HomeMy WebLinkAboutord2009-056 WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2009 - 314
CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to:
Originator: Cathy �'�jc� a 1 7/7/09 Council Intro
Craver Oct 6 ') C
Division Head: Oliver I f ` ' D
Grah c3 V' 7 / 21 / 2009 Nat . Resources
v
Dept. Head: David JUN 2 9 2009 Council—Statheim 6 -2, 7 / 21 / 09 Public H
aring
Prosecutor: Royce
H, T O M C
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Buckingham 6-026-° p( COUNCIL
Purchasing/Budget: p49
Executive: Pete Kremen
TITLE OF DOCUMENT:
AMENDING THE WHATCOM COUNTY CODE TITLE 20, CHAPTER 20. 80. 735, ON AN INTERIM BASIS, TO MODIFY THE DATES
OF SEASONAL RESTRICTIONS ON CLEARING ACTIVITIES AND ISSUANCE OF DEVELOPMENT PERMITS WITHIN THE
WATER RESOURCE SPECIAL MANAGEMENT AREAS
ATTACHMENTS: Ordinance
SEPA review required? ( X ) Yes ( ) NO Should Clerk schedule a hearing? ( X ) Yes ( ) NO
SEPA review completed? ( X ) Yes ( ) NO Requested Date: 7/21/09
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be
clear in explaining the intent of the action.)
Ordinance amending Whatcom County Code Title 20, on an interim basis, to modify the dates of seasonal restrictions on clearing
activities from September In through April 30`x' to October Is` through May 3151, and imposing a deadline on the issuance of
development permits to two weeks prior to the seasonal closure date in the Water Resource Special Management Areas.
COMMITTEE ACTION:: COUNCIL ACTION:
7 / 21 / 2009 : Forwarded to Council for approval 7 / 07 / 2009 : Introduced
7 / 21 / 2009 : Council Adopted 7 -0
Ord . 2009 - 056
Related County Contract #: Related File Numbers: Ordinance or Resolution Number:
ORD 2003-049 Ord . 2009 - 056
ORD 2005-074
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on
the County 's website at: www. co. whatcom. wa. us/councit
1 SPONSORED BY : Consent
2 PROPOSED BY : PDS
3 INTRODUCTION DATE : 7 / 7 / 09
4
5
6 ORDINANCE NO . 2009 -056
7
8 AMENDING THE WHATCOM COUNTY CODE TITLE 20, CHAPTER 20 .80 . 735, ON
9 AN INTERIM BASIS, TO MODIFY THE DATES OF SEASONAL RESTRICTIONS ON
10 CLEARING ACTIVITIES AND ISSUANCE OF DEVELOPMENT PERMITS WITHIN
THE WATER RESOURCE SPECIAL MANAGEMENT AREAS
13
14 WHEREAS, the preservation and protection of drinking water is a high priority for
15 Whatcom County ; and
16
17 WHEREAS, Lake Whatcom is the drinking water source for approximately half the
18 residents of Whatcom County ; and
19
20 WHEREAS, Lake Samish is the source of potable water for approximately 90 percent
21 of residents in the Lake Samish watershed ; and
22
23 WHEREAS, Lake Padden is a high use recreation area where human contact with the
24 lake is affected by water quality ; and
25
26 WHEREAS, Whatcom County Code 20 . 80 . 735 designates Lake Whatcom , Lake
27 Samish , and Lake Padden watersheds as Water Resource Special Management Areas, and
28 establishes a more stringent standard for clearing activity in highly valued water resource
29 areas within Whatcom County ; and
30
31 WHEREAS, Washington State Department of Ecology has listed Lake Whatcom as an
32 impaired waterbody and placed Lake Whatcom on the federal Clean Water Act 303 ( d ) list
33 because of fecal coliform in creeks and in the lake, phosphorus in the tributary creeks , and
34 low dissolved oxygen levels in the lake ; and
35
36 WHEREAS, the Whatcom County Council has been addressing seasonal restrictions
37 on clearing activities in Water Resource Special Management Areas since 2002 ; and
38
39 WHEREAS, Whatcom County adopted Ordinance 2003 - 049 on October 7 , 2003
40 imposing a seasonal restriction on land clearing activities within the Water Resource Special
41 Management Areas from October 1 through April 30 ; and
42
43 WHEREAS, Whatcom County adopted Ordinance 2005 - 074 on October 11 , 2005
