A. Allowed Activities Within Wetlands: The following uses shall be allowed within a wetland, provided they are conducted using best management practices:
1. Outdoor recreational activities, including fishing, birdwatching, hiking, swimming, and canoeing.
2. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops.
3. Existing and ongoing agricultural activities, as defined in this chapter.
4. The maintenance of drainage ditches.
5. Nature trails. Trails in wetlands or buffers should be limited to permeable surfaces no more than five feet (5') in width for pedestrian use only. Trails should be located only in the outer twenty five percent (25%) of a wetland buffer, and should be located to avoid removal of significant trees.
6. Utility lines.
B. Allowed Activities Within Wetland Buffers: In addition to those activities allowed in subsection A of this section, the following activities are allowed within wetland buffers; provided, that buffer impacts are minimized and that disturbed areas are immediately restored:
1. Normal maintenance and repair of existing serviceable structures or improved areas. Maintenance and repair does not include modifications that change the character, scope or size of the original structure or improved area.
2. Stormwater management facilities, limited to stormwater dispersion outfalls and bioswales, may be allowed within the outer twenty five percent (25%) of the buffer of category III and IV wetlands only, provided that no other location is feasible and facilities do not degrade the function and values of such wetlands.
C. Required Buffers:
1. Buffer Requirements: The following table establishes the standard buffer width that shall apply to each wetland category, depending on the intensity of the potential land use on the upland side of the buffer and the habitat score of the wetland as determined on the 2014 Western Washington ration form, or as revised, completed by a qualified professional. The city may allow buffer averaging as set forth in subsection C3 of this section.
WETLAND BUFFER REQUIREMENTS
Overall Wetland Rating | Wetland Characteristics | Intensity Land Use On The Upland Side Of The Buffer | ||
High1 | Moderate2 | Low3 | ||
Overall Wetland Rating | Wetland Characteristics | Intensity Land Use On The Upland Side Of The Buffer | ||
High1 | Moderate2 | Low3 | ||
Category I | Habitat score of 8 - 9 points | 300' | 225' | 150' |
Category I | Habitat score of 5 - 7 points | 150' | 110' | 75' |
Category I | Water quality score of 8 - 9 points and a habitat score of less than 5 points | 100' | 75' | 50' |
Category I | Wetlands that do not meet the characteristics described above for category I wetlands | 100' | 75' | 50' |
Category II | Habitat score of 8 - 9 points | 300' | 225' | 150' |
Category II | Habitat score of 5 - 7 points | 150' | 110' | 75' |
Category II | Water quality score of 8 - 9 points and a habitat score of less than 5 points | 100' | 75' | 50' |
Category II | Wetlands that do not meet the characteristics described above for category II wetlands | 100' | 75' | 50' |
Category III | Habitat score of 8 - 9 points | 300' | 225' | 150' |
Category III | Habitat score of 5 - 7 points | 150' | 110' | 75' |
Category III | Habitat score of 3 - 4 points | 80' | 60' | 40' |
Category IV | Scores for all 3 basic functions are less than 16 points | 50' | 40' | 25' |
Notes:
1. High intensity land uses include commercial, industrial, and retail developments; institutional use; residential developments at more than 1 unit per acre; high intensity recreation areas (golf course, ball fields, etc.); and hobby farms.
2. Moderate intensity land uses include residential developments at less than 1 unit per acre; moderate intensity open space (parks with biking, jogging, etc.); and paved trails and utility corridors with maintenance roads.
3. Low intensity land uses include low intensity open space (hiking, birdwatching, preservation of natural resources, etc.); and unpaved trails and utility corridors without maintenance roads.
2. Removal Of Vegetation Within The Buffer: Removal or alteration of existing vegetation in the buffer areas shall be prohibited or limited as necessary to preserve the wetland. Any disturbance of the buffer area shall be replanted with a diverse plant community of native vegetation appropriate for the site and approved by the city.
3. Buffer Averaging: The city administrator may allow modification of the standard wetland buffer width in accordance with an approved critical area report and the best available science on a case by case basis by averaging buffer widths. Averaging of buffer widths may only be allowed where a qualified wetlands professional demonstrates that:
a. It will not reduce wetland functions or values;
b. The wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation, and the wetland would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;
c. The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer; and
d. The buffer width is not reduced to less than seventy five percent (75%) of the standard width.
