Chapter 17.35
WETLANDS
Sections:
17.35.005 Purpose.
17.35.010 Applicability and mapping.
17.35.015 Application and review procedure.
17.35.020 Exemptions.
17.35.025 Delineation and wetland analysis requirements.
17.35.030 Wetland categories.
17.35.035 Establishing buffer widths.
17.35.040 Buffer provisions.
17.35.045 Mitigation.
17.35.050 Residential density and on-site density transfer.
17.35.055 Alternative review process, Corps of Engineers Section 404 individual permits.
17.35.005 Purpose.
The purpose of this chapter is to avoid, or, in appropriate circumstances, to minimize, rectify, reduce or compensate for impacts arising from land development and other activities affecting wetlands. Additionally, the purpose of this chapter is to maintain and enhance the biological and physical functions of wetlands with respect to water quality maintenance, storm water and floodwater storage and conveyance, fish and wildlife habitat, primary productivity, recreation, education, and historic and cultural preservation. When avoiding impacts is not reasonable, mitigation should be implemented to achieve no net loss of wetlands in terms of acreage, function and value.
(Ord. 343 § 1, 2002).
17.35.010 Applicability and mapping.
This chapter shall apply to all areas satisfying the criteria for wetland presence. The Department has created wetland maps for general informational purpose. The presence or absence of wetlands on a site shall be based on field conditions observed at the site.
(Ord. 343 § 1, 2002).
17.35.015 Application and review procedure.
A. When any regulated activity is proposed on a site that may be within 200 feet of a wetland, an application containing the following shall be submitted to the department:
1. Site plan(s);
2. Wetland analysis report and/or delineation prepared by a qualified wetland specialist, if required;
3. Mitigation plan, if required;
4. Such other information as the Director determines is necessary to adequately evaluate the impact of the regulated activity on the wetland and buffer.
B. The procedure to obtain approval for a regulated activity on a site that contains wetlands and/or buffers shall be in accordance with UPMC Title 22, Administration of Development Regulations, which provides for consolidated and timely permit review.
C. Review and Approval. Approval of a regulated activity on a site that contains wetlands and/or wetland buffers shall be granted upon a determination that the wetland analysis report and mitigation plan meet all applicable requirements and that the mitigation plan, monitoring program and contingency plan, if required, are tied to an acceptable financial guarantee. Except as specifically exempted, regulated activities within wetlands and wetland buffers shall not be permitted unless the applicant demonstrates that mitigation sequencing is considered pursuant to the mitigation section of this chapter.
D. Expiration*. Approvals shall be valid for a period of time equal to the time that any associated land use permit or approval is valid.
(Ord. 343 § 1, 2002).
*Code reviser’s note: Ordinance 533 §§ 1 and 3, as amended by Ordinance 578, effective until December 31, 2012, state: “The Development Services Director is hereby authorized to extend permit and permit applications without fee for periods not to exceed 180 days upon written request. Said request shall demonstrate that circumstances beyond the control of the applicant have prevented work on the permit application or work under an issued permit. The current economic slowdown resulting in lax housing sales and unavailable credit may be cited as a circumstance beyond the applicant’s control.
The Development Services Director shall not issue an extension under Section 1 if a Title of the Municipal Code has been amended affecting the property for which the permit was issued or the permit application pertains unless the applicant agrees in writing to abide by any applicable amended provisions.”
17.35.020 Exemptions.
In addition to the activities and uses listed in UPMC 17.10.035, the following activities are exempt from the provisions of this chapter:
A. Subject to BMPs, construction or reconstruction of single-family, duplex or condominium units on a lot that was platted, or approved pursuant to a planned development district (PDD), prior to adoption of the ordinance codified in this chapter. Structures shall be located outside of buffers in effect when the lot was created and shall be subject to the wetland regulations in effect at that time. A completed building permit application for the construction or reconstruction must be submitted within five years of final plat or PDD approval, or this exemption does not apply.
B. Pursuant to BMPs, construction of a one-family dwelling and regulated activities accessory to a one-family dwelling on a lot of record that was legally created prior to the effective date of this regulation shall be allowed in the buffer if all of the following provisions are met:
1. Development outside the buffer is not feasible.
2. The applicant demonstrates to the department that adverse impacts to wetlands will be mitigated to the greatest extent possible.
