Title 18
ENVIRONMENT¹

Chapters:

18.04 Environmental Policy

18.06 Definitions

18.08 Permits

18.12 Shoreline Master Program

18.14 Repealed

18.16 Critical Areas

Chapter 18.04
ENVIRONMENTAL POLICY²

Sections:

18.04.010 Purpose.

18.04.020 Policy.

I. Authority

18.04.030 Authority.

II. General Requirements

18.04.040 Purpose of this part and adoption by reference.

18.04.060 Designation of responsible officials.

18.04.070 Lead agency determination and responsibilities.

18.04.080 Transfer of lead agency status to a state agency.

18.04.090 Additional timing considerations.

III. Categorical Exemptions and
Threshold Determinations

18.04.100 Purpose of this part and adoption by reference.

18.04.110 Use of exemptions.

18.04.120 Environmental checklist.

18.04.130 Mitigated DNS.

IV. Environmental Impact
Statement (EIS)

18.04.140 Purpose of this part and adoption by reference.

V. Commenting

18.04.150 Adoption by reference.

18.04.160 Public notice.

18.04.170 Designation of official to perform consulted agency responsibilities for the city.

VI. Using Existing Environmental Documents

18.04.180 Purpose of this part and adoption by reference.

VII. SEPA and Agency Decisions

18.04.190 Purpose of this part and adoption by reference.

18.04.200 Substantive authority.

18.04.210 Notice/statute of limitations.

VIII. Definitions

18.04.220 Repealed.

IX. Categorical Exemptions

18.04.230 Adoption by reference.

X. Agency Compliance

18.04.240 Purpose of this part and adoption by reference.

18.04.250 Fees.

XI. Forms

18.04.260 Adoption by reference.

18.04.010 Purpose.

The city does adopt, by reference, the policies of the State Environmental Policy Act (SEPA) as expressed in RCW 43.21C.010, 43.21C.020, 43.21C.031 and 43.21C.095. (Ord. 1405 § 3, 1999).

18.04.020 Policy.

A. Repealed by Ord. 1627.

B. Agencies shall to the fullest extent possible:

1. Interpret and administer the policies, regulations and laws of the state in accordance with the policies set forth in SEPA and these rules;

2. Find ways to make the SEPA process more useful to decisionmakers and the public, promote certainty regarding the requirements of the act, reduce paperwork and the accumulation of extraneous background data and emphasize important environmental impacts and alternatives;

3. Prepare environmental documents that are concise, clear and to the point, and are supported by evidence that the necessary environmental analyses have been made;

4. Initiate the SEPA process early in conjunction with other agency operations to avoid delay and duplication;

5. Integrate the requirement of SEPA with existing agency planning and licensing procedures and practices, so that such procedures run concurrently rather than consecutively;

6. Encourage public involvement in decisions that significantly affect environmental quality;

7. Identify, evaluate and require or implement, where required by the act and these rules, reasonable alternatives that would mitigate adverse effects of proposed actions on the environment. (Ord. 1627 § 2, 2004; Ord. 1405 § 3, 1999).

I. Authority

18.04.030 Authority.

The city adopts this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120 and the SEPA rules, WAC 197-11-904, and this chapter contains the city’s procedures and policies under SEPA. Hereafter the SEPA rules, Chapter 197-11 WAC, shall be used in conjunction with this chapter. (Ord. 1405 § 3, 1999).

II. General Requirements

18.04.040 Purpose of this part and adoption by reference.

This part contains the basic requirements that apply to the SEPA process. The city adopts the following sections of Chapter 197-11 WAC by reference:

WAC

197-11-040 Definitions.

197-11-050 Lead agency.

197-11-055 Timing of the SEPA process.

197-11-060 Content of environmental review.

197-11-070 Limitations on actions during SEPA process.

197-11-080 Incomplete or unavailable information.

197-11-090 Supporting documents.

197-11-100 Information required of applicants.

(Ord. 1405 § 3, 1999).

18.04.060 Designation of responsible officials.

For those proposals for which the city is the lead agency, the responsible official shall be the planning and community development director or his/her designee.

A. For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.

B. The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW. (Ord. 1663 § 30, 2006; Ord. 1484 § 7, 2001; Ord. 1405 § 3, 1999).

18.04.070 Lead agency determination and responsibilities.

A. The department within the city receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under

WAC 197-11-050 and 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.

B. When the city is the lead agency for a proposal, the department receiving the application shall forward to the responsible official who shall supervise compliance with the threshold determination requirements and, if an EIS is necessary, shall supervise preparation of the EIS.

C. When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the city may conduct supplemental environmental review under WAC 197-11 600.

D. If the city or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city/county must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the city may be initiated by the responsible official.

E. The city is authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, that the responsible official that will incur responsibilities as the result of such agreement approve the agreement.

F. When the city makes a lead agency determination for a private project it shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is: which agencies require nonexempt licenses?). (Ord. 1405 § 3, 1999).

18.04.080 Transfer of lead agency status to a state agency.

For any proposal for a private project where the city would be the lead agency and for which one or more state agencies have jurisdiction, the responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the city shall be an agency with jurisdiction. To transfer lead agency duties, the responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 1405 § 3, 1999).

18.04.090 Additional timing considerations.

A. For nonexempt proposals, the DNS or draft EIS for the proposal shall accompany the staff recommendation to any appropriate advisory body, such as the planning commission.

B. If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 1405 § 3, 1999).

III. Categorical Exemptions and
Threshold Determinations

18.04.100 Purpose of this part and adoption by reference.

This part of this chapter contains the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This part also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections by reference:

WAC

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination.

197-11-315 Environmental checklist.

197-11-330 Threshold determination process.

197-11-335 Additional information.

197-11-340 Determination of nonsignificance (DNS).

197-11-350 Mitigated DNS.

197-11-360 Determination of significance (DS)/initiation of scoping.

197-11-390 Effect of threshold determination.

(Ord. 1405 § 3, 1999).

18.04.110 Use of exemptions.

A. Each department within the city that receives an application for a license or, in the case of governmental proposals, the department initiating the proposal shall determine whether the license and/or the proposal is exempt. The department’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter apply to the proposal. The city shall not require completion of an environmental checklist for an exempt proposal.

B. In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.

C. If a proposal includes both exempt and nonexempt actions, the city/county may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that as authorized in WAC 197-11-070:

1. A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and

2. A department may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved. (Ord. 1405 § 3, 1999).

18.04.120 Environmental checklist.

A. A completed environmental checklist (or a copy) in the form provided in WAC 197-11-960 shall be filed at the same time as an application for a permit, license, certificate or other approval not specifically exempted in this chapter, except a checklist is not needed if the city/county and applicant agree an EIS is required, SEPA compliance has been completed or SEPA compliance has been initiated by another agency. The city/county shall use the environmental checklist to determine the lead agency and, if the city/county is the lead agency, for determining the responsible official and for making the threshold determination.

B. For private proposals, the city/county will require the applicant to complete the environmental checklist, providing assistance, as necessary. For city/county proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.

C. The city/county may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

1. The city/county has technical information on a question or questions that is unavailable to the private applicant; or

2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. (Ord. 1405 § 3, 1999).

18.04.130 Mitigated DNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.

B. An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

1. Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and

2. Precede the city/county’s actual threshold determination for the proposal.

C. The responsible official should respond to the request for early notice within 20 calendar days. The response shall:

1. Be written;

2. State whether the city/county currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the city/county to consider a DS; and

3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

D. As much as possible, the city/county should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city/county shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal:

1. If the city/county indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city/county shall issue and circulate a DNS under WAC 197-11-340(2);

2. If the city/county indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city/county shall make the threshold determination, issuing a DNS or DS as appropriate;

3. The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent storm water runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200-foot storm water retention pond at Y location” are adequate;

4. Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

F. Mitigated DNSs issued under WAC 197-11-340 require a 15-day comment period and public notice.

G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city/county.

H. If the city/county’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the city/county should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (Withdrawal of DNS).

I. The city’s written response under subsection B of this section shall not be construed as determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city/county to consider the clarifications or changes in its threshold determination. (Ord. 1405 § 3, 1999).

IV. Environmental Impact Statement (EIS)

18.04.140 Purpose of this part and adoption by reference.

This part of the chapter contains the rules for preparing environmental impact statements. The city adopts the following sections by reference:

WAC

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping (optional).

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

197-11-442 Contents of EIS on nonproject.

197-11-443 EIS contents when prior nonproject EIS.

197-11-444 Elements of the environment.

197-11-448 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 1405 § 3, 1999).

V. Commenting

18.04.150 Adoption by reference.

This part contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The city hereby adopts the following sections by reference, as supplemented in this part:

WAC

197-11-500 Purpose of this part.

197-11-502 Inviting comment.

197-11-504 Availability and cost of environmental documents.

197-11-508 SEPA register.

197-11-535 Public hearings and meetings.

197-11-545 Effect of no comment.

197-11-550 Specificity of comments.

197-11-560 FEIS response to comments.

197-11-570 Consulted agency costs to assist lead agency.

(Ord. 1405 § 3, 1999).

18.04.160 Public notice.

A. Whenever the city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), the city shall give public notice as follows:

1. If public notice is required for a nonexempt license, the notice shall state whether a DS or DNS has been issued and when comments are due.

2. If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by:

a. Posting the property, or requiring the applicant post the property, for site-specific proposals;

b. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

c. Notifying the news media.

3. Whenever the city issues a DS under WAC 197-11-360(3), the city shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.

B. Whenever the city issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

1. Indicating the availability of the DEIS in any public notice required for a nonexempt license;

2. Posting the property, or requiring the applicant post the property, for site-specific proposals;

3. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

4. Notifying the news media.

C. Whenever possible, the city shall integrate the public notice required under this section with existing notice procedures for the city’s nonexempt permit(s) or approvals required for the proposal.

D. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 1405 § 3, 1999).

18.04.170 Designation of official to perform consulted agency responsibilities for the city.

A. The city clerk shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping and reviewing a DEIS.

B. The city clerk shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Ord. 1405 § 3, 1999).

VI. Using Existing Environmental Documents

18.04.180 Purpose of this part and adoption by reference.

This part contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the city’s own environmental compliance. The city adopts the following sections by reference:

WAC

197-11-600 When to use existing environmental documents.

197-11-610 Use of NEPA documents.

197-11-620 Supplemental environmental impact statement – Procedures.

197-11-625 Addenda – Procedures.

197-11-630 Adoption – Procedures.

197-11-635 Incorporation by reference – Procedures.

197-11-640 Combining documents.

(Ord. 1405 § 3, 1999).

VII. SEPA and Agency Decisions

18.04.190 Purpose of this part and adoption by reference.

This part contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This part also contains procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following sections by reference:

WAC

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 1405 § 3, 1999).

18.04.200 Substantive authority.

A. The policies and goals set forth in this chapter are supplementary to those in existing authorization of the city.

B. The city may attach conditions to a permit or approval for a proposal so long as:

1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and

2. Such conditions are in writing; and

3. The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

4. The city has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

5. Such conditions are based on one or more policies in subsection D of this section and cited in the license or other decision document.

C. The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this chapter; and

2. A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

3. The denial is based on one or more policies identified in subsection D of this section and identified in writing in the decision document.

D. The city designates and adopts by reference as hereafter may be modified by the city the following policies as the basis for the city’s exercise of authority pursuant to this section:

1. The comprehensive plan of the city.

2. Storm water comprehensive plan of the city.

3. City of Milton water system plan.

4. City of Milton transportation improvement plan.

5. City of Milton comprehensive storm water plan.

6. City of Milton electric system plan.

7. The city shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs and resources to the end that the state and its citizens may:

a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

b. Assure for all people of the state safe, healthful, productive and aesthetically and culturally pleasing surroundings;

c. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety or other undesirable and unintended consequences;

d. Preserve important historic, cultural and natural aspects of our national heritage;

e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

f. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

8. The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. (Ord. 1653 § 1, 2005; Ord. 1627 § 1, 2004; Ord. 1405 § 3, 1999).

18.04.210 Notice/statute of limitations.

A. The city, the applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1405 § 3, 1999).

VIII. Definitions

18.04.220 Purpose of this part and adoption by reference.

Repealed by Ord. 1671. (Ord. 1663 § 31, 2006; Ord. 1484 § 8, 2001; Ord. 1405 § 3, 1999).

IX. Categorical Exemptions

18.04.230 Adoption by reference.

The city adopts by reference the following rules for categorical exemptions:

WAC

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 1405 § 3, 1999).

X. Agency Compliance

18.04.240 Purpose of this part and adoption by reference.

This part contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, listing agencies with environmental expertise, selecting the lead agency and applying these rules to current agency activities. The city adopts the following sections by reference:

WAC

197-11-900 Purpose of this part.

197-11-902 Agency SEPA policies.

197-11-916 Application to ongoing actions.

197-11-920 Agencies with environmental expertise.

197-11-922 Lead agency rules.

197-11-924 Determining the lead agency.

197-11-926 Lead agency for governmental proposals.

197-11-928 Lead agency for public and private proposals.

197-11-930 Lead agency for private projects with one agency with jurisdiction.

197-11-932 Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.

197-11-936 Lead agency for private projects requiring licenses from more than one state agency.

197-11-938 Lead agencies for specific proposals.

197-11-940 Transfer of lead agency status to a state agency.

197-11-942 Agreements on lead agency status.

197-11-944 Agreements on division of lead agency duties.

197-11-946 DOE resolution of lead agency disputes.

197-11-948 Assumption of lead agency status.

(Ord. 1405 § 3, 1999).

18.04.250 Fees.

The agency shall require the following fees for its activities in accordance with the provisions of this chapter:

A. Threshold Determination. For every environmental checklist the city will review when it is a lead agency, the city shall collect a fee as per Chapter 3.48 MMC from the proponent of the proposal prior to undertaking the threshold determination. The time period provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.

B. Environmental Impact Statement.

1. When the city is the lead agency for a proposal requiring an EIS and the land use administrator determines that an EIS shall be prepared by the employees of the city, the city may charge and collect a reasonable fee from any applicant to cover cost incurred by the city in preparing the EIS. The city clerk shall advise the applicant of the projected costs for the EIS prior to actual preparation; the applicant shall post bond, or deposit $1,000 cash, or otherwise ensure payment of such costs.

2. The manager of the district may determine that the city will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the city and may bill such costs and expenses directly to the applicant. The city may require the applicant to post bond, deposit $1,000 cash or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the city and the applicant after a call for proposals.

3. If a proposal is modified so that an EIS is no longer required, the city clerk shall refund any fees collected under subsection (B)(1) or (B)(2) of this section together with any interest accrued which remain after incurred costs are paid.

C. The city may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

D. The city shall not collect a fee for performing its duties as a consulted agency.

E. The city may charge any person for copies of any document prepared under this chapter and for mailing the document, in a manner provided by Chapter 42.17 RCW and Resolution No. 337.

F. Environmental checklist review pursuant to MMC 3.48.010 shall include review by the public works director or consulting engineer who shall submit a written report to the responsible official incorporating, if relevant, documentation of any off-site improvements to mitigate said impacts. The responsible official shall determine the reasonable cost to the city of the environmental checklist review and shall require the applicant to pay a fee in addition to the original deposit to cover the cost of such review. If the cost of review is substantially less than the environmental checklist review fee deposit the responsible official shall document the difference and refund said difference to the applicant, minus transaction costs incurred by the city in said refund process.

G. Voluntary Pre-Project Application Environmental Review. The potential applicant for any project action listed at MMC 3.48.010 may obtain an environmental review similar to the review set forth at subsection F of this section, upon payment of a fee deposit as set forth as relevant, MMC 3.48.010. The fee deposit shall be subject to the terms set forth at subsection F of this section. The potential applicant shall be provided a copy of the written report prepared by the public works director or consulting engineer. Upon timely submission of a substantially similar project application and environmental checklist, the responsible official may reduce the fee deposit required pursuant to subsection F of this section when a second duplicative city engineering review is determined to be unnecessary. In such a case the engineering review under this subsection shall be used to complete the requirement of subsection F of this section. (Ord. 1405 § 3, 1999).

XI. Forms

18.04.260 Adoption by reference.

The city adopts the following forms and sections by reference:

WAC

197-11-960 Environmental checklist.

197-11-965 Adoption notice.

197-11-970 Determination of nonsignificance (DNS).

197-11-980 Determination of significance (DS) and scoping notice.

197-11-985 Notice of assumption of lead agency status.