D. Wetland Mitigation And Restoration:
1. Mitigation: All adverse impacts to wetlands shall be mitigated to the extent feasible and reasonable. Mitigation actions by an applicant or property owner shall occur in the following preferred sequence:
a. Avoiding the impact altogether by not taking certain actions or parts of actions;
b. Minimizing impacts by limiting the degree or magnitude of the action and its implementation;
c. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
d. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
e. Compensating for the impact by replacing or providing substitute resources or environments; and/or
f. Monitoring the impact and taking appropriate corrective measures.
2. Monitoring Program And Contingency Plan: A monitoring program shall be implemented by the applicant to determine the success of the mitigation project and any necessary corrective actions. This program shall determine if the original goals and objectives are being met.
a. A contingency plan shall be established for indemnity in the event that the mitigation project is inadequate or fails. A performance and maintenance bond or other acceptable security device financial guarantee is required to ensure the applicant's compliance with the terms of the mitigation agreement. The amount of the performance and maintenance bond shall equal one hundred twenty five percent (125%) of the cost of the mitigation project for a minimum of five (5) years. The bond may be reduced in proportion to work successfully completed over the period of the bond. The bonding period shall coincide with the monitoring period.
b. Monitoring programs prepared to comply with this section shall reflect the following guidelines:
(1) Scientific procedures shall be used to establish the success or failure of the project.
(2) For vegetation determinations, permanent sampling points shall be established.
(3) Vegetative success shall, at a minimum, equal eighty percent (80%) survival of planted trees and shrubs and eighty percent (80%) cover of desirable understory or emergent plant species at the end of the required monitoring period. Additional standards for vegetative success, including, but not limited to, minimum survival standards following the first growing season, may be required after consideration of a report prepared by a qualified consultant.
(4) Monitoring reports on the current status of the mitigation project shall be submitted to the city.
(5) The reports are to be prepared by a qualified consultant and reviewed by the city or a consultant retained by the city and should include monitoring information on wildlife, vegetation, water quality, water flow, stormwater storage and conveyance, and existing or potential degradation, as applicable, and shall be produced on the following schedule: at the time of construction; thirty (30) days after planting; early in the growing season of the first year; at the end of the growing season of the first year; twice during the second year; and annually thereafter.
(6) Monitoring programs shall be established for a minimum of five (5) years.
(7) If necessary, failures in the mitigation project shall be corrected.
(8) Dead or undesirable vegetation shall be replaced with appropriate plantings.
(9) Damage caused by erosion, settling, or other geomorphological processes shall be repaired.
(10) The mitigation project shall be redesigned (if necessary) and the new design shall be implemented and monitored.
3. Mitigation Ratios:
a. Equivalent Areas: Where wetland alterations are permitted by the city, the applicant shall create or enhance wetland areas to compensate for wetland losses. Equivalent areas shall be determined according to acreage, function, type, location, timing factors and projected success of restoration or creation.
b. Acreage Replacement Ratio: When creating or enhancing wetlands, the following acreage replacement ratios shall be used where the first number specifies the acreage of replacement wetlands and the second number specifies the acreage of wetlands altered:
Wetland Type | Wetland Creation Replacement Ratio (Area) | Rehabilitation | Wetland Enhancement Ratio (Area) |
Category I: Bogs, natural heritage site | Not considered possible | Case by case | Case by case |
Category I: Mature forested | 6:1 | 12:1 | 24:1 |
Category I: Based on functions | 4:1 | 8:1 | 16:1 |
Category II | 3:1 | 6:1 | 12:1 |
Category III | 2:1 | 4:1 | 8:1 |
Category IV | 1.5:1 | 3:1 | 6:1 |
c. Increased Replacement Ratios: The city administrator may increase the ratios under the following circumstances:
(1) Uncertainty exists as to the probable success of the proposed restoration or creation;
(2) A significant period of time will elapse between impact and replication of wetland functions;
(3) Proposed mitigation will result in a lower category wetland or reduced functions relative to the wetland being impacted;
(4) The impact was an unauthorized impact; or
(5) Where mitigation is to occur off site.
4. Restoration: Restoration is required when a wetland or its buffer has been altered in violation of this title. The following minimum performance standards shall be met for the restoration of a wetland, provided that if it can be demonstrated by the applicant that greater functional and habitat values can be obtained, these standards may be modified:
a. The original wetland configuration should be replicated including depth, width, and length at the original location;
b. The original soil types and configuration shall be replicated;
c. The wetland and buffer areas shall be replanted with native vegetation which replicates the original in species, sizes and densities; and
d. The original functional values shall be restored, including water quality and wildlife habitat functions.
