HomeMy WebLinkAboutord2005-068KWA TCOM COUNTY COUNCIL AGENDA BILL NO. 2005-226
CLEARANCES
Initial
Date
Date Received in Council Office
Arenda Date
Assigned to:
offthwas Introduction
Jeffc/Now 5124120M
Diphlon Hm& r:7
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DqK Meet- —6/7/2005
Hat H. Hari 6/14/2005 Nat. Res.
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ROYCE Buckbahaw 13 Of 7/12/2005 Introduction
PM *"WRalket LV !ki � 1.
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VMENT:
TIM OFDOC 9/13/2005 Hearing
Ordinance amending the official Whatcom County Critical Areas Ordinance, WCC Chapter 16.16 - Critical Areas and associated
provisions of WCC Title 2, Chapter 2.33, and WCC Title 20.
ATTACHMENTS:
(1) Proposed Ordinance
(2) Agency Report with Recommended Text
(3) Staff Report and Exhibits
Note: Planning Commission Public Hearing Minutes will be forwarded to Council upon completion
SEPA review required? ( X ) Yes ) NO
Should Clerk schedule a hearing? Yes X' ) NO
SEPA review completed? ( X ) Yes ) NO
Requested Date:
'The Council must hold a heating if they want to change the Planning
Commission's recommendation (WCC 20.90.051).
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE (If this item Is an ordinance or requires a public
hewing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate.
Be ckar In vWlainlng the Intent of the action.)
An ordinance amending Whatcom County Code (Title 16) Chapter 16.16, Critical Areas Ordinance and associated
administrative provisions of the Whatcom County Code (Title 20), Zoning Ordinance and Whatcom County Code (Title
2) Chapter 2.33, Permit Review Procedures. The purpose of the revision is to update the existing Critical Areas Ordinance
that regulates wetlands, wildlife habitat conservation areas, geologically hazardous areas, frequently flooded areas and
critical aquifer recharge areas in accordance with the requirements of the Washington State Growth Management Act and
the Whatcom County Comprehensive Plan.
COADD7TEEACTION.
COUNCIL ACTION. •
6/7/2005: Held in committee - schedule
special Natural Resources Committee meeting
5/24/2005: Introduced
7uneI44,22005
7/12/2005: New version introduced
6/14/2005: Held in Committee - amended - held to the
7/26/2005• Amended - new version to be
next Regular Natural Resources Committee.
introduced at a later date
6/21/2005: Amended - Held in Committee
8/9/2005: Introduced
9/13/2005: Amended and adopted 5-2, Nelson,
Crawford opposed, Ord. #2005-068
Related County Contract #:
Related File Numbers:
Ordinance or Resolution
File #ZON2004-00025
Number: Ord. #2005-068
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing
on the County's websiteat. www.co.whatconLwa.us/councA
SPONSORED BYCmrmt
PROPOSED BY: PDS
INTRODUCTION DATE: 8/9/2005
ORDINANCE NO. 2005 -068
AMENDING THE OFFICIAL WHATCOM COUNTY CODE, TITLE 16, CHAPTER 16.16 - CRITICAL
AREAS ORDINANCE AND ASSOCIATED ADMINISTRATIVE PROVISIONS OF WHATCOM
COUNTY CODE, TITLE 20 - ZONING ORDINANCE AND TITLE 2, CHAPTER 2.33 - PERMIT
REVIEW PROCEDURES TO UPDATE THE WHATCOM COUNTY CRITICAL AREAS
ORDINANCE IN ACCORDANCE WITH THE REQUIREMENTS OF THE WASHINGTON STATE
GROWTH MANAGEMENT ACT AND THE WHATCOM COUNTY COMPREHENSIVE PLAN
WHEREAS, the Washington State Legislature passed the Growth Management Act (GMA)
in 1990, requiring counties and cities to adopt comprehensive plans and development regulations
that are consistent with and implement the comprehensive plan; and
WHEREAS, pursuant to RCW 36.70A.060, the Whatcom County Council adopted a
Temporary Critical Areas Ordinance in June 1992 and a permanent Whatcom County Critical Areas
Ordinance in October 1997 [ORD No. 97 -056]; and
WHEREAS, the GMA, at RCW 36.70A.130(4), requires counties and cities to take action to
review and, if needed, revise their comprehensive plans and development regulations, including
critical areas regulations, to ensure continued compliance with the requirements of the GMA; and
WHEREAS, it is also appropriate to review and update County development regulations,
as needed, to reflect new information and changed conditions; and
WHEREAS, the Whatcom County SEPA Official issued a Determination of Non - significance
(DNS) for the proposed Whatcom County Critical Areas Ordinance update on February 22, 2005;
and
WHEREAS, pursuant to RCW 36.70.390, legal notice was published in the Bellingham
Herald on Monday, March 14, 2005 and Monday, March 21, 2005; and
WHEREAS, the Planning Commission held public hearings on the proposed amendments
on Thursday, March 24, 2005 and on Thursday, March 31, 2005, and considered all testimony; and
WHEREAS, the Planning Commission recommended approval of the proposed text
amendments on Wednesday, April 27, 2005; and
WHEREAS, the Whatcom County Council finds the amendments to be in the best interest of
the public health, safety and welfare; and
WHEREAS, RCW 36.70.795 requires the adoption of findings of fact which justify
Council action; and
Page 1
WHEREAS, the County Council has adopted the following Findings and Conclusions:
FINDINGS OF FACT AND CONCLUSIONS
The Washington State Legislature passed the Washington State Growth Management Act
(GMA) in 1990 and amended it in 1991, requiring counties and cities to define, identify, and
manage regulated critical areas.
2. Whatcom County adopted a Temporary Critical Areas Ordinance in June 1992 and a
permanent Whatcom County Critical Areas Ordinance in October 1997 [ORD No. 97 -056].
3. Pursuant to RCW 36.70A.130(4), Whatcom County is required to take action to review and
revised their comprehensive plans and development regulations every seven years, if
needed, to ensure continued compliance with the provisions of the Growth Management Act
(GMA).
4. The GMA, at RCW 36.70A.130(4)(a), requires Whatcom County to complete review and
evaluation of the Whatcom County Comprehensive Plan and implementing development
regulations on or before December 1, 2004.
5. The Whatcom County Comprehensive Plan projects an increase of approximately 70,000
people, or 41% growth, in Whatcom County by the year 2022. As Whatcom County's
population increases, associated development activities will continue to create greater
challenges for the preservation and protection of Whatcom County's environmental
resources. Without appropriate planning and management, land use activities can create
potential impacts that may threaten both environmental resources and the public welfare.
6. Pursuant to RCW 36.70A.172, Whatcom County shall include the Best Available Science
(BAS) in developing policies and development regulations to protect the functions and
values of critical areas.
7. Comprehensive Plan Policy 11 K -2 states that Whatcom County must develop and adopt
criteria to identify and evaluate wetland functions that meet the Best Available Science
standard and that are consistent with state and federal guidelines.
8. The Whatcom County Best Available Science Record has been prepared by the county's
consultant team lead by Parametrix in consultation with a Technical Advisory Committee and
a Citizens Advisory Committee appointed by the County Executive. The information in the
BAS report provides a scientific basis for the proposed CAO updates and, in some
instances, supports existing provisions of the County code.
9. Pursuant to RCW 36.70A.172, special consideration must be given to the preservation and
enhancement of anadromous fisheries. In accordance with this provision, Whatcom County
has given "special consideration" to conservation and protection measures necessary to
preserve or enhance anadromous fisheries through the CAO update process.
10. Whatcom County Comprehensive Plan, Chapter 11, Action Plan Item 58, states that
Whatcom County must "amend the Critical Areas Ordinance to protect threatened and
endangered species, consistent with RCW 36.70A.172, which calls for giving special
consideration to conservation or protection measures necessary to preserve or enhance
anadromous fisheries, and Department of Ecology rules relating to Best Available Science
Page 2
(WAC 365 -195, Part IX) ".
11. Pursuant to RCW 36.70A.175, regulated wetlands shall be delineated in accordance with
the Washington State Wetlands Identification and Delineation Manual, (Ecology Publication
96 -94).
12. Pursuant to Whatcom County Comprehensive Plan Policy 11 G -10, Whatcom County must
develop and administer regulations and incentives such that there is no net loss of
ecological functions and values of wetlands and fish and wildlife habitats.
13. The 2003 Critical Areas Assistance Handbook published by the Washington State Office of
Community Trade and Economic Development (CTED) specifies that there must be "no net
loss of structure, value and function of natural systems constituting critical areas."
14. A Citizens Advisory Committee (CAC) has been officially formed for the specific purpose of
assisting Whatcom County Planning & Development Services (PDS) in reviewing and
updating the Whatcom County Critical Areas Ordinance (CAO) and the Whatcom County
Shoreline Management Program (SMP). The purpose of the CAC has been to help focus
discussions and identify key technical and policy issues that are important to the many
diverse interests and perspectives of stakeholder groups in the county.
15. The CAC conducted thirteen open public meetings in 2004 to review and comment on
existing critical area regulations, scientific resource materials, the DRAFT Best Available
Science Record for Whatcom County, and DRAFT updates to the Whatcom County Critical
Areas Ordinance.
16. An official Technical Advisory Committee (TAC) consisting of government and agency
representatives was formed for the specific purpose of assisting Whatcom County PDS in
the review and update of the Whatcom County CAO and SMP. The purpose of the TAC has
been to help focus technical discussions, identify and verify sources of best available
science, and identify key technical and policy issues that are important to the many agencies
and governments in Whatcom County.
17. The TAC conducted ten open public meetings in 2004 to review and comment on
information presented in the Whatcom County Critical Areas Ordinance Update Best
Available Science Record and the draft CAO amendments. The TAC has provided
agency /governmental technical and regulatory expertise and has added to the existing
knowledge base in the county by contributing scientific information to the Whatcom County
BAS review.
18. Whatcom County PDS hosted CAO /SMP public workshops and expert panel discussions on
September 30 and October 6, 2004 to inform interested citizens of the intent, scope, and
status of the CAO /SMP update processes, as well as obtain preliminary public comments
and questions.
19. The public was invited to comment on the February 4, 2005 public review draft of the CAO
and was provided a 30 -day timeframe in which to submit comments and /or proposed
changes.
20. Public workshops were held on February 15 and 16, 2005 to introduce and discuss
important changes and additions presented in the February 4, 2005 draft Critical Areas
Page 3
Ordinance. Public comments, questions and concerns received at these workshops were
recorded and addressed in the subsequent draft CAO as appropriate.
21. Additional public education and involvement opportunities included the 2004 Birch Bay and
Bellingham Marine Shoreline Stewardship Workshops, and the 2005 Whatcom County
Home & Garden Show.
22. Whatcom County staff held meetings with and /or gave presentations to several stakeholder
groups, including the Washington Dairy Federation, Washington Farm Bureau, Building
Industry Association of Whatcom County, Nooksack Recovery Team (NRT), Whatcom
County Association of Realtors, Marine Resources Committee, Whatcom County Agriculture
Advisory Committee, and the Environmental Community.
23. A letter of support for agricultural provisions in the proposed CAO update was provided from
the Whatcom County Agricultural Advisory Committee (Appendix F).
24. The Whatcom County SEPA Official issued a determination of non - significance under the
State Environmental Policy Act on the proposed Whatcom County Critical Areas Ordinance
update on February 22, 2005.
25. Pursuant to RCW 36.70.590, legal notice for a Planning Commission public hearing was
published in the Bellingham Herald on March 14 and March 21, 2005.
26. The Whatcom County Planning Commission held public hearings on March 24 and March
31, 2005 and all testimony was considered.
27. The proposed amendments to WCC Chapter 16.16 — Critical Areas, attached as Exhibit 1,
are generally consistent with and implement the goals, policies, and requirements of the
Washington State Growth Management Act, Whatcom County Comprehensive Plan, and
County -wide Planning Policies.
28. The proposed amendments to WCC Chapter 2.33 - Permit Review Procedures; Chapter
20.88 — Major Project Permits; and Chapter 20.92 — Hearing Examiner, attached as Exhibit
2, are necessary to clarify administrative authority and procedures for CAO implementation,
as well as provide internal regulatory consistency.
29. The Chuckanut Corridor map, attached as Exhibit 3, is necessary to officially recognize the
last remaining wildlife corridor area in the Puget Trough where natural land cover extends
from marine waters to the National Forest Boundary east of Chuckanut Mountain which has
been identified as such through an eco- regional assessment prepared by the Washington
State Department of Fish and Wildlife.
30. The proposed amendments updating the official Whatcom County Critical Areas Ordinance
are necessary to maintain continued compliance underthe Growth Management Act (GMA).
31. The proposed amendments contribute to the preservation of the public health, safety, and
welfare of the citizens of Whatcom County.
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1: Whatcom County Code, Title 16, Chapter 16.16, Critical Areas is hereby amended as
Page 4
indicated in Exhibit 1 of this ordinance.
Section 2: Whatcom County Code, Title 2, Chapter 2.33, Permit Review Procedures and
Whatcom County Code, Title 20, Chapters 20.88, Major Project Permits and 20.92,
Hearing Examiner are hereby amended as indicated in Exhibit 2 of this ordinance.
ADOPTED this.3 day of Snt-emher , 2005.
`��`�i�•��NAT� 6�L'0''' WHATCOM COUNTY COUNCIL
ATTEO; C�•. (1''.� WHATCOM COUNTY, WASHINGTON
_ f -
NI N 4
Dana B%P- Datft,, • •' .�`
Clerk of thifCaftcik ♦_...�����
APPROVED as to form
Civill uty tutor
Laurie Caskey- Schreiber, Council Chair
(4,Approved () Denied
e Krem n, County Executive
Dat .
Page 5
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
WHATCOM COUNTY
CRITICAL AREAS ORDINANCE
TITLE 16
CHAPTER 16.16
EXHIBIT 1
Whatcom County Planning and Development
FINAL
'`wed -by Whatcom County Council
September 13, 2005
"Planning Commission recommended amendments
single StFibethFO gh
are identified by single underline and s;,,�, text.
"'Council Natural Resource Committee recommended amendments
are identified by double underline and text.
`County Council amendments are identified by
and text.
Note: All identified amendments were adopted by
Whatcom County Council on September 13, 2005.
For more information or to add your name to our mailing list please visit our website at
htta:// www. co.whatcom.wa.us /criticalareas, or contact Whatcom County Planning and Development Services at
(360) 676 -6907.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ACKNOWLEDGEMENTS
Citizens' Advisory Committee Members
Roger Almskaar Margaret (Peg) Larson
Kathy Berg Rebecca O'Brine Willson
Elizabeth Daly Tom Pratum
Robin du Pre' Skip Richards
Richard Gilda Aubrey Stargell
David`) ggith Wendy Steffensen
Sw- ```•'• vii „.
Technical Advisory Committee Members
— Jeremv Freimund. Alan Chapman. Stacv F
— Alan Birdsall
Washington State Department of Fish and Wildlife — Dan Penttila, Steve Sevmour
Washington State Department of Natural Resources — David Roberts, Nancy Joseph
Washington State_ Department of Ecology — Stephen Stanley, Barry Wenger, Susan Meyer
Whatcom Conservation District/NRCS — George Boggs
Puget Sound Action Team — Hillary Culverwell
Whatcom County Watershed Improvement Districts — Henry Bierlink
Whatcom County River and Flood Division — Paula Cooper, Paul Pittman
Whatcom Countv Water Resources Division — John Thompson, Erika Stroebel
Whatcom County Public Works — Steve Fox
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
TITLE 16
Chapter 16.16
CRITICAL AREAS ORDINANCE OF WHATCOM COUNTY, WASHINGTON
TABLE OF CONTENTS
ARTICLE 1 PURPOSE AND INTENT ......................................................... ..............................1
16.16.100 Purpose and Intent ................................................................... ..............................1
ARTICLE 2 ADMINISTRATIVE PROVISIONS ........................................... ..............................3
16.16.200 Authority .,' d� .............:................................................................ ..............................3
16.16.205 Authorizations�Regui ed .......................................................... ..............................3
16.16.210 Applic�s� "rlsy.:anct'Severability ................................................... ..............................3
�' ' ii45�.`
4 `tiv i'.