44 modifying the dates of the seasonal restriction on land clearing activities within the Water
45 Resource Special Management Areas to September 1 through April 30 ; and
46
47 WHEREAS, Ordinance 2005 - 027 stated the Council 's desire to evaluate necessary
48 actions to the TMDL goal of reversing the declining water quality trends in Lake Whatcom ,
49 including but not limited to development codes, regulations, and standards ; and
50
Page 1
1 WHEREAS, the Whatcom County SEPA Official issued a Determination on Non -
2 significance ( DNS ) on June 26, 2009 ; and
3
4 WHEREAS, RCW 36 . 70 . 795 requires the adoption of Findings of Fact to substantiate
5 Council action , the Council makes the following Finding of Facts :
6
7 1 . Notice of the subject amendment was sent to the Department of Community
8 Trade and Economic Development ( CTED ) and other State agencies on June
9 23 , 2009 .
10
11 2 . A determination of non - significance ( DNS ) was issued under the State
12 Environmental Policy Act ( SEPA) on June 26 , 2009 .
13
14 3 . Since 1990 , Whatcom County has been meeting with the City of Bellingham
15 and the Lake Whatcom Water and Sewer District (formerly known as Water
16 District 10 ) to develop long -term management for Lake Whatcom .
17
18 4 . Lake Whatcom was listed as an impaired water body in 1997 by the
19 Department of Ecology , and put on the Federal Clean Water Act's 303 ( d ) list
20 of impaired waters .
21
22 5 . By 1998 , Whatcom County , City of Bellingham , and the Lake Whatcom Water
23 and Sewer District formalized their joint commitment to protect and manage
24 the lake through the adoption of an interlocal agreement concerning the joint
25 management of the lake creating the Lake Whatcom Management Program
26 ( LWMP) .
27
28 6 . In 1999 , the first LWMP Work Plan for the lake was developed , followed by
29 five-year plans starting in 2000 with ten specific program areas focused on
30 water quality protection .
31
32 7 . In 2001 , the City of Bellingham adopted the Lake Whatcom Reservoir
33 Regulatory Chapter ( also known as the Silver Beach Ordinance ) which
34 contains seasonal restrictions on clearing activities from October 1 ' through
35 April 30th
36
37 8 . In 2003 , Whatcom County adopted seasonal restrictions on clearing activities
38 from October 1 ' through April 30tH
39
40 9 . In 2005 , Whatcom County modified the dates of seasonal restrictions on
41 clearing activities to September 1 " through April 30th
42
43 10 . The Draft Lake Whatcom Watershed Total Phosphorus and Bacteria Total
44 Maximum Daily Load (TMDL) Water Quality Findings were released in April
45 2008 .
46
47 11 . The Interjurisdictional Coordinating Team ( ICT) is the committee of multi -
48 jurisdictional staff coordinating on the Lake Whatcom Management Program
49 Work Plans , and is assisting in the development of a strategy to respond to
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1 the pollutant discharge requirements set forth in the TMDL .
2
3 12 . The 2005 - 2009 Lake Whatcom Management Work Plan Task 3 . 3 is to ,
4 " Evaluate options for consistent development regulations among City, County,
5 and District . "
6
7 13 . In 2009 , the City of Bellingham approved a revised Silver Beach Ordinance
8 which modified the seasonal restrictions on clearing activities to October 1St
9 through May 31St
10
11 14 . County - Wide Planning Policy N . 2 states that "the Cities and the County in
12 cooperation with other municipal corporations and tribal governments shall
13 adopt zoning regulations and development standards to protect water
14 resources .
15
16 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that
17 Whatcom County Code Title 20 is hereby amended as indicated in Exhibit A of this
18 ordinance .
