Chapter 16.40 PRIORITY HABITAT AREAS

Chapter 16.40
PRIORITY HABITAT AREAS

Sections:

16.40.030 Standards and nonregulatory measures.

16.40.040 Agricultural uses in riparian priority habitat.

16.40.010 Introduction.

The purpose of this chapter is to further the goal of no net loss of habitat functions and values within designated habitat areas by protecting environmentally distinct, fragile and valuable fish and wildlife habitat areas, as defined in YMC 16.40.020(C), for present and future generations, while also allowing for reasonable use of private property. This chapter intends to conserve the functional integrity of the habitats needed to perpetually support fish and wildlife populations.

A. General – Basic Criteria. Applicants proposing activities subject to this chapter shall demonstrate that the activity:

1. Results in no net loss in the level of habitat functions and values as characterized and documented using best available science;

2. Minimizes habitat disruption or alteration beyond the extent required to undertake the proposal; and

3. Includes mitigation sequencing in YMC 16.20.170.

B. Within areas designated by this chapter, development or clearing activities which degrade habitat should generally be avoided where possible. However, activities listed as exempt in this chapter can be undertaken in habitat areas without additional review. Activities not listed as exempt can be undertaken following town review if they do not substantially diminish the habitat functions and values present.

C. The provisions of this chapter dealing with existing agricultural activities are designed to balance conflicting Growth Management Act goals to preserve both agricultural uses and habitat areas, and recognize:

1. That the maintenance and enhancement of natural resource-based industries, including agriculture, is a goal of the state Growth Management Act;

2. That any regulation should be consistent with WAC 395-196-830;

3. That agricultural lands can provide habitat;

4. That habitat protection must relate to the baseline of existing functions and values given historic agricultural practices, rather than seeking to restore preagricultural conditions;

5. That since agricultural activities are dynamic, habitat functions and values can be expected to fluctuate during the course of an agricultural cycle, which fluctuation must be considered in identifying existing functions and values; and

6. That it is expected that continuation of existing agriculture will not degrade existing functions and values unless sediment, nutrients, or chemicals are allowed to enter streams, or existing beneficial canopy in close proximity to streams is significantly degraded. [Ord. 569 § 2 (Exh. A), 2018.]

16.40.020 Applicability.

A. General. Review under the standards of this chapter shall apply to any proposed development or nondevelopment clearing activities within designated habitat areas as defined in subsection C of this section.

1. Development activities are those proposals already subject to existing town land division, building, grading, or other review processes.

2. Nondevelopment clearing activities are proposals which are not otherwise subject to town review, but involve the alteration or removal of native vegetation in designated habitat areas.

B. Exempt Activities.

1. All proposed activities outside designated habitat areas are exempt from review under this chapter, except where noted in subsection A of this section.

2. Within designated habitat areas exempt activities are listed in subsection G of this section. These do not require review.

C. Habitat Areas Covered by This Chapter. This chapter shall apply to nonexempt activities as defined in subsection A of this section that are proposed within the following habitat areas:

1. Riparian, Priority Habitat. Areas extending outward from the ordinary high water mark of a river, stream, or creek to the edge of the 100-year floodplain, or the following distances, whichever is greater:

a. DNR Type S waters, 250 feet;

b. DNR Type F waters, 200 feet;

c. DNR Type Np waters, 100 feet;

d. DNR Type Ns waters, 75 feet.

Water types are defined and mapped based on WAC 222-16-030 (Forest Practices Rules). Type S streams include shorelines of the state and have flows averaging 20 or more cubic feet per second; Type F streams are those that are not Type S but still provide fish habitat; and Type N streams do not have fish habitat and are either perennial (Np) or seasonal (Ns). All streams are those areas where surface waters flow sufficiently to produce a defined channel or bed as indicated by hydraulically sorted sediments or the removal of vegetative litter or loosely rooted vegetation by the action of moving water. Ns streams must connect to another stream above ground. Seasonal or intermittent streams are surface streams with no measurable flow during 30 consecutive days in a normal water year.