16.16.215 Aelatio4ihip to Other Jurisdictions .......................................... ..............................3
16.16.2 R ics4ion and Mapping of Critical Areas ............................ ..............................4
16.1. 5 '' regulated Activities ................................................................. ..............................4
�.2 LLEzempt Activities ...................................................................... ..............................5
235 '` Activities Allowed With Notification .......................................... ..............................6
16. 240 Technical Administrator and Hearing Examiner Authority ...... ..............................9
16.16.245 Interdisciplinary Team ............................................................. .............................11
16.16.250 Submittal Requirements and Critical Area Review Process .. .............................11
16.16.255 Critical Areas Assessment Reports ........................................ .............................13
16.16.260 General Mitigation Requirements ........................................... .............................14
16.16.265 Critical Area Protective Measures .......................................... .............................22
16.16.270 Reasonable Use and Variances ............................................. .............................24
16.16.275 Non - conforming Uses /Buildings ............................................. .............................26
16.16.285 Penalties and Enforcement ..................................................... .............................28
16.16.290 Conservation Program on Agriculture Lands (CPAL) ............ .............................29
16.16.295 Open Space and Conservation .............................................. .............................31
ARTICLE 3 GEOLOGICALLY HAZARDOUS AREAS ............................... .............................33
16.16.300 Purpose ................................................................................... .............................33
16.16.310 Designation, Mapping and Classification ............................... .............................33
16.16.320 Geologically Hazardous Areas - General Standards ............. .............................36
16.16.325 Standards - Landslide Hazard Areas ..................................... .............................36
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE iii
16.16.330
Standards - Landslide Hazard Management Zones .............. .............................37
16.16.335
Standards - Landslide Hazard Area Buffers ........................... .............................37
16.16.340
Standards - Seismic Hazard Areas ........................................ .............................38
16.16.345
Standards - Alluvial Fan Hazard Areas .................................. .............................38
16.16.350
Standards - Volcanic Hazard Areas ....................................... .............................39
16.16.355
Standards - Erosion Hazard Areas ......................................... .............................39
16.16.360
Standards - Erosion Hazard Area Buffers .............................. .............................41
16.16.365
Standards - Tsunami and Seiche Hazard Areas .................... .............................41
16.1525
Standards — Activity Subject to Critical Area Review ............. .............................47
16.16.370
Standards - Mine Hazard Areas ............................................. .............................41
16.16.375
Review and Reporting Requirements ..................................... .............................42
ARTICLE 4
FREQUENTLY FLOODED AREAS ........................................ .............................44
16.16.400
Purpose..,, �1 ............. ............................................................... .............................44
16.16.410
Designation al. Mapping - Frequently Flooded Areas ......... .............................44
16.16.420
Frequ iW- coded Areas — General Standards ................... .............................45
16.16.430
Review4 d Report Requirements ......................................... .............................45
ARTICLE S , ,C jCX AQUIFER RECHARGE AREAS ........................... .............................46
Standards — Wetland Buffer Reduction .................................. .............................56
�.
16.1 0
,:!�.:
�� Purpose ................................................................................... .............................46
Standards - Wetland Buffer Averaging ................................... .............................56
1W.1t6.5
Designation, Classification and Mapping - Critical Aquifer Recharge Areas ......
46
520 Critical Aquifer Recharge Areas - General Standards ........... .............................47
16.16.670
Review and Reporting Requirements ..................................... .............................57
16.16.680
16.1525
Standards — Activity Subject to Critical Area Review ............. .............................47
16.16.530
Standards — Prohibited Uses .................................................. .............................48
16.16.535
Review and Report Requirements ......................................... .............................48
ARTICLE6
WETLANDS ............................................................................ .............................50
16.16.600
Purpose ................................................................................... .............................50
16.16.610
Designation, Rating, and Mapping - Wetlands ....................... .............................50
16.16.620
Wetlands — General Standards .............................................. .............................51
16.16.630
Standards - Wetland Buffer Widths ........................................ .............................54
16.16.640
Standards — Wetland Buffer Reduction .................................. .............................56
16.16.650
Standards - Wetland Buffer Averaging ................................... .............................56
16.16.660
Standards - Wetland Buffer Increases ................................... .............................57
16.16.670
Review and Reporting Requirements ..................................... .............................57
16.16.680
Standards — Wetland Mitigation .............................................. .............................59
16.16.690
Standards — Compensatory Wetland Mitigation Plan ............ .............................62
ARTICLE 7
HABITAT CONSERVATION AREAS (HCAs) ........................ .............................64
16.16.700
Purpose ................................................................................... .............................64
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE iv
16.16.710
Designation, Mapping and Classification - Habitat Conservation Areas ............64
16.16.720
Habitat Conservation Areas — General Standards ................. .............................66
16.16.730
Standards — Locally Important Habitats and Species ............ .............................71
16.16.740
Standards — Habitat Conservation Area Buffers .................... .............................72
16.16.750
Review and Reporting Requirements ..................................... .............................76
16.16.760
Mitigation Standards for Habitat Conservation Areas ............ .............................78
ARTICLE 8
DEFINITIONS ......................................................................... .............................80
APPENDIXA ................................................................................................ ............................... A -2
Conservation Program On Agriculture Lands .............................................. ............................... A -2
APPENDIXB ................................................................................................ ............................... B -1
NotificationExample ..................................................................................... ............................... B -1
APPENDIXC ................................................................................................ ............................... C -1
Native Growth Protection EF' ment ............................................................... ............................0 -1
; xe4a ".
`. . :Y . n .
........................................................... ......................TYPE 1 SIGN............ti............. . ......... C -1
TYPE 2 SIGN...... �; 4 C -2
APPENDIXD.: 4 .......::................................................................................. ............................D -1
Special St?W;f #l,opd Wildlife Species Protected Pursuant to Article 7 .. ............................... D -1
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
CRITICAL AREAS ORDINANCE (WCC 16.16)
ARTICLE 1 PURPOSE AND INTENT
16.16.100 Purpose and Intent
A. The purposes of this chapter are to carry out the goals of the Whatcom County
comprehensive plan and the State of Washington Growth Management Act (RCW 36.70A)
and its implementing rules by designating and classifying critical areas, and by protecting
the functions and values of critical areas and the ecological processes that sustain them
while allowing for appropriate economically beneficial or productive use of land and
property. Critical areas regulated under this chapter include geologically hazardous areas,
frequently flooded areas, critical aquifer recharge areas, wetlands, and fish and wildlife
habitat conservafwn areas. This chapter seeks to maintain harmonious relationships
between humarri ivity and the natural environment.
B. By regulatir.�;, f,evelopM,*-nt and minimizing critical area alterations, this chapter seeks to:
public from harm due to landslides, earthquakes, erosion, volcanic
Tina. and other natural hazards.
\2. � Minimize unnecessary maintenance of public facilities, and costs associated with
.�. `��., property damage emergency rescue relief operations, and environmental
degradation.
3. Ensure there are node adverse impacts to the quality and quantity of water
resources.
4. Alert appraisers, assessors, real estate agents, owners, potential buyers or lessees,
and other members of the public to natural conditions that pose a hazard or
otherwise limit development.
5. Protect wetlands, floodplains, critical aquifer recharge areas, and habitat
conservation areas by applying the Best Available Science to ensure no net loss of
ecological functions and values.
6. Protect species listed as threatened or endangered and their habitats.
7. Protect unique, fragile and /or valuable elements of the environment, including
ground and surface waters, wetlands, anadromous fish species, shellfish, and other
fish and wildlife and their habitats.
8. Provide County officials with information to approve, condition, or deny project
proposals.
9. Protect property rights, while allowing for economic development including
agriculture, and allowing for the development and maintenance ofa R adequate and
appropriate public services and essential public facilities.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 2
10. Prevent adverse and cumulative environmental impacts to critical areas and mitigate
unavoidable impacts.
11. Coordinate Whatcom County's critical area protection activities and programs with
those of other jurisdictions.
12. Coordinate environmental reviews and permitting of proposals with other
departments and agencies to avoid duplication and delay.
13. Allow for reasonable use of property in accordance with the provisions of WCC
16.16.270.: -a
14. Establish critical area protection standards and procedures that are consistent with
state and federal regulations pertaining to critical areas.
C. The goals, polic,' sand purposes set forth in this chapter serve as a basis for exercise of the
County's substant authority under the State Environmental Policy Act (SEPA) and the
County's SiTA rules��k
D. The qunty'kenadment or enforcement of this chapter shall not be construed for the
benefit bf, anAndividual person or group of persons other than the general public.
E. Nong in this chapter is intended to preclude or discourage beneficial actions that
rnio eocfnrro anri /nr mainfain rrrifical aroac nr minimi7a ricks accnninfari with crifical
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 3
ARTICLE 2 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.
16.16.205 Authorizations Required
A. Prior to issuing a permit, the County shall determine if the proposed activity or use is
permitted pursuant to this chapter. No land use development permit, construction permit, or
land division approval required by County ordinance shall be granted until the County
decision -maker has determined that the applicant has complied with the applicable
provisions of this chapter including the mitigation standards set forth in WCC 16.16.260.
B. Authorizations reqdhkd under this chapter overlay other permit and approval requirements
of the Wh m Co Code. Critical areas review pursuant to this chapter shall be
conducted * the underlying permit or approval. Any proposed critical area alteration
that d6es notequire other County project permits or approvals, such as variances and
reasonable us'-exceptions, must comply with the substantive and procedural requirements
dE hWet and the procedural requirements of WCC 2.33.
Ceti a requirements of this chapter shall apply concurrently with review conducted under the
Environmental Policy Act (SEPA) (RCW 43.21 C), as locally adopted (WCC 16.08).
Any conditions required pursuant to this chapter shall be coordinated with the SEPA review
l _ and threshold determination.
D. Areas characterized by a particular critical area may also be subject to other regulations
established by this chapter due to the overlap or multiple functions of some critical areas.
When one critical area adjoins or overlaps another, the more restrictive standards shall
apply.
16.16.210 Applicability and Severability
This chapter shall be consistently applied to any alteration or development within geographical
areas of unincorporated Whatcom County that meet the definition and criteria for critical areas and
critical area buffers as set forth in this chapter. No development shall be constructed, located,
extended, modified, converted, or altered, or land subdivided without full compliance with this
chapter. Should any section or provision of this chapter be declared invalid, such decision shall not
affect the validity of this chapter as a whole.
16.16.215 Relationship to Other Jurisdictions
Permit applicants are responsible for complying with all federal, state, tribal, and local regulations
that may pertain to a proposed development. Compliance with the provisions of this chapter does
not necessarily constitute compliance with other regulations and permit requirements, provided that
the following shall apply:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 4
A. In cases where other agencies have jurisdiction over critical areas and the Technical
Administrator determines that the permit conditions imposed by such agencies satisfy the
requirements of this chapter, those permit conditions may tg substituted as the conditions of
for the requirements of this chapter. Such agencies may include, but are not
limited to, the Lummi Nation; the Nooksack Tribe; the United States Army Corps of
Engineers, the United States Environmental Protection Agency, the United States Fish and
Wildlife Service; the National Marine Fisheries Service or NOAA Fisheries, and the
Washington State Departments of Ecology, and Fish and Wildlife.
B. The County shall make findings required by WCC 2.33 and WCC 16.16.250 when adopting
conditions of another jurisdiction permit. Such requirements shall be a condition of critical
area approval and enforceable by the County. In the event that there is a conflict between
permit requirements and the standards of this of this chapter, the more restrictive standards
shall apply.
C. The County shall notify the applicant in writing when this provision applies.
16.16.220 Identificatiorf nd flipping of Critical Areas
The County has identO i, areas, and areas where the conditions under which critical areas
typically occur,. 'nd /or ve t e potential to occur. The approximate location and extent of critical
areas within the nty' jurisdiction are shown on maps, which shall be available at the Planning
and Dev ces Department for public inspection. Property owners, the Technical
Admini ato ,end /or members of the public may use these maps as a general guide, but the maps
do n� p de mprehensive accounting of areas subject to this chapter nor do they provide a
z� i
d tive c 'area designation. Critical area locations and boundaries shown on the County's
ma are approximate and do not include buffers that may be associated with critical
are a ield investigation, analysis by a qualified professional, and /or other consideration of other
source of credible scientific information may be required to confirm the presence or absence of a
critical area and its boundaries and buffers. The County shall update the maps on a regular and
consistent basis as new information becomes available.
16.16.225 Regulated Activities
A. The following activities shall be subject to the provisions of this chapter when they occur
within critical areas or their buffers:
Clearing, grading, dumping, excavating, discharging, or filling with any material. This
includes creating impervious surfaces.
2. Constructing, reconstructing, demolishing or altering the size of any structure or
infrastructure, subject to the provisions for a nonconforming structure pursuant to
WCC 20.83, WCC 23.50.90 and WCC 16.16.275.
3. Any other activity for which a County permit is required, excluding permits for interior
remodeling.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
B. Alteration of critical areas and /or buffers is prohibited except when:
5
Alteration is approved pursuant to the reasonable use or variance provisions of
WCC 16.16.270; or
2. Alteration is necessary to accommodate an essential public facility or public utility
where no feasible alternative location will accommodate the facility and the facility is
located, designed, and constructed to minimize and where possible avoid critical
area disturbance to the maximum extent feasible; or
3. Alteration is necessary to accommodate a commercial /industrial shoreline
dependent use permitted in accordance with the Whatcom County Shoreline
Management Program (SMP) where the facility is operated, located, designed and
constructed to minimize and, where possible, avoid critical area disturbance to the
maximum extent feasible; or
43. Alteration is part of an essential element of an activity allowed by this chapter and all
feasible m ` ures to avoid and minimize impacts have been employed. Such
feasible meal_ , s shall include but not be limited to clustering where permitted by
zonin =,,,,ac[V e a 44 , `priate to protect critical areas. The purposes of clustering shall
be to rse effe cts of development on critical area functions and values,
bymimiz+ Und'clearing, maintain soil stability, preserve native vegetation, maintain
ologt,,and mitigate risk to life and property; or
`\Alteration is associated with an exempt activity under WCC 16.16.230, or is allowed
`` tpuant to the notification provisions of WCC 16.16.235 or is allowed pursuant to
the specific regulatory standards for each designated critical area, as enumerated in
the subsequent articles of this chapter.
_ Alteration is associated with an alternative mitigation plan or watershed -based
manaaement plan approved pursuant to 16.16.260.E.
16.16.230 Exempt Activities
The following activities as specified are exempt from the provisions of this chapter:
A. Class I, II, III and IV- Special forest practices conducted in accordance with the applicable
standards of the Washington State Forest Practices Act, WAC 222 -16, except where either
of the following applies:
1. The lands have been or are proposed to be converted under a conversion option
harvest plan to a use other than commercial forest product production as provided in
chapter RCW 76.09.050 and RCW 76.09.240; or
2. On lands which have been platted after January 1, 1960, as provided in RCW
76.09.050 and RCW 76.09.240.
B. Maintenance of existing, lawfully established vegetation, landscaping and gardens within a
regulated critical area or its buffer, including but not limited to, cutting, mowing lawns,
weeding, removal of noxious and invasive species, harvesting and replanting of garden
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 6
crops, pruning and planting of non - invasive ornamental vegetation or indigenous native
species to maintain the general condition and extent of such areas, provided that native
growth protection areas, mitigation sites, or other areas protected via conservation
easements or similar restrictive covenants are not covered by this exception.
C. Low impact activities such as hiking, canoeing, viewing, nature study, photography, hunting,
fishing, education or scientific research.
D6. Activities undertakers comply with a United States Environmental Protection Agency
superfund rel. order a Washington Department of Ecology order pursuant to the
Model Toxics . t°►, or a Department of Homeland Security order that specifically
preempts local ions in the findings of the order.
1_
16.16.235 Activities Allowed With Notification
The following activities as specified are authorized within critical areas and buffers provided that the
applicant provides a written notification to the Technical Administrator (see Appendix B). The
notification will provide specific information describing the activity and the mitigation to be
implemented to document that the activity will not result in increased risk to public health, safety and
welfare, that adverse impacts to critical areas are minimized, and that disturbed areas are restored
as soon as possible following the activity. Notification shall be submitted to the Technical
Upon receipt of the notification, the County may provide guidance on
best management practices for tree and vegetation protection, construction management, erosion
and sedimentation control, water quality protection, and use of chemical applications to be used in
the execution of the following activities:
A. Emergency construction or activity necessary for the immediate preservation of the public
health, safety and welfare as determined by the Technical Administrator provided that:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
i7
An emergency is an unanticipated and imminent threat to public health, safety or the
environment that requires immediate action within a time period too short to allow
full compliance with this chapter.
