A. All proposed alterations of critical areas shall include mitigation sufficient to maintain the functional values of the critical area or to prevent risk from a critical area hazard and shall give adequate consideration to the economically viable use of the property. Mitigation of one critical area impact should not result in unmitigated impacts to another critical area. Mitigation may include, but is not limited to: increasing or enhancing buffers, increasing building setbacks, instituting limits on clearing and grading, implementing best management practices for erosion control and maintenance of water quality, or other conditions appropriate to avoid or mitigate identified adverse impacts. Subject to the reasonable use exception provisions of this chapter, any proposed critical area alteration that cannot adequately mitigate its impacts to a critical area shall be denied.
B. Mitigation includes the following processes of correcting the effects of adverse environmental impact(s) to critical areas, in order of preference:
1. Avoid the impact altogether by not taking a certain action or parts of an action;
2. Minimize the impact by limiting the degree or magnitude of the action and its implementation via the use of appropriate technology, or by taking affirmative steps such as project redesign, relocation, or timing;
3. Reduce or eliminate the original impact over time via preservation and maintenance operations during the life of the action;
4. Rectify the impact via repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of project initiation;
5. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments; and/or
Mitigation by reduction, rectification, or compensation must be monitored for success and remedial action taken when necessary (adaptive management).
C. Buffers:
1. Buffers in some cases have been determined to be necessary and appropriate to protect critical areas and their functions or to prevent risk from a critical area hazard. In those sections of this Title where specific buffers are identified, those buffers are deemed “required” or “ standard” buffers. If a project does not propose any alteration of those buffers or of the associated critical area, then no additional mitigation will be required to protect the critical area. The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the critical area functions and values at the time of the proposed activity. If the vegetation or protection area is inadequate, the City may require an increase in the buffer width or additional native plantings within the standard buffer width. Provisions to reduce or to average buffer widths in order to obtain optimal habitat value are described under the development standards for each critical area.
2. The Director will consider wetland or stream buffer averaging for a proposal only when the buffer area width after averaging will not adversely impact the critical area or buffer functions and values. At a minimum, any proposed buffer averaging shall meet the following criteria:
a. The buffer area after averaging is no less than that which would be contained within the standard buffer;
b. The buffer area shall be enhanced where the buffer is averaged;
c. The additional buffer is contiguous with the standard buffer; and
d. Encroachment does not occur into the buffer of an associated wetland except as otherwise allowed.
3. The Director may require increased buffer sizes as necessary to protect critical areas when either the critical area is particularly sensitive to disturbance or the development poses unusual impacts. Examples of circumstances that may require buffers beyond minimum requirements include, but are not limited to:
a. Uses unclassified in the Zoning Code (Title 12 of the Long Beach City Code);
b. The critical area is in a critical drainage basin or documented salmonid spawning or rearing habitat;
c. The critical area is a critical fish or wildlife habitat for spawning or rearing as determined by the Washington Department of Fish and Wildlife;
d. The land adjacent to the critical area and its associated buffer, and located within the development proposal, is classified as an erosion hazard area; or
e. A trail or utility corridor in excess of ten percent (10%) of the buffer width is proposed for inclusion in the buffer.
4. The Director may reduce up to twenty-five percent (25%) of the critical area buffer requirement for high intensity land uses only, and only if sufficient information is available showing the following in a critical area study:
a. The applicant has demonstrated that mitigation sequencing efforts have been appropriately utilized: avoid, minimize, rectify, reduce, and/or compensate, with monitoring and adaptive management for the latter three types of mitigation;
b. The proposed buffer reduction shall be accompanied by a mitigation plan per this chapter that includes enhancement of the reduced buffer area, except that mitigation for wetland buffer area reductions shall be governed by the provisions of Section 13-4-4(B) of this title;
c. The reduction will not adversely affect water quality;
d. The reduction will not destroy, damage, or disrupt a significant habitat area;
e. The reduction is necessary for reasonable development of the subject property; and
f. Additional specific buffer reduction criteria for wetlands have been satisfied as set forth in Section 13-4-4(B) of this title.
5. Where a functionally isolated buffer area (FIBA) exists, the minimum buffer width may be reduced to the edge of the isolating road, structure, or grade separation, if that portion of the buffer sought to be reduced:
a. Does not provide additional protection to the proposed development or the critical area; and
b. Does not perform any biological, geological, or hydrological buffer functions to undisturbed portions of the critical area or its buffer.