2. Other Priority Habitats and Species (PHS). Areas identified by and consistent with the Washington State Department of Fish and Wildlife priority habitats and species criteria, including areas within 1,000 feet of individual species point sites. The town shall defer to the Washington State Department of Fish and Wildlife in regard to classification, mapping, and interpretation of priority habitat species (http://wdfw.wa.gov/conservation/phs/).

D. Mapping. The above habitat areas are mapped on a town-wide basis in the adopted Yacolt critical lands priority habitats and species map. Maps are on file with the town and are available for public viewing and circulation. Maps of individual locations of sensitive, threatened, or endangered wildlife species are maintained separately. Under law, this information is not available for widespread public distribution unless authorized by the Washington State Department of Fish and Wildlife. GIS Map Store produces maps for free in the following link: Critical Areas Ordinances Maps (https://gis.clark.wa.gov/gishome/mapstore/%20-%20/mapProducts). Official maps will be updated by the town as warranted by the availability of new information.

E. Best Available Science. Definitions and maps of habitat areas are based on best available science described in the documents listed below. (Best available scientific data supporting this chapter may be updated and/or reevaluated as part of future updates to this title.)

1. Washington State Department of Fish and Wildlife Priority Habitats and Species List (most up-to-date version);

2. Management Recommendations for Washington’s Priority Habitats and Species (most up-to-date version). Best available scientific data supporting this chapter may be updated and/or reevaluated as part of future amendments; and

3. Associated GIS data files maintained by the Clark County department of assessment and GIS.

F. Determining Site-Specific Applicability. In the event of inconsistencies, official habitat area definitions and on-site assessments shall prevail over town-wide maps in determining applicability of this chapter. The town shall follow the recommendations of the Washington State Department of Fish and Wildlife in the interpretation of site-specific conditions as they relate to the definition of priority habitat and species.

G. Activities Reviewed under This Chapter. Applies to activities within designated priority and locally important habitat areas as described in Table 16.40.020-01.

Table 16.40.020-1: Exempt and Reviewed Activities
Proposal	Is a clearing review required?	Are any additional fees or review timelines required?
Land division or lot reconfiguration entirely outside habitat areas, except as subject to YMC 16.40.020(C)(1)(a).	Exempt	Fees pursuant to Chapter 18.110 YMC
Land division or lot reconfiguration containing habitat areas, except as subject to YMC 16.40.020(C)(1)(a).	Exempt if impacted lots establish building and clearing envelopes outside of habitat	Fees pursuant to Chapter 18.110 YMC
Any activities on lots not in habitat areas, except as subject to YMC 16.40.020(C)(1)(a).	Exempt	None
Any activities on portions of lots not containing habitat areas, except as subject to YMC 16.40.020(C)(1)(a).	Exempt	None
Remodeling, replacement of, or additions to existing homes and associated appurtenances that expand the original footprint by no more than 900 square feet within the outer 50 percent of the riparian habitat area and do not require clearing of native trees or shrubs.	Exempt	None
Clearing as minimally necessary for placement of fencing, private wells, septic systems or individual lot sewer, water, electrical or utility connections in habitat areas, where practical alternatives do not exist.	Exempt	None
Clearing as minimally necessary for stream bank restoration, for native replanting or enhancements in habitat areas.	Exempt	None
Clearing as minimally necessary for routine road maintenance activities in habitat areas consistent with Regional Road Maintenance ESA Program Guidelines.	Exempt	None
Clearing as minimally necessary for soil, water, vegetation or resource conservation projects having received an environmental permit from a public agency in habitat areas.	Exempt	None
Clearing as minimally necessary for creating a four-foot or narrower path using natural, wood-based, or vegetated pervious surfacing in habitat areas.	Exempt	None
Clearing as minimally necessary for surveying or testing in habitat areas.	Exempt	None
Clearing or development in riparian habitat areas which is at least 100 feet from the waterline and separated by a continuous public or private roadway serving three or more lots.	Exempt	None
Clearing of defined nuisance vegetation in habitat areas which utilizes methods that minimize disturbance of soils and nonnuisance vegetation. Replanting with native vegetation should be pursued to prevent reinfestation.	Exempt	None
Emergency clearing to abate immediate danger to persons or property. For emergency clearing of hazard trees, remove only that portion of a hazard tree as is minimally necessary to remediate the hazard. Cut wood should be left in the habitat area.	Exempt	None
Existing agricultural uses within nonriparian habitat areas.	Exempt	None
Existing agricultural uses within riparian habitat areas.	Reviewed under YMC 16.40.020(A)(2)	None
New home or other construction in habitat areas.	Review required	No additional timelines. Applicable review (building permit, etc.) must comply with code standards. Fees pursuant to Chapter 18.110 YMC.
All other vegetation clearing in habitat areas.	Review required	Fees pursuant to Chapter 18.110 YMC. Applicable review, if any, must comply with code standards. If no other review involved, clearing request will be reviewed administratively.