2. Emergency construction does not include development of new permanent protective
structures where none previously existed. Where the Technical Administrator
determines that new protective structures are the appropriate means to address an
emergency situation, the project proponent shall either obtain any permits that would
have been required absent an emergency, pursuant to 90.58 RCW, WAC 173 -27 or
this chapter, or remove the structure upon abatement of the emergency situation.
3. Within the jurisdiction of the Whatcom County Shoreline Management Program
(WCC Title 23) all emergency construction shall be consistent with the policies and
procedural requirements of WCC Title 23 and this chapter.
4. The applicant shall make a reasonable attempt to contact the Technical
Administrator., prior to activity. Provided that when prior notice is not feasible
notification wo • the action shall be submitted to the Technical Administrator as soon
as the emerge is addressed and no later than fourteen (14) days following such
actions,,_ -°`
B. Maintenance, operation and /or repair of existing infrastructure improvements, including
dikes a4draina`$� ditches, rights -of -way, trails, roads, fences, and utilities�g•st -ah ant to aiRgle family Fesiedle-nese provided that the activity does not further
ter, pact, or encroach upon critical areas or buffers or further affect their functions of
444 i
d The maintenance activity shall not result in increased risk to
life rdperty Maintenance
\, hall a allowed pursuant to the provisions set forth in this chapter provided that }:
The applicant shall submit to the Technical Administrator a written description of the
maintenance activity with all of the following general information:
a. Type, timing, frequency and sequence of maintenance activity to be
conducted;
b. Type of equipment to be used (hand or mechanical);
C. Manner in which the equipment will be used; and
d. Best management practices to be used.
2. The applicant's written description may shall be valid for up to five years provided
that there is no significant change in the type or extent of maintenance activity.
C. Select vegetation removal as- Q pruning
wse in a manner that minimizes unnecessary disturbance and prevents adverse
effects on soil stability, fish or wildlife habitat, water quality, or water quantity provided
thatno vegetation shall be removed from a wetland, habitat conservation area, coastal
s
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
or riverine erosion hazard area or landslide hazard area or their buffers except for lawn,
pasture, ornamental vegetation, and similar introduced vegetationexce to that: y
ssI+s
it Scut vegetation ' , ' shall be left
within the critical area or buffer where practicable unless removal is warranted due to the
presence of an established disease infestation or other hazard, or because of access or
maintenance needs if the area is a utility or access right -of -way.
D. Installation of navigation aids and boundary markers in accordance with applicable state
and federal laws.
E. Installation of, oring b'6! Sys in accordance with the Department of Fish and Wildlife design
guidelines an NC! 1h -at6om County Shoreline Management Program (WCC Title 23).
F. Routine site, invdsVgation work in wetlands, landslide hazard areas, and riverine and coastal
er. q areas. This includes geotechnical soil borings, groundwater monitoring
`ells, ercolation tests, and similar or related activities necessary for land use application
s itt: Land survey and shallow soil test pits dug in conjunction with wetland delineation
� stu do not require notification.
G. ~ Clearing, pruning, and re- vegetation of buffer areas, except landslide hazard areas and
'uffers and riverine and coastal erosion hazard areas and buffers, for view purposes
provided:
1. This exec allowed activity shall not be conducted wrad more than once every
10 years for any individual residential property.
2. A window or view opening is limited to the minimum necessary for view purposes
and shall not exceed fifteen percent (15 %) of buffer length, unless the applicant can
demonstrate to the Technical Administrator's satisfaction that a larger dimension is
warranted because of slope or other site considerations. Trees greater than 12
inches diameter at breast height shall be preserved ,
but may be shaped, windowed /thinned or pruned.
3. Clearing shall not take place where increased risks or adverse impacts, including
cumulative impacts, to critical area functions and values are likely to occur.
4. Low growing native vegetation shall be retained and /or planted in the view corridor
to provide habitat, stabilize the area, and achieve dense growth.
5. This provision does not apply to open space set aside in a subdivision or other
approval to which specific conditions are attached that prohibit clearing of vegetation
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
without a written approval or permit.
M
H. Fish, wildlife, and/or wetland restoration or enhancement activities not required as project
mitigation provided that the project is approved by the U.S. Fish and Wildlife Service, the
Washington State Department of Ecology, Washington State Department Fish and Wildlife,
or other appropriate local, state, federal, or tribal jurisdiction.
Household herbicides, pesticides, and fertilizers may be used in critical areas buffers, but
not in critical areas, when applied at times and rates specified on the label in accordance
with Washington State Department of Agriculture and other applicable regulations.
J. Routine maintenance of drainage channels on agricultural lands provided that all of the
following are met:
1. The maintence is necessary to support ongoing agricultural operations;
2. The ms i tenant activity does not expand the dimensions of the drainage channel
beyont Trial, lawfully established dimensions;
3. Th ,agrii#ural activities are conducted pursuant to an approved farm conservation
. j _ pared pursuant to WCC 16.16.290;
..
fie farm operator obtains a Hydraulic Project Approval (HPA) �.if:uirad from the
` \,Washington Department of #Fish and Wildlife (WDFW) prior to the maintenance
activity; and
The farm operator provides a copy of the HPA to the Technical Administrator as part
of the written notification. No other written notification is needed.
K. Alteration or removal of beaver built structures two years old or less, provided that:
1. There is no adverse impact to wetland or river or stream functions an sakewlsw
Ism.
2. The feFm apsFateF property owner obtains ap HPA from WDFW prior to the
maintenance activity.
3. The faFFR easFateF property owner provides a copy of the HPA to the Technical
Administrator as part of the written notification.
16.16.240 Technical Administrator and Hearing Examiner Authority
The Technical Administrator is the Whatcom County Director of Planning and Development
Services or his/her designee. The Hearing Examiner is appointed by the County Council. The
Technical Administrator and the County Hearing Examiner shall administer and enforce the
provisions of this chapter pursuant to the following:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 10
A. The Technical Administrator shall have the primary responsibility for reviewing development
proposals for compliance with this chapter and is authorized to approve, deny, or condition
permits in accordance with the standards set forth herein. The Technical Administrator shall
also have the following authority:
1. Authority to convene an interdisciplinary team to assist in reviewing development
proposals or to solicit review from outside experts in accordance with WCC 16.16.
260.
2. Authority to grant, condition, or deny reasonable use permits for single - family
residences proposed to be located outside of geologically hazardous areas or for
other development proposals that would affect critical area buffers, but not the
critical areas themselves.
3. Authority to serve a cease and desist order pursuant to WCC 16.16.280 upon a
person undertaking activity within a critical area or buffer in violation of this chapter.
4. Any addition` esponsibility and /or authority specifically provided for in the
subs ent artici s" of this chapter.
B. The Te, nical Administrator's authority shall transfer to another County decision -maker
when anr Xision -maker is specified for a separate project permit. In such cases, the
T ' �ftjnlstrator shall ensure that all procedural requirements of this chapter are met
d II ake a recommendation to the designated decision maker as to how the
p isio .of this chapter apply to the permit action, including project permits.
Whatcom County Hearing Examiner is hereby vested with responsibility and authority to
hear appeals and perform the following duties:
1. Authority to grant or deny variances.
A
2. Authority to grant, condition, or deny reasonable use permits for all non single - family
developments affecting critical areas and for all developments in geologically
hazardous areas.
3. Authority to decide on appeals of administrative decisions including, but not limited
to variance and reasonable use permits issued by the Technical Administrator.
4. Authority to hold public hearings, pursuant to WCC 20.84 and 20.92.
In granting, revising, or extending a permit, the Technical Administrator, or Hearing
Examiner, as appropriate, may attach such conditions, modifications, or restrictions thereto
regarding the location, character, and other features of the proposed development deemed
necessary to assure that the development is consistent with criteria set forth in this chapter.
In cases involving unusual circumstances or uncertain effects, a condition may be imposed
to allow for future review or reevaluation to assure conformance with this chapter. F "" `'
decisions of the Technical Administrator and Hearing Examiner may be
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
16.16.245 Interdisciplinary Team
11
The Technical Administrator may call upon outside expertise including an interdisciplinary team if
the Technical Administrator determines that additional technical assistance is required to assess a
critical areas development proposal or ensure the application of Best Available Science.
A. The interdisciplinary team shall include the applicant and /or their technical representative,
local, state, or federal agency or tribal representatives with expertise in the field and /or
independent qualified professionals with expertise relating to the critical area issue.
B. The functions of the interdisciplinary team are to field check and verify critical area
determinations/boundaries and assess species /habitat presence by providing written peer
review of the information included with an application, identify areas of concern in the
application of Best Available Science, provide professional opinions and recommendations
relevant to the provisions of this chapter, and help focus the preparation of subsequent
reports and envirQn. ntal documentation on the most relevant issues.
.... 4 ,14 n:
C. The TechnicaQd�.,�minis `trtcfr will coordinate this effort and seek advice from the team.
D. In lieu oftlonver�*rig an"interdisciplinary team, the County may require third party review by a
qualified Orpfes nal for any development proposal, mitigation plan, mitigation bank
p project for which additional technical expertise is needed. The cost of the
ird rrty review shall be the permit applicant's responsibility.
1 '16.50 `S y Submittal Requirements and Critical Area Review Process
A. All applicants are encouraged to contact and /or meet with the Technical Administrator prior
submitting an application subject to this chapter. The purpose of this meeting shall be to
discuss the critical area standards and procedures; to review conceptual site plans prepared
by the applicant; to discuss appropriate investigative techniques and methods; and to
determine reporting requirements.
B. Review and approval fw Qf a proposed development within a critical area may be initiated
through the application for any project permit in Whatcom County. If another authority does
not require a project permit, application shall be made pursuant to WCC 2.33.
C. The Technical Administrator shall be responsible, in a timely manner.
to make one of the following determinations regarding critical
areas review:
1. Initial Determination. Upon receipt of a permit application, the Technical
Administrator shall use Best Available Science, including but not limited to the
County's critical areas maps, his /her field investigation results, his /her own
knowledge of the site, information from appropriate resource agencies, or
documentation from a scientific or other credible source to determine if the project is
more probably than not located within a critical area or its buffer. The Technical
Administrator may request that the applicant submit a critical area identification form
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
provided by the County to assist in the initial determination.
12
2. Determination of Compliance. if the pFejeGt is an Exempt AGtiVity eF an AGWity
Allowed with NetifiGatien PUFSuant to VVGG 16.16.230 and , If the
applicant demonstrates to the satisfaction of the Technical Administrator that the
project meets the provisions of this chapter and is not likely to adversely affect
critical areas or buffers, the Technical Administrator shall issue written verification
that the proposal complies with the chapter. Written verification shall be included in
the project review record for the underlying permit, or issued in accordance with
WCC 2.33, and no further critical areas review is required.
3. Need for Additional Assessment. If the proposed activity does not meet the
criteria of 16.16.250.C.2 and would more probably than not affect a critical area or
buffer, the Technical Administrator shall require confirmation of the presence or
absence of critical areas through site inspection by a qualified professional or other
appropriate means consistent with Best Available Science, and shall notify the
applicant in writing of the need to prepare a critical area assessment report.
4. Decision to 'A pro , Condition or Deny. The Technical Administrator shall
review all ertin t" formation pertaining to the proposed development and shall
approv6; ` ¢ik#on, or deny the permit based on their review. Such determinations
c all be 6iAd to the applicant in writing.
D. T , z4C�ministrator may waive the requirement for critical areas review under this
4O ap when he /she determines that all of the following conditions are met:
L,The proposed development activity is located on a parcel that received a previous
--.1 N
critical areas review and appropriate County permits were issued;
All critical areas on the parcel have been identified and delineated and the effects of
the proposed development activity have been thoroughly considered in accordance
with the regulations in effect at the time;
3. The activity is in compliance with all permit conditions including mitigating measures,
as applicable, that were imposed as part of the prior review and there are no
outstanding violations of conditions that were imposed as part of the previous
review;
4. The prior permit has not expired;
5. The development activity involves a use that is equally or less intensive than the
development activity that was subject to the prior permit. Land use intensity shall be
based on factors including development density, critical areas impacts, impervious
surface, noise, glare, dust, hours of operation, and traffic.
a
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
13
16.16.255 Critical Areas Assessment Reports
A. When the Technical Administrator determines a proposed development is within, abutting,
or is likely to adversely affect a critical area or buffer pursuant to the provisions of this
chapter, he /she shall have the authority to require a critical areas assessment report. A
qualified professional, as defined by this chapter, shall prepare the report consistent with
Best Available Science. The intent of these provisions is to require a reasonable level of
technical study and analysis sufficient to protect critical areas. The analysis shall be
commensurate with the value or sensitivity of a particular critical area and relative to the
scale and potential impacts of the proposed activity.
B. The assessment report shall:
1. Demonstrate that the submitted proposal is consistent with the purposes and
specific standards of this chapter;
2. Describe a elevant, aspects of the development proposal and critical areas
adversely, affi§00d y the proposal including any geological hazards and risks
assoc:� d with 'proposal, and assess impacts on the critical area from activities
and us . ed; and
3. Identify proposed mitigation and protective measures as required by this chapter.
C. ,Te chnical Administrator shall review the critical areas assessment report for
tt c le ss and accuracy and shall consider the recommendations and conclusions of
they ' 'cel areas assessment report to assist in making administrative decisions concerning
" N `'approval, conditional approval, or denial of the subject project and to resolve issues
\concerning critical areas jurisdiction and appropriate mitigation and protective measures.
D. Critical areas assessment reports shall generally be valid for a period of five (5) years.
Future land use applications may require preparation of new or supplemental critical area
assessment reports unless it can be demonstrated to the satisfaction of the Technical
Administrator that the previously prepared report is adequate for current analysis. The
Technical Administrator may also require the preparation of a new critical area assessment
report or a supplemental report when new information is found demonstrating that the initial
assessment is in error. If the Technical Administrator requires more information in the
report, he /she shall make the request in writing to the applicant stating what additional
information is needed and why.
E. The Technical Administrator may reject or request revision of the field and literature findings
and conclusions reached in a critical areas assessment report when the Technical
Administrator can demonstrate that the assessment is inaccurate, incomplete, or does not
fully address the critical areas impacts involved.
F. To avoid duplication, the reporting requirements of this chapter shall be coordinated if more
than one critical area assessment report is required for a site or development proposal.
G. Applicants shall provide reports and maps to the County in an electronic format that allows
site data to be incorporated into the County critical areas database, provided that the
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
14
County may waive this requirement for single - family developments. Applicants are
encouraged to coordinate with the Technical Administrator regarding electronic submittal
guidelines. This requirement shall not be construed as requirement to use specific computer
software.
H. At a minimum, a critical areas assessment report shall include the following information:
A site plan showing the proposed development footprint and clearing limits,
and all relevant critical areas and buffers within and abutting the site, a written
description of the project, an examination of project on -site design alternatives, and
an explanation of why the proposed activity requires a location on, or access across
a critical area and why alternatives are not feasible;
2. A written description of the critical areas and buffers on or abutting the site, including
their size, type, classification or rating, condition, disturbance history, and functions
and values. Projects in frequently flooded areas must comply with the reporting
requirements.. of WCC Title 17. Projects on or adjacent to geologically hazardous
areas shalla ntify the type of hazard and assess the associated risks posed by the
development`dWat:the development may be subject to;
3. An anWy. � otential adverse critical area impacts associated with the proposed
activity ncludtng but not limited to effects related to clearing, grading, noise,
lig laroih , drilling, damming, draining,
impervious surface, managing storm water management, releasinge -e#
;,hazardous materials, other alterations;
4. %An analysis of how critical area impacts or risks will be avoided and /or minimized,
and /or an analysis of the proposed measures to prevent or minimize hazards. When
impacts cannot be avoided, the report shall include a plan describing mitigation that
will be provided to replace critical area functions and values altered as a result of the
proposal. The mitigation plan shall be consistent with the provisions of WCC
16.16.260 and the other applicable articles of this chapter;
5. The dates, names, and qualifications of the persons preparing the report and
documentation of analysis methods including any fieldwork performed on the site;
and
6. Additional reasonable information requested by the Technical Administrator for the
assessment of critical areas impacts or otherwise required by the subsequent
articles of this chapter.
