Chapter 16.20 GENERAL PROVISIONS

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

B. The town finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the town of Yacolt and its residents, and/or may pose a threat to human safety, or to public and private property.

C. Goals. By managing development and alteration of critical areas, this division seeks to:

1. Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, or flooding;

2. Protect unique, fragile, and valuable elements of the environment, including ground and surface waters;

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

4. Prevent cumulative adverse environmental impacts to critical aquifer recharge and frequently flooded areas.

D. The regulations of this division are intended to protect critical areas in accordance with the Growth Management Act, Chapter 36.70A RCW, and through the application of best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.

E. This division is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this division to make a parcel of property unusable by denying its owner reasonable economic use of the property.

F. The town’s enactment or enforcement of this division shall not be construed for the benefit of any individual person or group of persons other than the general public. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.020 Authority.

As provided herein, the “director” shall mean the town’s public works director or designee. The mayor and director are given the authority to interpret and apply, and the responsibility to enforce, this title to accomplish the stated purpose. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.030 Relationship to other regulations.

A. These critical area regulations shall apply as an overlay and in addition to zoning and other regulations, including the town of Yacolt engineering standards for public works construction, adopted by the town.

B. These critical area regulations may be applied concurrently with review conducted under the State Environmental Policy Act (SEPA), or other development review as adopted.

C. In the event of a conflict with any other provisions of this title, that which provides more protection to the critical areas shall apply.

D. Compliance with the provisions of this title does not constitute compliance with other federal, state and local regulations and permit requirements that may be required (for example, HPA permits, Army Corps of Engineers Section 404 permits, NPDES permits). The applicant is responsible for complying with all requirements, apart from the process established in this title. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.040 Severability.

If any clause, sentence, paragraph, section, or part of this title or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof, and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are declared to be severable. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.050 Administrative rules.

The town of Yacolt may adopt such administrative rules and regulations as necessary and appropriate to implement this title, and to prepare and require the use of such forms as necessary for its administration. The applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.060 Interpretation.

In the interpretation and application of this title, the provisions of this title shall be considered to be the minimum requirements necessary, shall be liberally construed to serve its purpose, and shall be deemed to neither limit nor repeal any other provisions required by or under state statute. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.070 Critical lands.

The following critical lands are covered under this title:

A. Critical aquifer recharge areas (CARAs);

B. Geologic hazard areas;

C. Frequently flooded areas;

D. Priority habitat areas; and

E. Wetlands. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.080 Best available science.

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

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

1. Limit development and land use activities until the uncertainty is sufficiently resolved; and

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

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

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

c. Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.090 Applicability.

The town will not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on critical areas, without first ensuring compliance with the requirements of this title, including but not limited to the following development permits:

A. Building permit;

B. Grading permit;

C. Forest practices conversion permit regulated by WAC Title 222;

D. Conditional use permit;

E. Short subdivision;

F. Subdivision;

G. Planned unit development;

H. Any commercial or industrial development;

I. Site plan;

J. Zoning variance;

K. Any grading, filling, or clearing of land, or logging or removal of timber; or

L. Other activities as specified within this title. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.100 Exemptions.

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

1. Emergencies. Emergency activities are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property, and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of these provisions;

An emergency response shall utilize reasonable methods to address the emergency considering the applicable critical area(s); in addition, an emergency response must have the least possible impact to the critical area. The person or agency undertaking such action shall notify the town within four days following commencement of the emergency activity. If the director determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement will commence;

After the emergency, the person or agency undertaking the action shall fully restore and/or mitigate any impacts to the critical area resulting from the emergency action in accordance with an approved critical area report and mitigation plan. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner;

2. Operation, Maintenance or Repair. Operation, maintenance or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees or drainage systems that do not further alter or increase the impact to, or encroach further within, the critical area;

3. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching; and

4. Forest Practices. Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, WAC Title 222, and those that are exempt from the town of Yacolt’s jurisdiction; provided, that forest practice conversions are not exempt.

B. Exempt Activities Shall Avoid Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from these provisions does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.110 Reasonable use exception.