[Ord. 569 § 2 (Exh. A), 2018.]

16.40.030 Standards and nonregulatory measures.

A. Approval Criteria. Approval shall be granted for all proposals demonstrating compliance with the following criteria. Approval shall be required prior to clearing or development.

1. Intent. Designated habitats are to be protected through avoidance or reduction of the impacts of activities. This section provides standards for the review of proposed nonexempt activities within designated habitat areas.

2. Mitigation Measures.

a. Disrupted functions and values shall be mitigated on site as a first priority, and off site thereafter.

b. An up-to-date science-based guide should be used to guide on-site mitigation. Off-site mitigation should be guided by applicable watershed, fish recovery, sub-basin or other science-based plans. Any science used to guide mitigation actions, whether on site or off site, must meet the criteria and characteristics of best available science listed in WAC 365-195-905 (Criteria for determining which information is the “best available science”), or the state standards in effect at the time of application.

c. Mitigation sequencing shall follow YMC 16.20.170, and the following:

i. Exploring alternative on-site locations to avoid or reduce impacts of activities; and

ii. Preserving important vegetation and natural habitat features by establishing buffers or by limiting clearing or alteration.

d. Subject to individual circumstances, potential mitigation measures may include, but are not limited to, the following:

i. Replacing invasive exotic plants with native species (refer to the Clark County Native Plant Communities Guide or other relevant publication for guidance);

ii. Prohibiting introduction of invasive plant species in habitat areas;

iii. Enhancing, restoring or replacing vegetation or other habitat features and functions. In riparian areas, this may include riparian zone averaging as specified in subsection C of this section;

iv. Using native plants where appropriate when planting within habitat areas (refer to the Clark County Native Plant Communities Guide or other relevant publication for guidance);

v. Managing access to habitat areas, including exclusionary fencing for livestock if needed;

vi. Stream Crossings.

(A) Using existing stream crossings whenever a review of suitability, capacity, access and location, habitat impacts of alternatives, maintenance, liability and economics indicate the existing crossing is feasible; or

(B) Constructing new stream crossings, when necessary, in conformance to the water crossing structure standards in WAC 220-660-190 (Hydraulic Code Rules), which are incorporated by reference;

vii. Seasonally restricting construction activities;

viii. Implementing best management practices and integrated management practices;

ix. Monitoring or review of impacts and assurance of stabilization of the area;

x. Establishing performance measures or bonding;

xi. Establishing conservation covenants and other mechanisms to ensure long-term preservation or maintenance of mitigation actions;

xii. Utilizing low impact development techniques;

xiii. Promoting water quality by limiting the use of lawn and garden chemicals in habitat areas;

xiv. Avoiding topsoil removal and minimizing topsoil compaction; and

xv. Providing off-site mitigation, subject to the following conditions:

(A) When the combination of on-site and off-site mitigation fails to substantially maintain functions and values within the stream system, the application shall be denied;

(B) All reasonable on-site mitigation alternatives have been exhausted;

(D) Off-site mitigation is appropriate in size and scale to the impacts that are not fully mitigated on the original site;

(E) Proposed off-site mitigation is reviewed by the town on a case-by-case basis with input from Washington Department of Fish and Wildlife (WDFW);

(F) Off-site mitigation may be in the form of:

(1) The purchase of credits from a permitted habitat bank; or

(2) A specific mitigation project:

(a) Specific off-site mitigation projects for all habitat areas must be in an area as close as possible to the original site;

(b) Public regional development activities that are reviewed and approved by federal and state agencies are exempt from these geographic restrictions; and

(G) Adequate enforcement authority must be delegated to the town, as approved by the town attorney.