197-11-990 Notice of action.

(Ord. 1405 § 3, 1999).

Chapter 18.06
DEFINITIONS

Sections:

18.06.010 Purpose of this chapter and adoption by reference.

18.06.020 Definitions.

18.06.010 Purpose of this chapter and adoption by reference.

This chapter contains uniform usage and definitions of terms under this title. The city adopts the following sections by reference:

WAC

197-11-700 Definitions.

197-11-702 Act.

197-11-704 Action.

197-11-706 Addendum.

197-11-708 Adoption.

197-11-710 Affected tribe.

197-11-712 Affecting.

197-11-714 Agency.

197-11-716 Applicant.

197-11-718 Built environment.

197-11-720 Categorical exemption.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/city.

197-11-730 Decisionmaker.

197-11-732 Department.

197-11-734 Determination of nonsignificance (DNS).

197-11-736 Determination of significance (DS).

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-748 Environmentally sensitive area.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Nonproject.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-788 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

(Ord. 1671 § 4, 2006).

18.06.020 Definitions.

In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this title, the following terms shall have the following meanings, unless the context indicates otherwise. Words and phrases used in this title shall be interpreted as defined below. Where ambiguity exists, words or phrases shall be interpreted so as to give this title its most consistent and reasonable application in carrying out its regulatory purpose.

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

“Alteration” means any human-induced activity that changes the existing condition of a critical area. Alterations include, but are not limited to, grading; filling; dredging; draining; channelizing; clearing or removing vegetation; discharging pollutants; paving; construction; or any other human activity that changes the existing landforms, vegetation, hydrology, fish, wildlife, or wildlife habitat of a critical area.

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

“Applicant” means the person, party, firm, corporation, or other entity that proposes any activity that could affect a critical area.

“Aquifer” means a saturated geologic formation that will yield a sufficient quantity of water to serve as a private or public water supply.

“Aquifer recharge areas” means areas where the prevailing geologic conditions allow infiltration rates which create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water. Aquifer recharge areas are classified as follows:

A. High Significance Aquifer Recharge Areas. Areas with slopes of less than 15 percent that are underlain by coarse alluvium or sand and gravel, and overlain by soils with moderate to rapid permeability, as classified by the U.S. Department of Agriculture Soil Conservation Service;

B. Moderate Significance Aquifer Recharge Areas.

1. Areas with slopes of less than 15 percent that are underlain by fine alluvium, silt, clay, or glacial till, and overlain by soils with moderate to rapid permeability as classified by the U.S. Department of Agriculture Soil Conservation Service; and

2. Areas with slopes of 15 to 30 percent that are underlain by coarse alluvium, sand or gravel, and overlain by soils with moderate to rapid permeability, as classified by the U.S. Department of Agriculture Soil Conservation Service;

C. Low Significance Aquifer Recharge Areas.

1. Areas with slopes of 15 to 30 percent that are underlain by silt, clay, or glacial till; and

2. Areas with slopes greater than 30 percent.

“Aquifer susceptibility” means the ease with which contaminants can move from the land surface to the aquifer based solely on the types of surface and subsurface materials in the area.

“Base flood” means a flood having a one percent chance of being equaled or exceeded in any given year; also referred to as the 100-year flood.

“Best available science” means the current scientific information used in the process to designate, protect, or restore critical areas that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925.

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

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

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

C. Protect trees and vegetation designated to be retained during and following site construction; and

D. Provide standards for proper use of chemical herbicides within critical areas.

The city shall monitor the application of best management practices to ensure that the standards and policies of this title are adhered to.

“Buffer” or “buffer area” means a naturally vegetated and undisturbed or revegetated zone surrounding a critical area that protects the critical area from adverse impacts to its integrity and value, or is an integral part of the resource’s ecosystem.

“City” means the city of Milton, including any department, official, board or body thereof with jurisdiction over the subject of this chapter.

“Clearing” means the removal of timber, brush, grass, ground cover, or other vegetative matter from a site that exposes the earth’s surface of the site or any actions that disturb the existing ground surface.

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

“Creation” means bringing a wetland or stream corridor into existence at a site in which a wetland or stream corridor did not formerly exist.

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

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

“Critical ecosystems” means environmentally sensitive areas subject to natural hazards or those landform features which in their natural state carry, hold or purify water and support unique, fragile or valuable natural resources such as fish, wildlife and other organisms. These areas also provide flood protection, shoreline stability and aid in recharging valuable ground water resources. These critical ecosystems include aquifer recharge areas, fish and wildlife habitat conservation and open space areas, frequently flooded areas, geologically hazardous areas, natural resource areas, stream corridors, wetlands and their associative transitional buffer zones.

“Critical facility” means a facility for which even a slight chance of flooding, inundation, or impact from a hazard event might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency response installations, and installations that produce, use or store hazardous materials or hazardous waste.

“Critical geologic hazard areas” means lands or areas subject to high or severe risks of geologic hazard.

“Critical habitats” means those habitat areas which meet any of the following criteria:

A. Areas with which species listed by the federal government or state of Washington as endangered, threatened, or sensitive have a primary association;

B. Those streams identified as Type I or Type II streams as defined in Chapter 18.16 MMC;

C. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat;

D. Those wetlands identified as Category I or II wetlands, as defined in Chapter 18.16 MMC;

E. Open space wetlands, river and stream banks, ravines, wooded areas and any other upland areas that provide essential habitat for sensitive and locally important plant or wildlife species;

F. Areas with which priority species (as determined by the Washington Department of Fish and Wildlife) have a primary association;

G. Priority habitats as identified by the Washington Department of Fish and Wildlife. Priority habitats are areas with one or more of the following attributes: comparatively high wildlife density, high wildlife species richness, significant wildlife species richness, significant wildlife breeding habitat, significant wildlife seasonal ranges, significant movement corridors for wildlife, limited availability, and/or high vulnerability;

H. Habitats or species of local importance.

“Critical species” are all animal and plant species listed by the state or federal government as threatened or endangered.

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

“DBH” or “diameter at breast height” means the diameter of a tree as measured at breast height (54 inches above the ground).

“Degraded wetland” means a wetland in which the vegetation, soils and/or hydrology have been adversely altered, resulting in lost or reduced functional value.

“Department” means any division, subdivision or organizational unit of the city established by resolution, rule or order.

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

“Developable area” means a site or portion of a site that may be utilized as the location of development, in accordance with the rules of this title.

“Development” means a use consisting of the construction or exterior alteration of structures, dredging, drilling, dumping, filling, removal of any sand, gravel or minerals, stockpiling of materials, bulkheading, driving of piling, paving, placing of obstructions, or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to the provisions of this chapter at any state of water level.

“DNS” means determination of nonsignificance.

“Dredging” means the removal of earth from the bottom of a navigational channel, berthing area or to obtain bottom materials for landfill.

“DS” means determination of significance.

“Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures).

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

“Enhancement” means an action that increases the functions and values of a stream, wetland, or other critical area or buffer.

“Epicenter” means the location on the surface of the earth directly above the place where an earthquake originates.

“Erosion” means wearing away of the earth’s surface as a result of movement of wind, water, ice or any means.

“Erosion hazard areas” means those lands susceptible to the wearing away of their surface by water, wind or gravitational creep. Erosion hazard areas are classified as low, moderate or high risk based on slope inclination and soil types as identified by the U.S. Department of Agriculture Soil Conservation Service:

A. Low. All sites classified with soil types designated by the U.S. Department of Agriculture Soil Conservation Service as having no or slight erosion hazard.

B. Moderate. All sites classified with soil types designated as moderate hazard.

C. High. All sites classified with soil types designated as severe or very severe erosion hazard.

“Existing and ongoing agriculture” means those activities conducted on lands defined in RCW 84.34.020(2), and those existing activities involved in the production of crops or livestock. Activities may include the operation and maintenance of farm and stock ponds or drainage ditches; operation and maintenance of existing ditches or irrigation systems; changes from one type of agricultural activity to another agricultural activity; and normal maintenance, repair, and operation of existing serviceable structures, facilities, or improved areas. Activities which bring a nonagricultural area into agricultural use are not part of an ongoing operation. An operation ceases to be ongoing when the area on which it is conducted is converted to a nonagricultural use or has lain idle for more than five years.

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

“Extraordinary hardship” means the prevention of all reasonable economic use of a site by strict application of this chapter and/or procedures adopted to implement this chapter.

“Fill” means dumping or placing, by any means, any material from, to or on any soil or sediment surface including temporary stockpiling of material.

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

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

“Flood hazard areas” means those areas subject to inundation by the base flood. These areas consist of the following components, as determined by the city:

A. Floodplain. The total area subject to inundation by the base flood.

B. Flood Fringe. That portion of the floodplain outside the floodway which is generally covered by floodwaters during the base flood. It is generally associated with standing water rather than rapidly flowing water.

C. Floodway. The channel of the stream and that portion of the adjoining floodplain that is necessary to contain and discharge the base flood flow without increasing the base flood elevation more than one foot.

“Forested wetland” means a wetland with at least 20 percent of the surface area covered by woody vegetation greater than 20 feet in height.

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

“Functional value” means the beneficial role streams and wetlands serve including, but not limited to, fish and wildlife habitat, ground water recharge/discharge, water quality protection, storm water storage, conveyance, floodwater and storm water retention, provision of erosion and sediment controls and recreation and aesthetic value.

“Geologic hazard 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.

“Grading” means any excavating, filling, clearing, leveling, or contouring of the ground surface by human or mechanical means.

“Ground water” means all water found beneath the ground surface, including slow- moving subsurface water present in aquifers and recharge areas.

“Ground water management area” means a specific geographic area or subarea designated pursuant to Chapter 173-100 WAC for which a ground water management program is required.

“Ground water management program” means a comprehensive program designed to protect ground water quality, to assure ground water quantity, and to provide for efficient management of water resources while recognizing existing ground water rights and meeting future needs consistent with local and state objectives, policies and authorities within a designated ground water management area or subarea and developed pursuant to Chapter 173-100 WAC.

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

“Habitat” means the specific area or environment in which a particular type of plant or animal lives.

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

“Hazard areas” means areas designated as frequently flooded areas or geologically hazardous areas due to potential for erosion, landslide, seismic activity, mine collapse, or other geological condition.

“Hazardous substance” means any substance defined as a “hazardous substance” pursuant to RCW 70.105D.020(5), which subsection is adopted by reference as though set forth herein in full.

“Hazardous substance processing or handling” means the use, storage, manufacture or other land use activity involving hazardous substances, but does not include individually packaged household consumer products or quantities of hazardous substances of less than five gallons in volume per container.

“Hazardous waste” means all dangerous waste and extremely hazardous waste as designated pursuant to Chapter 70.105 RCW and Chapter 173-303 WAC.

A. “Dangerous waste” means any discarded, useless, unwanted, or abandoned substances including, but not limited to, certain pesticides, or any residues or containers of such substances which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes:

1. Have short-lived, toxic properties that may cause death, injury, or illness or have mutagenic, teratogenic, or carcinogenic properties; or

2. Are corrosive, explosive, flammable, or may generate pressure through decomposition or other means.

B. “Extremely hazardous waste” means any waste which:

1. Will persist in a hazardous form for several years or more at a disposal site and which in its persistent form presents a significant environmental hazard and may be concentrated by living organisms through a food chain or may affect the genetic make-up of humans or wildlife; and

2. Is disposed of at a disposal site in such quantities as would present an extreme hazard to humans or the environment.

“Hazardous waste treatment and storage facility” means a facility that treats and stores hazardous waste and is authorized pursuant to Chapter 70.105 RCW and Chapter 173-303 WAC. It includes all contiguous land and structures used for recycling, reusing, reclaiming, transferring, storing, treating, or disposing of hazardous waste.

“Height” means the vertical distance measured from the average grade level to the highest point of the roof surface of a flat roof, to the deck line of a mansard roof, and to one-half the vertical distance between the eaves and ridge of a gable, hip or gambrel roof; provided, however, that where buildings are set back from the street line, the height of the buildings may be measured from the average elevation of the finished yard grade along the front of the building.

“High intensity land use” means a use associated with high levels of human or structural activity. These uses include:

A. Residential buildings and structures;

B. Active recreational areas and facilities;

C. Commercial or industrial uses and structures; or

D. Similar activities.

“Hydric soil” means soil that is saturated or flooded long enough during the growing season to develop anaerobic (oxygen deficient) conditions in the upper part. In order to develop these characteristics, the soil must be covered or saturated by water for at least seven days during the normal growing season for at least two or more years.

“Hydroperiod” means the seasonal occurrence of flooding and/or soil saturation which encompasses the depth, frequency, duration and seasonal pattern of inundation.

“Hydrophyte” means an aquatic plant growing in water or on a substrate (hydric soil) that is at least periodically deficient in oxygen where the water or waterlogged soil is too wet for most plants to survive. Examples of these plants can include:

A. Cattails;

B. Sedges;

C. Bulrush;

D. Alder;

E. Salmonberry.

“Hyporheic zone” means the saturated zone located beneath and adjacent to streams that contains some portion of surface waters, serves as a filter for nutrients, and maintains water quality.

“Impervious surface” means a hard surface area that either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development or that causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, roof tops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled macadam or other surfaces which similarly impede the natural infiltration of storm water.

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

“Injection well(s)” means as follows:

A. Class I. A well used to inject industrial, commercial, or municipal waste fluids beneath the lowermost formation containing, within one-quarter mile of the well bore, an underground source of drinking water.

B. Class II. A well used to inject fluids:

1. Brought to the surface in connection with conventional oil or natural gas exploration or production and may be commingled with wastewaters from gas plants that are an integral part of production operations, unless those waters are classified as dangerous wastes at the time of injection;

2. For enhanced recovery of oil or natural gas; or

3. For storage of hydrocarbons that are liquid at standard temperature and pressure.

C. Class III. A well used for extraction of minerals, including but not limited to the injection of fluids for:

1. In-situ production of uranium or other metals that have not been conventionally mined;

2. Mining of sulfur by Frasch process; or

3. Solution mining of salts or potash.

D. Class IV. A well used to inject dangerous or radioactive waste fluids.

E. Class V. All injection wells not included in Classes I, II, III, or IV.

“In-kind compensation” means to replace critical areas with substitute areas whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity. It does not mean replacement “in category.”

“Inter-rill” means areas subject to sheetwash.

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

“Lahars” means mudflows and debris flows originating from the slopes of a volcano.

Land Use Administrator. The planning/building director of the city shall serve as land use administrator as said position was established pursuant to MMC 18.16.020. The mayor may also designate an acting land use administrator who shall have all of the duties and powers of the land use administrator in the absence of or inability of the land use administrator to act.

“Landslide” means episodic downslope movement of a mass of soil or rock.

“Landslide hazard areas” means areas that, due to a combination of slope inclination, relative soil permeability and hydrologic factors, are susceptible to varying risks of landsliding.

“Liquefaction” means a process by which a water-saturated granular (sandy) soil layer loses strength because of ground shaking commonly caused by an earthquake.

“Lot slope” means a measurement by which the average slope of the lot is calculated as a percentage. The lowest elevation of the lot is subtracted from the highest elevation, and the resulting number is divided by the horizontal distance between these two points. The resulting product is multiplied by 100.

“Magnitude” means a quantity characteristic of the total energy released by an earthquake. Commonly, earthquakes are recorded with magnitudes from zero to eight.

“Maintenance dredging” means the removal of earth from the bottom of a stream, river, lake, bay or other water body for the purpose of maintaining a prescribed minimum depth of any specific waterway project.

“Marsh” means a wetland which is permanently submerged or has intermittent aquatic plant life where dominant vegetation is nonwoody plants such as grasses and sedges.

“Mass wasting” is a general term for a variety of processes by which large masses of rock or earth material are moved downslope by gravity, either slowly or quickly.

“Mineral extraction” means the removal of naturally occurring materials from the earth, excluding dredging as defined in this chapter.

“Mineral resource lands” means any area presently operating under a valid Washington State Department of Natural Resources (DNR) surface mining permit. Other areas shall be classified as mineral resource lands when a surface mining permit is granted by the DNR.

“Minerals” means gravel, sand and valuable metallic substances.

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

“Native growth protection area (NGPA)” means an area where native vegetation is preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering and protecting plants and animal habitat and removal of invasive species.

“Native vegetation” means plant species that are indigenous and naturalized to the city’s region and which can be expected to naturally occur on a site. Native vegetation does not include noxious weeds.

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

Nonindigenous. See “Exotic.”

