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Article V. Critical Areas
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(1) Statutory Authorization.

(a) The city shall regulate in the shoreline jurisdiction all uses, activities, and development within, adjacent to, or likely to affect one or more critical areas, consistent with the provisions of this article.

(2) Purpose.

(a) The purpose of these regulations is to designate ecologically sensitive and hazardous areas and to protect those areas and their functions and values within shoreline jurisdiction. These regulations are intended to:

(i) Implement the city comprehensive plan (as amended) and comply with the requirements of the Shoreline Management Act;

(ii) Protect critical areas through the application of the most current, accurate, and complete scientific or technical information available as determined according to WAC 173-26-201(2)(a), and in consultation with state and federal agencies and other qualified professionals;

(iii) Protect the general public, resources (including cultural and historic resources), and facilities from injury, loss of life, property damage, or financial loss due to erosion, landslides, pollution, steep slope failure, ground shaking or seismic activity;

(iv) Protect the general public, resources, and facilities from injury, loss of life, property damage, or financial loss due to inundation of frequently flooded areas;

(v) Protect unique, fragile and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats;

(vi) Prevent cumulative adverse environmental impacts to water quality and availability, wetlands, and fish and wildlife habitat.

(3) Designation of Critical Areas.

(a) The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas located within the shoreline jurisdiction, consistent with the most current, accurate, and complete scientific or technical information available and the provisions herein.

(b) The incorporated area of the city is hereby divided into the following critical areas, where appropriate:

(i) Wetlands.

(ii) Critical aquifer recharge areas.

(iii) Fish and wildlife habitat conservation areas.

(iv) Geologically hazardous areas.

(v) Frequently flooded areas.

(4) Data Maps.

(a) The data maps maintained by the city shall be used as a general guide to determine the location and extent of critical areas within the corporate limits. The data maps shall be consulted when a development application is received to determine if the site is within any areas shown as resource lands or critical areas. The data maps are for reference only and not regulatory in nature. It shall be the responsibility of the applicant to notify the city of any critical areas which are on or near the site of the development application. The exact location of critical areas shall be determined by a site analysis conducted by a qualified professional using the requirements found within this chapter.

(b) In addition to those maps and references identified in the relevant sections of this chapter, the following maps and documents may be used:

(i) Critical area maps included in comprehensive plans of Grant County;

(ii) Maps and reference documents in the Grant County SMP inventory, characterization and analysis report, as applicable;

(iii) U.S.G.S. Topographic Quadrangle Maps;

(iv) Aerial photos;

(v) Soil survey of Grant County, Washington, by the United States Department of Agriculture, Soil Conservation Service;

(vi) National Wetland Inventory maps; and

(vii) WDFW’s priority habitats and species maps.

(5) Interpretation of Data Maps.

(a) The shoreline administrator is charged with administration of this title for the purpose of interpreting data maps. An affected property owner or other party with standing has a right to appeal the shoreline administrator’s determination according to the provisions of ECMC 16.20.810, Appeals.

(b) All development applications are required to show the boundary(ies) of all resource lands and critical areas on a scaled drawing prior to the development application being considered complete for processing purposes.

(c) Maps and reference documents in the city SMP inventory, analysis, and characterization report may apply as applicable.

(6) Applicability.

(a) This chapter applies to all real property within the shoreline jurisdiction of the corporate limits of the city, Washington, as it is now configured or may, from time to time, be altered.

(b) These critical areas regulations shall apply to critical areas located within the shoreline jurisdiction.

(c) No action shall be taken by any person or entity that results in any alteration of any critical area located within the shoreline jurisdiction except as consistent with the purposes, objectives and intent of these regulations.

(d) Where two or more types of critical areas overlap, requirements for development shall be consistent with the standards for each critical area.

(e) These regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to these regulations shall be included in the SEPA review and threshold determination.

(7) Exemptions.

(a) The activities listed below are exempt from the provisions of this chapter. Exempt activities shall be conducted using all reasonable methods to avoid impacts to critical areas. The decision to declare an activity exempt shall be an administrative decision, as set forth in subsection (12) of this section. Exemption from the chapter shall not be considered permission to degrade a critical area or ignore risks from natural hazards. Incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be repaired at the responsible party’s expense.