5. Wetland Mitigation Actions: Mitigation shall be in the same drainage basin as the altered wetland. Wetland mitigation actions shall be conducted in the same subbasin unless a higher level of ecological functioning would result from an alternate approach.
6. Wetland Mitigation Banks:
a. Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:
(1) The bank is certified under state rules;
(2) The administrator determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and
(3) The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.
b. Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.
c. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.
7. In Lieu Fee: To aid in the implementation of off site mitigation, the city may develop an in lieu fee program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in lieu fee mitigation, and state water quality regulations. An approved in lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in lieu program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in lieu fee program may be used when subsections D7a through D7f of this section apply:
a. The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.
b. The mitigation will occur on a site identified using the site selection and prioritization process in the approved in lieu fee program instrument.
c. The proposed use of credits is consistent with the terms and conditions of the approved in lieu fee program instrument.
d. Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three (3) years of the credit sale.
e. Projects using in lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant's qualified wetland scientist using the method consistent with the credit assessment method specified in the approved instrument for the in lieu fee program.
f. Credits from an approved in lieu fee program may be used to compensate for impacts located within the service area specified in the approved in lieu fee instrument.
E. Transfer Of Development Rights: If a site contains a regulated wetland and/or buffer, a property owner may transfer residential development rights from the regulated wetland and/or buffer to another site or sites within the city. The transfer of development rights (TDR) shall meet the following criteria:
1. The idea of transfer of development rights is based upon the legal concept of property law that the right to develop real estate is one of the "bundle of rights" included in fee simple ownership of land. Fee simple ownership of real estate allows the owner to sell, lease, or trade any one or all of the "bundle of rights" to his property which includes the right to use, lease, sell, or abandon the property or any of its components of ownership not retained by a previous owner such as mineral, oil, gas, air, and/or development rights. These rights of ownership are subject to the limitation and legislative powers of the local government.
2. A development right is a simple extension of the rights normally associated with land ownership. When legally established, a development right has value separate from the land itself. It can be subject to reasonable regulation by local government under the police power. The development right can be transferred by the owner, by means of gift or sale, to another property. The landowner may sell the development rights and still retain the title to the land and the right to use the surface of the land on a limited basis.
3. The planning commission shall consider the request for TDR at the public hearing for the land use proposal for the receiving parcel.
4. To assure that the sending parcel is adequately protected, a restriction shall be placed on the deed which expressly prohibits all regulated activities within the wetland and/or buffer. This restriction shall be required regardless of the number of dwelling units for which the development rights are transferred. A memorandum of agreement (MOA) between the applicant and the city shall be recorded with the city clerk. The MOA shall refer to all deed restrictions related to the property.
5. If the wetland and/or buffer is degraded as a result of human or agricultural activity, the applicant may be required to enhance the wetland and/or buffer according to an enhancement plan approved by the planning commission.
6. Except for required enhancement, the buffer and wetland shall remain in a natural condition. This shall be indicated by a note on the face of any final plat, final site plan, or other final approval for activity on the sending site. In the case of a formal subdivision, the wetland and buffer shall be placed in a separate tract.
7. TDR shall not exceed the number of dwelling units which would be allowed on the sending parcel according to the zoning designation of the sending parcel, if there were no development restrictions tied to wetland areas. This number of dwelling units shall be equal to the number of dwelling units that could be produced on the wetland and/or buffer if the sending parcel were subdivided in terms of the minimum requirements of the underlying zone as evidenced by a preliminary plan sketch.
8. TDR may go to more than one receiving parcel; however, this shall not increase the total number of transferred dwelling units which are allowed.
9. The increased number of dwelling units on the receiving parcel shall not be more than twenty five percent (25%) above the number of dwelling units allowed according to the zoning designation on the receiving parcel(s).
10. TDR shall be allowed only if the land use proposal on the receiving parcel(s) is designed in such a way that the increased density:
a. Is consistent with any land use plan associated with the receiving parcel and with goals, purposes, and intents of the zoning designation of the receiving parcel; and
b. Is compatible with the existing and likely future developments in the vicinity; and
c. Adequately addresses infrastructure, natural and other constraints, and does not result in significant environmental impacts.
11. TDR shall not be approved until final plat approval or other final approval for the receiving parcel is granted by the city council. (Ord. 2016-985, 7-13-2016)