19
20 BE IT FURTHER ORDAINED by the Whatcom County Council , pursuant to RCW
21 36 . 70 . 795 , that this ordinance shall be effective for not longer than six months
22 following its effective date, but may be renewed for one or more six - month periods
23 if subsequent public hearings are held and findings of fact are made prior to each
24 renewal .
25
26 ADOPTED this 21st day of July 2009
27
28 ``���fl%%tHhitssis 4��1/
30 ��`` � ' COV� ''�� � WHATCOM COUNTY COUNCIL
NA C p• • j WHATCOM COUNTY, WASHINGTON
31
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•33 — i — At AgiVMP* 1
35 , t ana • c .4 Sdis,,° C14 of the Council f Council Chair
36 •
37
38
39 WHATCOM COUNTY EXECUTIVE
40 WHATCOM COUNTY, WASHINGTON
iAPPROVED A .
44 �r
45 Civil Deputy Prosecutor Pete Kremen , County Executive
46
47 ( Approved ( ) Denied
48 /
49 Date Signed : 7rd �
�
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EXHIBIT A
20 . 80 . 735 Water Resource Special Management Areas .
The purpose of a water resource special management area is to establish a more stringent
standard for clearing activity in highly valued water resource areas, environmentally
sensitive areas, or areas where natural conditions are so unstable that clearing activity in
the areas can result in hazardous conditions. Implementation of best management
practices, including phased clearing, tree retention and seasonal clearing limitations, is
intended to limit the amount of exposed soils on site that are susceptible to erosion at any
one time, thereby improving site stability during development and reducing potential for
transport of dissolved pollutants and sediments off site. Preservation of existing trees on
site also reduces the quantity and maintains the quality of stormwater leaving a site
during and after development activities by encouraging interception, infiltration and
evapotranspiration of rainfall and surface runoff.
Whatcom County shall establish the following geographic areas as Water Resource
Special Management Areas :
Lake Whatcom watershed;
Drayton Harbor watershed;
Lake Padden watershed;
Lake Samish watershed; and
Birch Bay watershed.
( 1 ) Water Resource Special Management Area Review Thresholds. County review and
approval shall be required for clearing activities which exceed the following thresholds .
If the clearing activity does not meet the threshold criteria, county review is not required.
However, the owner is still subject to, and must comply with, the minimum requirements
established in this chapter and in the Whatcom County Development Standards.
(a) Lake Whatcom, Lake Samish and Lake Padden Watersheds . County review and
approval shall be required for all clearing activities associated with a fill and grade
permit, building permit or other development proposal. Clearing activities which are not
associated with a development permit shall require county review if they are :
(i) Five thousand square feet or greater during the dry season, June 1st through
September 30th; or
(ii) Five hundred square feet or greater during the wet season, October 1st through May
31St
(2) Within water resource special management areas, clearing activity must conform to
the following conditions :
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EXHIBIT A
(a) Temporary erosion and sediment control shall be installed and inspected prior to any
clearing activity. The technical administrator shall conduct periodic inspections to ensure
the integrity of temporary erosion and sediment controls. Temporary erosion and
sediment control measures include, but are not limited to, installation of silt fencing,
installation of check dams, covering of excavation piles, and mulching of exposed soils,
as specified in the Whatcom County Development Standards.
(b) Phased Clearing. Construction activities and clearing activities shall be phased to
limit the amount of exposed soil that occurs at any one time, if determined to be
appropriate by the technical administrator, based on site characteristics or constraints
including, but not limited to, slopes, proximity to shorelines and wetlands. A phased
clearing plan may be required. A phased clearing plan, if required, shall be submitted for
review and approval by the technical administrator prior to any clearing activity and shall
contain a detailed construction schedule or time line.
(c) Soil Stabilization. All disturbed areas shall be provided with soil stabilization within
two days of the time of disturbance. The technical administrator may approve an
exemption to this requirement when a tree canopy area retention plan includes a soil
stabilization plan. This plan component must specifically detail erosion and sediment
control and stormwater runoff measures that provide runoff control equal to or greater
than the protection provided by the standard two-day soil stabilization requirements of
this section.