3. The residence and accessory structures are located to minimize intrusion into the buffer to the greatest extent possible.
C. Activities in artificial wetlands, except those artificial wetlands intentionally created for replacement, enhancement or similar purposes.
D. Activities affecting:
1. Category II wetlands which are less than 1,000 square feet.
2. Category III wetlands which are less than 2,500 square feet;
3. Category IV wetlands which are less than 10,000 square feet.
E. Placement of access roads, utility lines and utility poles across a Category IV wetland and/or a buffer for a Category IV wetland if there is no reasonable alternative and if construction activity is conducted in accordance with BMPs.
F. For legally established gardens and landscaped areas existing on the effective date of this regulation, activities to maintain their existing condition and appearance. Activities may include, but are not limited to, mowing lawns, weeding, harvesting and replanting of garden crops, pruning and planting of vegetation. Use of pesticides and chemical fertilizers is prohibited.
G. Activities designed for protection, maintenance and enhancement of wetlands, if approved by the director.
H. Pursuant to BMP’s, activities undertaken on the site of an existing holding pond, water quality facility or similar facility, intended to improve water quality, flow control or other primary function of the facility.
I. Public stormwater retention/detention facilities and stormwater conveyance facilities such as bioswales, open trenches and culverts, not designed to drain wetlands may be constructed within Category II, III and IV wetland buffers; provided, that the following conditions are met:
1. no untreated stormwater is released from the facility into the wetland or buffer;
2. the applicant demonstrates that water levels within the wetland will be maintained at pre-existing levels;
3. water levels are monitored annually to ensure that pre-existing functions of the wetland are not significantly lost through fluctuations in wetland hydrology;
4. maintenance activity is limited to removal of invasive vegetation and/or removal of sediment accumulation at inflow structures in a manner acceptable to the Department;
5. all construction activity is conducted in accordance with accepted BMP’s. This conditional exemption would not apply in situations where there are threatened or endangered species, or sensitive plants, unless approved by the State Department of Fish and Wildlife or Department of Natural Resources, respectively. All permits from other regulatory agencies must be obtained.
J. A utility line may be placed in an underground trench within a Category II, III or IV wetland or its buffer. There must be no resulting changes in pre-construction contours, and trench excavation materials that are temporarily sidecast must be stabilized to prevent erosion and sedimentation. All sidecast materials shall be replaced within the trench or removed after 90 days, unless the Department grants an extension. The trench shall be the minimum size required to construct the utility line. The top 12 inches of the trench shall be backfilled with topsoil from the trench excavation. Trenches in wetlands shall be backfilled with wetland topsoil from the excavation. Trench excavation should be restricted to the dry season. All permits from other regulatory agencies must be obtained.
K. Subject to BMP’s, placement of utility lines which do not require excavation or utility poles, in any part of a buffer for a category III or IV wetland. They may be placed in a buffer for a category I or II wetland; provided they are not located closer than one half the buffer width from the edge of the wetland.
L. Public park improvements, including construction of public trails and associated viewing platforms, subject to BMP’s, provided no net loss of wetlands occurs.
(Ord. 343 § 1, 2002).
17.35.025 Delineation and wetland analysis requirements.
Regulated activities shall comply with the following requirements:
A. The department may require a delineation report per the Washington State Wetland Identification & Delineation Manual, latest addition, to determine if a regulated wetland is present on the site or to determine if the proposed activity is within 200 feet of a wetland. A wetland delineation report shall be prepared by a qualified wetland specialist. The delineation report indicates wetland and/or buffer boundaries that may extend onto the site. While the delineation report shall discuss all wetland areas within 200 feet of the site, only those boundaries within the site property lines need be marked in the field. A preliminary site inspection may be required by the department to determine whether a delineation report is needed.