16.16.260 General Mitigation Requirements
Developments permitted pursuant to this chapter that adversely impact or alter a critical area or
buffer shall include mitigation sufficient to minimize risks associated with geologic hazards and /or
maintain, or replace critical areas functions and values. Any proposed development that cannot
adequately mitigate critical area impacts as determined by the Technical Administrator shall be
denied.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 15
A. Mitigation Sequence
When an alteration or impact to a critical area is proposed, the applicant shall
demonstrate that all reasonable efforts have been taken to mitigate impacts in the
following prioritized order:
a. Avoiding the adverse impact altogether by not taking a certain action or parts
of an action, or moving the action.
b. Minimizing adverse impacts by limiting the degree or magnitude of the action
and its implementation by using appropriate technology and engineering, or
by taking affirmative steps to avoid or reduce adverse impacts.
C. Rectifying the adverse impact by repairing, rehabilitating or restoring the
affected environment.
d. Reducing or eliminating the adverse impact over time by preservation and
mainnance operations during the life of action.
e. -,--Comperii4tihg for the adverse impact by replacing, enhancing, or providing
` i ijur substitute resources or environments and monitoring the adverse
i oact` and the mitigation project and taking appropriate corrective
` nVasures.
°,,Mitigation for individual projects may include a sequenced combination of the above
4 feasures as needed to achieve the most effective protection or compensatory
Jeltigation for critical area functions.
B. Mitigation Plan
1. Compensatory mitigation shall be provided for all unavoidable adverse alterations to
a critical area or buffer. A mitigation plan shall be developed in accordance with an
approved critical area assessment report and be consistent with Best Available
Science. Where appropriate, the mitigation plan should be compatible with
watershed and recovery planning goals for Whatcom County. The intent of these
provisions is to require a level of technical study and analysis sufficient to protect
critical areas and /or protect developments and occupants from critical areas
involving hazards. The analysis shall be commensurate with the value or sensitivity
of a particular critical area and relative to the scale and potential impacts of the
proposed activity.
2. The mitigation plan shall provide for construction, maintenance, monitoring, and
contingencies as required by conditions of approval and consistent with the
requirements of this chapter.
3. The mitigation plan shall be prepared by a qualified professions
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
h =ruination :elan aim shall contain the following information:
16
a. A description and scaled drawings of the activities proposed to reduce risks
associated with geologic hazards and /or flooding, and /or to mitigate for
impacts to critical area functions and values. This shall include all clearing,
grading /excavation, drainage alterations, planting, invasive weed
management, installation of habitat structures, irrigation, and other site
treatments associated with the development activities.
b. Specific information on construction or the proposed mitigation activity
including timing, sequence, equipment needs, and best management
practices.
C. A description of the functions and values that the proposed mitigation
area(s) shall provide, and /or a description of the level of hazard mitigation
d. The gods, objectives, and performance standards that the proposed
,itigatio'rk'pction(s) shall achieve.
A- Aes&'Iption of how the mitigation area(s) will be evaluated and monitored
6, e if the performance standards are being met.
,: ;yti 1, ti4•,�
A program and schedule for construction and post - construction monitoring of
the mitigation project.
g. An evaluation of potential adverse impacts on adjacent property owners
resulting from the proposed mitigation and measures to address such
. .. -.. ...- .. :Yak ..�
im acts. .. 3 .
h. Identification of potential courses of action, and any corrective measures to
be taken if monitoring or evaluation indicates that project performance
standards are not being met.
i. Plan sheets showing that the edge of the critical area and buffer area. The
affected area shall be clearly staked, flagged, and /or fenced prior to and
during any site clearing and construction to ensure protection for the critical
area and buffer during construction.
j. A description of other permits and approvals being sought, including the
need for permits from state and /or federal agencies.
k. Additional information as required by the subsequent articles of this chapter.
C. Mitigation Monitoring and Maintenance
The Technical Administrator shall have the authority to require that compensatory
mitigation projects be monitored annually for at least five (5) years to establish that
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
17
performance standards have been met. Required Mmonitoring reports shall be
submitted to the County annually during the monitoring period to document
milestones, successes, problems, and contingency actions of the compensatory
mitigation. The Technical Administrator may reduce the monitoring timeframe to
three (3) years for minor mitigation projects involving critical area or buffer re-
vegetation or vegetation enhancement, but not for projects involving wetland
creation, wetland restoration, stream restoration or other activities that require
manipulation of soils or water. PF@v6ded th@A All mitigation areas shall be maintained
and managed to prevent degradation and ensure protection of critical area functions
and values s subiect to field verification by the Technical Administrator.
2. The Technical Administrator shall have the authority to extend the monitoring period,
require corrective measures, and /or additional monitoring reports beyond the initial
5-year monitoring period for any project that does not meet the performance
standards identified in the mitigation plan, ar does not provide adequate
replacement for the functions and values of the impacted critical areal
3.
Permanent
protection shall be a ieved through deed restriction or other protective covenant in
accordance nth WC '1f;.16.265.
D. Mitigation Msuranve
1. T4 I pptiE t and UwO his /her representatives shall demonstrate sufficient scientific
.rexootise and capability to implement the mitigation, monitor the site, and make
�':Oprrefions if the project fails to meet projected goals. The Technical Administrator
.. a ;,require the following to ensure that the mitigation is fully functional:
` a. t The applicant shall post a mitigation surety in the amount of one hundred
and twenty -five percent (125 %) 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. The surety shall be based
on an itemized cost estimate of the mitigation activity including clearing and
grading, plant materials, plant installation, irrigation, weed management,
monitoring, and other costs.
b. The surety shall be in the form of an assignment of funds or other means
approved by the Technical Administrator.
C. Surety authorized by this section shall remain in effect until the Technical
Administrator determines, in writing, that the standards bonded for have
been met. Surety shall generally be held by the County for a period of five
(5) years to ensure that the required mitigation has been fully implemented
and demonstrated to function, and may be held for longer periods when
necessary. Surety for construction may be reduced after initial completion in
an amount not to exceed the cost of monitoring plus not less than 25 percent
of the construction cost.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
18
d. Depletion, failure, or collection of surety funds shall not discharge the
obligation of an applicant or violator to complete required mitigation,
maintenance, or monitoring.
e. Public development proposals shall be relieved from having to comply with
the bonding requirements of this section if public funds have previously been
committed for mitigation, maintenance, or monitoring.
Any failure to satisfy critical area requirements established by law or
condition including, but not limited to, the failure to provide a monitoring
report within thirty (30) days after it is due or comply with other provisions of
an approved mitigation plan shall constitute a default subject to the
provisions of WCC 16.16.280, and the County may demand payment of any
financial guarantees or require other action authorized by the County code
or any other law.
g. Any funds recovered pursuant to this section shall be used to complete the
required mitigation.
E. Alternative Mitigation=proaches and Watershed -based Management Plans
1. The Coun =m""4'svel; shalf"f'acilitate review and /or approvals Qf an alternative mitigation
plan for a pment as defined by this chanter, a
Planned Unk- bevelopment pursuant to WCC 20.85, and /or a developmentef
agreement pursuant to RCW 36.706.170 -.210. The mitigation plan plans may shall
.I4 I satisfy the requirements of this chapter and provide relief and /or
,4. de tion as appropriate from the specific standards and requirements thereof
ovid that the standards of impact avoidance and minimization shall remain as
rinci les in the application of these provisions and when it is demonstrated
tha all of the following circumstances exist:
a. The proponent(s) demonstrate the organizational and fiscal capability to
carry out the purpose and intent of the plan;
b. The proponent(s) demonstrate that long -term management, maintenance,
and monitoring of the watershed will be adequately funded and effectively
implemented;
C. There is a clear likelihood for success of the proposed plan based on
supporting scientific information and demonstrated experience in
implementing similar plans;
d. The proposed project results in equal or greater protection and conservation
of critical areas than would be achieved using parcel -by parcel regulations
and /or traditional mitigation approaches;
e. The plan is consistent with the general purpose and intent of this chapter
and the Comprehensive Plan;
f. The plan shall contain relevant management strategies considered effective
and within the scope of this chapter and shall document when, where, and
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
19
how such strategies substitute for compliance with the specific standards
herein; and
g. The plan shall contain clear and measurable standards for achieving
compliance with the purposes of this chapter, a description of how such
standards will be monitored and measured over the life of the plan, and a
fully funded contingency plan if any element of the plan does not meet
standards for compliance.
2. The County owy shall facilitate review and /or approve Qf a watershed -based
lea management plan sponsored by a Watershed Improvement District or
other special purpose district when it meets the general purpose and intent of this
chapter. Such plans may be used to satisfy the requirements of this chapter and
provide relief from the specific standards and requirements thereof when it is
demonstrated that all of the following circumstances exist:
a. The proponent(s) demonstrate the organizational and fiscal capability to
carry out the purpose and intent of the plan;
b. The propoent(s) demonstrate that long -term management, maintenance,
and monitory ofthe watershed will be adequately funded and effectively
impented,
c.�.Ther* ;-is a `clear likelihood for success of the proposed plan based on
demonstrated experience in implementing similar plans or supporting
sue: s tific information;
<,The proposed project results in equal or greater protection and conservation
` t of critical areas than would be achieved using parcel-by parcel 9 P Y regulations
P 9
and /or traditional mitigation approaches;
e. The plan is consistent with an approved watershed plan prepared pursuant
to RCW 90.82 (the state Watershed Management Act) or the plan is
prepared under other local or state authority that is consistent with the goals
and policies of an applicable and approved watershed plan prepared
pursuant to RCW 90.82.
f. The plan shall contain relevant management strategies considered effective
and within the scope of this chapter and shall document when, where, and
how such strategies substitute for compliance with the specific standards
herein; and
g. The plan shall contain clear and measurable standards for achieving
compliance with the purposes of this chapter, a description of how such
standards will be monitored and measured over the life of the plan, and a
fully funded contingency plan if any element of the plan does not meet
standards for compliance.
3_ A watershed -based management plan and /or an alternative mitigation
plan for a major development, planned unit development or developer agreement
shall be allowed to substitute for the standards and requirements of this chapter
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
F.
20
when approved by the designated decision maker as per County Code
. The process for approval shall be as follows:
a. The plan shall be reviewed by the Technical Administrator to ensure
compliance with the purposes of this chapter, the Whatcom County
Shoreline Management Program (WCC Title 23) and with the
Comprehensive Plan, and to ensure accuracy of the data and effectiveness
of proposed management strategies. In making this determination the
Technical Administrator shall consult with the State departments of Fish and
Wildlife, Ecology, Natural Resources, and /or other local, state, federal,
and /or tribal agencies or experts.
b. If the Technical Administrator finds the plan to be complete, accurate, and
consistent with the purposes and intent of this chapter, the designated
decision maker shall solicit comment
pursuant to the public notice provisions of WCC 2.33 prior to final
approval /denial of permission of the plan to substitute for the requirements
and standards of this chapter.
C. Alternativ4zfnitigation plans associated with major developments, planned
unit develdomentg and /or developer agreements shall be reviewed
co ently vii'°the underlying land use permit(s) and decisions to approve
".�.
or dpi 101plans shall be made in accordance with the underlying permit
:.process.
rshed -based management plans approved by the Whatcom
ti County Council shall be adopted by ordinance and appended to this chapter.
e . The designated decision maker shall not approve altemative
plans A watershed -based management plans that
conflict with RCW 90.82.
Mitigation Banking
1. The County may approve mitigation banking as a form of compensatory mitigation
for wetland and habitat conservation area impacts when the provisions of this
chapter require mitigation and when it is clearly demonstrated that the use of a bank
will provide equivalent or greater replacement of critical area functions and values
when compared to on -site mitigation, provided that all of the following criteria are
met:
a. Banks shall only be used when they provide significant ecological benefits
including long -term conservation of critical areas, important species, habitats
and /or habitat linkages, and when they are consistent with the County
Comprehensive Plan and create a viable alternative to the piecemeal
mitigation for individual project impacts to achieve ecosystem -based
conservation goals.
b. The bank shall be established in accordance with the Washington State
Draft Mitigation Banking Rule WAC 173 -700 or as revised, and RCW 90.84
and the federal mitigation banking guidelines as outlined in the Federal
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
21
Register Volume 60. No 228, November 28, 1995. These guidelines
establish the procedural and technical criteria that banks must meet to
obtain state and federal certification.
C. Preference shall be given to mitigation banks that implement restoration
actions that have been identified formally by an adopted Shoreline
Restoration Plan, watershed planning document prepared and adopted
pursuant to RCW 90.82, a Salmonid Recovery Plan or project that has been
identified on the Salmon Recovery Board Habitat Project List or by the
Washington Department of Fish and Wildlife as essential for fish and wildlife
habitat enhancement.
2. Mitigation banks shall require a major project permit in accordance with WCC 20.88
and shall be subject to a formal review process including public review as follows:
a. The bank sponsor shall submit a bank prospectus for County review. The
prospectus shall identify the conceptual plan for the mitigation bank,
including:
i. TFa ,ecological goals and objectives of the bank;
ii. The rationale for site selection, including a site map and legal
ption of the prospective bank site;
narrative demonstrating compliance with the Whatcom County
Comprehensive Plan, associated development standards and this
chapter, shoreline restoration plan, watershed planning documents
prepared and adopted pursuant to RCW 90.82, and /or the Salmonid
Recovery Plan;
IV. A description of the existing site conditions and expected changes in
site conditions as a result of the banking activity, including changes
on neighboring lands;
V. Conceptual site design;
Vi. Description of the proposed protective mechanism such as a
conservation easement; and
Vii. Demonstration of adequate financial resources to plan, implement,
maintain, and administer the project.
b. The Technical Administrator shall review the bank prospectus either by
participating in the state's Mitigation Bank Review Team (MBRT) process
and /or by hiring independent, third -party expertise to assist in the review.
C. If the Technical Administrator determines that the bank prospectus is
complete, technically accurate, and consistent with the purpose and intent of
this chapter, he /she shall forward the prospectus to the County Council for
initial review. If the proposed bank involves conversion of agricultural land to
non - agricultural uses, the County Council shall seek an initial
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
22
recommendation from the Agricultural Advisory Committee as to whether the
conversion shall be allowed. The Committee's recommendation shall be
non - binding. The County Council may reauire mitigation for the loss of
aaricultural lands.
d. If the County Council determines, based on the initial review, that the
prospectus is valid, it " shall issue a notice to proceed to the bank
sponsor. Following receipt of the notice to proceed, the bank sponsor may
submit application for a major project permit in accordance with WCC 20.88.
The notice to proceed shall not be construed as final approval of the bank
proposal, but shall indicate approval to proceed with the development of the
mitigation bank instrument, which details all of the legal requirements for the
bank.
e. Upon receipt of a draft mitigation banking instrument from the bank sponsor
and major project permit application, the Technical Administrator shall
review the banking instrument and major project permit in consultation with
the MBRT and/ or other third -party expert. Following review of the mitigation
banking instrument and major project permit the Technical Administrator
shall ma a recommendation to certify and approve, conditionally certify
and appro i, or 4eny the bank proposal and mayor project permit in
ace nce v k the procedures of WCC 20.88.
f. Following receipt of the recommendation, the County Council shall proceed
.
wihseview in accordance with the procedures outlined in WCC 20.88. The
County Council shall seek a final recommendation from the Agricultural
°;Advisory Committee if the proposal involves conversion of agricultural land.
g. The bank sponsor shall be responsible for the cost of any third -party review.
3. The award of bank credits for an approved bank may be, negotiated based on
habitat acreage, habitat quality, and contribution to a regional conservation strategy
that has been approved by the County and other appropriate regulatory agency Les)-,
OF on any etheF basis ac;Geptable to the Geuftty. Credit availability may vary in
accordance with agreed upon performance criteria for the development of the
resource value in question. Awarded bank credits, subject to the approval of the
County and regulatory agency(s), may be made transferable. Whether out -of -kind
mitigation credit will be allowed at a particular bank will require a fact - specific inquiry
on a case -by -case basis for the project creating the impacts.
16.16.266 Critical Area Protective Measures
A. Signage
The Technical Administrator as a condition of permit approval may require that the outer boundary
of a critical area or buffer be identified with signs or markers when needed to minimize potentially
harmful intrusions from adjacent land uses, to alert citizens to a potential public healthy or safety
risk associated with a critical area, or to accomplish other objectives specifically provided for
elsewhere in this chapter. The Technical Administrator shall provide specifications on the type,
content, and size of the signs prior to permit approval. The signs shall be posted near primary
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 23
access points and approximately every two hundred (200) feet along the critical area boundary
unless the Technical Administrator determines that less frequent spacing is adequate considering
the size and location of the site (see also Appendix C).