(d) Tree Canopy Area Retention. In the Lake Whatcom, Lake Samish and Lake Padden
watersheds, in addition to compliance with all other requirements of this title and other
titles of the Whatcom County Code, clearing activities on any lot or parcel, with the
exception of nonconversion forest practices occurring on lands platted after January 1 ,
1960, shall comply with the following provisions :
(i) Existing tree canopy areas, as defined by the dripline of the tree(s), may be removed
for purposes of a building site, driveways, parking areas, and areas to be landscaped, but
such areas shall not exceed a cumulative total of 5 ,000 square feet or 35 percent of the
existing tree canopy area, whichever is greater.
(ii) The following criteria shall be used to determine which tree canopy areas are to be
prioritized for retention:
(A) Stands of mature native trees;
(B) Trees on sensitive slopes, on lands classified as having landslide hazards, or high
erosion hazards, as defined under the critical areas ordinance;
(C) Trees within critical areas or their associated setback and/or buffer areas as defined
under WCC Title 16 or 23 ; or
2
EXHIBIT A
(D) Trees with significant habitat value as identified by a qualified wildlife biologist or
by the technical administrator, per WCC Title 16 .
(iii) Existing trees and vegetation may be used to meet all or part of the landscaping
requirements of this title.
(iv) The county shall require that tree canopy areas to be retained are identified on a site
plan and clearly flagged, or delineated, on the site. A tree canopy area retention plan must
accompany a project or clearing permit application and be approved by the technical
administrator before clearing activity takes place. The plan shall contain the following
components :
(A) A scaled drawing identifying the following :
1 . North arrow;
2 . Property boundaries;
•
3 . Existing structures;
4 . Site access;
5 . Tree canopy areas to be removed;
6. The outer dripline of tree canopy areas to be retained;
7. Critical areas including, but not limited to, slopes, wetlands, and habitat conservation
areas;
8 . Protection measures to be utilized for areas that will be undisturbed; and
9 . Areas to be replanted pursuant to subsection (2)(d)(vii) of this section;
(B) A planting schedule that indicates the time frame for replanting of trees as applicable;
and
(C) Provisions for maintenance and monitoring.
(v) Prior to any clearing activity or development activity, any tree canopy area designated
for retention shall be delineated by temporary fencing, tape, or other indicators around
the outer dripline of the trees. Temporary fencing, tape, or other indicators shall be
clearly visible and shall be maintained for the duration of the proposed clearing or
development activity. Any tree canopy areas designated for retention shall be field
verified by the technical administrator before clearing activities begin. Trees within
canopy areas designated for retention shall not be damaged by clearing, excavation,
ground surface level changes, soil compaction, or any other activities that may cause
3
EXHIBIT A
damage to roots or trunks . Machinery, impervious surfaces, fill and storage of
construction materials shall be kept outside of the dripline of the tree canopy areas
designated for retention.
(vi) Tree canopy areas may be removed when limited to those canopy areas affected
under the following circumstances : e
(A) Fire prevention methods when supported by the county fire marshal;
(B) Hazard trees, as defined in Chapter 20 . 97 WCC, are identified (an evaluation and
determination by a licensed arborist or forester may be required) ;
(C) Encroachments where the trunk, branches or roots would be, or are, in contact with
main or accessory structures; or
(D) Where installation and/or maintenance of roads or utilities would unavoidably require
removal or cut through the root system.
(vii) In the event that tree canopy areas in excess of the applicable threshold must be
removed to facilitate reasonable use of the site, or to eliminate hazard trees, not less than
two replacement trees shall be planted for every tree removed. Replacement trees shall :
(A) Be of the same, or similar, native species as those trees removed from site;
(B) Be planted to re-establish tree clusters where they previously existed, or to enhance
protected tree clusters;
(C) Be planted in locations appropriate to the species ' growth habitat and horticultural
requirements; and
(D) Be located away from areas where damage is likely.
