Whatcom County Critical Areas Regulations
As of February 28, 2003
Chapter 16.16CRITICAL AREAS
Sections:
Article I. Purpose
16.16.100 Purpose.
16.16.110 SEPA policy.
Article II. Administrative Provisions
16.16.200 Authority.
16.16.205 Authorizations required.
16.16.210 Applicability and jurisdiction.
16.16.215 Relationship to other jurisdictional agencies.
16.16.220 Resource information and maps.
16.16.225 Activities allowed without a permit.
16.16.230 Technical administrative authority and interdisciplinary team.
16.16.235 Submittal requirements and general application review process.
16.16.240 Critical areas assessment report.
16.16.245 Mitigation requirements for wetlands, rivers and streams.
16.16.250 Fees.
16.16.255 Variances.
16.16.260 Nonconforming uses/buildings.
16.16.265 Appeals.
16.16.270 Penalties and enforcement.
16.16.275 Suspension - Revocation.
16.16.280 Severability.
16.16.285 Conservation program on agriculture lands.
16.16.290 Other federal, state and county regulations.
16.16.295 Incentives.
Article III. Geologically Hazardous Areas
16.16.300 Purpose.
16.16.310 Critical area - Landslide hazard areas.
16.16.320 Critical area - Seismic hazard areas.
16.16.330 Critical area - Mine hazard areas.
16.16.340 Critical area - Alluvial fan hazard areas.
16.16.350 Regulatory requirements.
Article IV. Frequently Flooded Areas
16.16.400 Purpose.
16.16.410 Critical areas - Frequently flooded areas.
16.16.430 Regulatory requirements.
Article V. Critical Aquifer Recharge Areas
16.16.500 Purpose.
16.16.510 Critical area - Critical aquifer recharge areas.
16.16.520 Administrative requirements.
Article VI. Wetlands
16.16.600 Purpose.
16.16.610 Critical area - Wetlands.
16.16.620 Wetland area functional rating.
16.16.630 Determination of wetland boundaries.
16.16.640 Regulatory requirements.
16.16.650 Standard buffer adjustment.
16.16.660 Storm water discharge.
Article VII. Fish and Wildlife Habitat Conservation Areas (HCAs)
16.16.700 Purpose.
16.16.710 Critical area - Fish and wildlife habitat conservation areas.
16.16.720 Regulatory requirements.
16.16.730 Habitat management plan.
Article VIII. Definitions
16.16.800 Definitions.
Appendix A Conservation program on agriculture lands.
Appendix B Sources of ground water contamination and associated contacts for technical expertise.
Appendix C Listed species.
Appendix D Nonnative plants.
Article I. Purpose
16.16.100 Purpose.
A. The purpose of this chapter is to carry out the goals of the Whatcom County comprehensive land use plan by identifying and managing environmentally critical areas and ecosystems. This chapter seeks to maintain harmonious relationships between human activity and the natural environment.
B. By regulating development and alterations to critical areas, this chapter seeks to:
1. Protect the health, safety and welfare of the public;
2. Reduce potential losses to property and human life;
3. Protect the public from harm due to landslide, subsidence, erosion, seismic, flooding and other natural hazards;
4. Protect the public against losses from unnecessary maintenance of public facilities, property damage and cost for emergency rescue relief operations;
5. Minimize adverse impacts to the quality and quantity of water resources;
6. Alert appraisers, assessors, real estate agents, owners, potential buyers or lessees, and other members of the public to natural conditions which limit development of critical areas;
7. Prevent destruction to the natural resources necessary to maintain the viability of natural ecosystems;
8. Protect and restore critical areas, and/or mitigate impacts to critical areas by regulating their development;
9. Protect unique, fragile and valuable elements of the environment, including fish, shellfish, and wildlife habitat;
10. Protect the beneficial functions of wetlands, rivers and streams and avoid, minimize, or mitigate for damage to wetlands, rivers or streams whenever practicable;
11. Provide county officials with information to approve, conditionally approve, or deny project proposals;
12. Protect private property rights and allow for adequate and appropriate public services and facilities. Where property rights or public services are seriously compromised by the goal of critical area protection, adverse impacts may be permitted provided appropriate mitigation measures are taken. (Ord. 97-056 § 1).
16.16.110 SEPA policy.
The goals, policies and purposes set forth in this chapter shall be considered policies of Whatcom County under the State Environmental Policy Act. (Ord. 97-056 § 1).
Article II. Administrative Provisions
16.16.200 Authority.
This chapter is adopted under the authority of Chapters 36.70 and 36.70A RCW and Article 11 of the Washington State Constitution. (Ord. 97-056 § 1).
