which includes:
1. A complete and accurate legal description as prescribed by the development application form. The description shall include the total acreage of the parcel;
2. Title, scale and north arrows; and
3. Date, including revision dates if applicable.
F. Existing structures and landscape features including the name and location of all watercourses, ponds and other bodies of water.
Possible mitigation measures may include, but are not limited to:
1. Establishment of buffer zones;
2. Buffer zone enhancement by planting indigenous plant species;
3. Preservation of critically important plants and trees;
4. Limitation of access to habitat area; and
5. Seasonal restriction of construction activities.
(Ord. O2006-026, Amended, 04/03/2007; Ord. 1283, Added, 08/20/1991)
16.32.095 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 amount of impervious surface without a permit issued pursuant to the provisions of this chapter.
B. Structures, uses and activities may be utilized, improved, and/or reconstructed if it can be demonstrated by a qualified professional using best available science that no net loss of ecological function of the riparian area or buffer will occur. No such nonconforming structure, use or activity may be enlarged, increased, extended, or moved in any way to occupy a greater amount of land than occupied such use prior to the adoption of this chapter except as provided in subsection C of this section.
C. Structures, uses and activities may be expanded, altered, and/or relocated (including impervious surface) if it can be demonstrated by a qualified professional using best available science that impacts to the critical area can be reduced over current levels.
D. A nonconforming use or structure may be changed to another nonconforming use or structure subject to the standards in subsections (D)(1) and (2) of this section. If a change in zone designation is granted, an existing nonconforming structure shall be allowed to continue subject to the following standards in subsections (D)(1) and (2) of this section:
1. The development is twenty-five feet or more from the ordinary high water mark of the shoreline; and
2. No net loss of ecological function of the riparian area or buffer occurs.
E. Structures, uses or activities that are or become nuisances shall not be entitled to continue as nonconforming activities.
(Ord. O2008-011, Amended, 09/02/2008; Ord. O2006-026, Amended, 04/03/2007; Ord. O2004-019, Added, 05/17/2005)
16.32.097 Reasonable use exception.
A. After it has been determined by the city 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. Criteria for review and approval of reasonable use exceptions follow:
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;
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. O2005-023, Amended, 09/06/2005; Ord. 2004-019, Added, 05/17/2005)
16.32.098 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, Added, 04/03/2007)
16.32.100 Violation – Penalty.
A. Remedies Not Exclusive. Each violation of the provisions of this chapter shall be a separate offense and will subject the violator to civil and/or criminal penalties. In the case of a continuing violation, each day’s continuance shall be a separate and distinct offense. The mayor of the city of Tumwater, through his or her designee(s), has authority to enforce this chapter against any violation or threatened violation thereof through issue of administrative orders, penalty notices, levying fines and/or the institution of actions at law or in equity including injunctive relief, in order to ensure that no uses are made of regulated wetlands or their buffers which are inconsistent with this chapter or an applicable wetlands protection program. In addition, the city attorney is authorized to commence criminal prosecution for violations under this chapter. Recourse to any single remedy will not preclude recourse to other legal remedies available.
B. Enforcement Actions. Enforcement of the provisions of this chapter is delegated to the director of community development. If the director of community development or his or her designee determines that any development action is not in compliance with approved development plans, or is in violation of this chapter, the director or designee may:
1. Issue a cease and desist order to halt such activity. The order shall become effective immediately upon receipt by the person to whom it is issued, and/or to his/her agent on site. The order shall set forth the following terms and conditions:
a. A description of the specific nature, extent and time of violation and the damage or potential damage; and
b. The specific corrective action to be taken within a given time, and the penalties for failure to comply.
2. Issue a restoration order for complete or partial restoration of the critical area by the owner and/or the person responsible for the violation within a given time, and the penalties for failure to comply.
3. Issue a civil penalty notice.
4. Request that the city attorney commence a criminal prosecution, and seek any civil or equitable relief to enjoin any act or practices and to abate any conditions which constitute or will constitute a violation of this chapter.
C. Civil Penalties.
1. Content. The notice of civil penalty shall include the following information:
a. The name and address of the person responsible for the violation; and
b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
c. A description of the violation and a reference to the provision(s) of the city of Tumwater code section that has been violated; and
d. The required corrective action and a date and time by which the correction must be completed; and
e. Notice of an opportunity for an appeal hearing before the hearing examiner; and
f. A statement indicating that no monetary penalty will be assessed if the director or his or her designee approves the completed, required corrective action at least forty-eight hours prior to the end date for compliance in the restoration order; and
g. A statement that a monetary penalty in an amount per day for each violation as specified herein will be assessed against the person whom the notice of civil penalty is directed.
2. Service of Notice. The director or his or her designee shall serve the notice of civil penalty upon the person to whom it is directed, either personally or by mailing by both regular mail and certified mail, a copy of the notice of civil penalty to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within Thurston County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail.
D. Monetary Penalties. The maximum monetary penalty for each separate violation per day or portion thereof shall be as follows:
1. First day of each violation – $100.00;
2. Second day of each violation – $200.00;
3. Third day of each violation – $300.00;
4. Fourth day of each violation – $400.00;
5. Each additional day of each violation beyond four days – $500.00 per day.
E. Collection of Monetary Penalty. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil penalty is directed. The city is authorized to take appropriate action to collect the monetary penalty.
F. Criminal Penalties. Any person, firm, or corporation who knowingly violates or knowingly fails to comply with any term or provision of this chapter shall be charged with a misdemeanor. Each day a violation occurs shall be a separate offense. In the event of a continuing violation or failure to comply, the second and subsequent days shall constitute a gross misdemeanor. Continuing violation shall mean a violation which is committed within one year of the initial violation, and which arises out of the same facts as the initial violation.
G. Appeal of Administrative Orders and Penalties. Any person issued a cease and desist order, restoration order and/or incurring a civil penalty may appeal the same by filing, in writing, within ten days of receipt of the order/penalty notice, a notice of appeal and paying the appeal fee. The appeal must set forth in a concise statement: (1) the reason for the appeal, (2) the name and address of the appellant and his/her interest(s) in the property or proposed development affected by such order/penalty, (3) must contain a reference to the specific code section(s) that support the appellant’s argument, (4) must specify the reason(s) why the appellant believes the order or penalty to be erroneous, and (5) must specify the relief sought. The appellant will have the burden of proof to show the order or penalty is erroneous. Upon receipt of the appeal notice by the community development office, the director or designee will schedule a hearing before the hearing examiner, who is authorized to remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered, or not known and not reasonably capable of being known in setting the original penalty. The hearing examiner’s powers on appeal are set forth in TMC Chapter 2.58. Any person appealing the issuance of an administrative order or civil penalty notice shall abide by the terms of that order or notice during the pendency of an appeal to the hearing examiner. The hearing examiner’s decision may be further appealed according to the provisions of TMC Chapter 2.58.
(Ord. O2011-002, Amended, 03/01/2011; Ord. O2005-023, Amended, 09/06/2005; Ord. O2004-019, Amended, 05/17/2005; Ord. 1283, Added, 08/20/1991)
16.32.110 Severability.
If any section, paragraph, subsection, clause or phrase of this chapter is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of the chapter.
(Ord. 1283, Added, 08/20/1991)