6. If a person seeks a variance to reduce buffers or to alter the critical area or its required buffer, then the person shall demonstrate why the proposed buffer and/or critical area modification, together with alternative mitigation proposed in the critical areas report, is sufficient to adequately protect the function(s) of the critical area. If necessary, variances shall provide for long-term buffer protection.
7. Critical areas assessments and conditions of approval shall provide for long-term buffer protection. In land division, critical areas and their associated buffers may be placed in one or more separate tracts to be owned and maintained by all lot owners in common, by a homeowners association, or some other separate legal entity such as a land trust.
8. Periodic inspection of buffers may be required if necessary to ensure long-term buffer protection.
D. Building Setback Line. Unless otherwise specified, a minimum of fifteen (15) feet is required from the edge of any buffer or separate critical area tract.
E. Land Segregation. Subdivisions, short subdivisions, boundary line adjustments, and planned residential developments of land in critical areas and associated buffers are subject to the following:
1. Land located wholly within a wetland or stream critical area or associated buffer may not be subdivided.
2. Land located partially within a wetland or stream critical area or associated buffer area may be subdivided or the boundary line adjusted provided that an accessible and contiguous portion of each new or adjusted lot is located outside the critical area and buffer, and is large enough to accommodate the intended use.
3. Accessory roads and utilities serving a proposed subdivision may be permitted within the wetland or stream critical area and/or associated buffer only if the City determines that no other feasible alternative exists based on the applicant securing an exception consistent with this title.
4. Critical Area Tracts. Critical areas tracts are legally created non-building lots containing critical areas and their buffers that shall remain undeveloped pursuant to the provisions of this title. Separate critical area tracts are not intended for sale, lease or transfer; and shall be incorporated in the area of the parent lot for purposes of subdivision and method of allocation and minimum lot size. The following development proposals shall identify such areas as separate tracts:
a. Subdivisions.
b. Short subdivisions.
c. Contract rezones.
d. Binding site improvement plans.
e. Master site plans.
f. Site plan/design review.
Responsibility for maintaining critical area tracts shall accrue to a homeowners association, adjacent parent lot owners, the permit applicant or designee, or other appropriate entity as approved by the City.
The following note shall appear on the face of all plats, binding site improvement plans, master site plans, site plan/design review, or contract rezones and shall be recorded on the title for all affected lots:
NOTE: All lots adjoining separate tracts identified as Critical Area Tracts are jointly and severally responsible for the maintenance and protection of the tracts. Maintenance includes ensuring that no alteration occurs within the separate tract and that vegetation remains undisturbed unless the express written permission of the City of Long Beach has been received.
F. Marking and/or Fencing Critical Areas
1. Temporary Markers. In order to prevent unauthorized intrusion during construction, the perimeter of a wetland, stream, fish and wildlife conservation area, steep slope, as well as the associated buffer and the limit of the area to be disturbed pursuant to an approved permit or authorization, shall be marked on site in a manner approved by the City. Markers or fencing shall be subject to inspection by the Director or his designee prior to commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until ordered by the Director, or until permanent signs and/or fencing, if required, are in place.
2. Permanent Markers. Following approved development or alteration, the outer perimeter of the undisturbed critical area or buffer shall be permanently identified. This identification shall be permanent wood or metal signs on treated wood or metal posts. Signs shall be worded as follows:
Critical Area Boundary
This natural area is a valuable resource and its protection is in your care. Alteration or disturbance is prohibited, as is removal of this sign. For more information, call the City of Long Beach: 360/642-4421.
The Director shall approve sign locations during review of the development proposal. Along residential boundaries, the signs shall be at least 12" X 18" in size and spaced one per centerline of lot or every seventy five feet (75') for lots whose boundaries exceed one-hundred-fifty feet (150'). At road endings, crossings, and other areas where public access to the critical area is allowed, the sign shall be the size of a regulatory traffic sign or larger and spaced one every seventy-five feet (75').
3. Permanent Fencing. Where there is substantial evidence that destructive intrusion into a critical area would occur with a specific development proposal, the Director shall require permanent fencing of the critical area. The Director shall also require such fencing when, subsequent to approval of the development proposal, intrusions threaten conservation of critical areas. The Director may use any appropriate and legal enforcement actions including, but not limited, to fines, abatement, or permit denial to ensure compliance. The fencing may provide limited access to the stream or wetland for stock watering purposes, but shall minimize bank disturbance.