B. If the department determines that a regulated wetland is on the site, or within 200 feet of the site so that a wetland buffer boundary may extend onto the site, then the department shall require a wetland analysis report. A wetland analysis report must be prepared by a qualified wetland specialist. A wetland analysis report shall include the following:
1. Vicinity map;
2. When available, a copy of a National Wetland Inventory Map (U.S. Fish and Wildlife Service) and/or a city wetland inventory map identifying the wetlands on or adjacent to the site;
3. A site map setting forth all of the following:
a. Surveyed wetland boundaries based upon a delineation by a wetland specialist;
b. Site boundary property lines and roads;
c. Internal property lines, rights-of-way, easements, etc.;
d. Existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.;
e. Contours at the smallest readily available intervals, preferably at two-foot intervals;
f. Hydrologic mapping showing patterns of surface water movement and known subsurface water movement into, through, and out of the site area;
g. Location of all test holes and vegetation sample sites, numbered to correspond with flagging in the field and field data sheets;
h. The department may require an air photo with overlays displaying the site boundaries and wetland delineation;
4. A report that includes the following:
a. Location information (legal description, parcel number and address);
b. Delineation report. The wetland boundaries on the site established by the delineation shall be staked and flagged in the field. If the wetland extends outside the site, the delineation report shall discuss all wetland areas within 200 feet of the site, but need only delineate those wetland boundaries within the site;
c. General site conditions including topography, acreage, and surface areas of all wetlands identified in the city wetland atlas and water bodies within one-quarter mile of the subject wetland(s);
d. Hydrological analysis, including topography, of existing surface and known significant subsurface flows into and out of the subject wetland(s);
e. Analysis of functional values of existing wetlands, including vegetative, faunal, and hydrologic conditions;
5. A summary of proposed activity and potential impacts to the wetland(s);
6. Recommended wetland category, including rationale for the recommendation;
7. Recommended buffer boundaries, including rationale for boundary locations;
8. Proposed on-site residential density transfer from wetlands and/or buffers to upland areas;
9. Site plan of proposed activity, including location of all parcels, tracts, easements, roads, structures, and other modifications to the existing site. The location of all wetlands and buffers shall be identified on the site plan.
C. The department shall review and approve the wetland analysis report to determine the appropriate wetland category and buffer, and shall include the wetland in the city wetland maps and inventory if not already included. The department shall approve the report’s findings and proposals unless specific, written reasons are provided which justify not doing so.
(Ord. 343 § 1, 2002).
17.35.030 Wetland categories.
Wetland categories shall be determined based upon the Washington State Wetland Rating System, Western Washington version, current addition published by DOE. Wetlands shall be generally categorized as follows:
A. Category I wetlands are those regulated wetlands that:
1. provide a life support function for a threatened or endangered species that has been documented and the wetland is on file in databases maintained by state agencies;
2. represent a high quality example of a rare wetland type;
3. are rare within a given region; or
4. are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime, if at all. Category I wetlands are not common and would constitute a small percentage of wetlands statewide.
B. Category II wetlands are:
1. those regulated wetlands that provide habitat for very sensitive wildlife or plants;
2. are either difficult to replace; or
3. provide very high functions, particularly for wildlife habitat. These wetlands occur more commonly than category I wetlands, but still need a high level of protection.
C. Category III wetlands are those regulated wetlands that provide important functions. They are important for a variety of wildlife species and occur more commonly throughout the state than either category I or II wetlands. Generally these wetlands are smaller, less diverse, and/or more isolated in the landscape than category II wetlands. They are somewhat difficult to replace and require a moderate level of protection.
D. Category IV wetlands are those regulated wetlands of ordinary resource value based on monotypic vegetation of similar age and class, lack of special habitat features, small size and isolation from other aquatic systems. These wetlands do provide important functions and should to some degree be protected.
(Ord. 343 § 1, 2002).
17.35.035 Establishing buffers.
A. Buffers shall be measured perpendicularly to the wetland edge. Buffer widths shall be determined according to table 3 and the provisions of this section:
Table 3 - Wetland Buffer Widths
B. The Director shall determine that a use is either high impact or low impact based upon the following performance standards. A proposed use must satisfy 5 of the following 7 criteria to be considered low impact. All other uses shall be considered high impact.