3. The responsible official shall approve, approve with conditions or deny proposals based on compliance with the criteria and the adequacy of proposed mitigation measures to ensure compliance, and applicable reasonable use assurances of subsection B of this section.

4. The responsible official shall retain final authority for such determinations, which shall be issued consistent with the review timelines of YMC Title 18 and shall be based on best scientific information and analysis available within those timelines.

5. Modifications to conservation covenants established under this title shall be consistent with the standards of this chapter and will be processed subject to the following:

a. Modification to a covenant approved by the town council following public notice of the action and a hearing:

i. Does not increase the potential adverse impact to habitat;

ii. Does not involve an issue of broad public interest, based on the record of the decision; and

iii. Does not require further SEPA review.

b. Modification requests submitted with other applications will be processed as specified in YMC Title 18.

6. Removal of conservation covenants shall be approved by the town council.

7. The responsible official shall consult with and substantially follow the resulting recommendations of Washington Department of Fish and Wildlife (WDFW), unless alternative determinations are supported by scientific analysis.

B. Reasonable Use Assurances. The town assures property owners of the reasonable use of their property, as long as impacts are mitigated to the maximum extent practicable. Permit conditions limiting locations and requiring mitigations may be imposed, and erosion control measures may be required:

1. This chapter shall not be used to prohibit:

a. Placement of a single-family residence and residential accessory structures on an otherwise legally buildable lot of record;

b. Expansion of a home existing prior to 2006, not to exceed 25 percent of the 2006 footprint;

c. Replacement of a single-wide mobile home with another dwelling, not to exceed twice the footprint of the original mobile home; or

d. Fire hazard clearing recommended by the fire marshal, or consistent with written fire marshal or fire chief guidelines.

2. This chapter shall not be used to deny all reasonable economic use of private property. These criteria must be met in order to verify denial of all reasonable economic use:

a. The application of this chapter would deny all reasonable economic use of the property;

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

c. Any habitat alteration is the minimum necessary to allow for reasonable economic use of the property.

3. This chapter shall not be used to deny a development proposal from a public agency or public utility, if:

a. There is no practical alternative to the proposed project with less impact on the habitat area;

b. The ability of the public agency or utility to provide services to the public would be unreasonably restricted; and

c. The application is approved through the public hearing procedures process pursuant to Chapter 18.95 YMC. Fees are subject to the fee schedule in Chapter 18.110 YMC.

C. Regulatory Alternative to the Standards of This Chapter. Required riparian zone widths on clearing proposals on existing lots may be varied through the use of internal riparian zone averaging. Subject to review under this chapter, for clearing proposals on existing lots, portions of the riparian zone can be reduced up to 50 percent from the normal standards of this chapter if riparian zone widths are correspondingly increased elsewhere within the applicant parcel, such that the overall size and function and values of the riparian zone are maintained in the parcel. Riparian zone averaging proposals must clearly identify the existing riparian functions and values on the parcel and any impacts that the proposed averaging may have upon them. [Ord. 569 § 2 (Exh. A), 2018.]