A. If the application of this title would deny all reasonable use of the subject property, the property owner may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the town and shall include a critical area application and fee; 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) (SEPA documents). A staff report shall be prepared to include a recommendation to the approval authority 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. Public Hearing Required. A request for an exception under this section shall be considered through a hearing process in accordance with Chapter 18.95 YMC.

D. Reasonable Use Review Criteria. The criteria for review and approval of reasonable use exceptions include the following:

1. The application of these provisions would deny all reasonable use of the property;

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

3. Any alteration is the minimum necessary to allow for reasonable use of the property;

4. The inability of the applicant to derive reasonable use of the property is not the result of actions taken by the applicant or its predecessor after the effective date of these provisions; and

5. Any alteration of a critical area approved under this section shall be subject to appropriate conditions and will require mitigation under an approved mitigation plan.

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. 569 § 2 (Exh. A), 2018.]

16.20.120 Allowed activities.

A. Critical Area Report Not Required. Activities which have been reviewed and permitted or approved by the town, or other agency with jurisdiction, for impacts to critical or sensitive areas, do not require submittal of a new critical area report or application under this title, unless such submittal was required previously for the underlying permit.

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

C. Allowed Activities. The following activities are allowed:

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

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

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

c. No more than five years has elapsed since the issuance of the permit or approval; and

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

2. Modification to Existing Structures. Structural modifications, additions to, or replacement of an existing legally constructed structure that does not further alter or increase the impact to the critical area, and where there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of 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.

3. Activities within the Improved Right-of-Way. Replacement, 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 town-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or that result in the transport of sediment or increased stormwater.

4. Public and Private Pedestrian Trails.

a. Existing public and private trails may be maintained, replaced, or extended, provided there is no increase in the impact to the critical area.

b. Other public and private pedestrian trails, except in wetlands, fish and wildlife habitat conservation areas, subject to the following:

i. The trail surface shall meet all other requirements including water quality standards set forth in the town of Yacolt engineering standards for public works construction;

ii. Critical area widths shall be increased, where possible, equal to the width of the trail corridor, including disturbed areas; and

iii. Trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion, and in accordance with an approved geotechnical report.

5. Selective Vegetation Removal Activities. The following vegetation removal activities are allowed without a permit:

a. The removal of invasive plant species including Himalayan blackberry (Rubus armeniacus), evergreen blackberry (Rubus laciniatus), and English ivy, as well as any other noxious weed or invasive plant species acknowledged by the town;

b. Invasive plant removal must be performed with hand labor and light equipment (e.g., push mowers, powered trimmers, etc.);

c. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW, and Clark County Fire District 13 fire department requirements; provided, that the removed vegetation shall be replaced in kind by the property owner or with similar native species within one year in accordance with an approved restoration plan;

d. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances; provided, that their use shall be restricted in accordance with Department of Fish and Wildlife management recommendations, and the regulations of the Department of Agriculture and the U.S. Environmental Protection Agency. More information on commercial and residential use of chemicals can be found in the Department of Ecology’s “Critical Aquifer Recharge Areas: Guidance Document,” Publication No. 05-10-028;

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

f. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.125 Hazard vegetation removal permit.

A. Vegetation and tree removal from a critical area must be approved by the director. An application must include the following information:

1. The applicant must submit a report from a certified arborist or professional forester that documents the hazard and provides a pruning plan or replanting plan for the replacement trees and vegetation. The report must be prepared by a professional unaffiliated with the company proposing to remove the tree(s).

2. Tree pruning is preferred over felling. Pruning includes the removal of a hazardous branch, crown thinning or crown reduction. When pruning is insufficient to address the hazard, then trees should be removed as justified by a qualified professional.

a. Tree topping is prohibited. Topping is the cutting of tree branches to stubs or to lateral branches that are not large enough to assume the terminal role.

b. Reduction. Reduction reduces the size of a tree, often for utility line clearance. Reducing a tree’s spread is best accomplished by pruning back the leaders and branch terminals to secondary branches that are large enough to assume the terminal roles. Compared to topping, reduction helps maintain the form and structural integrity of the tree.

c. Crown Cleaning and Thinning. Proper pruning opens the foliage of a tree, reduces weight on heavy limbs, removes dead branches, and helps retain the tree’s natural shape and height.

B. Mitigation Required. The landowner shall replace trees that are felled with new trees at a ratio of two replacement trees for each tree felled within one year in accordance with an approved restoration plan.