1. No more than 30% of the site may be covered with impervious surfacing.
2. Pier, piling or pin foundation systems or other measures that reduce on-site soil compaction shall be used where appropriate.
3. A minimum of 60% of the site shall be retained in an undisturbed naturally vegetated state.
4. Permeable paving systems shall be implemented where appropriate.
5. Measures shall be taken to ensure that use of pesticides, herbicides and fertilizers incompatible with wetland functions does not occur.
6. Bio-retention features shall be employed. Examples include rain gardens, roof gardens, tree filter boxes and similar vegetated systems.
7. Roads, driveways and parking areas shall be minimized. Roads and driveways shall primarily run perpendicular to the wetland edge. Parking areas shall be located the maximum distance feasible from the buffer edge.
C. An applicant may propose an alternative plan for achieving low impact development. The director and the city wetland specialist shall review the plan. If the alternative plan is determined to provide greater than or equal benefit to wetland functions than could be achieved by following the provisions of subsection B, development activity implemented subject to such plan shall be considered low impact and a low impact buffer, per Table 3, shall be permitted.
D. Buffer widths may be modified by averaging or reducing. Buffer averaging and buffer reduction shall not be applied to the same wetland.
1. Buffer width averaging may be allowed only where the applicant demonstrates the following:
a. The wetland contains variations in sensitivity due to existing physical characteristics; and
b. Width averaging will not adversely impact the wetland; and
c. The total buffer area after averaging is no less than the buffer area prior to averaging; and
d. The minimum buffer width will not be less than 50 percent of the width established in subsection (A) of this section. See Figure 35-1 below.
2. Buffer width reduction may be allowed only where the applicant demonstrates the following circumstances. Such reduction shall not result in greater than a 25 percent reduction in the buffer width established in subsection (A) of this section. See Figure 35-2 below.
a. The proposed buffer area is extensively vegetated and has less than 15 percent slopes, and the reduction will not result in adverse impacts to the wetland; or
b. The project includes a buffer enhancement plan, as part of the mitigation required by UPMC 17.35.045. The buffer enhancement plan shall use plant species which are indigenous to the project area, and shall substantiate that an enhanced buffer will improve the functional attributes of the buffer to provide additional protection for wetland functional values; or
c. The acreage included in the buffer would substantially exceed the size of the wetland and the reduction will not result in adverse impacts to the wetland or the project includes a buffer enhancement plan that ensures the reduction will not result in adverse impacts to the wetland.
E. The department may require increased buffer width when a larger buffer is necessary to protect wetland functions and values based on local conditions. This determination shall be reasonably related to protection of the functions and values of the regulated wetland. Such determination shall demonstrate that:
1. A larger buffer is necessary to maintain viable populations of existing species; or
2. The wetland is used by species listed by the federal government or the state as endangered or threatened species or habitats, or essential or outstanding potential sites such as heron rookeries or raptor nesting areas; or
3. The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts; or
4. The adjacent land has minimal vegetative cover or slopes greater than 15 percent.
(Ord. 343 § 1, 2002).
17.35.040 Buffer provisions.
A. When buffer boundaries have been determined they shall be marked in the field by a licensed surveyor. The markers shall be clearly visible, durable, and permanently affixed to the ground.
B. Prior to final project approval, the part of the wetland and/or buffer that is on the site shall be placed in a separate wetland tract or tracts, protective easement, public or private land trust dedication, or similarly preserved through an appropriate permanent protective mechanism as determined by the city. All wetland tracts, protective easements, land trust dedications and other similarly preserved areas shall remain undeveloped in perpetuity, except as they may be altered pursuant to this chapter.
C. Prior to final project approval of any wetland application, the common boundary between a wetland tract, protective easement, land trust dedication, or other similarly preserved area and the adjacent land shall be identified with permanent signs and/or fencing. Sign and fencing locations, wording, and size and design specifications shall be as required by the department.
D. A building setback line of eight feet shall be required from the outside edge of the buffer (See Figure 35-3). The 8’ building setback shall be required regardless of the width of the buffer. The 8' building setback shall be considered a minimum setback and shall not be construed to reduce or eliminate additional setbacks as required by another regulation, code, or state or federal law.