“Noxious weed” means any plant which, when established, is highly destructive, competitive, or difficult to control by cultural or chemical practices. Any plant designated as a noxious weed in the state noxious weed list, as defined and referenced at RCW 17.10.010, shall be presumed to be a noxious weed for purposes of this chapter.

“Ordinance” means the ordinance or other procedure used by the city to adopt regulatory requirements.

“Ordinary high water mark (OHWM)” on all lakes, streams and tidal water means that mark that will be found by examining the bed and banks and ascertaining where the presence and action of water are so common and usual, and so long continued in all ordinary years as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation, as that condition exists on June 1, 1971, or as it may naturally change thereafter; provided, that in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining saltwater shall be the line of mean higher high tide and the ordinary high water mark adjoining fresh water shall be the line of mean high water.

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

“Palustrine wetland” means a freshwater wetland, emergent herbaceous vegetation, scrub-shrub vegetation and/or trees that are isolated from a larger water body.

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

“Person” means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation or agency of the state or local government unit however designated.

“Ponds” means naturally occurring impoundments of open water less than 20 acres and more than 2,500 square feet which maintain standing water throughout the year.

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

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

“Practicable alternatives” means alternatives to the proposed project which shall accomplish essentially the same objective and avoid or have less adverse impacts than the proposed project.

“Primary association area” means the area used on a regular basis by, or is in close association with, or is necessary for the proper functioning of the habitat of a critical species. “Regular basis” means that the habitat area is normally or usually known to contain a critical species, or based on known habitat requirements of the species, the area is likely to contain the critical species. Regular basis is species- and population-dependent. Species that exist in low numbers may be present infrequently yet rely on certain habitat types.

“Priority habitats” means seasonal range or habitat element with which a given species is primarily associated and which, if altered, may reduce survival potential of that species over the long term. These may include habitat areas of:

A. High relative density or species richness;

B. Breeding habitat;

C. Winter range and movement corridors;

D. Limited availability; or

E. High vulnerability to alteration.

“Priority species” means plant or animal species which are of concern due to their population status and sensitivity to habitat alteration. Priority species include those which are listed by the state as endangered, threatened or sensitive as well as other species of concern and game species.

“Project area” means all areas within 50 feet of the area proposed to be disturbed, altered, or used by the proposed activity or the construction of any proposed structures. When the action binds the land, such as a subdivision, short subdivision, binding site plan, planned unit development, or rezone, the project area shall include the entire parcel, at a minimum.

“Protection” (preservation) means removing a threat to, or preventing the decline of, conditions by an action in or near a critical area or buffer.

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

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

B. A qualified professional for a geological hazard must be a professional engineer or geologist, licensed in the state of Washington.

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

“Rare, threatened or endangered species” means plant or animal species that are regionally relatively uncommon, are nearing endangered status or whose existence is in immediate jeopardy and that are usually restricted to highly specific habitats.

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

“Reasonable use” means alternatives to the proposal which will result in minimum feasible alteration or impairment of the functional characteristics including contours, vegetation, fish and wildlife resources, ground water and hydrological conditions.

“Recessional outwash geologic unit” means sand and gravel materials deposited by melt-water streams from receding glaciers.

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

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

“Recreation” means the refreshment of body and mind through forms of play, amusement or relaxation. The recreational experience may be active, such as boating and swimming, or may be passive such as enjoying the natural beauty of the shoreline or its wildlife through nature walks, wildlife observation, fishing and hiking.

“Regulated activities” means any act which would destroy natural vegetation; result in significant change in water temperature, physical or chemical characteristics; substantially alter existing patterns of tidal flow; obstruct the flow of sediment or alter the natural contours of a site.

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

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

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

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

“Rills” are steep-sided channels resulting from accelerated erosion. A rill is generally a few inches deep and not wide enough to be an obstacle to farm machinery. Rill erosion tends to occur on slopes, particularly steep slopes with poor vegetative cover.

“Riparian habitat” means wetland habitat bordering a stream which is occasionally flooded and periodically supports predominantly hydrophytes.

“Scrub-shrub wetland” means a wetland with at least 30 percent of its surface area covered with woody vegetation less than 20 feet in height.

“Seeps” means a spot where water oozes from the earth, often forming the source of a small stream.

“Seismic hazard areas” means areas that, due to a combination of soil and ground water conditions, are subject to severe risk of ground shaking, subsidence, or liquefaction of soils during earthquakes. These areas are typically underlain by soft or loose saturated soils (such as alluvium), have a shallow ground water table and are typically located on the floors of river valleys. Geologic material is weighted most heavily in the following classification of seismic risk:

A. Class I – High. All areas with lands designated as alluvium and recessional outwash surficial geologic units (as identified in Groundwater Occurrence and Stratigraphy of Unconsolidated Deposits, Central Pierce County, WA, Water Supply Bulletin No. 22, Plates One and Two, U.S. Department of the Interior, Geological Survey, Water Resources Division), or high risk slopes.

B. Class H – Low. All other sites with a lower risk geological classification.

“SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology.

“Sheetwash” means overland flow of water in thin sheets.

“Shorelands or shoreland areas” are those lands extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward 200 feet from such floodways; and all wetlands and river deltas associated with the streams, lakes and tidal waters which are subject to the provisions of Chapter 90.58 RCW.

Shoreline Environmental Designation. There is one shoreline environment defined and designated to exist on the shorelines within the city. This shoreline environmental designation is defined as rural-residential. The rural-residential designation is designed to ensure medium intensity residential, commercial and multifamily development and to allow for a natural transitional area between the highly intensified land use of urban areas and the surrounding minimal agricultural uses, recreational uses and open space found in the rural environment.

“Shorelines” means all the water areas, including the streams, lakes, and ponds of the city including Surprise Lake and its associated wetlands, together with the lands underlying it.

“Shorelines of statewide significance” are those areas defined in RCW 90.58.030(2)(e).

“Shorelines of the city” means the total of all “shorelines” and “shorelines of statewide significance” within the city.

“Shorelines of the state” are the total of all “shorelines,” as defined in RCW 90.58.030(2)(d), and “shorelines of statewide significance” within the state, as defined in RCW 90.58.030(2)(c).

“Significant portion of its range” means that portion of a species’ range likely to be essential to the long-term survival of the population in Washington.

“Slope” means an inclined earth surface, the inclination of which is expressed as the ratio of horizontal distance to vertical distance.

“Sludge” means a semisolid substance consisting of settled solids combined with varying amounts of water and dissolved materials generated from a wastewater treatment plant or system or other sources, including septage sludge, sewage sludge, or industrial sludge.

“Sludge land application site” means a site where stabilized sludge, septage, and other organic wastes are applied to the surface of the land in accordance with established agronomic rates for fertilization or soil conditioning.

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

“Solid waste” means all putrescible and nonputrescible solid and semisolid wastes including garbage, rubbish, ashes, industrial wastes, swill, demolition and construction wastes, abandoned vehicles and parts thereof, discarded commodities and any other discarded materials which may be deemed to be worthless for any use or purpose.

“Special protection areas” are aquifer recharge areas defined by WAC 173-200-090 that require special consideration or increased protection because of unique characteristics, including, but not limited to:

A. Ground waters that support an ecological system requiring more stringent criteria than drinking water standards;

B. Ground water recharge areas and wellhead protection areas that are vulnerable to pollution because of hydrogeologic characteristics; and

C. Sole source aquifer status.

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

“Species of local importance” means those species of local concern due to their population status or their sensitivity to habitat manipulation, or that are game species.

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

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

“Stockpiling of materials” means the accumulation and storage of raw materials, equipment, apparatus and/or supplies by an individual, business or organization. Stockpiling of materials as a primary use activity is subject to all applicable shoreline permits. Stockpiling of materials as a secondary use activity pursuant to a valid shoreline permit is considered a permitted use activity.

“Stream corridor” means perennial, intermittent or ephemeral waters included within a channel of land, and its adjacent riparian zones, which serve as a transitional zone between the aquatic and terrestrial upland ecosystems.

“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 channel swales. The channel or bed need not contain water year-round.

“Swamp” means wetlands where the dominant vegetation is composed of woody plants and trees.

“Temporary erosion control” means on-site and off-site control measures that are needed to control conveyance or deposition of earth, turbidity, or pollutants during development, construction, or restoration.

“Transitional zones” means an area of land adjacent to a sensitive ecosystem which serves as an integral component of that ecosystem and can help to minimize or reduce the impacts to the ecosystem.

“Unavoidable and necessary impacts” means impacts to regulated streams or wetlands and their associated buffer zones that will remain after it has been demonstrated that no practicable alternatives exist.

“Underground utilities” means services which produce and carry electric power, gas, sewage, communications, oil, water and storm drains below the surface of the ground.

“Upland” means landward of the ordinary high water mark.

“Utility line” means pipe, conduit, cable or other similar facility by which services are conveyed to the public or individual recipients. Such services shall include, but are not limited to, water supply, electric power, gas, communications and sanitary sewers.

“Vadose zone” means the zone between land surface and the water table within which the moisture content is less than saturation (except in the capillary fringe) and pressure is less than atmospheric.

“Volcanic hazard areas” are areas that are subject to pyroclastic flows, lava flows, debris avalanche, or inundation by debris flows, mudflows, or related flooding resulting from volcanic activity.

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

“Water-dependent activity” means activity or use that requires the use of surface water to fulfill the basic purpose of the proposed project.

“Water-dependent use” means a use which cannot logically exist in any other location but on the shoreline and is dependent on the water by reason of the intrinsic nature of its operation. Examples would include, but not be limited to, the following:

A. Marinas and boat launch facilities;

B. Dockside fishing facilities;

C. Moorage facilities – permanent/transient.

“Water-related use” means a use which is not intrinsically dependent on a waterfront location but whose location on or near the waterfront will either facilitate its operation or will provide increased opportunity for general public use and enjoyment of shorelines and shoreline areas. Examples would include, but not be limited to, the following:

A. Commercial. Other commercial uses which provide increased opportunity for general public use and enjoyment of shorelines and shoreline areas.

B. Marine Recreation.

1. View and observation areas;

2. Trails and pathways;

3. Clubhouses, meeting areas and related uses.

C. Marine-related educational or scientific uses.

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

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

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

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

“Wetland edge” means the boundary of a wetland as delineated based on the definitions contained in this chapter. “Wetland edge” also means a line dividing uplands from water habitat. The line can be identified through procedures in the 1987 Federal Manual for Identifying and Delineating Jurisdictional Wetlands by examining the presence or absence of aquatic plants (hydrophytes), hydric soils and/or water table at or near the surface.

“Wetlands” are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. For identifying and delineating a wetland, local government shall use the Washington State Wetland Identification and Delineation Manual.

Wetlands.

A. “Regulatory wetlands” means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include small lakes, ponds, streams, swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including but not limited to irrigation and drainage ditches, grass-lined swales, canals, detention facilities, farm ponds and landscape amenities if routinely maintained for those purposes. The applicant shall bear the burden of proving that the site was not previously wetlands. However, wetlands do include those artificial wetlands intentionally created to mitigate conversion of wetlands.

B. For inventory, incentives and nonregulatory purposes, wetlands are those lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For the purposes of this definition, wetlands must have one or more of the following attributes:

1. At least periodically, the land supports predominantly hydrophytes;

2. The substrate is predominately un-drained hydric soil; or

3. The substrate is nonsoil, is saturated with water, or covered by shallow water at some time during the growing season of the year.

“Wetlands biologist” means a person who has earned a degree in biological sciences from an accredited college or university and has demonstrated experience in delineating wetland boundaries, analyzing wetland functions and values, and has experience in developing wetland mitigation plans. A professional person who has had equivalent education and training or with equivalent experience may also qualify as a wetlands biologist for the purpose of performing wetland delineations, analysis of functions and values and determination of possible mitigation subject to the approval of the land use administrator.

“Zone of contribution” means the area surrounding a well or spring that encompasses all areas or features that supply ground water recharge to the well or spring. (Ord. 1671 § 4, 2006).

Chapter 18.08
PERMITS³

Sections:

18.08.010 Agreement or performance bond required when.

18.08.020 Chapter compliance required for action authorization.

18.08.030 Supplemental impact statement required when.

18.08.010 Agreement or performance bond required when.

If the city council finds that a need exists to guarantee environmental protection which can be served by requiring an agreement and/or bond as provided for in this section, the city council may require that as a condition precedent to the issuance of any developmental permit or the exercise of the city’s legislative authority in response to the application the applicant either submit and execute an agreement governing the development, maintenance and operation of the project (which agreement shall be recorded at the applicant’s expense and shall constitute a covenant running with the land), or deliver and maintain in full force and effect for such duration as the council requires a performance bond in such form and amount as the council deems sufficient, or both. (Ord. 1405 § 3, 1999).

18.08.020 Chapter compliance required for action authorization.

No permit, license or variance authorizing any proposed action shall be issued or granted until procedures required by this chapter have been completed. (Ord. 1405 § 3, 1999).

18.08.030 Supplemental impact statement required when.

If, following the preparation, filing and review of draft and final environmental impact statements with respect to any proposed action, the completion of the action affects the environment, which change or changes were not anticipated and addressed in the impact statements, the city administrator shall require, before issuance of any additional permits, variances or licenses respecting the action, preparation, filing and review of a supplement to the draft and final environmental impact statements, which supplement shall be addressed to the effects of the proposed change or changes, and alternatives thereto, on the environment, and shall be processed in the manner required for processing draft and final environmental impact statements. (Ord. 1405 § 3, 1999).

Chapter 18.12
SHORELINE MASTER PROGRAM

Sections:

18.12.005 Adoption.

18.12.010 Purpose.

18.12.020 Program administrator.

18.12.030 Board of adjustment.

18.12.040 City council.

18.12.050 County tax assessor.

18.12.060 Applicability to substantial development permits.

18.12.070 Exemptions.

18.12.080 Statement of exemption.

18.12.090 Fees.

18.12.100 Permit application.

18.12.110 Permit process.

18.12.120 Action by board of adjustment.

18.12.130 Washington State Department of Ecology review.

18.12.140 Duration of permits.

18.12.150 Revision of permits.

18.12.160 Local appeals.

18.12.170 Appeal to State Shorelines Hearings Board.

18.12.180 Shoreline variances and conditional uses permits.

18.12.190 Unclassified uses.

18.12.195 DOE review.

18.12.200 Nonconforming buildings and uses.

18.12.210 Enforcement and penalties.

18.12.220 Development and building permits.

18.12.230 Master program review.

18.12.240 Amendments to master program.

18.12.005 Adoption.

The city of Milton shoreline master program, dated November 6, 1995, is adopted by reference as though set forth herein in full. (Ord. 1290 § 3, 1996).

18.12.010 Purpose.

There is hereby established an administrative system designed to assign responsibilities

for implementation of the master program and shoreline permit review, to prescribe an orderly process by which to review proposals and permit applications, and to ensure that all persons affected by this master program are treated in a fair and equitable manner. “Master program” as used in this chapter refers to the shoreline master program adopted at MMC 18.12.005. “Act” as used herein refers to the “Shoreline Management Act”, Chapter 90.58 RCW. (Ord. 1290 § 4,1996).

18.12.020 Program administrator.

A. The planning and community development director or designee, hereinafter known as the administrator, is vested with:

1. Overall administrative responsibility of this master program;

2. Authority to approve, approve with conditions or deny shoreline substantial development permits and permit revisions in accordance with the policies and provisions of this master program;

3. Authority to grant statements of exemption from shoreline substantial development permit.

B. The duties and responsibilities of the administrator shall include:

1. Establishing the procedures and preparing forms deemed essential for the administration of this program;

2. Making administrative decisions and interpretations of the policies and regulations of this program and the Shoreline Management Act;

3. Collecting applicable fees;

4. Determining that all applicable applications and necessary information and materials are provided;

5. Making site inspections;

6. Determining if a shoreline substantial development permit is required;

7. Conducting a thorough review and analysis of shoreline substantial development applications, and approving, approving with conditions, or denying such permit applications;

8. Submitting reports and/or testimony to the board of adjustment (board) in response to an application submission, a variance or conditional use permit for their consideration and official action;

9. Assuring that proper notice is given to appropriate persons and the public for all procedures before the administrator;

10. Posting the notice of permit applications in a conspicuous manner on the project site, pursuant to MMC Title 17;

11. Proposing amendments to this program as deemed necessary to more effectively and equitably achieve its goals and policies;

12. Coordination of information as appropriate with affected agencies;

13. Representing the city’s position in proceedings before the board of adjustment. (Ord. 1663 § 32, 2006; Ord. 1484 § 9, 2001; Ord. 1290 § 4, 1996).