16.40.040 Agricultural uses in riparian priority habitat.

A. Agricultural Uses. Where applicable, the following options are available to be used for compliance with this section:

1. Agricultural/Habitat Protection Plan Option.

a. Regulated Area. For the purposes of an agricultural/habitat protection plan, the regulated riparian area shall be 100 feet from the ordinary high water mark of Type F streams, and 75 feet from the ordinary high water mark of Type Ns streams. The plan may include practices and other mitigation measures on land outside the regulated riparian area to achieve the standard set forth in subsection (A)(1)(b) of this section.

b. Standard. An agricultural/habitat protection plan shall be approved if its implementation will not substantially degrade habitat functions and values that existed within the area designated in subsection (A)(1)(a) of this section on July 11, 2006, considering normal fluctuations due to the agricultural cycle. A plan may be submitted by a group of neighborhood owners whose properties are in close proximity in which case the foregoing standard shall be applied to the common plan.

c. Plan Contents. Agricultural/habitat protection plans shall, at a minimum, include the following:

i. An approximate mapping of existing and proposed structures, roads, driveways, utilities, property lines, and agricultural uses;

ii. A map of regulated riparian habitat areas;

iii. Identification of existing habitat functions and values within the regulated habitat area on July 11, 2006, taking into account agricultural cycles that involve varying intensity of agricultural use;

iv. A description of best management practices and other mitigation measures to be undertaken in order to achieve the standard in subsection (A)(1)(b) of this section;

v. The owner’s signature attesting that the information in the plan is accurate to the best of the owner’s knowledge, and the mitigation measures specified in the plan will be implemented; and

vi. The signature of an ag-habitat technician certified by the town attesting that he/she has inspected the area covered by the plan and that the plan satisfies the standard in subsection (A)(1)(b) of this section.

d. Guidelines. The responsible official shall follow Clark County’s Guide for Agricultural Technicians.

e. Approval. Agricultural/habitat protection plans shall be prepared or reviewed and approved by an ag-habitat technician certified by the responsible official to have completed a training program on application of the guidelines. An ag-habitat technician shall approve the plan as meeting the standard and content requirements of subsections (A)(1)(b) and (c) of this section. An owner dissatisfied with the review by an ag-habitat technician may seek approval of the proposed management plan by the responsible official whose decision may be appealed under the provisions of Chapter 8.05 YMC and YMC Title 18.

f. Filing. The ag-habitat technician shall notify the town responsible official of the adoption of an approved agricultural/habitat protection plan by a property owner indicating the property covered by the plan and, at the choice of the property owner, either providing a copy of the plan or summarizing the contents of the plan. Notice of such approval shall also be recorded with the Clark County auditor and run with the land unless the plan is modified or rescinded.

g. Modification/Rescission. Agricultural/habitat protection plans may be modified by the owner at any time utilizing the same process as applicable to initial approval. Plans may be rescinded by the owner with approval of the responsible official if the owner certifies either that future agricultural activity will be undertaken utilizing the default option or agricultural activities have ceased. Notice of modification/rescission shall be recorded with the Clark County auditor.

2. Default Option.

a. Regulated Area. For the purposes of the default option, the regulated riparian area is divided into two zones. Except as provided below, the inner zone, closest to the stream, extends from the ordinary high water mark outward 50 feet on Types S and F streams and 30 feet on Type N streams. The outer zone extends an additional 50 feet on Types S and F streams and 45 feet on Type N streams. Where slopes exceed 25 percent, the inner zone is the greater of the prescribed zone or the top of the slope break. Where wetlands are present within the inner zone, the zone is extended to the greater of the prescribed width of the inner zone or the wetland buffer as designated in Chapter 16.45 YMC (Wetlands). However, in no case is the inner zone greater than the combined widths prescribed for in the inner and outer zones for that stream type. Where there is an existing road within the inner zone, the zone stops at the edge of the road improvement that is closest to the stream and the outer zone extends outward from that edge.

b. Standard. Clearing within the inner zone is allowed only to enhance habitat functions and values. Animal husbandry within the inner zone is prohibited. Clearing and animal husbandry within the outer zone shall not substantially degrade habitat functions and values as they existed on July 11, 2006, after considering normal fluctuations due to the agricultural cycle. Although it is presumed that continuation of agricultural activities within the outer zone that existed on July 11, 2006, will not substantially degrade existing habitat functions and values, evidence of substantial degradation, such as excess sediment, nutrients or chemicals moving from the outer zone into the stream resulting from agricultural activities, constitutes grounds for enforcement action which may require restoration of lost functions and values. Pesticide application within the outer zone must conform to label specifications and application within the inner zone must be by a licensed applicator.