G. Critical Areas Studies/Reports
1. Timing of Studies. When an applicant submits an application for a development proposal, it shall indicate whether any critical areas or buffers are located on or could be adjacent to the subject site. The presence of critical areas may require additional studies and time for review. However, disclosure of critical areas early will reduce delays during the permit review process. If the applicant states there are no known critical areas, further studies may be required for verification.
2. Studies Required.
a. When sufficient information to evaluate a proposal is not available, the Director shall notify the applicant that a critical areas study and report is required. The Director may hire, at the applicant’s expense, an independent qualified professional to verify that a critical areas report is necessary.
b. If a critical areas report is required, the Director may retain independent qualified consultants, at the applicant’s expense, to assist in review of studies that are outside the range of staff expertise.
c. A critical areas report shall be written by a qualified professional, as defined in this title. A critical areas report shall include all information required pursuant to this section. Where mitigation is required, a monitoring and maintenance program shall be required to evaluate the effectiveness of mitigation measures.
d. Studies/reports generated as part of an expanded SEPA environmental checklist or an environmental impact statement may qualify as a critical areas report if the project is developed in enough detail to have provided an evaluation of site-specific impacts and mitigation measures.
3. General Critical Areas Report Requirements.
a. A critical areas report shall have three components: a) a site analysis, b) an impact analysis, and c) proposed mitigation measures. The required level of detail in the report shall depend on the size of the project, intensity of development, and potential impacts. The Director may waive the requirement of any component of the critical areas report when adequate information is otherwise available.
b. In addition to requirements presented in the specific section of this title for each type of critical area, all studies shall contain the following information unless it is already available in the permit application:
(1) Site map of the project area at a 1:20 or larger scale, dimensioned and including:
(A) Reference streets and property lines.
(B) Existing and proposed easements, rights-of-way, trail corridors and structures.
(C) Contour intervals (2 feet or less).
(D) Edge of the 100 year floodplain and floodway, if present on or near the site.
(E) Seashore conservation lines, if relevant.
(F) Erosion hazard areas, if relevant.
(G) Line of mean high tide, if relevant.
(H) Shoreline Management Plan environment designation, if relevant.
(I) Hydrology: show surface water features on and adjacent to the site; indicate water movement into, through, and off the site, including floodway and channel migration area; show wetland and stream classifications, seeps, springs and saturated soils.
(J) Identification of all site preparation, grading activities, and dimensioned location of proposed structures, roads, stormwater facilities, impervious surfaces, and landscaping relative to critical areas.
(K) All drainage plans for discharge of stormwater runoff from developed areas.
(L) Location of buffer and building setback lines, if required or proposed.
(M) Location of critical area tract(s) and/or easement(s).
(2) Written report detailing:
(A) How, when, and by whom the report was performed, including methodologies and techniques used.
(B) Weather conditions during and prior to any field studies if relevant to conclusions and recommendations.
(C) Description of the project site and its existing condition, including any degraded critical areas.
(D) Description of existing critical area and buffer functions and values.
(E) Description of habitat features present and determination of actual use of the critical area by any endangered, threatened, rare, sensitive, candidate, or unique species of plants or wildlife as listed by the federal government or state of Washington.
(F) The total acreage of the site in each type of critical area(s) and associated buffers.
(G) The proposed action; including but not limited to description of filling, dredging, modification for storm water detention or discharge, clearing, grading, restoring, enhancing, grazing, or other physical activities that change the existing vegetation, hydrology, soils, or habitat.
(H) When alteration to a critical area or its buffer is proposed that would result in an adverse impact that cannot be fully mitigated, provide an explanation why the impact is unavoidable and how it meets the criteria for a defined exception.
(I) Description of potential environmental impact of the proposed project to the critical area(s), demonstration of mitigation sequencing as described in this title, and description of all proposed mitigation measures.
(J) Habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and critical area functions.
(K) Mitigation measures proposed to avoid or lessen the project impacts during construction and permanently.
(L) When alteration to the critical area or its buffer is proposed, include a mitigation plan as specified by this title.
(M) Discussion of ongoing management practices to protect habitat after the project site has been developed; including proposed monitoring and maintenance programs.
(N) Description of local, state, and federal regulations and permit requirements.
H. General Mitigation Requirements. The following section provides general mitigation requirements applicable to alteration of critical areas. Additional mitigation requirements are found in this title under the specific section for each type of critical area.
1. Restoration/rehabilitation is required when a critical area or its buffer has been altered on the site in violation of City regulations prior to development approval or during construction. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan.