B. Notice on Title
The owner of any property containing a critical area or buffer for which a development permit is
about to be issued shall record a notice with the County Auditor real estate records in a format
approved by the Technical Administrator and provide a copy of the filed notice to the Planning and
Development Services Department at the time the permit is issued. The notice shall state the
general presence of the critical area or buffer on the property, and the fact that limitations on actions
in or affecting the critical area or buffer exist. The notice shall provide that restrictions on uses within
the critical area exist until such time as the Technical Administrator approves a change in restriction
and such approval is filed. This notice on title shall not be required for a development proposal by a
public agency or public or private utility within a right -of -way or easement for which they do not have
fee- simple title.
C. Tracts
Prior to final approval of any suMvisions, short subdivisions, or binding site plans, the part of the
critical area and required buffer` ` ,t is wadcated on the site shall be protected using one of the
following mechanisms:`
4r
a .may
1. Placed Y in a separate tractor tracts owned in common by all lots within a subdivision;
2. .C-red a protective easement, or public or private land trust dedication; or
3.,,%, `� Feseiived through an appropriate permanent protective mechanism that provides
,.' tame level of permanent protection as designation of a separate tract or tracts
as determined by the County Technical Administrator or Hearing Examiner.
D. BuilEling Setback
The County shall require buildings and other structures to be setback a minimum distance of ten
(10) feet from the edge of a critical area buffer or from the critical area where no buffer is required.
The following uses are allowed in the building setback:
Landscaping;
2. Uncovered decks;
3. Buildling overhangs;
4. Impervious surfaces such as driveways, parking lots, roads, and patios provided that
such surfaces conform to the applicable water quality standards and that
construction equipment does not enter or damage the buffer or critical area;
5. Clearing and grading;
6. Wells.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
16.16.270 Reasonable Use and Variances
24
Permit applicants who are unable to comply with the specific standards of this chapter may seek
approval pursuant to the reasonable use or variance standards and procedures provided for in this
section.
A. Reasonable Use Standards
1. Nothing in this chapter is intended to preclude all reasonable economic use of
property. If the application of this chapter would deny all reasonable economic use
of the subject property, including agricultural use, use or development shall be
allowed if it is consistent with the purposes of this chapter, and in the publiG interest.
2. To qualify as a reasonable use the Technical Administrator or Hearing Examiner, as
appropriate, must find that proposal is consistent with all of the following criteria:
a. There is no portion of the site where the provisions of this chapter allow
reasonable economic use, including agricultural use or continuation of legal
non - conforming uses;
b. There is ndleasibI6 alternative to the proposed activities that will provide
rea . able ec6omic use with less adverse impact on critical areas and /or
buffs: ysible alternatives shaA may include, but are not limited to,
.locating the activity on a contiguous parcel that has been under the
6wnership or control of the applicant since the effective date of this chapter;
in use; reduction in size, change in timing of activity, and /or revision
of r�airt
Activities will be located as far as possible from critical areas and the project
employs all reasonable methods to avoid adverse effects on critical area
functions and values, including maintaining existing vegetation, topography,
and hydrology. Where both critical areas and buffer areas are located on a
parcel, buffer areas shall be disturbed in preference to the critical area;
d. The proposed activities will not result in adverse effects on endangered, or
threatened species as listed by the federal government or the State of
Washington, or be inconsistent with an adopted recovery plan;
e. Measures shall be taken to ensure Tthe proposed activities will not cause
degradation of ground water or surface water quality or adversely affect
drinking water supply;
The proposed activities comply with all state, local and federal laws,
including those related to erosion and sediment control, pollution control,
floodplain restrictions, and on -site wastewater disposal;
g. There will be no damage to nearby public or private property and no threat to
the health or safety of people on or off the site;
h. The inability to derive reasonable economic use of the property is not the
result of segregating or dividing the property and /or creating the condition of
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
lack of use after the effective date of this chapter;
25
The project includes saw mitigation for unavoidable critical area and
buffer impacts in accordance with the mitigation requirements of this
chapter.
B. Variance Standards
In cases where the reasonable use criteria of Subsection A do not apply, or for variance from other
standards of this chapter, the Hearing Examiner may grant a variance from the requirements in this
chapter when the applicant proves by clear, cogent and convincing evidence of all of the following
elements:
1. Because of special circumstances applicable to the subject property, including, but
not limited to size, shape, topography, location, surroundings, and other physical
conditions, the application of this chapter precludes development of the property by
the property owner as otherwise allowed in WCC Title 20; and
2. The granting of the variance will not be injurious to the health or safety of the
community and every reasonable effort has been made to minimize adverse effects
on critical areas; arm,,
3. The variance # s not constitute a grant of special privilege, and is not based upon
reasons of har4s��§ed by previous actions of the current property owner after
July 18a�'�992 aad the proposed modification to a critical area will be the minimum
necessary-tQ allow reasonable and economically viable use of the property; and
4. . -The Ot9ject includes sweeess" mitigation for unavoidable critical area and buffer
facts: t
�w>
C. F ableUse and Variance Procedures
1. 'Orocedural requirements for variances and reasonable use permit applications shall
be as follows:
a. Variance and reasonable use permit applications shall be subject to an open
record public hearing provided that reasonable use permit applications for
single - family residences proposed to be located outside of geologically
hazardous areas or for other development proposals that would affect critical
area buffers, but not the critical areas themselves shall be processed
administratively by the Technical Administrator.
b. Variances and reasonable use permit applications that require an open
record hearing shall be processed in accordance with WCC 2.33 and WCC
20.84.230.
C. Reasonable use permit applications that are subject to administrative
approval by the Technical Administrator shall be processed in accordance
with WCC 20.84.235.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 26
d. The Hearing Examiner or Technical Administrator shall have the authority to
set an expiration date for any or all variance and /or reasonable use
approvals. The development proposal must be completed before the
approval expires. The Hearing Examiner will render a decision pursuant to
Chapter WCC 20.92.
e. Any party of record may appeal the Hearing Examiner decision pursuant to
WCC 20.92.
Any person aggrieved by the granting, denying, or rescinding of a
reasonable use permit by the Technical Administrator may seek review from
the Hearing Examiner pursuant to WCC 16.16.280.
g. Any application for a variance or reasonable use permit or approval which
remains inactive for a period of 180 days shall expire and a new application
and repayment of fees shall be required to reactivate the proposal; provided
that, the Technical Administrator may grant a single 90 day extension for
good cause. Delays such as those caused by public notice requirements,
environmental (SEPA) review, litigation directly related to the proposal, or
changes in government regulations shall not be considered as part of the
inactive perf4d..
2. All variance ou peasondl le use permit applications, or other approvals shall be
subject to the prow of this chapter, which are in effect at the time of application.
3. Each applic;itiorijor a variance shall be accompanied by a fee as stated in the
u nM ' f *s vedule.
4. ,tip, Irl king- reasonable use or variance decisions, the Technical Administrator and /or
shall have the authority to require submittal of technical reports in
accor ance with WCC 16.16.255 and /or 16.16.260.8.
16.16.275 .Non- conforming Uses /Buildings
The following provisions shall apply to existing uses and /or buildings and /or structures that do not
meet the specific standards of this chapter.
A. The lawful use of any building, structure, land, or premises existing on the effective date of
adoption or amendment of this chapter or authorized under a permit or approval issued., or
otherwise vested, prior to the effective date of adoption or amendment of this chapter may
be continued, subject to the provisions for a non - conforming structure in WCC 20.83, and
WGG , provided that agricultural activities shall conform to section WCC 16.16.290.
If a non - agricultural non - conforming use is intentionally d4manUmied abandoned for a period
of 12 months or more, then any future use of the non - conforming building, land or premises
shall be consistent with the provisions of this chapter, @F the RaRseRfaFFAing bw*ld6R@ OF was
B. Expansion, alteration, and /or intensification of a non - conforming use, building or structure,
excluding normal maintenance is prohibited if such use will produce impacts that degrade
the critical area, including but not limited to vegetation clearing, additional impervious
surfaces; generation of surface water runoff; discharge, or risk of discharge of pollutants;
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
increased noise, light or glare.
27
C. Non - conforming structures that are destroyed or. damaged by fire, explosion, flood, or other
casualty may be restored or replaced in kind if there is no alternative that allows for
compliance with the standards of this chapter provided that the following are met:
The reconstruction is commenced within 18 months of the date of such
damage; and
2. The reconstruction does not expand, enlarge, or otherwise increase the non-
conformity, except as provided for in B above.
F-D. Non - conforming uses in shoreline areas shall be subjeet=4e governed by the shoreline
management provisions of WCC Title 23.
F, When a development permit is sought for a parcel containing a non - conforming buildina or
structure at has been intentionally abandoned for a period of 12 months or more, the
Technical Administrator may require removal of the nonconformina buildina and restoration
of the critical area or buffer in accordance with this chapter as a condition of permit
L
16.16.280 Appeals
A. Final permit decisions m ie4J�y "the Technical Administrator shall be subject to appeal in
accordance with , Ithe �roced`ures of WCC 2.33 and WCC Title 20, provided that that
applicant may req` st a�ninistrative review by the Director of Planning and Development
Services a formal appeal process. Decisions of conditions applied to
speciferm shall be subject the appeal provisions for that permit.
B. Nap sor pay appeal to the Hearing Examiner a final administrative order, final
tent,-iinal permit decision, or final determination made; provided that such appeal
flied in accordance with the appeal procedure for the underlying permit. If there is
alable permit or if the appeal is for a reasonable use permit decision issued by the
Technical Administrator, the appeal shall be filed in writing within 14 calendar days of the
date the written decision, order, requirement, or determination is issued and public notice
provideda; unless the decision is issued as part of a SEPA determination of non - significance
for which a public comment period is required, in which case a 21 day appeal period shall
be provided. .
C. The appeal will be upheld if the applicant proves that the decision appealed is clearly
erroneous or based upon error of law.
D. The Hearing Examiner shall have the authority to set an expiration date for any or all appeal
approvals. The Hearing Examiner will render a decision pursuant to Chapter 20.92 WCC.
E. Each application for an appeal of an administrative decision to the Hearing Examiner shall
be accompanied by a fee as stated in the unified fee schedule.
F. Pursuant to WCC 20.92.610, the applicant, any party of record or any County department
a
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
28
may appeal any final decision of the Hearing Examiner to the County Council. The appellant
shall file a written notice of appeal at the County Council office within 10 business days of
the final decision of the Hearing Examiner.
G. Any issue not raised, it net bete%=, by the time of appeal to Superior Court is waived.
16.16.285 Penalties and Enforcement
A. Any person who violates any of the provisions of this chapter shall be guilty of a civil offense
and may be fined a sum not to exceed $1,000 for each offense. After a notice of violation
has been given, each day of site work in conjunction with the notice of violation shall
constitute a separate offense.
B. The penalty provided in Subsection A shall be assessed and may be imposed by a notice in
writing either by certified mail with return receipt requested or by personal service to the
person incurring the same. The notice shall include the amount of the penalty imposed and
shall describe the violation with reasonable particularity. In appropriate cases, corrective
action shall be taken within a specific and reasonable time.
C. Within 20 calendar days aft
apply in writing to the Count'
application, the County may
its discretion deems %%er, reviewed by the Hean
said decision within 10tla1e�
the notice is received, the person incurring the penalty may
)r remission or mitigation of such penalty. Upon receipt of the
fit orfhitigate the penalty upon whatever terms the County in
F!:County's final decision on mitigation or revision shall be
airier if the aggrieved party files a written appeal therewith of
ar days of its issuance.
9. if activity has occurred on a site in violation of this chapter, prompt corrective action,
resto ion or mitigation of the site will be required when appropriate. If this provision is not
compli: with, the County may restore or mitigate the site and charge the responsible
person for the full cost of such an activity. Additionally, any and all permits or approvals
issued by the County may be denied for that site for a period of up to six years.
E1=. In the event any person violates any of the provisions of this chapter, the County may issue
a correction notice to be delivered to the owner or operator, or to be conspicuously posted
at the site. In a non - emergency situation, such notice may include notice of the intent to
issue a stop work order no less than 10 calendar days following the receipt of the correction
notice, and provide for an administrative predeprivation hearing within 10 calendar days of
the notice. In an emergency situation where there is a significant threat to public safety or
the environment, the County may issue a stop work order. The stop work order shall
include, in writing, the right to request an administrative predeprivation hearing within 72
hours following receipt of the stop work order. Failure to comply with the order to stop work
shall be a gross misdemeanor punishable upon conviction by a minimum fine of $500 up to
a maximum fine of $1,000 or one year in jail, or both. Under no circumstance may the court
defer or suspend any portion of the minimum $500 fine for any conviction under this section.
Each day or part thereof of noncompliance with said order to stop work shall constitute a
separate offense.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 29
F. _ The County may suspend or revoke a permit if the applicant violates the conditions or
limitations set forth in the permit or exceeds the scope of the work set forth in the permit.
G. The Prosecuting Attorney may enforce compliance with this chapter by such injunctive,
declaratory or other actions as deemed necessary to ensure that violations are prevented,
ceased, or abated.
H. Any person who, through an act of commission or omi ssion. procures. aids or abets in the
violation shall be considered to have committed a violation for the purposes of the civil
penalty.
16.16.290 Conservation Program on Agriculture Lands (CPAL)
Ongoing agriculture activities shall be permitted within critical areas, and /or their buffers in
accordance with the standards of this chapter or pursuant to an approved conservation program
established by this section. This program shall be subject to continued monitoring and adaptive
management to ensure that it meets the purpose and intent of this chapter:
A. Agricultural activities that qualify for coverage under this section include:
Low - impact farm or' Ovlestock operation where critical areas are protected against the
potential negative imp` ofigricultural activities through the implementation of an
approved sta d farm�bnservation plan prepared in accordance with Appendix A-
Section 1; or
2. Moderate or high- impact farm or livestock operation where critical areas are
profsl the potential negative impacts of agricultural activities through the
,pientation of an approved custom farm conservation plan prepared in
,�..� ardarige with Appendix A- Section 2.
B. Tho,40116wing`additional requirements shall apply:
1. A farm conservation plan shall not authorize filling, draining, grading or clearing
activities within critical areas or buffers, except on exiting existing agricultural land
where such activities are an essential part of the ongoing agricultural use and do not
expand the boundaries of the existing agricultural use provided that impacts are
mitigated in accordance with an approved farm conservation plan.
2. The farm conservation plan shall not authorize construction of structures. New
structures shall be constructed in compliance with the applicable provisions of this
chapter and the landowner shall ensure that all of the following are met:
a. Siting of structures shall not result in surface or ground water contamination.
b. Dust, odor and noise concerns attendant to use of the improvement shall be
mitigated.
C. Impermeable surfaces such as building roofs, roads, and yards shall not
change the flow, volume and /or direction of runoff, or cause erosion or
downstream flooding.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
30
C. Farm conservation plans shall be subject to County review, approval, monitoring, adaptive
management, and enforcement in accordance with the following:
The Technical Administrator shall review and approve the farm conservation plan.;
the fe"ONPARgi The following entities may provide technical assistance and
recommendations reaardina a farm conservation plan:
a. The Whatcom Conservation District, or
b. A Watershed Improvement District for a farm or ranch that is within its
boundaries, or
C. A qualified Planning Advisor as defined by this chapter.
2. The Technical Administrator, , and /or the
farm operator shall monitor plan implementation and compliance. The monitoring
may include periodic site inspections, self - assessment by the farm operator, or other
appropriate actions. Prior to carrying out a site inspection, the Technical
Administrator shall provide reasonable ae of notisgfy to the owner or manager of
the property as toahe�,purpose or need for the entry.
3. Where the PI a Ri Advisor has reason to believe that there is an imminent threat to
public health o`r,si sgant pollution with major consequences occurring as a result
of the ag cultu ('operations, a Planning Advisor will advise the agricultural operator
of his or' __ r c ncams in writing. While the Planning Advisor may provide
su - r resolving the issue, the responsibility for compliance and resolution
t ' iss rests solely with the farm operator. If compliance issues are not resolved,
t s Ian g Advisor may report such situations to the Technical Administrator for
,yam
subquent action and enforcement in accordance with WCC 16.16.285.
4. X� gricultural operations shall cease to be in compliance with this section when the
.Technical Administrator determines that any of the following have occurred:
a. A farm or ranch operator fails to properly and fully implement and maintain
their conservation farm plan.
b. When implementation of the farm conservation plan fails to protect critical
areas. If so, a new or revised conservation plan shall be required to protect
the values and functions of critical areas at the benchmark condition.