16.16.205 Authorizations required.
A. Authorizations required under this chapter overlay other permit and approval requirements of the Whatcom County Code. Critical areas review pursuant to this chapter shall be conducted as part of the underlying permit or approval. Any proposed critical areas alteration that does not require any other county project permit or approval must still comply with the substantive and procedural requirements of this chapter before proceeding with the alteration.
B. Maintenance Permit. A maintenance permit may be issued to those public and private entities that require routine maintenance of ongoing activities in critical areas and/or buffers. To obtain a maintenance permit, the applicant shall submit a management plan to the technical administrator with the following included:
1. Projected scope of work for a five-year period.
2. Type of equipment to be used.
3. Manner in which the equipment will be used.
4. A detailed explanation of best management practices to be used.
The maintenance permit shall be issued pursuant to the standards set forth in this chapter. The plan must be reviewed and updated every five years for conformance and updated to reflect current best management practices. The county shall notify the applicant within 90 days of permit expiration.
C. Procedures. No land use development permit or land division approval required by county ordinance shall be granted until the applicant has demonstrated compliance with the applicable provisions of this chapter.
1. The applicant shall:
a. Demonstrate that the proposal submitted is generally consistent with the purposes and standards of this chapter,
b. Assess impacts on the critical area from activities and uses proposed, and
c. Identify protective mechanisms adequate to meet the requirements of this chapter.
2. Unless specifically permitted by this chapter, the county shall determine if the proposal is consistent with applicable regulations of the chapter and if the protective mechanisms proposed are sufficient to protect the critical area, public health, safety and welfare, and if so, shall condition approval accordingly.
3. Takings or hardships associated with dimensional requirements and grievances are addressed through the variance procedures (WCC 16.16.255) and appeal provisions (WCC 16.16.265) respectively.
D. Conflicts With Other Provisions. If any provision of this chapter conflicts with any other applicable provision of the Whatcom County Code, the more restrictive shall apply.
E. Satisfaction of the requirements of this chapter shall also be sufficient to satisfy the requirements for critical areas analysis and mitigation pursuant to Chapter 43.21C RCW and Chapter 16.08 WCC (SEPA). (Ord. 97-056 § 1).
16.16.210 Applicability and jurisdiction.
This chapter shall be consistently applied to any land use or development within geographical areas that meets the definition and criteria for critical areas as set forth in this chapter. (Ord. 97-056 § 1).
16.16.215 Relationship to other jurisdictional agencies.
A. In cases where other agencies possess jurisdictional control over critical areas and it is determined by the county that the permit conditions satisfy the requirements of this chapter, those requirements shall substitute for the requirements of this chapter. Such requirements shall be a condition of critical area approval and enforceable by the county. Such agencies may include, but are not limited to, the Lummi Indian Nation; the Nooksack Tribe; the United States Army Corps of Engineers, Environmental Protection Agency, and Fish and Wildlife Service; and the Washington State Department of Ecology and Department of Fish and Wildlife. The county shall notify the applicant in writing.
B. There are state and federal regulations which apply to projects conducted within critical areas. Uses otherwise allowed by county codes do not eliminate other agency regulatory requirements. Federal regulations include:
· Clean Water Act, Sect. 404-401
· Coastal Zone Management Act
· Endangered Species Act
· Federal Water Pollution Control Act
· Food Security Act - Swampbuster
· National Environmental Policy Act
· National Floodplain Insurance Program
· River and Harbor Act, Section 10
State regulations include:
· Chapter 43.21C RCW, State Environmental Policy Act
· Chapter 75.20 RCW, Hydraulic Project Approval
· Chapter 76.09 RCW, Forest Practices Regulations
· Chapter 77.12 RCW, Bald Eagle Protection Rules
· Chapter 78.44 RCW, Surface Mining Act
· Chapter 90.48 RCW, State Water Pollution Control Act
· Chapter 90.58 RCW, Shoreline Management Act
(Ord. 97-056 § 1).
16.16.220 Resource information and maps.
A. Recognizing the necessity for accurate geographic information, the Whatcom County planning and development services department shall continue to work on a comprehensive inventory identifying the location, size, and other characteristics of critical areas in Whatcom County.
B. The results of the inventory shall be transferred to maps and published. These maps shall be available at the planning and development services department for public inspection.
C. When completed, environmentally critical area maps shall serve as guides to the location and extent of such critical areas. In the interim, critical areas preliminary inventory maps shall be used to alert the public and responsible officials to the potential presence of critical areas on the site of proposed projects.
D. Map identification of critical areas provides only approximate boundaries and locations in Whatcom County. The actual locations and boundaries of critical areas shall be based upon the presence of the features applicable to each critical area element in this chapter. (Ord. 97-056 § 1).
