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Subjects › Planning › Flexibility in Environmental Regulation
Updated 06/2010

Flexibility in Environmental Regulation

Contents

Introduction

All Washington cities and counties are required to adopt critical areas (environmentally sensitive areas) regulations (RCW 36.70A.060). Critical areas include wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. The GMA was amended in 1995 to require counties and cities to include the best available science in developing policies and development regulations. That amendment was intended to ensure that cities and counties consider reliable scientific information when adopting critical areas policies and regulations to protect the functions and values of critical areas (RCW 36.70A.172). Under the same statute, counties and cities are required to give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries, including salmon, steelhead and bull trout fisheries. See the MRSC Web page: Critical Areas for more information on the subject of critical areas. In addition, the National Marine Fisheries Service (NMFS) has listed 16 populations of Washington salmon and bull trout populations as "endangered" or "threatened" under the Endangered Species Act. A variety of mechanisms including erosion and stormwater controls, and setbacks or buffers around streams, wetlands and shorelines can protect anadromous fish habitat from activities that contribute to erosion, surface water runoff, and pollution. See the MRSC Web page: Endangered Species: Salmon, Bull Trout, and Rockfish for more information on endangered species.

Because setbacks and other protective measures can significantly restrict new land uses and activities on constrained lands, critical areas ordinances implementing the new requirements have been controversial in some communities. Wide stream setbacks and buffer requirements, often bolstered by best available science documents, have been particularly difficult to accommodate on small urban lots or for farming operations that require access to water for cattle and irrigation. The following information and examples illustrate approaches for using incentives or adding flexibility to regulations to ease difficulties for property owners, while continuing to protect important resources.

Increased Visibility for Flexible Options Offered

Many local governments have incorporated added flexibility into critical areas codes, but these provisions do not always stand out, especially in lengthier codes. Some jurisdictions have added sections that highlight the many incentives and opportunities for increased flexibility and choice available within the code.

  • Spokane County Code Section 11.20.080 - Incentives.
  • Clark County Code Section 40.440.020 - Standards and Nonregulatory Measures. (See especially sections C, D & E for incentives and nonregulatory measures. These sections organize together and point the user to code sections where flexible options are offered.)
  • Cowlitz County Code Section 19.15.080 - Optional incentives for nondevelopment of critical areas.

Reasonable Use Exceptions and Other Critical Area Exemptions

Reasonable use exceptions are a mechanism by which a local jurisdiction may grant relief from code requirements where compliance leaves no reasonable use of the property. Reasonable use exceptions are a legal concept that has been articulated by federal and state courts in regulatory takings cases. In a takings case, the decision-maker must balance the public's interests against the owner's interests by considering the nature of the harm the regulation is intended to prevent, the availability and effectiveness of alternative measures, and the economic loss borne by the owner. Public interest factors include the seriousness of the public problem, the extent to which the land involved contributes to the problem, the degree to which the regulation solves the problem, and the feasibility of less oppressive solutions. In addition to exceptions that assure that a restricted property retains some reasonable economic use, some communities have gone beyond this legal standard. These communities are incorporating other exemptions and provisions to assure that codes are not unduly burdensome and that property owners are treated fairly.