2. Restoration/rehabilitation is required when the critical area or it buffer will be temporarily altered during the construction of an approved development proposal. At a minimum, all impacted areas shall be restored to their previous condition pursuant to an approved mitigation plan.
3. Compensation. The goal of compensation is no net loss of critical area and/or buffer function on the development site. Compensation includes replacement or enhancement of the critical area or its buffer depending on the scope of the approved alteration and what is needed to maintain or improve the critical area and/or buffer functions. Compensation for approved critical area or buffer alterations shall meet the following minimum performance standards and shall occur pursuant to an approved mitigation plan:
a. The buffer for a created, restored, or enhanced critical area as compensation for approved alterations shall be the same as the buffer required for the category of the created, restored, or enhanced critical area (i.e., compensation for buffer impacts, other than buffer averaging, shall occur at a minimum ratio of 1:1). For purposes of restoration, creation, or enhancement, buffers shall be fully vegetated with a relatively intact native plant community.
b. All critical area impacts shall be compensated for through restoration or creation of replacement areas that are in-kind and of a similar or better critical area category, preferably either on-site or within the same drainage basin. Mitigation shall be timed prior to or concurrent with the approved alteration and shall have a high probability of success.
c. The Director may consider and approve off-site compensation where the applicant demonstrates that greater biological and hydrological functions and values will be achieved off-site compared to on-site. The compensation may include restoration, creation, or enhancement of critical areas. Compensatory mitigation ratios specified for each critical area shall be the minimum applied to off-site compensation.
d. Increased Compensatory Mitigation Ratios. The Director may increase mitigation ratios specified under the compensation section of this title for each critical area, under any one of the following circumstances:
(1) Uncertainty exists as to the probable success of the proposed restoration or creation due to an unproven methodology;
(2) A significant period will elapse between impact and replication of wetland functions;
(3) Proposed mitigation will result in a lower category critical area classification or reduced functions relative to the critical area being impacted; or
(4) The impact was unauthorized.
e. Decreased Compensatory Mitigation Ratios. The Director may decrease mitigation ratios specified under the compensation section of this title for each critical area, except for the compensatory mitigation ratios in Section 13-4-7(F)(4) of this title, when all the following criteria are met:
(1) A minimum mitigation ratio of 1:1 will be maintained;
(2) Documentation by a qualified specialist demonstrates the proposed mitigation actions have a high rate of success;
(3) Documentation by a qualified specialist demonstrates the proposed mitigation actions will provide functions and values that are substantially greater than the critical area being impacted; and
(4) The proposed mitigation actions are conducted in advance of the impact.
f. Critical Area Enhancement as Mitigation.
(1) Impacts to critical areas may be mitigated by enhancement of existing substantially degraded critical areas only after a 1:1 minimum acreage compensatory mitigation ratio has been satisfied. Applicants proposing to enhance critical areas must produce a critical areas report that identifies how enhancement will increase functions and values of degraded critical areas and how this increase will adequately mitigate for loss of critical area function at the impact site.
(2) At a minimum, enhancement acreage shall be double the acreage required for creation and restoration specified under the compensation section of this title for each critical area. The ratios shall be greater than the minimum required acreage when the enhancement proposal would result in only nominal or modest gain in the performance of critical area functions currently provided in the critical area as determined by the Director.
g. Mitigation Timing. Mitigation shall be completed prior to or immediately following disturbances, and prior to use or occupancy of the activity or development, or when seasonally appropriate. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and water quality.
h. The buffer for a created, restored, or enhanced critical area as compensation for approved alterations shall be the same as the buffer required for the category of the created, restored, or enhanced critical area. For purposes of restoration, creation, or enhancement, buffers shall be fully vegetated and shall not include lawns, walkways, driveways and other mowed or paved areas.
i. Best Available Science. Any approval of mitigation to compensate for impacts to a critical area or its buffer shall be supported by the best available science.
I. Mitigation Plans:
1. Mitigation or alterations to critical areas shall achieve equivalent or greater biological functions, and where relevant shall include mitigation for adverse impacts upstream and downstream of the development proposal site. In order to minimize isolating effects of development on habitat areas, mitigation sites for wetlands, streams, and fish and wildlife habitat conservation critical areas shall be located to achieve contiguous habitat corridors in accordance with a mitigation plan that is part of an approved critical areas report. Mitigation of aquatic habitat shall be located within the same aquatic ecosystem as the area disturbed. Mitigation shall address each function affected by the alteration to achieve no net loss of function or improvement of function on a per-function basis.