c. Reasonable Use. If the inner zone impacts more than 50 percent of a parcel that is 10 acres or less in area, or more than 25 percent of a parcel that is five acres or less in area, the responsible official may approve a reasonable use reduction to the width of the inner zone. In such case, clearing and animal husbandry may be allowed up to 10 feet from the ordinary high water mark; provided, that reasonable practices and other appropriate mitigation measures are employed to limit sediment, nutrients and chemicals from entering the stream.

B. Administration.

1. No application fees apply to the approval of agriculture/habitat protection plans.

2. No town review is associated with the default option unless the owner seeks approval of a reasonable use reduction of the inner zone, which application shall be processed without application fees.

3. Evidence of violation of the standards in YMC 16.40.030(A) shall be grounds for enforcement action 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.]

16.40.050 Habitat permit applications.

A. The applicant shall provide the following information in support of a habitat permit application:

1. Name, address, and contact information for the applicant;

2. Location, address/parcel number of the proposed site;

3. Description of existing conditions, information, natural and manmade features on the site;

4. Description and mapping of proposed activities and how this would change existing conditions on the site;

5. Where required by state law, a completed environmental checklist pursuant to the State Environmental Policy Act (SEPA) shall also be submitted unless categorically exempted by the SEPA Rules; and

6. Report(s) or other assistance from a biologist, botanist, ecologist, or other similarly qualified or trained professional are encouraged and may be required by the responsible official.

B. Permit Authority and Timelines.

1. An approval granted under this chapter shall remain valid until proposed activities are undertaken and completed. An approved permit not acted upon shall be valid for two years, and upon showing of good cause, may be extended for an additional 12 months.

2. Approval for habitat area activities as part of other town development approvals shall be valid for a time period specified by the other permit(s) involved.

C. Appeals. Appeals of town decisions under this chapter may be filed under the provisions of Chapters 8.05 and 18.95 YMC.

D. Enforcement. At such time as a violation of this chapter has been determined, enforcement action shall be commenced in accordance with the enforcement provisions of Chapter 8.05 YMC and YMC Title 18. Applications for town land use permits on sites that have been found to be in violation of this chapter pursuant to the process set forth in YMC Titles 16, 18, or Chapter 8.05 YMC shall not be processed until three years after the violation. The three-year period may be reduced upon approval and implementation of a restoration or mitigation plan, to include the following:

1. A plan for the replanting of trees, brush and groundcover of a type and distribution comparable to that existing prior to clearing; provided, that the responsible official may approve alternative species in order to promote expedient soil stabilization, and may require additional tree planting as mitigation for the loss of mature trees;

2. A monitoring plan to assure at least a 90 percent survival rate of reestablished plantings after at least three but not more than eight growing seasons;

3. Where fish and wildlife habitat areas are cleared in violation of this chapter, a plan to restore habitat functionality, as it existed prior to the violation, subject to the review and evaluation of Washington Department of Fish and Wildlife (WDFW);

4. Satisfaction of the terms and conditions of any judgment or order entered based upon the violation; and

5. Financial assurances in the form of a bond or other security acceptable to the town, in an amount sufficient to reestablish the mitigation in the event of failure or subsequent disturbance may be required by the responsible official. The financial assurances shall remain in place for the length of the time specified for monitoring in the plan and shall be released after a request by the applicant and a final inspection. In the event of failure of the mitigation, failure to fully execute the mitigation plan, or subsequent disturbance, forfeiture of the financial assurances shall be required and the funds shall be used to reestablish the mitigation or to complete the execution of the plan, and to reimburse the town for its costs, fees (including attorney’s fees), and expenses of enforcement and abatement. In the event that such reestablishment or completion is deemed impractical by the director, the funds shall accrue to the established cumulative effects fund for the watershed within which the site is located. [Ord. 569 § 2 (Exh. A), 2018.]