E. At any time after a wetland tract, protective easement, land trust dedication, or other similarly preserved area has been established, the owner may submit a delineation report to the department. If the owner can demonstrate that a natural boundary change has occurred, or that a wetland no longer exists, the wetland tract, protective easement, land trust dedication, or other similarly preserved area may be altered or eliminated, as appropriate. If a wetland boundary has changed or a wetland has been eliminated due wholly or in part to illegal activity, a change or elimination of wetland tract, protective easement, land trust dedication, or other similarly preserved area shall not be permitted.
F. A wetland tract, protective easement, land trust dedication, or other similarly preserved area is not required for utility lines in easements on lands not owned by the jurisdiction conducting the regulated activity.
G. Except as otherwise specified, buffers shall be retained in a natural condition.
H. The wetland buffer shall not extend away from the wetland beyond an existing substantial linear improvement such as an improved road, dike, or levee, where an applicant can show that such existing improvement significantly reduces the impact the proposed activities would have on the wetland.
I. The department may require protection measures or erosion control measures such as temporary or permanent fencing to provide for protection of a wetland and buffer when any regulated activities are proposed on a site, but are not proposed within a wetland and/or buffer.
(Ord. 343 § 1, 2002).
17.35.045 Mitigation.
Regulated activities within wetlands and buffers shall be mitigated pursuant to this chapter. Where SEPA environmental review is required, a threshold determination may not be made prior to department review of the mitigation plan.
A. All activities in wetlands and/or buffers shall be mitigated according to this section and the Department of Ecology manual: Guidelines for Developing Freshwater Wetlands Mitigation Plans and Proposals, current edition, as published by DOE. Except as specifically exempted, regulated activities shall not be permitted within wetlands and/or buffers unless an applicant demonstrates that all reasonable attempts have been made to avoid impacts to the wetland and/or buffer. Mitigation is considered in order of preference as noted below with (1) being most preferable and (5) being the least preferable. Applicants must establish that mitigation has been considered in order of preference prior to permit issuance. There may be circumstances when an alternative mitigation strategy is preferable.
1. Avoiding the impact altogether by not taking a certain action or parts of actions within the wetland and/or buffer;
2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to reduce impacts;
3. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
4. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
5. Compensating for the impact by replacing or providing substitute resources or environments.
Mitigation for individual actions may include a combination of the above measures. Monitoring may be a part of one or more of the above measures.
B. Regulated activities which occur in buffers, and which will not eliminate wetland habitat, shall be mitigated according to a mitigation plan approved by the department. A mitigation plan for regulated activities in buffers shall contain the following components:
1. General goals of the mitigation plan;
2. Approximated site topography before and after alteration;
3. Location of proposed mitigation area;
4. General hydrologic patterns on the site before and after construction;
5. General plant selection and justification, planting instructions, and approximate planting sequencing and schedule;
6. A maintenance plan;
7. A monitoring and contingency plan.
8. A financial guarantee to ensure maintenance and/or implementation of the contingency plan. The financial guarantee must be equal or greater than 20% of the estimated cost of the mitigation work, but in no case shall be less than is necessary to implement the contingency plan.
C. Compensatory mitigation shall be required for filling wetlands and for other regulated activities in wetlands. Compensatory mitigation shall be accomplished per the Department of Ecology manual: Guidelines for Developing Freshwater Wetlands Mitigation Plans and Proposals, current addition. The above referenced document was developed jointly by six agencies including the Washington State Department of Ecology and Department of Fish and Wildlife, U.S. Army Corps of Engineers, U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service. These agencies, together with the city, have regulatory authority over wetland filling and related mitigation. Consistency with the above referenced document will ensure that submitted plans are adequately detailed for review by all responsible agencies. Replacement ratios for compensatory mitigation shall be pursuant to the subsection below.
1. When regulated activities occur in wetlands, the applicant shall restore, create, or enhance equivalent areas of wetlands. Equivalent areas shall be determined according to acreage, functional value, type, location, time factors, and projected success. No overall net losses shall occur in wetland acreage, functions and/or values, and any restored, created, or enhanced wetland shall be as persistent as the wetland it replaces. Buffers pursuant to 17.35.035 shall be provided for created, restored or enhanced wetlands.