  • Snoqualmie Municipal Code Section 19.12.030(D) - Reasonable use criteria based on model code developed for several King County cities. In addition see other exemptions in Sections A - E for removal of vegetation that is potential fuel in a wildfire-prone area, removal of invasive and noxious weeds, certain agricultural activities, improvements to existing uses, routine maintenance and others.
  • Reasonable Use Ordinance Table prepared by Kirkland - Summary comparison of decision criteria, requirements and processes of 27 Washington cities.
  • Mukilteo Municipal Code Section 17.52.025 - Approval criteria and standards address single family, multi-family and subdivisions.
  • Everett Municipal Code Section 19.37.050(B), (C), & (D) - includes on-site and off-site transfer of development right provision as a part of reasonable use provisions. See also Section A with exemptions for existing uses, certain agricultural uses and activities.
  • Clallam County Code Section 27.12.740 - Reasonable Use Exception.
  • Gig Harbor Municipal Code Section 18.08.206 - Reasonable use exceptions.
  • Richland Municipal Code Section 22.10.360 (Adobe Acrobat Document) - General Savings Provision - Reasonable Use.
  • Issaquah Municipal Code Section 18.10.390 - Reasonable use definition, and 18.10.430(D) - Variances.
  • Enumclaw Municipal Code Section 19.02.030(B) - Exception - Reasonable Use.
  • Auburn Municipal Code Section 16.10.150 - Reasonable use provision.
  • Bothell Municipal Code Section 14.04.140 - Exception - Reasonable use.
  • Des Moines Municipal Code Section 18.86.110 - Reasonable use exceptions in wetlands, streams, ravine, sidewalls and bluffs.
  • Edmonds Municipal Code Section 23.40.210 - Variances.
  • Federal Way Municipal Code Section 22-1244 - Reasonable use of the subject property.
  • Vancouver Municipal Code Section 20.740.080 - Reasonable use exceptions.
  • Bainbridge Island Municipal Code Section 16.20.080.
  • Whatcom County Code Section 16.16.270.

Exemptions, Alterations and Flexible Uses/Activities within Critical Areas

Many communities have anticipated a number of specific situations under which strict application of new environment regulations may create difficulties for existing property owners, agricultural and forest operations or other uses and related activities. The following codes exempt some uses and activities from critical areas regulation, and often specify conditions under which these activities may be conducted. Many communities have provisions that allow minor alterations within critical areas provided that the values and functions of the critical areas are protected.

Onsite Density Transfer for Critical Areas

Many Washington communities have adopted provisions that allow density to be transferred from a constrained portion of a site to an unconstrained area on the same site. Such density transfers achieve protection of critical areas while permitting the property owner to retain some or all development rights. These provisions generally include some criteria to assure that density in receiving area doesn't exceed what that area can accommodate. Some jurisdictions use a sliding scale that specifies how much density may be transferred, based on the percentage of the site that is constrained.

Flexible Buffer Widths

Buffers are designated areas around the perimeter of critical areas that provide a margin of safety or buffer critical areas from the impacts of adjacent uses. Because of variations in slopes, soils, vegetative cover, mitigation measures or other conditions, buffers may sometimes be reduced without compromising the buffer functions. Variations in buffer widths may also be possible. These provisions address buffer modifications, including averaging of buffer widths, and reduction of standard buffer widths when buffer functions are maintained and certain criteria are met.

Small Project Waivers

Some communities allow some construction of small projects within critical areas, particularly on pre-existing lots.

Individual Stewardship Plans

Some communities provide property owners with the option to develop an individual stewardship or conservation plan in place of standard critical area requirements when developing their property. Similarly, farm or forest management plans allow the flexibility to choose critical areas protection techniques that work well for individual farming and forestry operations.

Mitigation Banking

Some communities allow a developer to create or restore wetlands off-site on another property to compensate for unavoidable lost or damage of wetlands on the site that will be developed. To better assure that the created wetland is viable for the long term, some local jurisdictions have purchased property which is then converted to a wetland mitigation bank, under the jurisdiction's management. A private developer or another agency may then purchase credits from the jurisdiction (or "buy in" to the created wetland bank) to compensate for wetland damage when a property is developed.

Mitigation Banking: General

Mitigation Banking: Local Programs and Code Examples

Incentives - Green Build & Low Impact Development

Some communities offer code modifications in exchange for projects that incorporate green and low impact development features.

Incentive Programs - Critical Areas

Land Exchange to Preserve Critical Areas

  • Cowlitz County Code Section 19.15.080(F) - Optional Incentives for Non-Development of Critical Areas. (Land exchange by state and/or local government.)

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