18.12.030 Board of adjustment.

A. The board of adjustment, hereinafter known as the board, is vested with authority to:

1. Approve, approve with conditions, or deny shoreline variance and shoreline conditional use permits; provided, that any decisions on this matter made by the board may be further appealed to the State Shoreline Hearings Board as provided for in the Act;

2. Decide local administrative appeals of decisions of the administrator.

B. The duties and responsibilities of the board shall include:

1. As authorized in MMC Title 17, the board shall review and consider shoreline variance and shoreline conditional use permits, and administrative appeals of the administrator’s actions;

2. Approval, approval with conditions, or denial of shoreline variance and conditional use permits;

3. Conducting hearings on appeals of the administrator’s decisions;

4. Basing all decisions on shoreline permits or administrative appeals on the criteria established in this master program;

5. At the discretion of the board, requiring any applicant granted a shoreline permit to post a bond or other acceptable security with the city conditioned to assure that the applicant and/or his successors in interest shall adhere to the approved plans and all conditions attached to the shoreline permit. Such bonds or securities shall have a face value of at least 150 percent of the estimated development cost including attached conditions. Such bonds or securities shall be approved as to form by the city attorney. (Ord. 1290 § 4, 1996).

18.12.040 City council.

The city council shall have the authority in its discretion to approve any revisions or amendments to the master program in accordance with the requirements of t1ie Act and related WACs. Proposed revisions or amendments may be submitted by any interested party. To become effective any amendments to the program must be reviewed and approved by the Department of Ecology, pursuant to RCW 90.58.190 and Chapter 173-19 WAC. The city council will approve any revisions or amendments to the master program in accordance with the requirements of the Act and related WACs. (Ord. 1290 § 4, 1996).

18.12.050 County tax assessor.

As provided for in RCW 90.58.290, the restrictions imposed upon the use of real property through the implementation of the policies and regulations of the Act and this master program shall be duly considered by the county assessor and the county board of equalization in establishing the fair market value of such properties. (Ord. 1290 § 4, 1996).

18.12.060 Applicability to substantial development permits.

Any person wishing to undertake substantial development or exempt development on shorelines shall apply to the administrator for a shoreline substantial development permit (SDP) or a statement of exemption.

Whenever a development falls within the exemption criteria outlined below and the development is subject to a U.S. Army Corps of Engineers Section 10 or Section 404 permit, the administrator shall prepare a statement of exemption and transmit a copy to the applicant and the Washington State Department of Ecology. Exempt development as defined herein shall not require a substantial development permit, but may require a conditional use permit, variance, and/or a statement of exemption (WAC 173-14-115).

Before determining that a proposal is exempt, the administrator may conduct a site inspection to ensure that the proposal meets the exemption criteria. The exemption granted may be conditioned to ensure that the activity is consistent with the master program and the Shoreline Management Act. (Ord. 1290 § 4, 1996).

18.12.070 Exemptions.

“Substantial development” shall mean any development of which the total cost or fair market value exceeds $1,000, or any development which materially interferes with the normal public use of the water or shorelines of the state; except that the following shall not be considered substantial developments for the purpose of this chapter (RCW 90.58.030 (3)(e)):

A. Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements;

B. Construction of the normal protective bulkhead common to single-family residences;

C. Emergency construction necessary to protect property from damage by the elements;

D. Construction and practices normal or necessary for farming irrigation, including agricultural service roads and utilities on shorelands, and the construction and maintenance of irrigation structures. A feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation shall not be considered normal or necessary farming activities;

E. Construction or modification of navigational aids such as channel markers and anchor buoys;

F. Construction on shorelands by an owner, lessee, or contract purchaser of a single-family residence for his own use, which residence does not exceed a height of 35 feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter;

G. Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee or contract purchaser of a singlefamily or multifamily residence;

H. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;

I. The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;

J. Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system;

K. Any activity which is carried out for the immediate benefit of protecting the public health or welfare shall be exempt.

Note: Exemption from substantial development permit requirements does not constitute exemption from the policies and use regulations of the Shoreline Management Act, the provisions of this master program, and other applicable city, state or federal permit requirements. (Ord. 1290 § 4,1996).

18.12.080 Statement of exemption.

Applicants for all nonshoreline permits or approvals within the shoreline area may be required (pursuant to WAC 173-14-115) to obtain a written “statement of exemption”: From securing a substantial development permit. This process verifies that the action is exempt and offers an applicant an itemization of master program and other requirements applicable to the proposed project. In the case of development subject to the policies and regulations of this master program but exempt from the substantial development permit process, the building official or other permit authorizing official shall attach shoreline management terms and conditions to the building permits and approval pursuant to RCW 90.58.140. For example, the approval of a building permit for a single-family residence can be conditioned with provisions from the master program. Other permit approvals may be conditioned on the basis of the master program policy and use regulations as well. (Ord. 1290 § 4, 1996).

18.12.090 Fees.

A filing fee or fees in an amount established at MMC 3.48.010 shall be paid to the city at the time of application. (Ord. 1290 § 4, 1996).

18.12.100 Permit application.

The administrator shall provide the necessary application forms for shoreline substantial development, conditional use and variance permits. Pursuant to WAC 173-14-110, the applicant shall provide, at a minimum, the following information:

A. Site plan drawn to scale and including:

1. Site boundary, property dimensions in vicinity of project, ordinary high water mark, wetlands, and surface drainage;

2. Typical cross section or sections showing existing and proposed ground elevation, and height of existing and proposed structures;

3. Where appropriate, proposed land contours using five-foot intervals in water area and 10-foot intervals on areas landward of the OHWM, if development involves grading, cutting, filling, or other alteration of land contours;

4. Show dimensions and locations of existing and proposed structures, vegetation, parking, and landscaping;

5. Identify source, composition, and volume of fill and extracted materials, and identify proposed disposal areas;

6. Location of proposed utilities and if development proposes septic tanks, they must comply with local and state health regulations;

7. Shoreline designation according to the master program; and

8. Complete application and documents for all shoreline permits shall be submitted to the administrator for processing and review. Any deficiencies in the application or documents shall be corrected by the applicant prior to further processing or assigning of a filing date. (Ord. 1290 § 4, 1996).

18.12.110 Permit process.

A. Notices and Scheduling of Hearings. When a complete application and associated information have been received by the administrator, the administrator shall cause a notice to be posted in a conspicuous manner on the property upon which the project is to be constructed in accordance with WAC 173-14-070. The administrator shall also be responsible for delivering legal notice to the public within the area in which the development is proposed. Advertising costs will be the responsibility of the applicant, and will be included in the permit fee. Further, the burden of proving that a proposed development is consistent with the approval criteria and master program policies and regulations shall be the applicant’s.

The applicant shall be responsible for applying for a variance or conditional use permit. The board shall schedule a public hearing before the board in the case of a conditional use or variance permit. No public hearing is required for shoreline substantial development permits although the board may opt to hold a public hearing. For the purpose of scheduling a public hearing, the date of submittal of a complete application shall be considered the date of application. Any interested person may submit his/her written views upon the application to the city within 30 days of application or notify the city of his/her desire to receive a copy of the action taken upon the application. All persons who so submit their views shall be notified in a timely manner of the action taken upon the application.

B. Application Review – Administrator Action. The administrator shall make recommendation in the case of variance and conditional use permits and decisions in the case of substantial development permits, based upon the laws, policies and procedures of the Act, related WACs as amended, and this master program as amended.

C. Public Hearings. One public hearing shall be held by the board regarding application for permits where the administrator or the board determines that the proposed development is one of public significance and/or would have a significant impact upon the shoreline environment.

The board shall review an application for a permit based upon the application, applicable SEPA documents (if required), evidence presented at the public hearing, written or oral comments from interested persons, and the findings, conclusions and recommendations of the administrator. (Ord. 1290 § 4, 1996).

18.12.120 Action by board of adjustment.

The board shall either approve, conditionally approve, or deny the application. The board shall review the permit application at the first regularly scheduled public hearing of the board following transmittal of the administrator’s recommendation.

The board shall review the application and make decisions regarding permits based upon the master program, policies and procedures of Chapter 90.58 RCW, the Shoreline Management Act and its supporting WACs, written and oral comments from interested persons, and the comments and findings of the administrator.

A written notice of the public hearing at which the board considers the application shall be mailed or delivered to the applicant and all interested parties of record a minimum of five days prior to hearing.

The decisions of the board shall be the final decision of the city on all applications and the city shall render a written decision including findings, conclusions, and a final order, and transmit copies of the decision within five days of the board’s final decision to the applicant, State Department of Ecology, Attorney General, and interested parties of record. (Ord. 1290 § 4, 1996).

18.12.130 Washington State Department of Ecology review.

Development pursuant to a shoreline permit shall not begin and is not authorized until 21 days from the date the administrator files the approved permit with the Department of Ecology and the Attorney General in the case of a substantial development permit, or up to 42 days in the case of a variance or conditional use permit; provided all review and appeal proceedings initiated within 21 days of the date of such filing of a substantial development permit or 21 days of final approval bit the Department of Ecology for a conditional use permit or variance have been terminated. (Ord. 1290 § 4, 1996).

18.12.140 Duration of permits.

The city may issue permits with termination dates of up to five years. If a permit does not specify a termination date, the following requirements apply, consistent with WAC 173-14-060:

A. Time Limit for Substantial Progress. Construction, or substantial progress toward completion, must begin within two years after approval of the permits.

B. Extension for Substantial Progress. The city may at its discretion, with prior notice to parties of record and the Department, extend the two-year time period for the substantial progress for a reasonable time up to one year based on factors including the inability to expeditiously obtain other governmental permits which are required prior to the commencement of construction.

C. Five-Year Permit Authorization. If construction has not been completed within five years of approval, the city will review the permit and, upon showing of good cause, will either extend the permit for one-year or terminate the permit. Only one single-year extension is permitted. (Ord. 1290 § 4, 1996).

18.12.150 Revision of permits.

When an applicant desires to revise a permit, the applicant must submit detailed plans and text describing the proposed changes. If the administrator determines that the revisions proposed are within the scope and intent of the original permit, consistent with WAC 173-14-064, the administrator may approve the revision. “Within scope and intent of the original permit” means all of the following:

A. No additional over-water construction is involved, except that pier, dock or float construction may be increased by 500 square feet or ten percent, whichever is less;

B. Ground area coverage and height is not increased more than 10 percent;

C. Additional structures do not exceed a total of 250 square feet;

D. The revision does not authorize development to exceed height, setback, lot coverage, or any other requirement of this master program;

E. Additional landscaping is consistent with conditions (if any) attached to the original permit;

F. The use authorized pursuant to the original permit is not changed; and

G. No substantial adverse environmental impact will be caused by the project revision.

If the sum of the proposed revision and any previously approved revisions do not meet the criteria above, an application for a new shoreline permit must be submitted. If the revision involves a conditional use or variance which was conditioned by the Department of Ecology, the revision also must be reviewed and approved by the Department of Ecology (see WAC 173-14-064).

A city or department decision on revision to the permit may be appealed to the Shorelines Hearings Board within 30 days of such decision, in accordance with RCW 90.58.180 and WAC 173-14-064.

Construction allowed by the revised permit that is not authorized under the original permit is undertaken at the applicant’s own risk until the expiration of the appeals deadline. (Ord. 1290 § 4, 1996).

18.12.160 Local appeals.

Any decision made by the administrator on a substantial development permit, master program policy or regulation interpretation, permit revision, or other action within the purview and responsibility of the administrator, may be appealed by the applicant, private or public organization, or individual to the board within five regular city business days following the issuance of a written decision by the administrator. Such appeals shall be initiated by filing with the city clerk a notice of appeal setting forth the action being appealed and the principal points upon which the appeal is based, together with a filing fee as prescribed by MMC 13.14.010.

The board shall hear the appeal at its next regularly scheduled public meeting, or as soon thereafter as is feasible. The board, using the applicable decision making criteria established in the master program, shall affirm, modify, or reverse the decision making criteria established in the master program. The decision of the board shall be the final local government decision. (Ord. 1290 § 4, 1996).

18.12.170 Appeal to State Shorelines Hearings Board.

Any person aggrieved by the granting, denying, rescission or modification of a shoreline permit may seek review from the State Shorelines Hearings Board within 21 days of receipt of the final decision by the Board. Said request shall be in the form required by the rules for practice and procedure before the Shorelines Hearings Board, and the person seeking review shall file a copy of the request for review with the State Department of Ecology and the Attorney General. Shorelines Hearings Board regulations are contained in Chapter 461-08 WAC. (Ord. 1290 § 4, 1996).

18.12.180 Shoreline variances and conditional uses permits.

The Shoreline Management Act states that master programs shall contain provisions covering conditional uses and variances. These provisions should be applied in a manner which, while protecting the environment, will assure that a person will be able to use his/her property in a fair and equitable manner.

A. Shoreline Variance. The purpose of a shoreline variance permit is strictly limited to granting relief where there are extraordinary or unique circumstances relating to the property such that the strict implementation of the master program would impose unnecessary hardships on the applicant or thwart the Shoreline Management Act policies as stated in RCW 90.58.020.

Construction pursuant to this permit shall not begin nor can construction be authorized except as provided in RCW 90.58.020. In all instances, extraordinary circumstances shall be shown and the public interest shall suffer no substantial detrimental effect.

1. An application for a shoreline variance shall be submitted on a form provided by the city accompanied by maps, completed environmental checklist, applicable fees, and any other information specified in this master program or requested by the administrator.

2. Variance permits for development that will be located landward of the ordinary high water mark, except those areas designated by the department as wetlands pursuant to Chapter 173-22 WAC, may be authorized provided the applicant can demonstrate all of the following:

a. That the strict requirements of the bulk, dimensional, or performance standards set forth in the master program preclude or significantly interfere with a reasonable use of the property not otherwise prohibited by the master program.

b. That the hardship described above is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions.

c. That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties of the shoreline environment.

d. That the variance authorized does not constitute a grant of special privilege not enjoyed by the other properties in the area, and will be the minimum necessary to afford relief.

e. That the public interest will suffer no substantial detrimental effect.

3. Variance permits for development that will be located either waterward of the ordinary high water mark or within wetlands, as designated in Chapter 173-22 WAC, may be authorized provided the applicant can demonstrate all the criteria stated above as well as the following:

a. That the public rights of navigation and use of the shorelines will not be adversely affected or significantly interfered with by granting the variance.

In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if variances were granted to other developments in the area where similar circumstances exist, the total of the variances should also remain consistent with the policies of Chapter 90.58 RCW and should not produce substantial adverse effects to the shoreline environment.

Requests for varying the use to which a shoreline area is to be put are not requests for variances, but rather requests for conditional uses. Such requests shall be evaluated using the criteria set forth below.

B. Shoreline Conditional Uses. The purpose for a conditional use permit is to allow greater flexibility in varying the application of the use regulations of this master program in a manner consistent with the policies of RCW 90.58.020; provided, that conditional use permits should also be granted in a circumstance where denial of the permit would result in a thwarting of state policy enumerated in RCW 90.58.020. In authorizing conditional uses, special conditions may be attached to the permit by the city or the department to prevent undesirable effects of the proposed use. Uses which are specifically prohibited by this master program may not be authorized with approval of a conditional use permit.

Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following:

1. That the proposed use will be consistent with the policies of RCW 90.58.020 and the policies of the master program;

2. That the proposed use will not interfere with the normal public use of public shorelines;

3. That the proposed use of the site and design of the project will be compatible with other permitted uses within the area;

4. That the proposed use will cause no unreasonable adverse effects to the shoreline environment in which it is to be located;

5. That the public interest suffers no substantial detrimental effects.

In the granting of all conditional use permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. The total of conditional uses shall remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment. (Ord. 1290 § 4, 1996).

18.12.190 Unclassified uses.

Other uses, categorized as “unclassified uses”, which are not classified in Table 5-1 may be authorized as conditional uses; provided the applicant can demonstrate, in addition to the criteria set forth above, that extraordinary circumstances preclude reasonable use of the property in a manner consistent with the use regulations of the master program. Unclassified uses are those uses set forth in Chapter 17.42 NMC; provided, that such a use is allowed pursuant to MMC 17.42.010.