1. Tree species that are native and indigenous to the site and a minimum caliper of two inches shall be used.

2. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods of removal that will minimize impacts.

C. Hazard trees determined to pose an imminent threat or danger to public health or safety, or to public or private property, or serious environmental degradation, may be removed by the landowner prior to receiving written approval from the town; provided, that within 14 days following such action, the landowner shall submit a proof of hazard (e.g., photos) together with a restoration plan that demonstrates compliance with these provisions. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.130 Review required.

A. Mapping. The approximate location and extent of critical areas are shown on critical area maps that are provided by Clark County geographic information systems (a.k.a. “Maps Online”). These maps are to be used as a guide for the town, project applicants, and/or property owners, and may be continually updated as new critical areas are identified. They are a reference and do not provide a final critical area designation or delineation. If the proposed activity is within, adjacent to (within 200 feet), or is likely to impact a critical area, the town shall require a critical area report from the applicant that has been prepared by a qualified professional. If the report concludes that there is a critical area present then the town of Yacolt shall:

1. Review and evaluate the critical area report;

2. Determine whether the development proposal conforms to the purposes and performance standards of these provisions;

3. Assess potential impacts to the critical area and determine if they are necessary and unavoidable; and

4. Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of these provisions. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.140 Critical area reporting evaluation – Requirements.

A. Incorporating Best Available Science. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance, and reference the source of science used. The critical area report shall evaluate the proposal and the likelihood of all probable adverse impacts to critical areas in accordance with these provisions.

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

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

2. A copy of the site plan for the development proposal showing identified critical areas, property lines, limits of any areas to be cleared, and a description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;

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

4. Identification and characterization of critical areas, wetlands, and water bodies within the proposed project area;

5. A description of reasonable efforts made to avoid, minimize, and mitigate impacts to critical areas;

6. A proposal for financial guarantees to ensure compliance; and

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

C. Unless otherwise provided, a critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations, or previously prepared for and applicable to the development proposal site, as approved by the director. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.150 Critical area report – Modification to requirements.

A. Limitations to Study Area. The director may limit or extend the required geographic area of the critical area report as deemed appropriate, so long as it is within the proposed site. If a wetland is located off site and is inaccessible, the best available information shall be used to determine the wetland boundary and category.

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

C. Additional Information May Be Required. The director may require additional information to be included in the critical area report when determined to be necessary to the review of the proposed activity in accordance with these provisions. Additional information that may be required includes, but is not limited to:

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

2. Grading and drainage plans; and

3. Information specific to the type, location, and nature of the critical area. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.160 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in these provisions, if alteration to the critical area is necessary, all adverse impacts to or from critical areas resulting from a development proposal or alteration shall be mitigated in accordance with an approved critical area report and SEPA documents.

B. Mitigation should be in kind and on site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area. Mitigation shall generally be conducted within the same subdrainage basin and on the site of the alteration except when the applicant can demonstrate that off-site mitigation is ecologically preferable.

C. Mitigation shall only be implemented after town approval of a critical area report that includes a mitigation plan. Mitigation shall be in accordance with the provisions of the approved critical area report. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.170 Mitigation sequencing.

Applicants shall demonstrate that reasonable efforts have been examined with the intent to mitigate impacts to critical areas. When an alteration to a critical area is proposed, mitigation can be accomplished through a variety of methods. Generally, avoiding the impact altogether is the preferred option. Following this process is referred to as mitigation sequencing, and mitigation for individual actions may include a combination of the measures provided in this section. Methods to reduce impacts and mitigate for them should follow a series of steps taken in sequential order:

A. Avoiding the impact altogether by not taking a certain action or parts of an action (usually by either finding another site or changing the location on the site);

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

C. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

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

E. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or

F. Monitoring the impact and taking appropriate corrective measures. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.180 Mitigation plan requirements.

When mitigation is required, the applicant shall submit to the town a mitigation plan as part of the critical area report. The mitigation plan shall include:

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

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

2. An analysis of the likelihood of success of the mitigation project.

B. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained, and whether or not the requirements of these provisions have been met.

C. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, including but not limited to, the proposed construction sequence, timing and duration; grading and excavation details; erosion and sediment control features; a planting plan specifying plant species, quantities, locations, size, spacing and density; and measures to protect and maintain plants until established.

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

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

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

F. Financial Guarantees. The mitigation plan shall include financial guarantees, as determined by the approval authority, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted consistent with these provisions. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.190 Innovative mitigation.

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

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

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

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

D. There is a clear potential for success of the proposed mitigation at the identified mitigation site; and

E. Conducting mitigation as part of a cooperative process may not reduce or eliminate the required replacement ratios. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.200 Unauthorized critical area alterations and enforcement.

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

B. Restoration Plan Required. Where a violation has occurred, all development work shall remain stopped until a restoration plan is submitted by the property owner and/or violator (applicant) and approved by the town. Such a plan shall be prepared by a qualified professional and shall describe how the actions proposed meet the intent of requirements described in subsection C of this section. The director may, at the applicant’s expense, seek expert advice in determining the adequacy of the plan and may impose additional requirements to mitigate critical areas issues.

C. Minimum Performance Standards for Restoration.

1. For alterations to critical aquifer recharge areas and frequently flooded areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The historic structural and functional values shall be restored, including water quality and habitat functions;

b. The historic soil types and configuration shall be replicated;

c. The critical area shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities; and

d. The historic functions and values should be replicated at the location of the alteration.

2. For alterations to frequently flooded and geologically hazardous areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area shall be replanted with native vegetation sufficient to minimize the hazard.

D. Enforcement. Violations and compliance issues under these provisions are subject to enforcement under Chapter 8.05 YMC, YMC Title 18, and the town’s general authority to enforce laws and regulations. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.210 Critical area markers, signs and fencing.

A. Temporary Markers. The outer perimeter of the critical areas must be marked in the field in such a way as to ensure that no unauthorized intrusion will occur, and verified by the director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction, and shall not be removed until installation of permanent signs, if required, or final town approval is granted.

B. Permanent Signs. The town may require, as a condition of any permit or authorization issued pursuant to this title, that the applicant install permanent signs along the boundary of a critical area to town standards.

C. Fencing. Installation of a permanent fence at the edge of the habitat conservation area or wetland buffers is required.

1. Fencing may be waived in the following circumstances:

a. The applicant demonstrates to the director’s satisfaction that fencing will not prevent future impacts to the habitat conservation area; or

b. The director determines that a proposed use adjoining the buffer does not pose a threat to the critical area and buffer functions, or there is a public safety issue.

2. Fencing installed as part of a proposed activity shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed 42 inches high and in a manner that minimizes habitat impacts. Approved fencing styles include: vinyl-coated chain link, wooden split rail, or similar, as approved by the town. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.220 Critical area protective mechanism.

A. Identified critical areas and their associated buffers shall be protected and preserved through a permanent protective mechanism acceptable to the town. This may include placing the critical area in a separate tract; executing a protective easement; or dedicating the critical area and its associated buffers to a public agency, or public or private land trust. The mechanism shall provide for maintenance of the critical area and its associated buffers.

B. If the protective mechanism includes placing the critical area and its associated buffers in a separate tract, then the critical area tract(s) shall:

1. Be recorded on all documents of title of record for all affected lots;

2. Be designated on the face of the plat or recorded drawing in a format approved by the town. The designation shall include the following restriction:

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

b. The right of the town to enforce the terms of the restriction.

C. The town may require that any required critical area tract be dedicated to the town, or held by an incorporated homeowners’ association or other legal entity. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.240 Bonds to ensure mitigation, maintenance, and monitoring.

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

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

C. The bond may be in the form of a surety bond, performance bond, case security agreement, assignment of savings account, irrevocable letter of credit guaranteed by an acceptable financial institution, or other security in a form and amount, and including such terms and conditions, as are acceptable to the town.

D. Bonds or other security authorized by this section shall remain in effect until the town determines, in writing, that the standards bonded for have been met.

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

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

G. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due, or comply with other provisions of an approved mitigation plan, shall constitute a default, and the town may demand payment of any financial guarantees and/or require other action authorized by the town code or any other law, including the recovery of costs and attorney’s fees incurred during the enforcement measures taken by the town.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation and as reimbursement to the town for its costs, fees, (including attorney’s fees), and expenses of enforcement. [Ord. 569 § 2 (Exh. A), 2018.]