C. When substantial changes in the agricultural activities of the farm or
livestock operation have occurred that render the current farm conservation
plan ineffective. In such cases a new or revised conservation plan will be
required to meet the purpose and intent of this section.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
-.
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-
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ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
31
•1.� - •- •� I • - 1. 9- 1 -1 • 111-1 .& • - •X- • FUM
-Fir -�rxlllpi
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�aar•a�aa:�ral- -
d d0na the conservation plan review process. The summary
half a provided by the farm operator or his /her designee and shall be
e `,,,>;; _ nt the basis for the County's approval of the plan. Plans shall also
to disclosure if required by a court of competent iurisdiction.
16.16.295 ;Open Space and Conservation
The following programs may be employed to achieve the purposes of this chapter and minimize the
burden to individual property owners from application of the provisions of this chapter:
A. Open Space. Any property owner whose property contains a critical area or buffer and who
meets the applicable qualifying criteria may apply for open space taxation assessment
pursuant to RCW 84.34.
B. Conservation Easement. Any person who owns an identified critical area or its associated
buffer may place a conservation easement over that portion of the property by naming the
County or its qualified designee under RCW 64.04.130 as beneficiary of the conservation.
This conservation easement may be in lieu of separate critical areas tracts that qualify for
open space tax assessment described in Subsection (A) above. The purpose of the
easement shall be to preserve, protect, maintain, and limit use of the affected property. The
terms of the conservation easement may include prohibitions or restrictions on access and
shall be approved by the property owner and the County.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
M it
��II l
- • •
•••
-
• „�
-
-
- -• - it • -
•1.� - •- •� I • - 1. 9- 1 -1 • 111-1 .& • - •X- • FUM
-Fir -�rxlllpi
- - - - - - - - - - - - - - - -
- - - - - - - - - - -
�aar•a�aa:�ral- -
d d0na the conservation plan review process. The summary
half a provided by the farm operator or his /her designee and shall be
e `,,,>;; _ nt the basis for the County's approval of the plan. Plans shall also
to disclosure if required by a court of competent iurisdiction.
16.16.295 ;Open Space and Conservation
The following programs may be employed to achieve the purposes of this chapter and minimize the
burden to individual property owners from application of the provisions of this chapter:
A. Open Space. Any property owner whose property contains a critical area or buffer and who
meets the applicable qualifying criteria may apply for open space taxation assessment
pursuant to RCW 84.34.
B. Conservation Easement. Any person who owns an identified critical area or its associated
buffer may place a conservation easement over that portion of the property by naming the
County or its qualified designee under RCW 64.04.130 as beneficiary of the conservation.
This conservation easement may be in lieu of separate critical areas tracts that qualify for
open space tax assessment described in Subsection (A) above. The purpose of the
easement shall be to preserve, protect, maintain, and limit use of the affected property. The
terms of the conservation easement may include prohibitions or restrictions on access and
shall be approved by the property owner and the County.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
32
CO. Conservation Futures Fund. The County may consider using Conservation Futures
Property Tax Fund as authorized by RCW 84.34.230 for the acquisition of properties
containing significant critical areas and their associated buffers.
4
9�1v�v� yv,
452.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ARTICLE 3 GEOLOGICALLY HAZARDOUS AREAS
33
16.16.300 Purpose
The purposes of this article are to:
A. Minimize risks to public health and safety and reduce the risk of property damage by
regulating development on or adjacent to geologically hazardous areas.
B. Regulate land use so as to avoid the need for construction of flood control devices or
channel modifications on alluvial fans and allow for natural hydrologic processes.
C. Protect aquatic habitats, wetlands, and fish and wildlife by avoiding or minimizing impacts
that can result from landslides and erosion.
D. Maintain natural geological processes while protecting existing and new development.
E. Establish review procedures for development proposals in geologically hazardous areas.
16.16.310 Designation, Mapphigland Classification
A. Geologically hazardous' s are, reas susceptible to erosion, landslides, earthquakes,
volcanic activity and /or of iec idofogical processes and pose a significant risk to people and
property. Incompatible development in these areas can adversely affect natural resources,
threaten public health�end safety and, put the development and surrounding developments
and uses attr °� °...w�
B. The aWoxTftsgte Ideation and extent of geologically hazardous areas are shown on the
Co y' "Critic yea maps. The County shall update the maps as new hazard areas are
ident and as new information becomes available. This chapter does not imply that land
outside . ped geologically hazardous areas or uses permitted within such areas will be
without ris . This chapter shall not create liability on the part of Whatcom County any officer
or employee thereof for any damages that result from reliance on this chapter or any
administrative decision lawfully made hereunder.
C. For purposes of this chapter, geologically hazardous areas shall include all of the following:
1. Landslide Hazard Areas - Landslide hazard areas shall include areas susceptible to
landslides because of any combination of bedrock, soil, slope (gradient), slope
aspect, structure, hydrology, or other physical factors. Landslide hazard areas shall
be further classified as follows:
a. Potential landslide hazards areas. Potential landslide hazard areas exhibit
one or more of the following characteristics:
Slopes between 15 and 35 percent that have a relatively permeable
geologic unit overlying a relatively impermeable unit and have
springs or groundwater seeps;
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
34
ii. Slopes exceeding 35 percent with a vertical relief of ten (10) or more
feet except areas composed of competent rock and properly
engineered slopes designed and approved by a geotechnical
engineer licensed in the State of Washington and experienced with
the site;
iii. Potentially unstable slopes resulting from rapid river or stream
incision, river or stream bank erosion, or undercutting by wave
action. These include slopes exceeding 10 feet in height adjacent to
streams, lakes and coastal shorelines and with more than a 35
percent gradient;
iv. Areas that have shown evidence of historic failure or instability,
including but not limited to back - rotated benches on slopes; areas
with structures that exhibit structural damage such as settling and
racking of building foundations; and areas that have toppling,
leaning, or bowed trees caused by ground surface movement;
V. Areas that show past sloughing or calving of bluff sediments,
resulting in a vertical or steep bluff face with little or no vegetation;
vi. Slopes there parallel or subparallel to planes of weakness (such
as bedding`pangs,�� joint systems, and fault planes) in subsurface
materials;
vii. %` .Slope 'havin_g gradients steeper than eighty percent (80 %) subject to
rook fait during seismic shaking; or
Areas that are at risk of mass wasting due to seismic forces.
t :x:
ix. <<, Areas of historical landslide movement including coastal shoreline
areas mapped by the Department of Ecology Coastal Zone Atlas or
the Department of Natural Resources slope stability mapping as
unstable ( "U" or class 3), unstable old slides ( "UOS" or class 4), or
unstable recent slides ( "URS" or class 5).
b. Active landslide hazard areas. Active landslide hazard areas are areas that
have been identified during a geological inspection as meeting the following
criterion:
Areas that exhibit indicators noted in WCC 16.16.310.C.1.a that have
been determined through geological assessment to be presently_
failing or very likely to fail in the AGO F fia
2. Seismic Hazard Areas - Seismic hazard areas shall include areas subject to a
severe risk of earthquake damage as a result of seismically induced ground
shaking, differential settlement, slope failure, settlement, lateral spreading, mass
wasting, surface faulting or soil liquefaction.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
35
3. Alluvial Fan Hazard Areas - Alluvial fan hazard areas shall include those areas on
alluvial fans where debris flows, debris floods, or clear water floods have the
potential to significantly damage or harm the health or welfare of the community.
They include the area generally corresponding to the path potential flooding,
channel changes, sediment and debris deposition, or debris flow paths as
determined by analysis of watershed hydrology and slope conditions, topography,
valley bottom and channel conditions, potential for channel changes, and surface
and subsurface geology.
4. Volcanic Hazard Areas - Volcanic hazard areas shall include areas subject to lava
flows, pyroclastic flows, pyroclastic surges, mud flows, lahars, debris flows, debris
avalanche, ash (tephra) clouds or ash (tephra) fall, lateral blast, ballistic debris, or
flooding resulting from volcanic activity.
5. Erosion Hazard Areas - Erosion hazard areas shall include:
a. Surface erosion areas, which are slopes greater than 15 percent with soils
identified by the Natural Resources Conservation Service as having a
"severe," or "very severe" rill and inter -rill erosion hazard because of natural
characteristics, including vegetative cover, soil texture, slope, gradient, and
rainfall patterns, or human induced changes to natural characteristics; and
b. Coastal and riverine" rosion areas, which are subject to impacts from lateral
erosion re" to aid ing water such as river channel migration and
shoreline r6tr6A.,lThis includes the channel migration zone (CMZ) and the
anticipated slope /bank failures and landward retreat resulting from erosion
and erosion 6jong other features that concentrate surface water flows,
�i1:#at channel migration zones apply only to those watercourses
� w dre detailed CMZ studies have been completed. Areas that are identified
pot ntial channel migration hazards based on sound scientific evidence,
b6�'�which are pending further study may be designated by the County
` ts` Council as interim channel migration zones until such studies are complete.
._, _.Additional CMZs may be regulated as erosion hazard areas as new
information becomes available, accepted and adopted by Whatcom County.
6. Tsunami and Seiche Hazard Areas — Tsunami and seiche hazard areas shall
include coastal areas and lake shoreline areas susceptible to flooding, inundation,
debris impact, and /or mass wasting as the result of coastal or inland wave action
generated by seismic events.
7. Mine Hazard Areas - Mine hazard areas shall include those lands in proximity to
abandoned coal mines and associated underground mine workings where mine
workings are less than 200 feet below ground level. Mine workings include adits
(mine entrances), gangways (haulage tunnels), rooms and chutes (large voids),
drifts (water level tunnels), pillars (coal left for support) and air shafts. Mine hazards
include subsidence, which is the uneven downward movement of the ground surface
caused by underground workings caving in; contamination of ground and surface
water from tailings and underground workings; concentrations of lethal or noxious
gases; and underground mine fires.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 36
16.16.320 Geologically Hazardous Areas - General Standards
The following requirements shall apply to all activities in geologically hazardous areas:
A. Alterations shall be directed toward portions of parcels or parcels under contiguous
ownership that are not subject to, or at risk from, geologic hazards and /or are outside any
associated buffer established by this article.
B. Critical facilities as defined in WCC 16.16.800 shall not be constructed or located in
geologically hazardous areas if there is a feasible alternative location outside geologically
hazardous areas that would serve the intended service population. if allowed, the critical
facility shall be designed and operated to minimize the risk and danger to public health and
safety to the maximum extent feasible.
C. Land that is located wholly within a landslide hazard area, riverine or coastal erosion hazard
area, alluvial fan hazard area, lahar hazard area, or mine hazard area or its buffer
may not be subdivided to create buildable parcels entirely within the hazardous area. Land
that is located partially within a hazard area or its buffer may be divided provided that each
resulting lot has sufficient buildable area outside of the hazardous area with provision for
drainage, erosion control and related features that will not adversely affect the hazard area
or its buffer.
D. Allowed developments shall be'dogineered and /or constructed to minimize risk to health and
safety, and protect the building andccup'ants from the hazard, and to avoid or compensate
for impacts to other criticat,,4F s such as wetlands and habitat conservation areas.
w=
E. A qualified professional, li66'6sedJ in the state of Washington, shall review projects in
geologically hazardous`area�to ensure that they are properly designed and constructed as
provided for in =i fiit�lE#255.
F. Surface prosi6ilk1haziMs will be regulated under WCC 20.80.730, land clearing.
16.16.325tadards - Landslide Hazard Areas
The following activiies may be allowed in active landslide hazards areas when all reasonable
measures have been taken to minimize risks and other adverse effects associated with landslide
hazards, and when the amount and degree of the alteration are limited to the minimum needed to
accomplish the project purpose:
A. Developments that meet the reasonable use standards as set forth in WCC 16.16.270.
B. Utility lines and pipes that are above - ground, properly anchored and /or designed so that
they will continue to function in the event of a slope failure or movement of the underlying
materials and will not increase the risk or consequences of static or seismic slope instability
or result in a risk of mass wasting. Such utility lines may be permitted only when the
applicant demonstrates that no other pFastisai feasible alternative is available to serve the
affected population.
C. Access roads and trails that are engineered and built to standards that avoid the need for
major repair or reconstruction beyond that which would be required in non - hazard areas.
Access roads and trails may be permitted only if the applicant demonstrates that no other
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
37
feasible alternative exists, including through the provisions of RCW 8.24. If such access
through critical areas is granted, exceptions or deviations from technical standards for width
or other dimensions, and specific construction standards to minimize impacts may be
specified.
D. Stormwater conveyance through a properly designed stormwater pipe when no other
stormwater conveyance alternative is available. The pipe shall be located above - ground and
be properly anchored and /or designed so that it will continue to function in the event of a
slope failure or movement of the underlying materials and will not increase the risk or
consequences of static or seismic slope instability or result in increased risk of mass
wasting activity.
16.16.330 Standards - Landslide Hazard Management Zones
Alteration may be allowed within 300 feet of an active landslide hazard area when the Technical
Administrator determines that the following standards are met:
A. The proposed alteration includes all appropriate measures to eliminate, reduce or otherwise
mitigate risks to health and safety.
B. The proposed alteration is located outside of an active landslide hazard area and any
required buffer, as set forth in W,CC 16.16.335.
C. The development will not decrease 4,11 tability on adjacent properties. The development
shall not terse ' the or frequency o of safety fef landslide
occurrences "4
D. The removal a {;1distUrbance of vegetation, clearing or grading shall be limited to the area
of the
�.iprgved velopment
,.
E. The devefinent is outside of the area of upslope or downslope surface movement or
deposition in "the event of a slope failure.
F. The development will not increase surface water discharge or sedimentation to adjacent
properties beyond pre - development conditions.
G. The proposed alterations will not adversely impact other critical areas.
H. _tructures and improvements shall minimize alterations
to the slope contour, and shall be designed to minimize impervious lot coverage unless such
alterations or impervious surfaces are needed to maintain slope stability.
16.16.335 Standards - Landslide Hazard Area Buffers
The Technical Administrator shall have the authority to require buffers from the edges of any active
landslide hazard area in accordance with the following:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
38
A. The size of the buffer shall be based on the findings of a qualified professional and shall be
the monimum needed to protect critical areas and minimize the risk of property damage,
death or injury resulting from landslides caused in whole or part by the development.
B. The buffer shall include the uphill hydrologic contribution area and /or the area subject to the
potential for mass movement, and the downhill area subject to potential deposition.
C. The buffer shall include woody vegetation adequate to stabilize the soil and prevent soil
movement. If the designated buffer area lacks adequate woody vegetation, the Technical
Administrator shall have the authority to require vegetation or other measures to improve
slope stability.
D. Developments on sites that are directly adjacent to a wetland, marine shoreline or other
habitat conservation area as defined in Article 7 of this chapter may be subject to additional
buffer requirements and standards as set forth the subsequent articles of this chapter.
16.16.340 Standards - Seismic Hazard Areas
Development may be allowed in seismic hazard areas when all of the following apply:
A. Structures in seismic hazard areas shall conform to applicable analysis and design criteria
of the International Building Code.
B. Public Roads, bridges, utilities a'r`tdArails shall be allowed when there are no feasible
alternative locations and .- echnic4l "analysis and design are provided that ensure the
roadway, bridge and utilitytritures and facilities will not be susceptible to damage from
seismic induced ground deformation. Mitigation measures shall be designed in accordance
with the most recent `twersiOn of the American Association of State Highway and
Transportatior}br� #SHTO) Manual or other appropriate document.
16.16.345 Stands - Alluvial Fan Hazard Areas
The following 4 'vities may be allowed in alluvial fan hazard areas when all reasonable measures
have been takeinimize risks and other adverse effects associated with alluvial fan hazards,
and when the amouA and degree of alteration are limited to the minimum needed to accomplish the
project purpose:
A. Developments that meet the reasonable use standards as set forth in WCC 16.16.270.
B. Roads, utilities, bridges, and other infrastructure when located and designed to prevent
adverse impact on critical areas and avoid the need for channel dredging or diking or other
maintenance activities that have the potential to substantially degrade river and stream
functions.