(viii) If any trees within canopy areas designated for retention are damaged or destroyed
through the fault of the applicant, agent or successor, the applicant, their agent or
successor shall restore the site pursuant to a restoration plan approved by the county.
(ix) The county may require a bond or other security in an amount not to exceed 125
percent of the merchantable timber to guarantee retention of existing trees within
designated canopy areas during construction. In the event of a dispute between the
landowner and the county over the established value, an assessment will be made by a
professional forester or arborist whose selection will be made by mutual agreement
between the county and the landowner. The fee for the services of the professional
forester or arborist shall be paid by the landowner or responsible party. In the event any
trees designated to be retained are removed, the county shall require that sufficient trees
be re-planted to replace those previously in existence. In the event that replanting does
4
EXHIBIT A
not occur, the county may enforce upon any bond posted. Each tree removed or destroyed
shall constitute a separate violation.
(e) Seasonal Clearing Activity Limitations. In the Lake Whatcom, Lake Samish and Lake
Padden watersheds, clearing activity, as defined in WCC 20 . 97.054, that will result in
exposed soils exceeding 500 square feet shall not be permitted from October 1st through
May 31st ; provided, that:
(i) In addition to the clearing activities exempted under WCC 20. 80 . 733 , the zoning
administrator may approve an exemption to this requirement for the following activities :
(A) Routine maintenance and repair of erosion and sediment control measures;
(B) Activities located at or waterward of the ordinary high water mark subject to state,
federal, and/or local (per WCC Title 23 and/or Chapter 16 . 16 WCC) conditions of
approval requiring commencement of clearing activity during the wet season, as defined
above, for purposes of minimizing surface water disturbance and site inundation by high
water or wave action;
(C) Activities necessary to address an emergency that presents an unanticipated and
imminent threat to public health, safety or the environment that requires immediate action
within a time too short to allow full compliance with this section. Upon abatement of the
emergency situation, the clearing activity shall be reviewed for consistency with this
chapter and may be subject to additional permit requirements; provided, that the applicant
shall make a reasonable attempt to contact the zoning administrator prior to the activity.
When prior notice is not feasible, notification of the action shall be submitted to the
zoning administrator as soon as the emergency is addressed and no later than two
business days following such action. Emergency construction does not include
development of new permanent protective structures where none previously existed.
(ii) To ensure compliance with WCC 20 . 80 . 735 (2)(e), Whatcom County Planning and
Development Services shall not issue development permits requiring more than 500
square feet of land disturbance located within the Lake Whatcom, Lake Samish or Lake
Padden Watershed within two weeks prior to the watershed seasonal closure on October
1st
(iii) Soil disturbance associated with an exempt clearing activity shall be minimized to
the maximum extent practicable. The zoning administrator shall have the authority to
condition an exempt activity to ensure that temporary erosion and sediment control
measures will be implemented.
(iv) An exemption from the seasonal land clearing requirements of this section does not
grant authorization for any work to be done in a manner that does not comply with other
provisions of this chapter or other applicable development regulations.
5
EXHIBIT A
(f) One Hundred Fifty Percent Violation Fines. When a violation occurs in an area
designated as a water resource special management area the total fine assessment shall be
increased to 150 percent of the standard penalty as provided for in Chapter 20 . 94 WCC,
Enforcement and Penalties. (Ord. 2007-047 Exh. A, 2007 * ; Ord. 2005-074 § 1 , 2005 ;
Ord. 2005-061 Exh. A, 2005 ; Ord. 2005 -032 Exh. A, 2005 ; Ord. 2005-030 § 1 Exh. A,
2005 ; Ord. 2004-051 Exh. A, 2004; Ord. 2003 -049 § 1 , 2003 ; Ord. 2003 -032 Exh. A,
2003 ; Ord. 2002-075 , 2002 ; Ord. 2002-053 , 2002 ; Ord. 2002-034, 2002) .
* Code reviser' s note : The amendments of Ordinance 2007-047 expire April 8 , 2008 .
6