(i) Emergency modification or construction necessary to protect life or real property from immediate damage by natural hazards innate to critical areas. An emergency is an unanticipated event or occurrence which poses an imminent threat to public health, safety, or the environment, and which requires immediate action within a time too short to allow full compliance. Once the threat to the public health, safety, or the environment has dissipated, the actions undertaken as a result of the previous emergency shall be subject to and brought into full compliance with these regulations;

(ii) Normal maintenance or repair of existing buildings, structures, roads, utilities, levees, or drainage systems, provided the activity does not further alter, encroach upon, or increase impacts to critical areas or associated buffers;

(iii) Existing agricultural activities normal or necessary to general farming conducted according to industry-recognized best management practices, including the raising of crops or the grazing of livestock;

(iv) Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, impacts to critical areas shall be minimized and areas disturbed by such activity shall be immediately restored as directed by the shoreline administrator to ensure no loss of functions and values; and

(v) Passive recreational activities, including, but not limited to: fishing, bird watching, hiking, hunting, boating, horseback riding, skiing, swimming, canoeing, and bicycling; provided the activity does not alter the critical area or its buffer by changing drainage patterns, topography, water conditions or water sources.

(8) Permitting.

(a) All applications for permits to conduct activities having a possible significant impact on critical areas that are located on or near a project site must identify the areas affected and make an estimate of the probable impact. The city shall deny all requests for permits which would result in a net loss of ecological functions, those activities degrading a wetland or fish and/or wildlife habitat conservation area, which would put people or property in a position of unacceptable risk with respect to floods or geologic hazards, which would tend to aggravate geologic hazards, or which would harm critical recharging areas for aquifers. The city may, however, grant permits which include mitigation measures if the mitigation measures adequately protect the ecological processes and functions of the critical area and people involved. In granting a permit that includes mitigation measures, the most current, accurate, and complete scientific or technical information available, which shall be determined utilizing the criteria set out in WAC 173-26-201(2)(a), shall be used to develop and approve the mitigation measures (see ECMC 16.20.230 and 16.20.510).

(9) Determination.

(a) Each development permit shall be reviewed to determine if the proposal is within a critical area or critical area buffer. City staff shall use maps and data maintained by the city and a site inspection if appropriate.

(b) If it is determined that a critical area(s) is present, additional assessments prepared by a qualified biologist best suited for the type of identified critical area(s) may be required.

(c) In cases related to geohazards, the assessment shall include a description of the geology of the site and the proposed development; an assessment of the potential impact the project may have on the geologic hazard; an assessment of what potential impact the geologic hazard may have on the project; appropriate mitigation measures, if any; a conclusion as to whether further analysis is necessary; and be signed by and bear the seal of the engineer or geologist that prepared it.

(d) When a geotechnical report is required it shall include a certification from the engineer preparing the report, including the engineer’s professional stamp and signature, stating all of the following:

(i) The risk of damage from the project, both on and off site;

(ii) The project will not materially increase the risk of occurrence of the hazard; and

(iii) The specific measures incorporated into the design and operational plan of the project to eliminate or reduce the risk of damage due to the hazard.

(e) All mitigation measures, construction techniques, recommendations, and technical specifications provided in the geotechnical report shall be applied during the implementation of the proposal. The engineer of record shall submit sealed verification at the conclusion of construction that development occurred in conformance with the approved plans.

(f) A proposed development cannot be approved if it is determined by the geotechnical report that either the proposed development or adjacent properties will be at risk of damage from the geologic hazard, or that the project will increase the risk of occurrence of the hazard, and there are no adequate mitigation measures to alleviate the risks.

(10) Critical Areas Review Process.

(a) All land use and building permits shall require that applicants disclose activities within 200 feet of a known or suspected critical area. The provisions of this chapter shall apply to any such proposals. The review process shall proceed as follows:

(i) Preapplication Meeting/Site Visit. Upon receiving a land use or development proposal, the shoreline administrator shall schedule a preapplication meeting and/or site visit with the proponent. The purpose is to decide whether the proposal is likely to affect the ecological functions of critical areas or pose health and safety hazards. At the meeting, the shoreline administrator will:

(A) Provide the applicant with the requirements of this chapter and other applicable local regulations, including but not limited to comprehensive plans, zoning maps, and overlays;

(B) Review critical areas maps and other available reference materials with the applicant;

(C) Outline the review and permitting processes;

(D) Work with the applicant to identify any potential concerns with regards to critical areas;

(E) Provide the applicant with the necessary application materials and SEPA checklist form.

(ii) Exemption determination.

(iii) Agency consultation.

(A) Because species populations and habitat systems are dynamic, agency consultation shall be required where activities are proposed within 100 feet of a designated fish and wildlife habitat conservation area. The shoreline administrator shall consult with WDFW to determine the value of the site to priority habitats and species.

(B) Because site-specific mapping has not been completed for many critical areas within the city, staff may undertake agency consultation in any instance in which activities are proposed within 200 feet of a known or suspected critical area.

(b) Application and SEPA Checklist.

(i) The applicant shall submit all relevant land use/development applications.