C. Permanent residential structures and commercial developments shall be allowed in alluvial
fan hazard areas only if the fan has undergone a County approved study to assess potential
hazards, determine risks, and identify mitigation measures and is deemed suitable for
development. The Technical Administrator shall make this determination based on a
detailed assessment by a qualified professional that identifies the risks associated with a
500 -year return period debris flow or the maximum credible event that could impact the
alluvial fan.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
D. Accessory structures not involving flea human occupancy shall be allowed.
16.16.350 Standards - Volcanic Hazard Areas
39
Development may be allowed in volcanic hazard areas provided that all reasonable measures have
been taken to minimize risks and other adverse effects associated with volcanic hazards, and when
the amount and degree of the alteration are limited to the minimum needed to accomplish the
project purpose. For lahar inundation zones, the following activities shall be allowed as specified:
A. Developments that meet the reasonable use or variance standards and procedures as set
forth in WCC 16.16.270.
B. Sewer collection facilities and other utilities that are located underground and not likely to
cause harm to people or the environment if inundated by a lahar.
C. Critical facilities, as defined in Article 8. "critical facilities ".
subsection (a). of 5Q or more persons
may be permitted within lahar inundation zones subject to the conditional use
permit requirements of WCC 20,84 provided that the following criteria are also met.
1. The applicant demonstrates: firough submittal of a travel time analysis prepared by
a qualified profess I. r I ' '(`` f the amount of time that is
anticipated fora lah'r ch the proposed project and evacuation route together
with a descri on of)�xisting or proposed detection and notification systems to be
installed and m tained by a public entity.
t4
2. The, lice has provided an emergency evacuation plan prepared by a qualified
profes alrocal. state or federal aaencv showing that the proposed project is
.4#8ca,ed ly adjacent to a safety zone that is within walking distance in an
nt of'46 me less than the antici ated time that it takes a lahar to reach the site
u p
a .the triggering of an alarm and notification.
D. Accessory structures not involving non human occupancy shall be allowed.
E. Single- family developments and duplexes may be permitted in lahar hazard areas subject to
WCC 16.16320.A.
16.16.355 Standards - Erosion Hazard Areas
Development shall be allowed in erosion hazard areas provided that all reasonable measures have
been taken to minimize risks and other adverse effects associated with erosion hazards, and when
the amount and degree of the alteration are limited to the minimum needed to accomplish the
project purpose. For coastal and riverine erosion hazard areas, the following activities shall be
allowed as specified:
A. Developments that meet the reasonable use or variance standards as set forth in WCC
16.16.270.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
40
B. Discharge of surface water drainage into a coastal or riverine erosion hazard area provided
there are no other alternatives for discharge, and the drainage is collected upland of the top
of the active erosion hazard area and directed downhill in an appropriately designed
stormwater pipe that includes an energy dissipating device at the base of the hazard area.
The pipe shall be located on the surface of the ground and be properly anchored so that it
will continue to function under erosion conditions and not create or contribute to adverse
effects on downslope critical areas. The number of pipes should be minimized along the
slope frontage.
C. Stormwater retention and detention systems, such as dry wells and infiltration systems
utilizing buried pipe or French drains, provided they are located outside the identified
channel migration zone, designed by a qualified professional and shall not affect the stability
of the site.
D. Utility lines when no feasible conveyance alternative is available. The line shall be located
above ground and properly anchored and /or designed so that it will not preclude or interfere
with channel migration and will continue to function under erosion conditions, provided that
utility lines may be located within channel migration zones if they are buried below the scour
depth for the entire width of the CMZ.
E. Public Roads, bridges, and trails when no feasible alternative alignment is available.
Facilities shall be designed such'Jhat the roadway prism and /or bridge structure will not be
susceptible to damage from active, erosion.
F. Access to private developrtsites 'rixay be allowed to provide access to portions of the site
that are not critical areas, if he i *wno feasible alternative alignments. Alternative access
shall be pursued to t* maxWum extent feasible, including through the provisions of RCW
8.24. Exceptions or devrationfrom technical standards for width or other dimensions, and
specific constrA I -fit ards to minimize impacts may be specified.
G. Shorelineprot600n measures located within coastal or riverine erosion areas shall use soft
armor' j techni (bioengineering erosion control measures as identified by the State
Depa* rt of Ecology and the Department of Fish and Wildlife guidance) unless the
applicant vides a geotechnical analysis demonstrating that bioengineering approaches
will not adeq ately protect the property, provided that all of the following shall apply.
1. The armoring shall not increase erosion on adjacent properties and shall not
eliminate or reduce sediment supply from feeder bluffs.
2. The armoring will not adversely affect critical areas including habitat conservation
areas or mitigation will be provided to compensate for adverse effects where
avoidance is not feasible.
3. The proposal shall comply with WCC Title 23.
4. The property contains a legally established permanent structure(s) that is in danger
from shoreline erosion caused by tidal action, waves or riverine processes. Hard
armoring shall not be used to address normal sloughing, erosion of steep bluffs, or
shoreline erosion itself, when preservation of existing structures is not a concem.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
41
5. The erosion is not being caused by upland conditions, such as the removal of
vegetation or human alteration of existing drainage.
6. Nonstructural measures, such as placing or relocating the development further from
the shoreline, planting vegetation, or installing on -site drainage improvements, are
not feasible or not sufficient. `
H. New residences shall be located outside identified channel migration hazard areas.
Accessory structures not involving Ron human occupancy with a footprint equal to or less
than 2,500 square feet, shall be allowed provided that they are located at the outer edge of
the migration zone as defined by this chapter and provided that the Technical Administrator
may allow larger accessory structures where mitigating measures are feasible and provided
for by the applicant.
New public flood protection measures and expansion of existing ones may be permitted,
subject to WCC Title 17, Article 4 of this chapter and a state Hydraulic Project Approval,
provided that bioengineering or soft armoring techniques shall be used where feasible. Hard
bank armoring may occur only when in situations where soft approaches do not provide
adequate protection.
16.16.360 Standards - Erosion Hazard Area Buffers
The Technical Administrator shall have the authority to require buffers from the edges of any
coastal or riverine hazard erosion area in accordance with the following:
A. The size of the buffer shall be based on the findings of a qualified professional and shall be
the Fnanemum needed tG protect critical areas and processes and minimize the risk of
property damage, death or injury resulting from erosion caused in whole or in part by the
development or that the development may be subject to over the life of the development.
B. The buffer shall include the uphill area subject to potential erosion, the downhill area subject
to potential deposition, and any area subject to landslide as a result of erosion.
C. The buffer shall include woody vegetation adequate to stabilize the soil and prevent soil
movement. If the designated buffer area lacks adequate woody vegetation, the Technical
Administrator shall have the authority to require vegetation enhancement or other measures
to improve slope stability.
D. Developments on sites that are directly adjacent to a wetland, or marine shoreline or other
habitat conservation area as defined in Article 7 of this chapter may be subject to additional
buffer requirements and standards as set forth the subsequent articles of this chapter.
16.16.366 Standards - Tsunami and Seiche Hazard Areas
The standards of WCC 16.16.320 and 16.16.350 shall apply.
16.16.370 Standards - Mine Hazard Areas
The standards of WCC 16.16.320 and 16.16.350.D shall apply.
4
ir
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
16.16.375 Review and Reporting Requirements
42
A. When County critical area maps or other sources of credible information indicate that a site
proposed for development or alteration is or may be located within an active or potential
geologically hazardous area, the Technical Administrator shall have the authority to require
the submittal of a geological assessment report.
B. A geological assessment report is an investigation process to evaluate the geologic
characteristics of the subject property and adjacent areas. The geological assessment shall
include field investigation and may include the analysis of historical aerial photographs,
review of public records and documentation, and interviews with adjacent property owners.
The report shall include the following, provided that the Technical Administrator may
determine that any portion of these requirements is unnecessary given the scope and /or
scale of the proposed development:
A description of which areas on the site, surrounding areas that influence or could
be influenced by the site, or areas within three hundred (300) feet the site meet the
criteria for geologically hazard areas as set forth in WCC 16.16.330.
2. A scaled site plan showing:
a. The type and extent of geologic hazard areas, and any other critical areas,
and buffers on, adjacent to or that are likely to impact or influence the
proposal; or be influenced by the proposal, including properties and critical
areas upslope and downslope of the subject site;
b. The location of existing and proposed structures, fill, access roads, storage
of materials, and drainage facilities, with dimensions indicating distances to
the floodplain;
C. The existing site topography preferably accurate to within two -foot contours;
and
d. Clearing limits.
3. A description of the site features, including surface and subsurface geology,
evidence of past or potential channel migration, hydrology, soils, and vegetation
found in the project area and in all hazard areas addressed in the report. This may
include surface exploration data such as borings, drill holes, test pits, wells, geologic
reports, and other relevant reports or site investigations that may be useful in
making conclusions or recommendations about the site under investigation.
4. A description of the processes affecting the property or affected by development of
the property including soil erosion, deposition, or accretion; evidence of past
channel migration.
5. A description of the vulnerability of the site to seismic and other geologic processes
and a description of any potential hazards that could be created or exacerbated as a
result of site development.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
43
6. A description and analysis of the risk associated with development prohibitions and
buffers associated with this chapter and the level of risk associated with alternative
proposals for development within or with less setback from the area of geological
hazard.
7. A description and analysis of the risk associated with the measures proposed to
mitigate the hazards, ensure public safety, and protect property and other critical
areas.
8. For projects in or affecting landslide hazard areas the report shall also include:
a. Assessments and conclusions regarding slope stability for both the existing
and developed conditions including the potential types of landslide failure
mechanisms (e.g., debris flow, rotational slump, translational slip, etc.) that
may affect the site. The stability evaluation shall also consider dynamic
earthquake loading, and shall use a minimum horizontal acceleration as
established by the current version of the International Building Code.
b. An analysis of slope recession rate shall be presented in those cases where
stability is impacted or influenced by wave cutting, stream meandering, or
other forces acting on the tee of the slope.
C. Description of the run -out hazard of landslide debris to the proposed
development that starts upslope (whether part of the subject property or on a
neighboring property) and /or the impacts of landslide run -out on down slope
properties and critical areas.
9. For projects in seismic hazard areas the report shall also include a detailed
engineering evaluation of expected ground displacements or other liquefaction
and /or dynamic settlement effects and proposed mitigation measures to ensure an
acceptable level of risk for the proposed structure type or other development
facilities such as access roads and utilities.
10. For projects in mine hazard areas the report shall also include a description of
historical data and remnant mine conditions, if available, dates of operation, years of
abandonment, strength of overlying rock strata, and other information needed to
assess stability of the site together with analysis of surface displacement or
foundation stress from collapse of workings.
C. A geological assessment for a specific site may be valid for a period of up to five years
when the proposed land use activity and site conditions affecting the site are unchanged.
However, if any surface and subsurface conditions associated with the site change during
that five -year period, the applicant may be required to submit an amendment to the
geological assessment.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ARTICLE 4 FREQUENTLY FLOODED AREAS
16.16.400 Purpose
The purposes of this article are to:
44
A. Reduce the risk to life and safety, public facilities, and public and private property that result
from floods.
B. Avoid and minimize impacts to fish and wildlife habitats that occur within frequently flooded
areas.
C. Protect and maintain the beneficial ecological functions of frequently flooded areas including
providing the necessary flow regime to form and maintain a full range of functional and
accessible salmonid habitats both within and outside of frequently flooded areas.
D. In conjunction with the provisions of WCC Title 17, establish review procedures that provide
an integrated approach to managing floodplain development and maintaining the capacity of
the floodplain or floodway to convey and store floodwaters.
16.16.410 Designation and Mapping - Frequently Flooded Areas
A. Frequently flooded areas are areas are located along major rivers, streams, and coastal
areas where the depth, velocity, intensity and frequency of flood water during major events
presents a risk to human life and property. Areas susceptible to these types of hazards are
hereby designated as frequently flooded areas and subject to the provisions of this article
B. The approximate location and extent of frequently flooded areas are shown on the County's
critical area maps. These maps are to be used as a guide and do not provide a definitive
critical area designation. The County shall update the maps as new hazard areas are
identified and as new information becomes available. This article does not imply that land
outside mapped frequently flooded areas or uses permitted within such areas will be free
from flooding or flood damages. This chapter shall not create liability on the part of
Whatcom County, any officer or employee thereof, or the Federal Insurance and Mitigation
Administration (FIMA), for any flood damages that result from reliance on this chapter or any
administrative decision lawfully made hereunder.
C. Frequently flooded areas shall include, but not be limited to:
Areas subject to a one percent recurrence interval of flood water inundation or a
100 -year base flood as mapped on the current effective Federal Emergency
Management Agency's Flood Insurance Rate Maps (FIRM) This includes coastal
high hazard areas as defined by this chapter and as identified and designated on
the FIRM maps as Zone VE or V, provided that tsunami hazard areas are
designated as geologically hazardous areas and subject to the provisions of Article
3 of this chapter.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
45
2. Other flood hazard areas identified by the County Public Works Department based
on review of historical data, high water marks, photographs of past flooding, or
similar information from federal, state, county, or other valid sources when base
flood elevation data from the Federal Insurance and Mitigation Administration has
not been provided or is not accurate.
16.16.420 Frequently Flooded Areas — General Standards
A. All development shall conform to the provisions of Title 17, Flood Damage Prevention of the
Whatcom County Code and the applicable provisions of this chapter.
B. Development within frequently flooded areas shall be allowed pursuant to the mitigation
sequence in WCC 16.16.260. The Technical Administrator shall have the authority to
require mitigation for adverse impacts to floodplain ecological functions provided that such
mitigation shall be consistent and compatible with the goal of protecting health and safety
and minimizing risks to property.
16.16.430 Review and Report Requirements
A. When County critical area maps or other sources of credible information indicate that a site
proposed for development is or may be located within a frequently flooded area, the County
Public Works Department River and Flood Division and /or the Technical Administrator shall
have the authority to require a critical area assessment report. The Public Works
Department shall have primary responsibility for reviewing and approving proposed
developments provided that the Technical Administrator shall review development proposals
for consistency with the standards provided in this chapter.
B. Critical areas assessment reports for frequently flooded areas shall meet the requirements
of WCC 17.12.010 and WCC 16.16.255. The Technical Administrator shall have the
authority to modify these requirements when he /she determines that any portion of these
requirements is unnecessary given the scope and /or scale of the proposed development.
The Technical Administrator also shall have the authority to require additional information
that discloses and describes the effects of proposed development on floodplain functions,
including, but not limited to: storing and conveying floodwater; reducing peak flows and flow
velocities; reducing redd scour and displacing rearing juvenile fish; maintaining sediment
quality in streams; reducing shear stress and bank erosion; improving water quality,
providing wildlife habitat; maintaining fish access; and cycling nutrients or providing other
hyporheic functions that link surface and groundwater systems. The reports shall also
include mitigation for adverse effects on floodplain ecological functions.
C. Critical areas assessment report requirements may be waived for single - family
developments and structures accessory to agricultural uses when the Technical
Administrator and the Public Works Department determine that no adverse impacts or risks
to life, property, or ecological functions will occur.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ARTICLE 5 CRITICAL AQUIFER RECHARGE AREAS
16.16.500 Purpose
The purposes of this article are to:
46
A. Preserve, protect, and conserve Whatcom County's ground water resources for current and
future generations by protecting critical aquifer recharge areas from contamination.
B. Prevent adverse impacts on ground water quantity by regulating development activities that
could deplete aquifer storage, reduce ground water levels, and /or diminish infiltration and
replenishment of ground water.
C. Prioritize the management, protection, and conservation of groundwater recharge areas as
sources of potable water supply.
D. Establish review procedures for development activities that have the potential to adversely
affect critical aquifer recharge areas.
16.16.510 Designation, Classification and Mapping - Critical Aquifer Recharge Areas
A. Critical aquifer recharge areas play a crucial role in supplying potable water (as defined by
WAC 365- 190 - 030(2)). These recharge areas have geologic conditions that allow high
infiltration rates, which contribute significantly to the replenishment of ground water. These
conditions also create a high potential for ground water contamination. These areas are
hereby designated as critical areas and subject to the provisions of this chapter.
B. The approximate location and extent of critical aquifer recharge areas are shown on the
County's critical area maps. These maps are to be used as a guide and do not provide a
definitive critical area designation. The County shall update the maps as recharge areas
area are identified and as new information becomes available.
C. Critical aquifer recharge areas shall be designated and classified as follows:
Low, moderate, and high susceptibility aquifer recharge areas. Aquifer recharge
areas susceptible to degradation or depletion because of hydrogeologic
characteristics are those areas meeting the criteria established by the state
Department of Ecology (Guidance Document for the Establishment of Critical
Aquifer Recharge Area Ordinances, July 2000, Publication # 97 -30, Version 4.0).