2. The scope and content of a mitigation plan shall be decided on a case-by-case basis. During the review of required critical areas studies/reports, the City shall determine which of the components listed in section c., immediately below, shall be required as part of the mitigation plan. Key factors in this determination shall be the size and nature of the development proposal, the size and nature of the impacted critical areas, and the degree of cumulative impacts on the critical area from other development proposals. Cumulative impacts shall be determined based on the combined effects of past development, the current development proposal, and any reasonably foreseeable development likely to impact the affected critical area.
3. At a minimum, the following components shall be included in a complete mitigation plan:
a. Baseline Information. Provide existing conditions information for both the impacted critical areas and the proposed mitigation site as described in the sections of this title for each critical area.”
b. Environmental Goals and Objectives. Include a written report identifying environmental goals and objectives of the compensation proposed, including:
(1) A description of the anticipated impacts to the critical areas, 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 completing site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area.
(2) A review of the best available science supporting the proposed mitigation.
c. Performance Standards. The mitigation plan shall include measurable criteria for evaluating whether or not goals and objectives of the mitigation project have been successfully attained and whether or not requirements of this chapter have been met. They may include water quality standards, species richness and diversity targets, habitat diversity indices, or other ecological, geological, or hydrological criteria.
d. Detailed Construction Plan. These are the written specifications and descriptions of mitigation technique. This plan should include the proposed construction sequencing, grading and excavation details, erosion and sedimentation control features, a native planting plan, detailed site diagrams, and any other drawings appropriate to show construction techniques or anticipated final outcome.
e. Monitoring and/or Evaluation Program. The mitigation plan shall include a program for monitoring construction of the compensation project, and for assessing a completed project, as detailed in this section.
f. Contingency Plan. This section shall identify potential courses of action and any corrective measures to be taken when monitoring or evaluation indicates projected performance standards have not been met.
J. Monitoring:
1. The City shall require long-term monitoring of mitigation. Such monitoring shall be an element of the required mitigation plan and shall document and track impacts of development on the functions and values of critical areas, and the success or failure of mitigation requirements. Monitoring may include, but is not limited to:
a. Establishing vegetation transects or plots to track changes in plant species composition over time.
b. Using aerial or other photography to evaluate vegetation community response.
c. Sampling surface and/or ground waters to determine pollutant loading.
d. Measuring base flow rates and stormwater runoff to model and evaluate water quantity predictions.
e. Measuring sedimentation rates.
f. Sampling fish and wildlife populations to determine habitat utilization, species abundance, and diversity.
g. Sampling water temperatures of wetlands and streams.
2. The property owner shall submit monitoring data and reports to the City on an annual basis or other schedule as required by the Director and specified in an approved mitigation plan. Monitoring shall continue for a minimum period of five (5) years, or until mitigation performance standards have been met. In the case of forested systems, monitoring may be expected to be greater than 5 years, and may be for 10 years or longer.
3. Performance Bond. Prior to issuance of any permit or approval that authorizes site disturbance under this title, the Director shall require performance security as specified in this title.
K. Adaptive Management. When monitoring reveals a significant deviation from predicted results or a failure of mitigation measures, the applicant shall be responsible for appropriate corrective action. Contingency plans should address reasonably foreseeable failure of mitigation measures. Contingency measures developed as part of the original mitigation plan shall apply but may be modified to address a specific deviation or failure. Contingency measures shall be subject to monitoring requirements to the same extent as the original mitigation measures.
L. Habitat Management Plans:
1. A Habitat Management Plan shall be required by the Director when review of a development proposal determines the proposed activity will have an adverse impact on a fish and wildlife habitat conservation critical area.
2. A Habitat Management Plan, prepared by a qualified biologist in consultation with the Washington Department of Fish and Wildlife, shall address all of the following mitigation measures:
a. Reduction or limitation of development activities within critical areas and buffers.
b. Use of low impact development techniques or clustering of development on the subject property to locate structures in a manner that preserves and minimizes adverse impacts to habitat.
c. Seasonal restrictions on construction activities.
d. Preservation and retention of habitat and vegetation on the subject property in contiguous blocks or with connection to other habitats that have a primary association with a listed species.
e. Establishment of expanded buffers around the critical area.
f. Limitation of access to the critical area and buffer.
g. Creation or restoration of habitat area for listed species. (Ord. 985, 10-5-2020)