An unclassified use approved pursuant to Chapter 17.42 MMC shall become an approved “conditional use” under the master program without action by the board of adjustment; provided, that the city council shall be required to review the application for the portion of the property subject to the master program jurisdiction pursuant to MMC 18.12.180 (B); and further provided, that the resulting use is approved by DOE pursuant to MMC 18.12.195. (Ord. 1290 § 4, 1996).

18.12.195 DOE review.

After the city’s approval of a conditional use or variance permit, the administrator shall submit the permit to the Department of Ecology for its approval, approval with conditions, or denial. Upon receipt of the Ecology’s decision, the administrator shall notify those interested persons having requested notification of such decision. (Ord. 1290 § 4, 1996).

18.12.200 Nonconforming buildings and uses.

Nonconforming buildings and uses shall be subject to the provisions of Chapter 17.52 MMC. (Ord. 1290 § 4,1996).

18.12.210 Enforcement and penalties.

The choice of enforcement action and the severity of any penalty will be based on the nature of the violation and the damage or risk to the public or to public resources. The existence or degree of bad faith of the persons subject to the enforcement action, the benefits that accrue to the violator, and the cost of obtaining compliance may also be considered.

A. Civil Penalty.

1. Action. The city attorney, as authorized by the mayor with council approval, shall bring such injunctive, declaratory, or other actions as are necessary to insure that no uses are made of the shorelines of the state in conflict with the provisions of the Act and this master program and to otherwise enforce the provisions of the Act and the master program.

2. Noncompliance. Any person who fails to conform to the terms of a permit issued under the master program or who undertakes a development or use on the shorelines of the state without first obtaining any permit under the master program or who fails to comply with a cease and desist order issued under regulations shall also be subject to a civil penalty not to exceed $1,000 for each violation. Each permit violation or each day of continued development without a required permit shall constitute a separate violation.

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

4. Notice of Penalty. The penalty provided for in this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the city. The notice shall include the “content of order” specified in subsection (A)(6) of this section, “Regulatory order”.

5. Remission and Order. Within 30 days after the notice is received, the person incurring the penalty may apply in writing to the city for remission or mitigation of such penalty. Upon receipt of the application, the city may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty. Any penalty imposed pursuant to this section solely by the city shall be subject to review by the city council pursuant to RCW 90.58.210(4). In accordance with RCW 90.58.050 and 90.58.210(4), any penalty jointly imposed by the city and the Department of Ecology shall be appealed to the Shorelines Hearings Board. When a penalty is imposed jointly by the city and the Department of Ecology, it may be remitted or mitigated only upon such terms as both the city and the Department agree.

6. Regulatory Order. Content of order shall set forth and contain:

a. A description of the specific nature, location, extent, and time of violation and the damage or potential damage; and

b. A notice that the violation or the potential violation cease and desist or, in appropriate cases, the specific corrective action to be taken within a given time. A civil penalty under this section may be issued with the order and same shall specify a date certain or schedule by which payment will be complete.

7. Effective Date. The cease and desist order issued under this subsection shall become effective immediately upon receipt by the person to whom the order is directed.

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

B. Delinquent Permit Penalty. Permittees applying for a permit after commencement of a use or activity may at the discretion of the city be required, in addition, to pay a delinquent permit penalty not to exceed three times the appropriate permit fee paid by the permittee. A person who has caused, aided, or abetted a violation within two years after the issuance of a regulatory order, notice of violation, or penalty by the city or the Department against said person may be subject to a delinquent permit penalty not to exceed 10 times the appropriate permit fee paid by the permittee. Delinquent permit penalties shall be paid in full prior to resuming the use or activity.

C. Property Lien. Any person who fails to pay the prescribed penalty as authorized in this section shall be subject to a lien upon the affected property until such time as the penalty is paid in full. The city attorney shall, upon authorization by the mayor and city council, file said hen against the affected property at the office of the county assessor.

D. Mandatory Civil Penalties. Issuance of civil penalties is mandatory in the following instances:

1. The violator has ignored the issuance of an order or notice of violation.

2. The violation causes or contributes to significant environmental damage to shorelines of the state as determined by the city.

3. A person causes, aids, or abets in a violation within two years after issuance of a similar regulatory order, notice of violation, or penalty by the city against said person.

E. Minimum Penalty Levels.

1. Regarding all violations that are mandatory penalties, the minimum penalty is $250.00.

2. For all other penalties, the minimum penalty is $100.00.

F. General Criminal Penalty. In addition to incurring civil liability under the civil penalty section, any person found to have willfully engaged in activities on the shorelines of the state in violation of the provisions of the Act or master program shall be guilty of a gross misdemeanor and shall be punished by a fine of not less than $100.00 nor more than $1,000 or by imprisonment in the county jail for not more than 90 days for each separate offense, or by both such fine and imprisonment; provided, that the fine for each separate offense for the third and all subsequent violations in any five-year period shall be not less than $500.00 nor more than $10,000.

G. Violator Liabilities – Damages, Attorney’s Fees/Costs. Any person subject to the regulatory program of the Act or the master program who violates any provision thereof or permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected areas to its condition prior to violation. The city attorney shall, as authorized by the mayor and city council, bring suit for damages under this section on behalf of the city. Private persons shall have the right to bring suit for damages under this section on their own behalf and on the behalf of all persons similarly situated. If liability has been established for the cost of restoring any areas affected by a violation, the court shall make provisions to assure that restoration will be accomplished within reasonable time at the expense of the violator. In addition to such relief, including money damages, the court in its discretion may award attorney’s fees and costs of the suit to the prevailing party. (Ord. 1290 § 4, 1996).

18.12.220 Development and building permits.

No building permit, or other development permit, shall be issued for any parcel of land developed or divided in violation of the master program. All purchasers or transferees of property shall comply with provisions of the Act and the master program, and each purchaser or transferee may recover his damages from any person, firm, corporation, or agent selling, transferring, or leasing land in violation of the Act or the master program, including any amount reasonably spent as a result of inability to obtain any development permit and spent to conform to the requirements of the Act or the master program as well as cost of investigation, suit, and reasonable attorney’s fees occasioned thereby. Such purchaser, transferee, or lessor may, as an alternative to conforming his property to these requirements, rescind the sale, transfer, or lease and recover cost of investigation and reasonable attorney’s fees occasioned thereby from the violator. (Ord. 1290 § 4, 1996).

18.12.230 Master program review.

The master program shall be periodically reviewed and adjustments shall be made as are necessary to reflect changing local circumstances, new information or improved data, and changes in state statutes and regulations. This review process shall be consistent with Chapter 173-19 WAC requirements and shall include a local citizen involvement effort and public hearing to obtain the views and comments of the public. (Ord. 1290 § 4, 1996).

18.12.240 Amendments to master program.

Any of the provisions of this master program may be amended as provided for in RCW 90.58.120 and 90.58.200 and Chapter 173-19 WAC. Amendments or revisions to the master program, as provided by law, do not become effective until approved by the Washington State Department of Ecology.

Proposals for shoreline environment redesignations (i.e., amendments to the shoreline maps and descriptions) must demonstrate consistency with the criteria set forth in shoreline environment designation criteria. (Ord. 1290 § 4, 1996).

Chapter 18.14
WETLANDS PRESERVATION

(Repealed by Ord. 1671)

Chapter 18.16
CRITICAL AREAS

Sections:

Article I. General Provisions

18.16.010 Purpose.

18.16.020 Authority.

18.16.030 Abrogation and greater restrictions.

18.16.040 Severability.

18.16.050 Applicability.

18.16.060 Fees.

18.16.070 Appeals.

18.16.080 Exemptions.

18.16.090 Partial exemptions.

18.16.100 Single-family residence administrative exception.

18.16.110 Reasonable use permit.

18.16.120 Critical areas review process.

18.16.130 Review criteria.

18.16.140 Critical areas report.

18.16.150 Mitigation sequencing.

18.16.160 Mitigation requirements.

18.16.170 Notice on title.

18.16.180 Native growth protection areas.

18.16.185 Critical areas tracts.

18.16.190 Building setbacks.

18.16.200 Security to ensure mitigation, maintenance, and monitoring.

18.16.210 Unauthorized critical areas alterations and enforcement.

Article II. Wetlands

18.16.310 Wetlands designation and classification.

18.16.320 Performance standards.

18.16.330 Wetland mitigation requirements.

18.16.340 Subdivisions.

Article III. Critical Aquifer Recharge Areas

18.16.410 Critical aquifer recharge areas designation.

18.16.430 Performance standards.

18.16.440 Uses prohibited from critical aquifer recharge areas.

Article IV. Geologically Hazardous Areas

18.16.510 Geologically hazardous areas designation.

18.16.520 Additional critical areas report requirements.

18.16.530 Performance standards.

Article V. Fish and Wildlife Habitat Conservation Areas

18.16.610 Fish and wildlife habitat conservation areas designation.

18.16.620 Water type classification.

18.16.630 Additional critical areas report requirements.

18.16.640 Performance standards.

Article VI. Frequently Flooded Areas

18.16.710 Frequently flooded areas.

Article I. General Provisions

18.16.010 Purpose.

A. The purpose of this chapter is to designate and protect ecologically sensitive and hazardous areas in accordance with the Growth Management Act, while also allowing for reasonable use of private property.

B. By limiting and regulating development and alteration of critical areas, this chapter seeks to:

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

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

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

4. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas and habitat conservation areas so that there will be no net loss of wetlands, and our goal is to increase the quality and vitality of wetland acreage.

C. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable use of the property or to prevent the provision of public facilities and services necessary to support existing development and that planned for by the community. (Ord. 1671 § 5, 2006).

18.16.020 Authority.

A. As provided herein, the land use administrator, or his or her designee, is given the authority to interpret and apply and the responsibility to enforce this chapter to accomplish the stated purpose. The land use administrator or his or her designee is authorized to adopt administrative rules as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration.

B. The city council may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. (Ord. 1671 § 5, 2006).

18.16.030 Abrogation and greater restrictions.

Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which is more restrictive shall apply. (Ord. 1671 § 5, 2006).

18.16.040 Severability.

If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. (Ord. 1671 § 5, 2006).

18.16.050 Applicability.

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

B. Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter.

C. The approximate location and extent of critical areas may be shown on city maps and on maps prepared by county, state, federal and other agencies. These maps are to be used as a guide for the city, project applicants and/or property owners, and may be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical areas designation. (Ord. 1671 § 5, 2006).

18.16.060 Fees.

Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 1671 § 5, 2006).

18.16.070 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed to the hearing examiner according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 1671 § 5, 2006).

18.16.080 Exemptions.

All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter:

A. 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 timeframe too short to allow for compliance with the requirements of this chapter.

1. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within 30 days, the land use administrator shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the city determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of MMC 18.16.210 shall apply.

2. After the emergency, the person or agency undertaking the action shall fully restore and/or mitigate any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical areas report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical areas report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner;

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

C. Maintenance or Repair of Single-Family Residence. Maintenance or repair of existing single-family residences including infrastructure, driveways and landscaping that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed maintenance or repair;

D. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. Trails must be constructed pursuant to MMC 18.16.090(D); and

E. 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 city’s jurisdiction; provided, that forest practice conversions are not exempt. (Ord. 1671 § 5, 2006).

18.16.090 Partial exemptions.

Partial exemptions shall be consistent with the purpose and provisions of this chapter, but do not require critical areas review or the submittal of a critical areas report. The city may apply conditions to the underlying permit or approval, such as a building permit, to ensure that the proposal is consistent with the provisions of this chapter to protect critical areas. The following activities and associated uses shall be exempt from the provisions of this chapter, provided they meet the associated conditions:

A. Permit Requests Subsequent to Previous Critical Areas 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:

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

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

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

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

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

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

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

D. Public and Private Nonmotorized Trails. Public and private nonmotorized trails, except in wetlands, fish and wildlife habitat conservation areas, subject to the following:

1. Trails in wetland buffers or fish and wildlife habitat conservation area buffers shall be located in the outer 25 percent of the buffer where feasible;

2. The trail surface shall meet all other requirements including water quality standards set forth in the storm water management regulations (Chapter 13.26 MMC);

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

4. 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;

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

1. The removal of the following vegetation with hand labor and light equipment:

a. Invasive and noxious weeds;

b. English Ivy (Hedera helix);

c. Himalayan blackberry (Rubus discolor, R. procerus);

d. Evergreen blackberry (Rubus laciniatus);

e. Canary grass; and

f. Other commonly found invasive species.

2. The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

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

b. Where trimming is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

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

d. Coniferous trees shall be replaced by coniferous trees native to Washington and deciduous trees shall be replaced by deciduous trees native to Washington;

e. Replacement coniferous trees shall be at least eight feet in height. Replacement deciduous trees shall be at least one and one-half inches in diameter (DBH);

f. Trees shall be replaced subject to the following replacement ratios:

i. Removed trees with a DBH greater than nine inches up to 12 inches shall be replaced by four trees;

ii. Removed trees with a DBH greater than 12 inches up to 16 inches shall be replaced by six trees; and

iii. Removed trees with a DBH of 16 inches or more shall be replaced by eight trees;

g. 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 or removal that will minimize impacts;

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

i. Financial guarantees for replacement trees may be required consistent with the provisions of MMC 18.16.200.

3. 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; provided, that the removed vegetation shall be replaced in kind or with similar native species within one year in accordance with an approved restoration plan.

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

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

F. 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

G. Boundary Markers. Installation or modification of boundary markers. (Ord. 1671 § 5, 2006).

18.16.100 Single-family residence administrative exception.

The land use administrator may approve the construction, addition to or modification of a single-family residence on an existing legal lot, provided:

A. The applicant shall submit any critical areas report and a mitigation plan following a preapplication review meeting as well as such other documents or studies, as requested by the city.

B. The proposal meets the following requirements:

1. The proposal is the minimum necessary to accommodate the building footprint and access. In no case shall the total impervious surface exceed 5,000 square feet;

2. Access is located so as to have the least impact on the critical area and its buffer;

3. The proposal preserves the functions and values of wetlands and streams to the maximum extent possible;

4. Adverse impacts resulting from alterations of steep slopes are minimized;

5. The proposal includes on-site mitigation to the maximum extent possible;

6. The proposal will not significantly affect drainage capabilities, flood potential, and steep slopes and landslide hazards on neighboring properties; and

7. The proposal first develops noncritical area land, then the critical areas buffer before the critical area itself is developed.

C. The land use administrator may require on-site or off-site mitigation measures to compensate for the loss of the functions and values of the critical areas and buffers and may impose mitigating conditions to the modification or waiver in order to meet the standards of this chapter.

D. This section shall not apply to the following critical areas:

1. Landslide hazard areas that are unmitigatable;

2. Slopes of greater than 70 percent where either the lot or slope are abutting and above Type S and Type F streams or Category I and Category II wetlands, and associated buffer, or an open storm water conveyance system;

3. Type S and Type F streams; or

4. Category I and Category II wetlands. (Ord. 1671 § 5, 2006).

18.16.110 Reasonable use permit.

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

B. An application for a reasonable use exception shall include a critical areas 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).

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

D. Reasonable Use Permit Criteria. All of the following criteria must be met:

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

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

3. The impact to the critical area or its buffer is the minimum necessary to allow for reasonable use of the property;

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

5. The proposal protects and mitigates impacts to the critical area functions and values consistent with the best available science.

E. Burden of Proof. The applicant has the burden of proving that the application meets the stated reasonable use permit criteria. (Ord. 1671 § 5, 2006).

18.16.120 Critical areas review process.

A. Preapplication Consultation. Any person preparing to submit an application for development or use of land where the proposal is located within 300 feet of a critical area or its buffer, or is likely to impact a critical area, shall meet with the land use administrator prior to submitting an application for development or other approval. At this meeting, the land use administrator shall discuss the requirements of this chapter; provide a critical areas checklist, available critical areas maps, scientific information, and other materials; outline the review process; and work with the applicant to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements.

B. Initial Review. Following submittal of an application for development or use of land, the land use administrator or his or her designee shall review the application, site conditions, and other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal.

C. Site Inspection. The property owner shall provide the city with reasonable access to the site for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

D. Critical Areas Report Required. If the information available indicates that the project area is within or adjacent to a critical area or buffer, or that the proposed activity is likely to degrade a critical area or buffer, then the applicant shall be required to submit a critical areas report prior to further review of the project. (Ord. 1671 § 5, 2006).