16.20.260 Definitions.

“Anadromous” means species, such as salmon, which are hatched in fresh water, spend a large part of their lives in the sea, and return to fresh water rivers and streams to reproduce.

“Best management practices (BMPs)” means conservation practices, or system of practices and management measures that avoid or minimize adverse impacts to critical areas.

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

“Conservation covenant” means an instrument recorded with the town that places certain restrictions or limitations on the affected parcel.

“Critical areas” means the following areas and ecosystems as defined in RCW 36.70A.030 and described in Chapter 365-190 WAC:

1. Critical aquifer recharge areas;

2. Geologic hazard areas;

3. Frequently flooded areas;

4. Habitat conservation areas; and

5. Wetlands.

“Engineer” means an appropriate professional who is licensed in the state of Washington as an engineer.

“Erosion hazard areas” means those areas containing soils which, according to the United States Department of Agriculture Natural Resources Conservation Soil Survey Program, may experience significant erosion. Erosion hazard areas also include channel migration zones.

“Existing and ongoing agricultural activities” means those activities conducted on lands defined in RCW 84.34.020(2), and those activities involved in the production of crops and livestock, including but not limited to operation, maintenance and conservation measures of farm and stock ponds or drainage ditches, irrigation systems, changes between agricultural activities, and normal operation, maintenance or repair of existing serviceable structures, facilities or improved areas. Activities which bring an area into agricultural use are not part of an ongoing activity. An operation ceases to be ongoing when the area in which it was conducted is proposed for conversion to a nonagricultural use or has lain idle for a period of longer than five years, unless the idle land is registered in a federal or state soils conservation program. Forest practices are not included in this definition.

“Exotic” means any species of plants or animals that are not native to the watershed.

“Fish and wildlife habitat conservation areas” means those areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. Counties and cities may also designate locally important habitats and species.

“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.

“Frequently flooded areas” means those lands in the floodplain subject to one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance, and attenuation functions, as determined in accordance with WAC 365-190-030. The most recent FEMA DFIRM is used in setting a baseline for special flood hazard areas.

“Geologically hazardous areas” means lands or areas characterized by geologic, hydrologic, and topographic conditions that render them susceptible to potentially significant or severe risk of landslides, erosion, or seismic activity.

“Hazard tree” means any tree which, in the opinion of the responsible official, an expert approved by Yacolt (such as, but not limited to, a professional forester or landscape architect), or a similar expert employed by another public agency or utility, has a strong likelihood of causing a hazard to life or property.

“Mitigation” means avoiding, minimizing, or compensating for adverse impacts to critical areas.

“Nuisance vegetation” means noxious weeds or any plant that is highly destructive, competitive, or difficult to control by cultural or chemical practices pursuant to RCW 17.10.090 and based on the list of noxious weeds provided in WAC 16-750-005, 16-750-011 and 16-750-015.

“Qualified groundwater professional” means a hydrogeologist, geologist, engineer, or other scientist who meets the following criteria:

1. Has received a baccalaureate or post-graduate degree in the natural sciences or engineering; and

2. Has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by state registration, profession certifications, or completion of accredited university programs that enable that individual to make sound professional judgments regarding groundwater vulnerability.

“Streams” means those areas where surface waters flow sufficiently to produce a defined channel or bed. A “defined channel or bed” is an area which demonstrates clear evidence of the passage of water and includes, but is not limited to, bedrock channels, gravel beds, sand and silt beds, and defined swales. The channel or bed need not contain water year-round.

“Watershed” means an area of topographic relief that drains to a single surface water system.

“Wetland” or “wetlands” means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, retention facilities, wastewater treatment facilities, farm ponds, 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 created to mitigate conversion of wetlands.

“Wetland qualified professional” means a professional wetland scientist with at least two years of full-time work experience as a wetlands professional, including delineating wetlands using federal manuals, preparing wetland reports, conducting function assessments, and developing and implementing mitigation plans.

“Wetlands delineation manual” means the wetland delineation procedure described in WAC 173-22-035 (as amended). [Ord. 569 § 2 (Exh. A), 2018.]