16.16.225 Activities allowed without a permit.
The following activities are authorized within critical areas and standard buffers provided that the activity will not result in increased risk or hazard and that adverse impacts to critical areas are minimized and disturbed areas are immediately restored:
A. Emergency construction or activity necessary for the immediate preservation of the public health, safety and welfare as determined by the technical administrator including emergency projects which prevent, minimize, and/or mitigate flood damages to public and private property.
B. All activity undertaken by diking or drainage districts whose activities are allowed subject to Chapters 85.05 and 85.06 RCW, and activities of that same nature performed by a flood control zone district, which activities are allowed by Chapter 86.15 RCW; provided, that:
1. The district submits an annual work plan to the technical administrator each year for approval; provided:
a. Adverse impacts to wetlands, rivers and streams and fish habitat conservation areas are minimized, and
b. Adverse impacts to water quality and quantity are minimized during such activity;
2. Resource agencies shall be notified (by the county) of the proposed work plans 30 calendar days prior to the annual review meetings. Comments by agencies shall be made at the review meetings.
C. Construction work located within the footprint of the building or on the exterior walls of an existing structure provided that construction does not extend beyond the roof line of the structure.
D. Maintenance and repair of developed rights-of-way, trails, roads, and utilities within rights-of-way, provided that the maintenance and repair does not further impact the functions of wetlands or fish-bearing rivers or streams.
E. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife.
F. Low impact activities such as hiking, canoeing, viewing, nature study, photography, hunting, fishing, education or scientific research.
G. Activities such as mowing and normal pruning that do not expose soils, alter topography, destroy or clear native vegetation nor diminish water quality and quantity.
H. The nonchemical maintenance (but not construction) of drainage ditches and other constructed storm water management facilities.
I. Navigation aids and boundary markers.
J. Boat mooring buoys.
K. Low impact site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities.
L. Pesticide application applied in accordance with Washington State Department of Agriculture regulations.
M. Normal maintenance, repair and minor modification of lawfully located existing serviceable structures, facilities, utilities or improved areas.
N. Removal or destruction of noxious weeds, as listed in Chapter 16-750 WAC.
O. Construction of structures not subject to project permit requirements which are designed solely for the personal use of the property owners.
P. Alteration or removal of beaver-built structures provided there is no adverse impact to wetland or river or stream functions.
Q. River gravel bar extractions within the jurisdiction of the shoreline management program.
R. Construction of public and private trails on critical areas provided they adhere to the construction and maintenance standards in the United States Forest Service "Trails Management Handbook" (FSH 2309.18, June 1984). Trails do not include routes allowing motorized vehicles.
S. Construction of accessory structures not involving human occupancy on geologically hazardous areas.
T. Agriculture activities conducted on wetlands, fish and wildlife habitat conservation areas, or aquifer recharge areas or their buffers in compliance with WCC 16.16.285.
U. Agriculture activities conducted on geologically hazardous areas and frequently flooded areas.
V. Clearing and revegetation of buffer areas for view purposes; provided, that use of this exemption requires written authorization by the technical administrator; and further provided, that:
1. Only single-family homeowners may use this exemption;
2. Clearing is limited to the minimum necessary for view purposes;
3. Clearing shall not take place where adverse impacts, including cumulative impacts, to critical area functions are likely to occur.
W. Fish, wildlife, and/or wetland enhancement activities not required as mitigation provided that the project is approved by either the U.S. Department of Fish and Wildlife or the Washington State Department of Fish and Wildlife. (Ord. 97-056 § 1).
16.16.230 Technical administrative authority and interdisciplinary team.
A. The technical administrator shall administer and enforce the provisions of this chapter. All decisions of the technical administrator shall be subject to appeal.
B. The technical administrator or the hearing examiner may utilize an interdisciplinary team if the technical administrator determines that additional technical assistance is required to assess the site.
1. Members of the interdisciplinary team shall be selected by the technical administrator or hearing examiner as appropriate. Selection of the team shall include the proponents (upon their request) and may include, but is not limited to local, state, or federal representatives with expertise in the field and/or independent professionals with expertise relating to the critical area issue.
2. The functions of the interdisciplinary team are to field check and verify critical area determinations by reviewing the information included with an application, identify areas of concern, and help focus the preparation of subsequent reports and environmental documentation on the most relevant issues.
3. The technical administrator or hearing examiner as appropriate will coordinate this effort and pursue a consensus process in seeking advice from the team. (Ord. 97-056 § 1).
16.16.235 Submittal requirements and general application review process.
A. Project Permit. Review and approval for a proposed development within a critical area may be initiated through the application for any project permit in Whatcom County.