18.16.130 Review criteria.

A. Any permit or approval that includes an alteration to a critical area or its buffer, unless otherwise provided for in this chapter, may be approved, approved with conditions, or denied based on the proposal’s ability to comply with all of the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with MMC 18.16.150, Mitigation sequencing;

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

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

4. Any alterations permitted to the critical area are mitigated in accordance with MMC 18.16.160, Mitigation requirements;

5. The proposal is consistent with other applicable regulations and standards. A favorable critical areas review should not be construed as endorsement or approval of any underlying permit or approval.

B. The city may condition the underlying permit or approval as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter. Any conditions of approval shall be attached to the underlying permit or approval.

C. The applicant has the burden of proving that a proposal complies with the standards set forth in this chapter. (Ord. 1671 § 5, 2006).

18.16.140 Critical areas report.

A. The critical areas report shall use scientifically valid methods and studies in the analysis of critical areas data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas. The critical areas report shall be prepared by a qualified professional.

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

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

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

3. Identification and characterization of all critical areas and water bodies within 300 feet of the proposed project area;

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

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

6. An analysis of site development alternatives;

7. A description of reasonable efforts made to avoid, minimize, and mitigate impacts to critical areas consistent with MMC 18.16.150;

8. Plans for adequate mitigation, as needed, to offset any impacts;

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

10. Financial guarantees to ensure compliance; and

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

C. Unless otherwise provided, a critical areas 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 city.

D. The required geographic area of the critical areas report may be limited as appropriate if:

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

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

E. The city may require additional information to be included in the critical areas report when determined to be necessary to the review of the proposed activity in accordance with this chapter. (Ord. 1671 § 5, 2006).

18.16.150 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the sequential order of preference shown below. Mitigation for individual actions may include a combination of these measures.

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

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

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

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

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

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

G. Monitoring the hazard or other required mitigation and taking remedial action when necessary. (Ord. 1671 § 5, 2006).

18.16.160 Mitigation requirements.

A. Unless otherwise provided in this chapter, if alteration to the critical area or buffer is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved critical areas report.

B. Mitigation shall be sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

C. Mitigation shall not be implemented until after city review of a critical areas report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical areas report.

D. Where feasible, mitigation projects shall be completed prior to activities that will disturb wetlands. In all other cases, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development. Construction of mitigation projects shall be timed to reduce impacts to fish, wildlife and flora.

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

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

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

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

b. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

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

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

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

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

b. Grading and excavation details;

c. Erosion and sediment control features;

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

e. Measures to protect and maintain plants until established.

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

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

6. 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. (Ord. 1671 § 5, 2006).

18.16.170 Notice on title.

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

B. The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. (Ord. 1671 § 5, 2006).

18.16.180 Native growth protection areas.

A. Unless otherwise required in this chapter, native growth protection areas (NGPA) shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below:

1. All landslide hazard areas and buffers;

2. All wetlands and buffers;

3. All habitat conservation areas; and

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

B. Native growth protection areas shall be recorded on all documents of title of record for all affected lots.

C. Native growth protection areas shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restrictions:

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

2. The right of the city to enforce the terms of the restriction. (Ord. 1671 § 5, 2006).

18.16.185 Critical areas tracts.

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

1. All landslide hazard areas and buffers;

2. All wetlands and buffers;

3. All habitat conservation areas; and

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

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

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

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

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

D. The city may require that any critical areas tract be dedicated to the city, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity (such as a land trust, which ensures the ownership, maintenance, and protection of the tract). (Ord. 1671 § 5, 2006).

18.16.190 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical areas buffers. The following may be allowed in the building setback area:

A. Landscaping;

B. Uncovered decks;

C. Building overhangs if such overhangs do not extend more than 18 inches into the setback area; and

D. Impervious ground surfaces, such as driveways and patios. (Ord. 1671 § 5, 2006).

18.16.200 Security to ensure mitigation, maintenance, and monitoring.

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

B. The security shall be in the amount of 150 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 security shall be in the form of assignment of funds, a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

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

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

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

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

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 1671 § 5, 2006).

18.16.210 Unauthorized critical areas alterations and enforcement.

A. Unauthorized Alteration. When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored.

1. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation or replacement measures at the responsible party’s expense to compensate for violation of provisions of this chapter. At a minimum, the structural and functional values of the critical area shall be restored and any hazard shall be reduced to a level equal to, or less than, the predevelopment conditions.

2. All development work shall remain stopped until a restoration plan has been approved by the city. Such a plan shall be prepared by a qualified professional. The city may, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

B. Site Inspections. The land use administrator, or his or her designee, is authorized to make site inspections and take such actions as necessary to enforce this chapter. The land use administrator shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

C. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty shall be assessed at a maximum rate of $1,000 per day per violation. (Ord. 1671 § 5, 2006).

Article II. Wetlands

18.16.310 Wetlands designation and classification.

A. Wetlands Designation. Wetlands are designated in accordance with the currently adopted Washington State Wetlands Identification and Delineation Manual (1997 or as revised). Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

1. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.

2. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.

B. Wetlands Classification. Wetlands shall be rated according to the Washington State Wetland Rating System for Western Washington (Department of Ecology 2004, or as revised). This document contains the definitions, methods and a rating form for determining the categorization of wetlands described below:

1. Category I wetlands include those that receive a score of greater than or equal to 70 based on functions, or those that are rated Category I based on special characteristics as defined in the rating form.

2. Category II wetlands include those that receive a score of 51 through 69 based on functions, or those that are rated Category II based on special characteristics as defined in the rating form.

3. Category III wetlands include those that receive a score of 30 through 50 based on functions.

4. Category IV wetlands score less than 30 points based on functions. (Ord. 1671 § 5, 2006).

18.16.320 Performance standards.

A. Activities and uses shall be prohibited from wetlands and wetland buffers, except as provided for in this chapter. Activities may only be permitted in a wetland or wetland buffer if the applicant can show that the proposed activity will not degrade the functions and values of the wetland and other critical areas, or that the impacts to the functions and values will be fully mitigated.

B. Category III and IV wetlands less than 4,000 square feet may be exempted or partially exempted from the provisions of this chapter and may be altered by filling or dredging as outlined below.

1. Category III and IV wetlands less than 1,000 square feet are exempt where:

a. The wetland is isolated;

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

c. The wetland is not part of a wetland mosaic, as defined by the Washington State Department of Ecology;

d. The wetland does not contain Washington State Department of Fish and Wildlife-designated priority species or habitat identified as essential for local populations of priority species.

2. Category III and IV wetlands between 1,000 and 4,000 square feet may be exempted from the mitigation sequencing requirement to first avoid impacts where:

a. A critical areas report is performed in accordance with MMC 18.16.140; and

b. The wetland meets the criteria listed in subsection (B)(1) of this section; and

c. The proposed plan includes full mitigation.

C. Wetland Buffers.

1. Standard Buffer Widths.

a. The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the wetland functions and values at the time of the proposed activity. If the vegetation is inadequate, then the buffer width shall be increased or the buffer should be planted to maintain the standard width.

b. Wetland buffer widths, based on wetland category, habitat score and land use intensity, are shown in the table below.

Categories I, II & III	Buffers
Habitat Score	Standard	High Intensity
31 or higher	225	300
30	200	270
29	175	240
28	155	210
27	135	180
26	115	150
25	105	136
24	95	124
23	85	112
22	75	100
21	70	92
20	65	85
19 or lower	60	80
Category IV	40	50

c. Standard buffer widths apply if the following conditions are met, otherwise high intensity buffer widths apply:

i. If the wetland is a Category I or II wetland with a habitat score greater than 20 points and it is located within 300 feet of a priority habitat area as defined by the Washington State Department of Fish and Wildlife, the applicant shall provide a relatively undisturbed vegetated corridor at least 100 feet wide between the wetland and the priority habitat area. The corridor shall be protected for the entire distance between the wetland and the priority habitat through a conservation easement, native growth protection easement or the equivalent; and

ii. The following measures shall be implemented to the extent reasonably possible to minimize impacts from high intensity land uses:

Examples of Disturbance	Examples of Activities That Cause the Disturbance	Examples of Measures to Minimize Impacts
Lights	Parking lots Warehouses Manufacturing Residential	Direct lights away from wetland
Noise	Manufacturing Residential	Place activity that generates noise away from the wetland
Toxic runoff	Parking lots Roads Manufacturing Residential areas Application of agricultural pesticides, herbicides, fungicides, fertilizers Landscaping	Route all new untreated runoff away from wetland   Covenants limiting use of pesticides within 150 feet of wetland     Integrated pest management programs
Change in water regime	Any impermeable surface Lawns Tilling	Infiltrate or treat, detain and disperse into buffer new runoff from surfaces
Pets and human disturbance	Residential areas	Fence around buffer Plant buffer with “impenetrable” natural vegetation appropriate for region
Dust	Tilled fields	Use best management practices to control dust

2. Measurement of Wetland Buffers. Buffers shall be measured from the wetland boundary as surveyed in the field. The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland.

3. Where a legally established and constructed public roadway transects a wetland buffer, the department may approve a modification of the standard buffer width to the edge of the roadway, provided:

a. The isolated part of the buffer does not provide additional protection of the wetland; and

b. The isolated part of the buffer provides insignificant biological, geological or hydrological buffer functions relating to the wetland; and

c. The resulting buffer distance is less than 50 percent of the standard or optional buffer for the applicable wetland category, no further reduction shall be allowed.

4. Where a buffer has been previously established after 1996 through a city development review and is permanently recorded on title or placed within a separate tract, the buffer shall be as previously established.

5. Buffer Width Increasing. The land use administrator may require the standard buffer to be increased by the greater of 50 feet or a distance necessary to protect wetland functions and provide connectivity to other wetland and habitat areas for one of the following:

a. To maintain viable populations of existing species listed by the federal or state government as endangered, threatened or sensitive; or

b. To protect wetlands against severe erosion that standard erosion control measures will not effectively address; or

c. When a Category I, II or III wetland is located within 300 feet of:

i. Another Category I, II, or III wetland;

ii. A fish and wildlife habitat conservation area; or

iii. A Type S or F stream as defined in MMC 18.16.620;

the increased buffer distance may be limited to those areas that provide connectivity or are necessary to protect wetland and habitat functions. If the wetland contains variations in sensitivity, increasing the buffer widths will only be done where necessary to preserve the structure, function and value of the wetland.

6. Wetland Buffer Width Averaging. Buffer width averaging may be allowed by the land use administrator if all of the following criteria are met:

a. It will provide additional protection to wetlands or enhance their functions, as long as the total area contained in the buffer on the development proposal site does not decrease;

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

c. The buffer width is not reduced to less than 50 percent of the standard buffer width at any location; and

d. Buffer width averaging may be used in conjunction with buffer reduction options in this section, provided the total combined reduction does not reduce the buffer to less than 50 percent of standard buffer width at any location.

7. Reduction of Wetland Buffer Widths. Standard buffer widths may be reduced up to 50 percent when buffer width reduction impacts are mitigated and result in equal or greater protection of the wetland functions. Prior to considering buffer reductions, the applicant shall demonstrate application of mitigation sequencing as required in MMC 18.16.150. A plan for mitigating buffer-reduction impacts must be prepared using selected incentive-based mitigation options from the list below. The following incentive options for reducing standard buffer widths shall be considered cumulative up to a maximum reduction of 50 percent of the standard buffer width. In all circumstances where a substantial portion of the remaining buffer is degraded, the buffer reduction plan shall include replanting with native vegetation in the degraded portions of the remaining buffer area and shall include a five-year monitoring and maintenance plan.

a. Installation of biofiltration/infiltration mechanisms: up to 20 percent reduction in the standard buffer width may be allowed for the installation of bioswales, created and/or enhanced wetlands, or ponds supplemental to existing storm drainage and water quality requirements in accordance with Chapter 13.26 MMC.

b. Removal of existing impervious surfaces:

i. Up to 10 percent reduction in standard buffer width if impervious surfaces within the to-be-remaining buffer area are reduced by at least 50 percent; or

ii. Up to 20 percent reduction in standard buffer width if the to-be-remaining buffer area is presently more than 50 percent impervious and all of it is to be removed.

c. Removal of invasive, nonnative vegetation: up to 10 percent reduction in standard buffer width for the removal and extended (minimum five-year) monitoring and continued-removal maintenance of relatively dense stands of invasive, nonnative vegetation from significant portions of the remaining buffer area.

d. If not already required under an existing development proposal, installation of oil/water separators for storm water quality control: up to 10 percent reduction in standard buffer width.

e. Use of pervious material for driveway/road construction: up to 10 percent reduction in standard buffer width.

f. Restoration of off-site area if no on-site area is possible:

i. Up to 10 percent reduction in standard buffer width if restoration area is at a 2:1 ratio or greater; or

ii. Up to 20 percent reduction in standard buffer width if restoration area is at a 4:1 ratio or greater.

g. Removal of significant refuse or sources of toxic material: up to 10 percent reduction in standard buffer width.

8. The land use administrator may also consider buffer reductions for decreasing impacts to buffers using methods such as low impact development (LID).

9. Buffer conditions shall be maintained. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers shall be retained in an undisturbed condition.

D. Signs and Fencing of Wetlands.

1. Temporary Markers. The outer perimeter of the wetland or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur, and inspected by the land use administrator prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction, and shall not be removed until permanent signs, if required, are in place.

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

a. Permanent signs shall be made of a metal face and attached to a metal post, or another material of equal durability.

b. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner in perpetuity.

c. The sign shall be worded as follows or with alternative language approved by the land use administrator:

Protected Wetland Area

Do Not Disturb

Contact [local contact information]

Regarding Uses and Restriction

3. Fencing.

a. The city shall condition any permit or authorization to require the applicant to install a permanent fence at the edge of the wetland buffer, when fencing will prevent future impacts to the wetland.

b. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat. (Ord. 1671 § 5, 2006).

18.16.330 Wetland mitigation requirements.

A. Mitigation and mitigation plans shall be developed consistent with the Department of Ecology Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans, 2006, or as revised.

B. Compensatory Mitigation General Provisions.

1. Replace wetland impacts with the same or higher category of wetland.

2. Compensatory mitigation shall be conducted on property which shall be protected and managed to avoid further loss or degradation. The applicant or violator shall provide for long-term preservation of the compensation area.

3. Compensatory mitigation shall follow an approved mitigation plan.

4. Enhancement of existing wetlands, other than Category I and Category II wetlands, may be considered for compensation.

5. Compensation shall be completed prior to, or concurrently with, wetland loss, or, in the case of an enforcement action, prior to further development of the site.

C. Mitigation Ratios.

1. Any person who alters or proposes to alter regulated wetlands shall restore or create areas of wetland in order to compensate for wetland losses. The wetlands to be created or restored shall be in kind (i.e., the same type of wetland) and accomplished prior to or concurrently with loss. The ratio of lost wetlands to newly created or restored shall be determined in accordance with Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance, March 2006, or as revised.

2. Mitigation ratios shall be as follows:

Category of Wetland Impacts	Reestablishment or Creation	Rehabilitation Only	Reestablishment or Creation (R/C) and Rehabilitation (RH)	Reestablishment or Creation (R/C) and Enhancement (E)	Enhancement Only
Category I	6:1	12:1	1:1 (R/C) and 10:1 (RH)	1:1 (R/C) and 20:1 (E)	24:1
Category II	3:1	6:1	1:1 (R/C) and 4:1 (RH)	1:1 (R/C) and 8:1 (E)	12:1
Category III	2:1	4:1	1:1 (R/C) and 2:1 (RH)	1:1 (R/C) and 4:1 (E)	8:1
Category IV	1.5:1	3:1	1:1 (R/C) and 1:1 (RH)	1:1 (R/C) and 2:1 (E)	6:1

3. Decreased Replacement Ratio. The city may decrease these ratios under the following circumstances:

a. Documentation by a qualified professional demonstrates that the proposed mitigation actions have a very high likelihood of success;

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

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

D. On-site compensation is generally preferred over off-site compensation. Off-site compensation allows replacement of wetlands away from the site on which the wetland has been impacted by a regulated activity. The following conditions apply to off-site compensation:

1. Off-site compensation shall occur within the same drainage basin of the same watershed where the wetland loss occurs; provided, that Category IV wetlands may be replaced outside of the watershed if there is no reasonable alternative. In such instances, the storm water storage function provided by Category IV wetlands must be provided for within the design of the development project.