(ii) The applicant shall submit a completed SEPA checklist, except in the following cases:

(A) The use or activity has been found to be exempt from the provisions of these regulations, as described under subsection (7) of this section, Exemptions; or

(B) The use or activity is categorically exempt from SEPA review.

(c) Determination of Need for Critical Areas Report. Based upon the preapplication meeting, application materials, SEPA checklist, and in the case of fish and wildlife habitat conservation areas, the outcome of the agency consultation, the shoreline administrator shall determine if there is cause to require a critical areas report. In addition, the shoreline administrator may use critical areas maps and reference materials, information and scientific opinions from appropriate agencies, or any reasonable evidence regarding the existence of critical area(s) on or adjacent to the site of the proposed activity. The determination of need for a critical areas report shall be an administrative decision, as set forth in subsection (12) of this section.

(d) Documentation and Notification. The shoreline administrator shall document the preapplication meeting and/or site visit, application and SEPA threshold determination, and any other steps or findings (including, in the case of fish and wildlife habitat conservation areas, the agency consultation) used to decide whether a critical areas report shall be required. The applicant shall receive notice of the determination and any findings that support it.

(11) Critical Areas Report.

(a) If the shoreline administrator determines that the site of a proposed development includes, is likely to include, or is adjacent to one or more critical areas, a critical areas report may be required. When required, the expense of preparing the critical areas report shall be borne by the applicant. The content, format, and extent of the critical areas report shall be approved by the shoreline administrator.

(b) The requirement for critical areas reports may be waived by the shoreline administrator if there is substantial evidence that:

(i) There will be no alteration of the critical area(s) and/or the required buffer(s); and

(ii) The proposal will not impact the critical area(s) in a manner contrary to the purpose, intent and requirements of this chapter and the city’s comprehensive plan; and

(iii) The minimum standards of this chapter will be met.

(c) No critical areas report is required for proposals that are exempt from the provisions of this chapter as set forth under subsection (7) of this section, Exemptions.

(d) Every critical area report shall be completed by a qualified professional who is knowledgeable about the specific critical area(s) in question, and approved by the shoreline administrator.

(e) At a minimum, a required critical areas report shall contain the following information:

(i) Applicant’s name and contact information; permits being sought, and description of the proposal;

(ii) A copy of the site plan for the development proposal, drawn to scale and showing:

(A) Identified critical areas, buffers, and the development proposal with dimensions;

(B) Limits of any areas to be cleared; and

(C) A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;

(iii) The names and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

(iv) Identification and characterization of all critical areas within, or within 200 feet of, the project area or within any proposed buffer;

(v) An assessment of the probable cumulative impacts to critical areas resulting from the proposed development of the site;

(vi) An analysis of site development alternatives;

(vii) A description of reasonable efforts made to apply mitigation sequencing, as defined in these regulations, to avoid, minimize, and otherwise mitigate impacts to critical areas;

(viii) A mitigation plan as set forth in ECMC 16.20.510;

(ix) A discussion of the performance standards proposed to ensure that ecological functions of critical areas are protected and health and safety hazards associated with critical areas are precluded;

(x) Financial guarantees proposed to ensure compliance with mitigation plan and performance standards; and

(xi) Any additional information required for specific critical areas as listed in subsequent sections of these regulations.

(f) The shoreline administrator may request any other information reasonably deemed necessary to understand impacts to critical areas.

(12) Administrative Review.

(a) Administrative Decisions. Where these regulations call for an administrative decision, the shoreline administrator shall submit his or her findings and preliminary decision to city department heads or council members, as applicable, and relevant state and federal agencies for review at least 30 days prior to making a final decision, and shall consider timely comments in making a final decision.

(b) Agency Review. In any case in which the shoreline administrator does not have adequate knowledge or training to determine the sufficiency and accuracy of information contained within a critical areas report or mitigation plan (whether or not an administrative decision is involved), said report or plan shall be submitted to qualified agencies for review and recommendations prior to acceptance by the city. Agency review should be completed within 90 days of submittal to agency staff.

(13) Surety/Bonding.

(a) If a development proposal is subject to mitigation, maintenance or monitoring plans, the city, in a form acceptable to the city attorney, may require an assurance device or surety.

(b) 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 the applicant to 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 a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

(c) The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater, and the cost of maintenance and monitoring for a 10-year period.

(d) The bond shall be in the form of an 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 or other method acceptable to the shoreline administrator.

(e) Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of 10 years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

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

(14) Appeals.

(a) Any decision of the shoreline chapter may be appealed according to the provisions of ECMC 16.20.810, Appeals. Such appeal shall be in writing and must be submitted to the city within 10 days from the date of the decision. (Ord. 484 § 2, 2014)