2. When an applicant proposes to alter or eliminate wetland, the applicant shall replace, restore and/or enhance acreage at the following ratios:
Table 4 - Replacement Ratios
|
Wetland Category |
Creation and Restoration |
Enhancement |
|---|---|---|
|
Category I |
6:1 |
12:1 |
|
Category II and III |
||
|
•Forested |
3:1 |
6:1 |
|
•Other |
2:1 |
4:1 |
|
Category IV |
1.25:1 |
2.5:1 |
*Ratios read as follows: Acreage replaced: Acreage lost
3. Ratios provided are for proposed projects with in-kind replacement that occurs prior to regulated activities on the site. Replaced, restored or enhanced wetlands must be located within the same drainage basin as the filled wetland, but are not required to be located on the same property. The department may increase the ratios under the following circumstances:
a. Uncertainty as to the probable success of the proposed restoration, enhancement or creation; or
b. Significant period of time between destruction and replication of wetland functions; or
c. Projected losses in wetland functional value; or
d. Out-of kind compensation.
4. The department may allow the minimum acreage replacement ratio to be decreased if the applicant provides findings of special studies coordinated with agencies with expertise, which demonstrate that, no net loss of wetland function or value results from the decreased ratio. In no case shall the department approve a ratio less than 1:1.
5. In-kind compensation shall be provided except where the applicant demonstrates that:
a Greater functional and habitat values can be achieved through out-of-kind mitigation; or
b. The wetland system is already significantly degraded; or
c. Problems such as the presence of exotic vegetation and changes in watershed hydrology make implementation of in-kind compensation infeasible; or
d. Out-of-kind replacement will best meet identified regional goals (e.g., replacement of historically diminished wetland types).
D. Financial guarantees. Mitigation shall be accomplished prior to the start of any regulated activity that impacts wetland area.
1. If development permits are issued prior to completion of mitigation work, financial guarantees shall be required to ensure mitigation is completed. Financial guarantees shall be 125% of the estimated cost of implementation of the mitigation plan.
2. Appropriate financial guarantees shall be in place to ensure that maintenance; monitoring and/or contingency plans shall be accomplished. Financial guarantees for contingency plans should be 20% of the cost of implementation of the mitigation plan.
E. Wetland mitigation banking may be permitted as a flexible alternative to standard compensatory mitigation. Wetland mitigation banking shall be conducted per the requirements of 173-700 WAC. The department may adopt additional administrative rules to administer wetland mitigation banking.
(Ord. 343 § 1, 2002).
17.35.050 Residential density and on-site density transfer.
The purpose of on-site density transfer is to cluster development in a manner that provides protection for wetlands and allows transfer of residential density from a wetland and/or wetland buffer area to an area on the same site that is neither wetland nor buffer. Those portions of the wetland and/or wetland buffer in which regulated activities are proposed to occur shall not be considered in calculating density transfer. Density transfer shall be determined as follows:
A. For sites containing regulated wetland buffer areas, full density credit may be transferred from the buffer area to the non-buffer area.
B. For sites containing regulated wetland areas, density transfer shall be calculated from the following table:
|
Percentage of site in wetland |
Amount of credit |
|
0–25% |
75% |
|
26–50% |
50% |
|
50–100% |
25% |
C. If an on-site density transfer would result in the creation of one or more lots smaller than the minimum lot size specified for lots within a conventional plat, the subdivision shall be designed and processed in accordance with the Design Standards and Guidelines for Small Lot and Multifamily Development adopted by reference in Chapter 19.53 UPMC.
(Ord. 566 § 1, 2010; Ord. 343 § 1, 2002).
17.35.055 Alternative review process, Corps of Engineers Section 404 individual permits.
When an Army Corps of Engineers Section 404 permit is required for a project involving wetlands, the Army Corps permitting process may be substituted for the city permitting process. If a proposal reviewed and conditioned by the Corps satisfies the intent of this chapter, no further wetland review shall be required by the city. All permits and approvals required by other city development regulations shall be required.
(Ord. 343 § 1, 2002).