2. Off-site compensation can be allowed only under one or more of the following circumstances:

a. On-site compensation is not feasible due to hydrology, soils, or other factors;

b. On-site compensation is not practical due to probable adverse impacts from surrounding land uses or would conflict with a federal, state or local public safety directive;

c. Potential functions and value at the site of the proposed restoration are greater than the lost wetland functions and value;

d. When the wetland to be altered is of a limited function and value and is degraded, compensation shall be of the wetland community types needed most in the location of compensation and those most likely to succeed with the highest functional value possible.

E. Out-of-kind compensation can be allowed when out-of-kind replacement will best meet the provisions of this section and the mitigation sequence outlined in MMC 18.16.150.

F. Selecting Compensation Sites.

1. Except in the case of cooperative compensation projects in selecting compensation sites, applicants shall pursue locations in the following order of preference:

a. Filled, drained, or cleared sites which were formerly wetlands and where appropriate hydrology exists;

b. Upland sites, adjacent to wetlands, if the upland is significantly disturbed and does not contain a mature forested or shrub community of native species, and where the appropriate natural hydrology exists.

2. Where out-of-kind replacement is accepted, greater restoration/creation ratios may be required.

G. Timing. Construction of compensation projects shall be timed to reduce impacts to existing wildlife and plants. Construction shall be timed to assure that grading and soil movement occurs during the dry season and planting of vegetation shall be specifically timed to needs of the target species.

H. Alternative Compensation Projects. The land use administrator may encourage, facilitate and approve innovative wetland mitigation projects. Advance compensation or mitigation banking are examples of alternative compensation projects allowed under the provisions of this section wherein one or more applicant(s), or an organization with demonstrated capability, may undertake a compensation project together if it is demonstrated that all of the following circumstances exist:

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

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

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

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

5. Conducting compensation as part of a cooperative process does not reduce or eliminate the required replacement ratios outlined above. Exception: where a compensatory mitigation plan including a five-year monitoring agreement is included as a condition of approval, such plan shall allow for 1:1 replacement ratios upon successful completion of the monitoring agreement.

I. Wetlands Enhancement as Mitigation. Impacts to wetlands may be mitigated by enhancement of existing significantly degraded wetlands. Applicants proposing to enhance wetlands must produce a critical areas report that identifies how enhancement will increase the functions of the degraded wetland and how this increase will adequately mitigate for the loss of wetland area and function at the impact site. An enhancement proposal must also show whether existing wetland functions will be reduced by the enhancement actions. (Ord. 1671 § 5, 2006).

18.16.340 Subdivisions.

The subdivision and short subdivision of land in wetlands and associated buffers is subject to the following:

A. Land that is located wholly within a wetland or its buffer may not be subdivided.

B. Land that is located partially within a wetland or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is:

1. Located outside of the wetland and its buffer; and

2. Meets the minimum lot size requirements.

C. Access roads and utilities serving the proposed subdivision may be permitted within the wetland and associated buffers only if the city determines that no other feasible alternative exists in and when consistent with this chapter. (Ord. 1671 § 5, 2006).

Article III. Critical Aquifer Recharge Areas

18.16.410 Critical aquifer recharge areas designation.

Critical aquifer recharge areas (CARA) are those areas with a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2). CARA include:

A. Those aquifer recharge areas that have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water.

B. Wellhead protection areas defined by the boundaries of the 10-year time of ground water travel, or boundaries established using alternate criteria approved by the Department of Health in those settings where ground water time of travel is not a reasonable delineation criterion, in accordance with WAC 246-290-135.

C. Those critical aquifer recharge areas delineated by a hydrogeologic study prepared in accordance with the State Department of Ecology guidelines.

D. Susceptible ground water management areas as designated pursuant to Chapter 173-100 WAC.

E. Special protection areas as defined by WAC 173-200-090.

F. Those aquifer recharge areas meeting the criteria for susceptibility or vulnerability established by the State Department of Ecology. (Ord. 1671 § 5, 2006).

18.16.430 Performance standards.

Development on or adjacent to a critical aquifer recharge area shall meet the following requirements:

A. For projects where the construction of structures and improvements, including additions, results in more than 30 percent total site impervious surface area, the applicant shall provide surface water infiltration according to the following:

1. Seventy-five percent of on-site storm water volume generated from the proposed development shall be infiltrated; provided, that a lesser standard may apply or on-site infiltration may be waived when:

a. The applicant demonstrates that infiltration is not a reasonable alternative due to site-specific soil and/or geologic conditions;

b. It is determined that increased saturation of soils would result in an increased risk to existing facilities and/or adjacent properties;

c. Infiltration would result in significant unavoidable impacts to other critical areas or result in an excessive loss of native vegetation; or

d. The applicant proposes an addition of no more than 700 square feet of total new impervious surface compared cumulatively to 2005 levels.

2. If infiltration is not feasible or required, then storm water facilities shall be constructed in accordance with city standards.

3. The design and implementation of infiltration facilities shall follow the Ecology infiltration guidelines specified in the Western Washington Stormwater Manual (2005), referenced in Chapter 13.26 MMC or other technical guidance as approved by the city.

4. To prevent ground water contamination, storm water infiltration may be prohibited for all or a portion of a site that includes use of hazardous substances.

B. Critical Aquifer Recharge Areas. Land use and development activities within critical aquifer recharge areas are exempt from the critical areas review requirements related to critical aquifer recharge areas where all of the below criteria apply. This does not exempt activities from critical areas review required due to the presence of other critical areas.

1. The construction of structures and improvements, including additions, that results in less than 30 percent total site impervious surface area;

2. The land use or development does not:

a. Result in an increase in the use of hazardous substances, other than household chemicals used according to the directions specified on the packaging for domestic applications; or

b. Divert, alter, or reduce the flow of surface or ground waters, or otherwise reduce the recharging of the aquifer;

3. On-site septic systems comply with health district requirements;

4. The land use and development is consistent with the critical aquifer recharge area performance standard in MMC 18.16.440; and

5. The land use and development does not include those prohibited activities listed in MMC 18.16.440.

C. For development that includes hazardous substance processing or handling, or significant diversion, alteration or reduction to the flow of surface or ground waters, or otherwise significantly reduces the recharging of the aquifer, the development must be designed and constructed in accordance with a critical areas report that includes a hydrogeologic assessment of ground water vulnerability. In addition to the general critical areas report requirements of MMC 18.16.140, a hydrogeologic assessment shall include the following site- and proposal-related information at a minimum:

1. Available information regarding geologic and hydrogeologic characteristics of the site including the surface location of all critical aquifer recharge areas located on-site or immediately adjacent to the site, and permeability of the unsaturated zone;

2. Ground water depth, flow direction and gradient based on available information;

3. Currently available data on wells and springs within 1,300 feet of the project area;

4. Location of other critical areas, including surface waters, within 1,300 feet of the project area;

5. Best management practices proposed to be utilized;

6. Historic water quality data for the area to be affected by the proposed activity compiled for at least the previous five-year period;

7. Ground water monitoring plan provisions; and

8. Discussion of the effects of the proposed project on the ground water quality and quantity, including:

a. Predictive evaluation of ground water withdrawal effects on nearby wells and surface water features; and

b. Predictive evaluation of contaminant transport based on potential releases to ground water; and

9. A spill plan that identifies equipment and/or structures that could fail, resulting in an impact. Spill plans shall include provisions for regular inspection, repair, and replacement of structures and equipment that could fail.

D. The proposed activity must comply with the water source protection requirements and recommendations of the federal Environmental Protection Agency, State Department of Health, Seattle-King County public health and Pierce County public health.

E. Applications for development that will significantly affect ground water recharge or quality shall be denied, if such impacts cannot be adequately mitigated.

F. Storage Tanks. All storage tanks proposed to be located in a critical aquifer recharge area must comply with local building code requirements and must conform to the following requirements:

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

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

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

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

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

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

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

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

G. Vehicle Repair and Servicing.

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

2. No dry wells shall be allowed in critical aquifer recharge areas on sites used for vehicle repair and servicing. Dry wells existing on the site prior to facility establishment must be abandoned using techniques approved by the State Department of Ecology prior to commencement of the proposed activity.

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

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

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

I. State and Federal Regulations. The uses listed below shall be conditioned as necessary to protect critical aquifer recharge areas in accordance with the applicable state and federal regulations.

Statutes, Regulations, and Guidance Pertaining to Ground Water Impacting Activities 

Activity	Statute – Regulation – Guidance
Aboveground storage tanks	WAC 173-303-640
Animal feedlots	Chapters 173-216 and 173-220 WAC
Automobile washers	Chapter 173-216 WAC, Best Management Practices for Vehicle and Equipment Discharges (WDOE WQ-R-95-56)
Below ground storage tanks	Chapter 173-360 WAC
Chemical treatment storage and disposal facilities	WAC 173-303-182
Hazardous waste generator (boat repair shops, biological research facility, dry cleaners, furniture stripping, motor vehicle service garages, photographic processing, printing and publishing shops, etc.)	Chapter 173-303 WAC
Injection wells	Federal 40 CFR Parts 144 and 146, Chapter 173-218 WAC
Junk yards and salvage yards	Chapter 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Vehicle Recycler Facilities (WDOE 94-146)
Oil and gas drilling	WAC 332-12-450, Chapter 173-218 WAC
On-site sewage systems (large-scale)	Chapter 173-240 WAC
On-site sewage systems (< 14,500 gal./day)	Chapter 246-272 WAC, Local Health Ordinances
Pesticide storage and use	Chapters 15.54 and 17.21 RCW
Sawmills	Chapters 173-303 and 173-304 WAC, Best Management Practices to Prevent Stormwater Pollution at Log Yards (WDOE 95-53)
Solid waste handling and recycling facilities	Chapter 173-304 WAC
Surface mining	WAC 332-18-015
Wastewater application to land surface	Chapters 173-216 and 173-200 WAC, WDOE Land Application Guidelines, Best Management Practices for Irrigated Agriculture

(Ord. 1671 § 5, 2006).

18.16.440 Uses prohibited from critical aquifer recharge areas.

The following activities and uses are prohibited in critical aquifer recharge areas:

A. Landfills. Landfills, including hazardous or dangerous waste, municipal solid waste, special waste, wood waste, and inert and demolition waste landfills;

B. Underground Injection Wells. Class I, III, and IV wells and subclasses 5F01, 5D03, 5F04, 5W09, 5W10, 5W11, 5W31, 5X13, 5X14, 5X15, 5W20, 5X28, and 5N24 of Class V wells;

C. Mining.

1. Metals and hard rock mining;

2. Sand and gravel mining is prohibited from critical aquifer recharge areas determined to be highly susceptible or vulnerable;

D. Wood Treatment Facilities. Wood treatment facilities that allow any portion of the treatment process to occur over permeable surfaces (both natural and manmade);

E. Storage, Processing, or Disposal of Radioactive Substances. Facilities that store, process, or dispose of radioactive substances; and

F. Other.

1. Activities that would significantly reduce the recharge to aquifers currently or potentially used as a potable water source;

2. Activities that would significantly reduce the recharge to aquifers that are a source of significant baseflow to a regulated stream;

3. Activities that are not connected to an available sanitary sewer system are prohibited from critical aquifer recharge areas associated with sole source aquifers. (Ord. 1671 § 5, 2006).

Article IV. Geologically Hazardous Areas

18.16.510 Geologically hazardous areas designation.

Geologically hazardous areas include areas susceptible to erosion, sliding, earthquake, or other geological events. They pose a threat to the health and safety of citizens when incompatible development is sited in areas of significant hazard. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous area:

A. Erosion Hazard Areas. Erosion hazard areas are at least those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “moderate to severe,” “severe,” or “very severe” rill and inter-rill erosion hazard.

B. Landslide Hazard Areas. Landslide hazard areas are areas potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following:

1. Areas of historic failures, such as:

a. Those areas delineated by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “severe” limitation for building site development;

b. Those areas mapped by the Department of Ecology (Coastal Zone Atlas) or the Department of Natural Resources (slope stability mapping) as unstable (“U” or Class 3), unstable old slides (“UOS” or Class 4), or unstable recent slides (“URS” or Class 5); or

c. Areas designated as quaternary slumps, earthflows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or Department of Natural Resources;

2. Areas with all three of the following characteristics:

a. Slopes steeper than 15 percent; and

b. Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and

c. Springs or ground water seepage;

3. Areas that have shown movement during the Holocene epoch (from 10,000 years ago to the present) or that are underlain or covered by mass wastage debris of that epoch;

4. Slopes that are parallel or subparallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;

5. Slopes having gradients steeper than 80 percent subject to rock fall during seismic shaking;

6. Areas potentially unstable because of rapid stream incision, stream bank erosion, and undercutting by wave action;

7. Areas that show evidence of, or are at risk from, snow avalanches;

8. Areas located in a canyon or on an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding; and

9. Any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of consolidated rock. A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least 10 feet of vertical relief.

C. Seismic Hazard Areas. Seismic hazard areas are areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. One indicator of potential for future earthquake damage is a record of earthquake damage in the past. Ground shaking is the primary cause of earthquake damage in Washington. Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density, typically in association with a shallow ground water table.

D. Mine Hazard. Mine hazard areas are those areas underlain by or affected by mine workings such as adits, gangways, tunnels, drifts, or airshafts, and those areas of probable sink holes, gas releases, or subsidence due to mine workings. Factors that should be considered include: proximity to development, depth from ground surface to the mine working, and geologic material.

E. Volcanic Hazard Areas. Volcanic hazard areas are areas subject to pyroclastic flows, lava flows, debris avalanche, inundation by debris flows, lahars, mudflows, or related flooding resulting from volcanic activity.

F. Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the land use administrator to be susceptible to other geological events including mass wasting, debris flows, rock falls, and differential settlement. (Ord. 1671 § 5, 2006).

18.16.520 Additional critical areas report requirements.

In addition to the general critical areas report requirements of MMC 18.16.140, critical areas reports for geologically hazardous areas must comply with the provisions of this section.

A. General Requirements. All critical areas reports for a geologically hazardous area shall contain the following general requirements:

1. Assessment of Geological Characteristics. The report shall include an assessment of the geologic characteristics of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties, and a review of the site history regarding landslides, erosion, and prior grading. Soils analysis shall be accomplished in accordance with accepted classification systems in use in the region. The assessment shall include, but not be limited to:

a. A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard areas addressed in the report;

b. A detailed overview of the field investigations, published data and references; data and conclusions from past assessments of the site; and site-specific measurements, tests, investigations, or studies that support the identification of geologically hazardous areas; and

c. A description of the vulnerability of the site to geologic events;

2. Analysis of Proposal. The report shall contain a hazards analysis including a detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property and affected adjacent properties;

3. Minimum Buffer and Building Setback. The report shall make a recommendation for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis; and

4. Mitigation of Long-Term Impacts. When hazard mitigation is required, the mitigation plan shall specifically address how the activity maintains or reduces the pre-existing level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the pre-existing conditions following abandonment of the activity.

B. Landslide Hazard Areas. In addition to the basic critical areas report requirements, the technical information for a landslide hazard area shall include the following information at a minimum:

1. Site Plan. The critical areas report shall include a copy of the site plan for the proposal showing:

a. The height of slope, slope gradient, and cross-section of the project area;

b. The location of springs, seeps, or other surface expressions of ground water on or within 200 feet of the project area or that have potential to be affected by the proposal; and

c. The location and description of surface water runoff features.

2. Hazards Analysis. The hazards analysis component of the critical areas report shall specifically include:

a. A description of the extent and type of vegetative cover;

b. A description of subsurface conditions based on data from site-specific explorations;

c. Descriptions of surface and ground water conditions, public and private sewage disposal systems, fills and excavations and all structural improvements;

d. An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure;

e. An estimate of the bluff retreat rate that recognizes and reflects potential catastrophic events such as seismic activity or a 100-year storm event;

f. Consideration of the run-out hazard of landslide debris and/or the impacts of landslide run-out on down-slope properties;

g. A study of slope stability including an analysis of proposed cuts, fills, and other site grading;

h. Recommendations for building siting limitations;

i. An analysis of proposed surface and subsurface drainage, and the vulnerability of the site to erosion.

3. Geotechnical Engineering Report. The technical information for a project within a landslide hazard area shall include a geotechnical engineering report prepared by a qualified professional that presents engineering recommendations for the following:

a. Parameters for design of site improvements including appropriate foundations and retaining structures. These should include allowable load and resistance capacities for bearing and lateral loads, installation considerations and estimates of settlement performance;

b. Recommendations for drainage and subdrainage improvements;

c. Earthwork recommendations including clearing and site preparation criteria, fill placement and compaction criteria, temporary and permanent slope inclinations and protection, and temporary excavation support, if necessary; and

d. Mitigation of adverse site conditions including slope stabilization measures and seismically unstable soils, if appropriate.

4. Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge and/or recycling of water prepared in accordance with Chapter 13.26 MMC. The drainage plan should consider on-site septic system disposal volumes where the additional volume will affect the landslide hazard area.

5. Mitigation Plans. Hazard and environmental mitigation plans for erosion and landslide hazard areas shall include the location and methods of drainage, surface water management, locations and methods of erosion control, a vegetation management and/or replanting plan and/or other means for maintaining long-term soil stability.

6. Monitoring Surface Waters. If the land use administrator determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the city.

C. Erosion Hazard Areas. In addition to the basic report requirements, a critical areas report for an erosion hazard area shall also meet the following requirements:

1. Erosion and Sediment Control Plan. For any development proposal on a site containing an erosion hazard area, an erosion and sediment control plan shall be required. The erosion and sediment control plan shall be prepared in compliance with requirements set forth in the locally adopted storm water management regulations, Chapter 13.26 MMC.

2. Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge and/or recycling of water prepared in accordance with the locally adopted surface water management plan. The drainage plan should consider on-site septic system disposal volumes where the additional volume will affect the erosion hazard area.

3. Monitoring Surface Waters. If the land use administrator determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the city.

D. Seismic Hazard Areas. In addition to the basic report requirements, a critical areas report for a seismic hazard area shall also meet the following requirements:

1. The site map shall show all known and mapped faults within 200 feet of the project area or that have potential to be affected by the proposal.

2. The hazards analysis shall include a complete discussion of the potential impacts of seismic activity on the site (for example, forces generated and fault displacement).

3. A geotechnical engineering report shall evaluate the physical properties of the subsurface soils, especially the thickness of unconsolidated deposits, and their liquefaction potential. If it is determined that the site is subject to liquefaction, mitigation measures appropriate to the scale of the development shall be recommended and implemented.

E. Other Geologically Hazardous Areas. In addition to the basic requirements, the land use administrator may require additional technical information to be submitted when determined to be necessary to the review of the proposed activity and the subject hazard. Additional technical information that may be required includes, but is not limited to:

1. Site Plan. The site plan shall show all hazard areas located within 200 feet of the project area or that have potential to be affected by the proposal; and

2. Hazards Analysis. The hazards analysis shall include a complete discussion of the potential impacts of the hazard on the project area and of the proposal on the hazard. (Ord. 1671 § 5, 2006).

18.16.530 Performance standards.

A. The following apply to all geologically hazardous areas:

1. Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

a. Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;

b. Will not adversely impact other critical areas;

c. Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and

d. Are certified as safe as designed and under anticipated conditions by a qualified professional, licensed in the state of Washington.

2. Critical Facilities Prohibited. Critical facilities shall not be sited within geologically hazardous areas unless there is no other practical alternative.

B. Erosion and Landslide Hazard Areas. Activities on sites containing erosion or landslide hazards shall meet the standards of subsection A of this section and the specific following requirements:

1. Buffer Required. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer shall be determined by the land use administrator to eliminate or minimize the risk of property damage, death or injury resulting from landslides caused in whole or part by the development, based upon review of and concurrence with a critical areas report prepared by a qualified professional.

a. Minimum Buffer. The minimum buffer shall be equal to the height of the slope or 50 feet, whichever is greater.

b. Buffer Reduction. The buffer may be reduced to a minimum of 10 feet when a qualified professional demonstrates to the city’s satisfaction that the reduction will adequately protect the proposed development, adjacent developments and uses and the subject critical area.

c. Increased Buffer. The buffer may be increased where the city determines a larger buffer is necessary to prevent risk of damage to proposed and existing development;

2. Alterations. Alterations of an erosion or landslide hazard area and/or buffer may only occur for activities for which a hazards analysis is submitted and certifies that:

a. The development will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions;

b. The development will not decrease slope stability on adjacent properties; and

c. Such alterations will not adversely impact other critical areas;

3. Design Standards. Development within an erosion or landslide hazard area and/or buffer shall be designed to meet the following basic requirements unless it can be demonstrated that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this chapter. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development design standards are:

a. The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.2 for dynamic conditions. Analysis of dynamic conditions shall be based on a minimum horizontal acceleration as established by the current version of the building code as specified in Chapter 15.05 MMC;

b. Structures and improvements shall be clustered to avoid geologically hazardous areas and other critical areas;

c. Structures and improvements shall minimize alterations to the natural contour of the slope and foundations shall be tiered where possible to conform to existing topography;

d. Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

e. The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;

f. The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes;

g. Development shall be designed to minimize impervious lot coverage;

4. Vegetation Shall Be Retained. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited;

5. Seasonal Restriction. Clearing shall be allowed only from May 1st to October 1st of each year; provided, that the city may extend or shorten the dry season on a case-by-case basis depending on actual weather conditions, except that timber harvest, not including brush clearing or stump removal, may be allowed pursuant to an approved forest practice permit issued by the city or the Department of Natural Resources;

6. Utility Lines and Pipes. Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available. The line or pipe shall be located aboveground and properly anchored and/or designed so that it will continue to function in the event of an underlying slide. Storm water conveyance shall be allowed only through a high-density polyethylene pipe with fuse-welded joints, or similar product that is technically equal or superior;

7. Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from an erosion or landslide hazard area shall be prohibited except as follows:

a. Conveyed via continuous storm pipe downslope to a point where there are no erosion hazard areas downstream from the discharge;

b. Discharged at flow durations matching predevelopment conditions, with adequate energy dissipation, into existing channels that previously conveyed storm water runoff in the predeveloped state; or

c. Dispersed discharge upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and storm water runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope;

8. Subdivisions. The division of land in landslide hazard areas and associated buffers is subject to the following:

a. Land that is located wholly within a landslide hazard area or its buffer may not be subdivided. Land that is located partially within a landslide hazard area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the landslide hazard or its buffer.

b. Access roads and utilities may be permitted within the landslide hazard area and associated buffers if the city determines that no other feasible alternative exists;

9. Prohibited Development. On-site sewage disposal systems, including drain fields, shall be prohibited within erosion and landslide hazard areas and related buffers.

C. Other Hazard Areas. Activities on sites containing or adjacent to other geologically hazardous areas shall meet the standards of this section. (Ord. 1671 § 5, 2006).

Article V. Fish and Wildlife Habitat Conservation Areas

18.16.610 Fish and wildlife habitat conservation areas designation.

All of the following habitat areas are designated habitat conservation areas:

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

B. Habitats and Species of Local Importance. Habitats and species of local importance are those designated by the city, including those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection through possible retention or recovery of connectivity of habitat features. The following steps shall be taken to nominate habitats or species of local importance:

1. Demonstrate a need for special consideration based on:

a. Declining population;

b. Sensitivity to habitat manipulation; or

c. Commercial or game value or other special value, such as public appeal;

2. Propose relevant management strategies considered effective and within the scope of this chapter;

3. Provide species habitat location(s) on a map (scale 1:24,000). Submitted proposals will be reviewed by the land use administrator and forwarded to the Departments of Fish and Wildlife, Natural Resources and other local and state agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies. The city will hold a public hearing for proposals found to be complete, accurate, potentially effective and within the scope of this chapter. Approved nominations will become designated “habitats or species of local importance” and will be subject to the provisions of this chapter.

C. Waters of the State. Waters of the state include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-030. (Ord. 1671 § 5, 2006).

18.16.620 Water type classification.

Water types shall be classified according to WAC 222-16-030. Water types are described generally below:

A. Type S waters are all waters inventoried as “shorelines of the state” under Chapter 90.58 RCW.

B. Type F waters means segments of natural waters other than Type S waters, which contain fish habitat.

C. Type Np waters include those which are perennial during a year of normal rainfall and do not have the potential to be used by fish. Type Np waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations then the point of perennial flow should be determined using the best professional judgment of a qualified professional.

D. Type Ns waters which are seasonal or ephemeral during a year of normal rainfall and do not have the potential to be used by fish. (Ord. 1671 § 5, 2006).

18.16.630 Additional critical areas report requirements.

In addition to the general critical areas report requirements of MMC 18.16.140, critical areas reports for habitat conservation areas must meet the requirements of this section. Critical areas reports for two or more types of critical areas must meet the report requirements for each relevant type of critical areas.

A. Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the potential presence or absence of designated critical fish or wildlife species or habitat. A critical areas report for a habitat conservation area shall contain an assessment of habitats including the following site- and proposal-related information at a minimum:

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

2. Identification of any species of local importance, priority species, or endangered, threatened, sensitive or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;

3. A discussion of any federal, state, or local special management recommendations, including Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

4. A detailed discussion of the direct and indirect potential impacts on habitat by the project, including potential impacts to water quality;

5. A discussion of measures, including avoidance, minimization and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with MMC 18.16.150, Mitigation sequencing; and

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

B. Additional Information May Be Required. When appropriate due to the type of habitat or species present or the project area conditions, the city may also require the habitat management plan to include:

1. An evaluation by a qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate;

2. A request for consultation with the Department of Fish and Wildlife or the local Native American Indian Tribe or other appropriate agency; and

3. Detailed surface and subsurface hydrologic features both on and adjacent to the site. (Ord. 1671 § 5, 2006).

18.16.640 Performance standards.

A. Alterations Prohibited. Land development and use shall be prohibited from habitat conservation areas and their buffers, except in accordance with this chapter.

B. Mitigation Shall Result in Contiguous Corridors. When mitigation is required to offset impacts, mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

C. Approvals of Activities May Be Conditioned. The city shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary, to minimize or mitigate any potential adverse impacts. Conditions may include, but are not limited to, the following:

1. Establishment of buffer zones;

2. Preservation of critically important vegetation;

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

4. Seasonal restriction of construction activities;

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

6. Requirement of a performance security in accordance with MMC 18.16.200, when necessary, to ensure completion and success of proposed mitigation.

D. Buffers.

1. Establishment of Buffers. The city shall require the establishment of buffer areas for activities adjacent to habitat conservation areas when needed to protect the habitat conservation areas. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby.

2. Riparian Habitat Buffers. A riparian habitat buffer shall have the following width, unless a lesser width is allowed pursuant to subsection (D)(4) of this section. Widths shall be measured outward in each direction, on the horizontal plane, from the ordinary high water mark or from the outer edge of the floodway, whichever is greater.

Water Type	Riparian Buffer
S	165 feet
F	150 feet
Np	115 feet
Ns	65 feet

3. Increasing Buffer Widths. The land use administrator has the authority to increase the standard buffer widths when such buffers are necessary for one of the following:

a. To protect priority fish or wildlife using the habitat conservation areas. This determination shall be supported by appropriate documentation from the Departments of Ecology and Fish and Wildlife, showing that the increased buffer width is reasonably related to the protection of the fish and/or wildlife using the HCA;

b. To provide connectivity when a Type S or F water body is located within 300 feet of:

i. Another Type S or F water body;

ii. A fish and wildlife habitat conservation area; or

iii. A Category I, II, or III wetland;

c. When the frequently flooded area exceeds the recommended riparian habitat area width, the riparian habitat area shall extend to the outer edge of the frequently flooded area.

The increased buffer distance may be limited to those areas that provide connectivity or are necessary to protect habitat functions. Increasing the buffer widths will only be done where necessary to preserve the structure, function and value of the habitat.

4. Buffer Averaging. Buffer width averaging may be allowed by the city if:

a. It will provide additional natural resource protection, as long as the total area contained in the buffer on the development proposal site does not decrease;

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

c. The buffer width is not reduced to less than 50 percent of the standard buffer.

5. Buffer Reduction. Buffers may be reduced when buffer reduction impacts are mitigated and result in equal or greater protection of the stream functions. Prior to considering buffer reductions, the applicant shall demonstrate application of mitigation sequencing as required in MMC 18.16.150. A plan for mitigating buffer-reduction impacts must be prepared using selected incentive-based mitigation options from the list below, and is subject to approval by the city. The following incentive options for reducing standard buffer widths shall be considered cumulative up to a maximum reduction of 50 percent of the standard buffer width. In all circumstances where a substantial portion of the remaining buffer is degraded, the buffer reduction plan shall include replanting with native vegetation in the degraded portions of the remaining buffer area and shall include a five-year monitoring and maintenance plan.

a. Installation of biofiltration/infiltration mechanisms: up to 20 percent reduction in standard buffer width for the installation of bioswales, created and/or enhanced wetlands, or ponds supplemental to existing storm drainage and water quality requirements.

b. Removal of existing impervious surfaces:

i. Up to 10 percent reduction in standard buffer width if impervious surfaces within the to-be-remaining buffer area are reduced by at least 50 percent; or

ii. Up to 20 percent reduction in standard buffer width if the to-be-remaining buffer area is presently more than 50 percent impervious and all of it is to be removed.

c. Removal of invasive, nonnative vegetation: up to 10 percent reduction in standard buffer width for the removal and extended (minimum five-year) monitoring and continued-removal maintenance of relatively dense stands of invasive, nonnative vegetation from significant portions of the remaining buffer area.

d. In-stream habitat enhancement:

i. Up to 20 percent reduction in standard buffer width for log structure placement, bioengineered bank stabilization, or culvert removal; or

ii. Up to 30 percent reduction in standard buffer width for improving fish passage and/or creation of side channel or backwater areas.

e. If not already required under an existing development proposal, installation of oil/water separators for storm water quality control: up to 10 percent reduction in standard buffer width.

f. Use of pervious material such as pervious interlocking concrete paving blocks, concrete grid pavers, perforated brick pavers, and compacted gravel for driveway/road construction: up to 10 percent reduction in standard buffer width.

g. Restoration of off-site area if no on-site area is possible:

i. Up to 10 percent reduction in standard buffer width if restoration area is at a 2:1 ratio or greater; or

ii. Up to 20 percent reduction in standard buffer width if restoration area is at a 4:1 ratio or greater.

h. Removal of significant refuse or sources of toxic material: up to 10 percent reduction in standard buffer width.

i. Ten percent for preparation of, and agreement to adhere to, a vegetation management plan that includes appropriate limitations on the site use of fertilizer, herbicides, and pesticides as needed to protect water quality.

j. Ten percent for limiting lawn area to no greater than 20 percent of the lot area. Landscaped areas outside of the lawn and buffer areas shall be maintained or planted in noninvasive vegetation.

The land use administrator may also consider buffer reductions for decreasing impacts to buffers using methods such as low impact development (LID).

E. Signs and Fencing of Habitat Conservation Areas. In accordance with MMC 18.16.320(D).

F. Subdivisions. In accordance with MMC 18.16.340.

G. Anadromous Fish.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall adhere to the following standards:

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

b. Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques according to an approved critical areas report.

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

3. Fills, when authorized by the adopted shoreline master program, shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impacts, and shall only be allowed for a water-dependent use.

H. Allowed Uses. The following specific activities may be permitted within a riparian habitat area, pond, lake, water of the state, or associated buffer when the activity complies with the following standards and the adopted shoreline master program:

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

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

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

c. Roads in riparian habitat areas or their buffers shall not run parallel to the water body;

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

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

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

g. Road bridges are designed according to the currently adopted versions of the Department of Fish and Wildlife Fish Passage Design at Road Culverts, March 1999, and the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000, or as revised; and

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

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

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

b. Installation shall be accomplished by boring below the maximum depth of scour for the base flood predicted by a qualified professional and hyporheic zone of the water body and channel migration zone, where feasible;

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

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

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

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

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

4. In-Stream Structures. In-stream structures, such as, but not limited to, high flow bypasses, sediment ponds, in-stream 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.

5. Storm Water Conveyance Facilities. Conveyance structures may be permitted in accordance with an approved critical areas report subject to the following standards:

a. No other feasible alternatives with less impact exist;

b. Mitigation for impacts is provided;

c. Storm water conveyance facilities shall incorporate fish habitat features; and

d. Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds in order to retard erosion, filter out sediments, and shade the water. (Ord. 1671 § 5, 2006).

Article VI. Frequently Flooded Areas

18.16.710 Frequently flooded areas.

Development sites within frequently flooded areas shall be subject to the provisions of Chapter 15.20 MMC, Flood Damage Prevention. (Ord. 1671 § 5, 2006).

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Footnotes

¹ Code reviser’s note: See Chapter 3.48 MMC for connection fees and permit charges. Prior legislation: Ord. 1289.

²Prior legislation: Ords. 971 and 1195.

³Prior legislation: Ord. 654.