2. Wellhead protection areas. The area defined by the boundaries of the ten (10) year
time of ground water travel, in accordance with WAC 246- 290 -135. For purposes of
this chapter, all wellhead protection areas shall be designated as highly
susceptible critical aquifer recharge areas.
D. If special groundwater management areas or susceptible groundwater management areas
are established in Whatcom County in accordance with WAC 173 - 200 -090 or WAC 173-
100 -010, respectively, then these areas shall be incorporated into the highly susceptible
aquifer designation.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
16.16.520 Critical Aquifer Recharge Areas - General Standards
All development in a critical aquifer recharge area shall meet the following standards:
47
A. The proposed development will not cause contaminants to enter the aquifer and will not
significantly adversely eaffect the recharging of the aquifer.
B. The proposed development must comply with the water source protection requirements and
recommendations of the Federal Environmental Protection Agency, state Department of
Health, and the Whatcom County Health Department.
C. The proposed development must be designed and constructed in accordance with the
County storm water management requirements or other applicable storm water
management standards Whatcom County Development Standards Chapter 2, WCC Title
20).
16.16.525 Standards — Activity Subject to Critical Area Review
The following development activities, when proposed in moderate and high susceptibility critical
aquifer recharge areas, have the potential to adversely affect groundwater quality and /or quantity
and shall require submittal of a critical areas assessment report as defined in WCC 16.16.255 and
WCC 16.16.535:
A. Any development with an on -site domestic septic system at a gross density greater than one
system per residence per acre.
B. All storage tanks and storage facilities for hazardous substances and /or hazardous wastes
provided that:
The tanks must comply with Department of Ecology regulations contained in WAC
173 -360 and 173 -303 as well as International Building Code requirements;
2. All new underground tanks and facilities shall be designed and constructed so as to
prevent releases due to corrosion or structural failure for the operational life of the
tank, or have a secondary containment system to prevent the release of any stored
substances;
3. All new aboveground storage tanks and facilities shall be designed and constructed
so as to prevent the release of a hazardous substance to the ground, ground
waters, or surface waters by having primary and secondary containment.
C. Vehicle repair, servicing and salvaging facilities, provided that the facility must be conducted
over impermeable pads and within a covered structure capable of withstanding normally
expected weather conditions. Chemicals used in the process of vehicle repair and servicing
must be stored in a manner that protects them from weather and provides containment
should leaks occur. Dry wells shall not be allowed on sites used for vehicle repair and
servicing. Dry wells existing on the site prior to facility establishment must be abandoned
using techniques approved by the state Department of Ecology prior to commencement of
the proposed activity.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
48
D. Use of reclaimed waste water must be in accordance with adopted water or sewer
comprehensive plans that have been approved by the State departments of Ecology and
Health and the Whatcom County Council per 57.16 RCW, provided that:
1. Surface spreading must meet the ground water recharge criteria given in Chapter
90.46.080 RCW and Chapter 90.46.010(10).
2. Direct injection must be in accordance with the standards developed by authority of
Chapter 90.46.042 RCW.
E. Any other development activity that the Technical Administrator determines is likely to have
a significant adverse impact on ground water quality or quantity, or on the recharge of the
aquifer. The determination must be made based on credible scientific information.
F. Metals and hard rock mining and new sand and gravel mining subject to the provisions of
the County's current MRL review procedures in Title 20, WCC 20.73, provided that for new
MRLs such activities shall be prohibited within the 10 -year travel time zone of wellhead
protection areas.
16.16.530 Standards — Prohibited Uses
The following developments and uses are prohibited in critical aquifer recharge areas:
A. New landfills, including hazardous or dangerous waste, municipal solid waste, special
waste, wood waste of more than 2,000 cubic yards, and inert and demolition waste landfills.
B. Underground injection wells. Class I, III, and IV wells and subclasses 5F01, 51303, 5F04,
5W09, 5W10, 5W11, 5W31, 5X13, 5X14, 5X15, 5W20, 5X28, and 5N24 of Class V wells.
BC. Wood treatment facilities that allow any portion of the treatment process to occur over
permeable surfaces (both natural and manmade).
€D. Facilities that store, process, or dispose of chemicals containing perchloroethylene (PCE) or
methyl tertiary butyl ether (AAA MTBE).
E. Facilities that store, process, or dispose of radioactive substances.
6F. Other activities that the Technical Administrator determines would significantly degrade
groundwater quality and /or reduce the recharge to aquifers currently or potentially used as a
potable water source or that may serve as a significant source of base flow to a regulated
stream. The determination must be made based on credible scientific information.
16.16.535 Review and Report Requirements
A. When County critical area maps or other sources of credible information indicate that the
proposed development activities listed in WCC 16.16.525 occur within a critical aquifer
recharge area, the Technical Administrator shall have the authority to require a critical area
assessment report and to regulate developments accordingly. Critical areas assessment
reports for aquifer recharge areas shall meet the requirements WCC 16.16.255, and this
section. Assessment reports shall include the following site- and proposal- related
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
49
information unless the Technical Administrator determines that any portion of these
requirements is unnecessary given the scope and /or scale of the proposed development:
1. Available information regarding geologic and hydrogeologic characteristics of the site
including the surface location of all critical aquifer recharge areas located on site or
immediately adjacent to the site, and permeability of the unsaturated zone;
2. Ground water depth, flow direction and gradient based on available information;
3. Currently available data on wells and springs within 1,300 feee of the project area;
4. The presence and approximate location of other critical areas, including surface
waters, within 1,300 feet of the project area based on available data and maps;
5. Existing and available historic water quality data for the area to be affected by the
proposed activity;
6. Proposed best management practices;
7. The effects of the proposed project on the ground water quality and quantity,
including:
a. Potential effects on stream flow, wetlands and /or other resources, and on
ecosystem processes;
b. Predictive evaluation of ground water withdrawal effects on nearby wells and
surface water features; and
C. Predictive evaluation of contaminant transport based on potential releases to
ground water; and
8. A spill plan that identifies equipment and /or structures that could fail, resulting in an
impact. Spill plans shall include provisions for emergency response provisions as
well as regular inspection, repair, and replacement of structures and equipment that
could fail.
B. If the applicant can demonstrate through a valid hydrogeological assessment that geologic
and soil conditions underlying their property do not meet the criteria for low, moderate, or
high susceptibility, the property shall not be considered a critical aquifer recharge area.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ARTICLE 6 WETLANDS
16.16.600 Purpose
The purposes of this article are to:
50
A. Recognize and protect the beneficial functions performed by many wetlands, which include
but are not limited to, providing food, breeding, nesting and /or rearing habitat for fish and
wildlife; recharging and discharging ground water; contributing to stream flow during low
flow periods; stabilizing stream banks and shorelines; storing storm and flood waters to
reduce flooding and erosion; and improving water quality through biofiltration, adsorption,
retention and transformation of sediments, nutrients, and toxicants.
B. Regulate land use to avoid adverse effects on wetlands and maintain the functions and
values of freshwater and estuarine wetlands throughout Whatcom County.
C. Establish review procedures for development proposals in and adjacent to wetlands.
16.16.610 Designation, Rating, and Mapping - Wetlands
A. Wetlands are those areas that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal circumstances, do
support a prevalence of vegetation typically adapted for life in saturated soil conditions.
Swamps, fresh and saltwater marshes, bogs, and some meadows are examples of
wetlands. Some riparian areas adjacent to streams are also wetlands.
B. Wetlands shall be identified in accordance with the requirements of RCW 36.70A.175. Unless
otherwise provided for in this chapter, all areas within the County meeting the criteria in the
Washington State Wetlands Identification and Delineation Manual, (Ecology Publication 96-
94) or the US Army Corps of Engineers Wetlands delineation Manual, 1987 Edition and
corresponding guidance letters; regardless of any formal identification, are hereby
designated critical areas and are subject to the provisions of this article.
C. The approximate location and extent of wetlands are shown on the County's critical area
maps. These maps are to be used as a guide and do not provide a definitive critical area
designation. The County shall update the maps as new wetlands are identified and as new
information becomes available.
D. Wetlands shall be rated based on categories that reflect the functions and values of each
wetland. Wetland categories shall be based on the criteria provided in the Washington State
Wetland Rating System for Western Washington, revised Apfil August 2004 (Ecology
Publication #04 -06 -025) as determined using the appropriate rating forms contained in that
publication. These categories are generally defined as follows:
Category I Wetlands. Category I wetlands are those wetlands of exceptional value in
terms of protecting water quality, storing flood and storm water, and /or providing
habitat for wildlife as indicated by a rating system score of 70 points or more on the
Ecology rating forms. These are wetland communities of infrequent occurrence that
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
51
often provide documented habitat for sensitive, threatened or endangered species,
and /or have other attributes that are very difficult or impossible to replace if altered.
2. Category II Wetlands. Category II wetlands have significant value based on their
function as indicated by a rating system score of between 51 and 69 points on the
Ecology rating forms. They do not meet the criteria for Category I rating but occur
infrequently and have qualities that are difficult to replace if altered.
3. Category III Wetlands. Category III wetlands have important resource value as
indicated by a rating system score of between 30 and 50 points on the Ecology
rating forms. They occur commonly in Whatcom County.
4. Category IV Wetlands. Category IV wetlands are wetlands of limited resource value
as indicated by a rating system score of less than 30 points on the Ecology rating
forms. They typically have vegetation of similar age and class, lack special habitat
features, and /or are isolated or disconnected from other aquatic systems or high
quality upland habitats.
E. All wetlands shall be regulated regardless of size, provided that Category IV wetlands less
than 2=&GG square feet) - (0.1) acre (4.356 square fee#
shall be exempt from the requirements of this article when all of the following criteria are
met:
1. The wetland does not provide suitable breeding habitat for
amphibian species. Suitable breeding habitat may be indicated by adequate and
stable seasonal inundation, presence of thin stemmed emergent vegetation, and
clean water;
2. The wetland does not have unique characteristics that would be difficult to replace
through standard compensatory mitigation practices;
3. The wetland is not located within a habitat conservation area as defined in WCC
16.16.710 and is not integral to the maintenance of habitat functions of a habitat
conservation area; and
4. The wetland is not located within a floodplain and /or not associated with a shoreline
of the state as defined by the County's Shoreline Master Program (WCC Title 23).
5. The wetland is not part of a mosaic of wetlands and uplands. This criterion shall be
determined using the guidance provided in Ecology's Wetland rating System for
Western Washington (Publication #04 -06 -025).
6. The wetland is not identified as locally significant by a local watershed plan prepared
pursuant to WAC 400 -12.
16.16.620 Wetlands — General Standards
The following activities may be permitted in wetlands and /or wetland buffers as specified when all
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
52
reasonable measures have been taken to avoid adverse effects on wetland functions and values,
compensatory mitigation is provided for all adverse impacts to wetlands that cannot be avoided, and
the amount and degree of alteration are limited to the minimum needed to accomplish the project
purpose:
A. Developments that meet the reasonable use or variance standards as set forth in WCC
16.16.270.
B. Surface water discharge into Category II, III, and IV wetlands and their buffers and /or
Category I wetland buffers when no other alternatives for discharge are feasible and the
discharge is designed to minimize physical, hydrologic and ecological impacts to the
wetland.
C. Utility lines in Category II, III, and IV wetlands and their buffers and /or Category I wetland
buffers when no feasible conveyance alternative is available and shall be designed and
constructed to minimize physical, hydrologic and ecological impacts to the wetland, and
meets all of the following:
1. The utility line is located as far from the wetland edge as possible and in a manner
that minimizes disturbance of soils and vegetation.
2. Clearing, grading, and excavation activities are limited to the minimum necessary to
install the utility line and the area is restored following utility installation.
3. Buried utility lines shall be constructed in a manner that prevents adverse impacts to
subsurface drainage. This may include the use of trench plugs or other devices as
needed to maintain hydrology.
D. Public roads, bridges, and trails in Category II, III, and IV wetlands and their buffers and /or
Category I wetland buffers when no feasible alternative alignment is available and the road,
bridge or trail is designed and constructed to minimize physical, hydrologic and ecological
impacts to the wetland, including placement on elevated structures as an alternative to fill,
where feasible.
E. Access to private development sites may be permitted to cross Category II, III, or IV
wetlands or their buffers, provided there are no feasible alternative alignments and
measures are taken to maintain preconstruction hydrologic connectivity across the access
road. Alternative access shall be pursued to the maximum extent feasible, including through
the provisions of RCW 8.24. Exceptions or deviations from technical standards for width or
other dimensions, and specific construction standards to minimize impacts may be
specified, including placement on elevated structures as an alternative to fill, if feasible.
F. Construction of a structure that is associated with an agricultural use; or the reconstruction,
remodeling, or maintenance of such structures in wetland buffers, subject to all of the
following specific criteria:
1. The structure is located within an existing lot of record and is an existing agricultural
use.
2. There is no other feasible location with less impact to critical areas.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
53
3. Clearing and grading activity and impervious surface are limited to the minimum
necessary to accommodate the proposed structure and, where possible, surfaces
shall be made of pervious materials.
G. Domestic wells serving single - family developments and necessary appurtenances including
a pump and appropriately sized pump house, but not including a storage tank, in wetland
buffers when all of the following conditions are met:
There is no viable alternative to the well site outside of the buffer and the well is
located as far back from the wetland edge as is feasible; and
2. The well is more than seventy -five (75) feet deep_ a�
H. Storm water management facilities, limited to detention f rete�tto�n /treatment ponds, media
filtration facilities, and lagoons or infiltration basins, within the outer fifty percent (50 %) of a
Category II, III or IV wetland buffer, provided that:
1. Construction of the storm water facility does not displace or impact a forested buffer
6@FAMWRity;
2. The width of the buffer between the storm water facility and the wetland edge is not
less than the low intensity land use buffer standards in WCC 16.16.630.
3. There is no other feasible location for the storm water facility and the facility is
located, constructed, and maintained in a mannerthat minimizes adverse effects on
the buffer and adjacent critical areas;
4. The storm water facility is designed to mimic and resemble natural wetlands and
meets applicable County or State storm water management standards and the
discharge water meets state water quality standards; and
5. Low impact development approaches have been considered and implemented to
the maximum extent feasible.
Storm water conveyance or discharge facilities such as dispersion trenches, level
spreaders, and outfalls may be permitted within a Category II, III, or IV wetland buffer on a
case by case basis when the Technical Administrator determines that all of the following are
met:
Due to topographic or other physical constraints there are no feasible locations for
these facilities in the outer buffer area or outside the buffer.
2. The discharge is located as far from the wetland edge as possible and in a manner
that minimizes disturbance of soils and vegetation.
3. The discharge outlet is designed to prevent erosion and promote infiltration.
J. Passive recreation facilities that are part of a non motorized trail system or environmental
education program including walkways, wildlife viewing structures, and trails, in wetland
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
1' �` I : I �r t K � 1 �'� [ K � 1 � 1 i � r'L � i : � 1 f � [ K�l ��l : � yd •Y � 1: � �7 I i I �l i [ K �
buffers provided that all of the following criteria are met:
54
1. Trails shall not exceed 10 feet in width and shall be made of pervious material
where feasible.
2. The trail or facility is located in the outer fifty percent (50 %) of the buffer area.
3. The trail is constructed and maintained in manner that minimizes disturbance of the
buffer and associated critical areas.
K. Existing ongoing agricultural activities subject to the following:
1. The activities are conducted in accordance with all applicable provisions of this
chapter and WCC Title 17; or
2. The agricultural activity is in compliance with the Conservation Program on
Agricultural Lands (CPAL) as described in WCC 16.16.290, and Appendix A.
L. Single- family developments may be permitted to encroach into wetland buffers subject to
the Technical Administrator's approval provided that all of the criteria in WCC 16.16.270.A
are met.
M. On -site sewage disposal systems (OSS) may be permitted in wetland buffers when
accessory to an approved residential structure, for which it is not feasible to connect to a
public sanitary sewer system and when operated and maintained in accordance with WCC
24.05.170, provided that adverse effects on water quality are avoided.
16.16.630 Standards - Wetland Buffer Widths
The Technical Administrator shall have the authority to require buffers from the edges of all
wetlands in accordance with the following:
A. Wetland buffers shall be established to protect the integrity, functions and values of the
wetland. Wetland buffers shall be measured perpendicular to the wetland edge on all sides
as marked in the field. Buffers shall not include areas that are functionally and effectively
disconnected from the wetland by a road or other substantial developed surface.
B. The buffer standards required by this article presume the existence of a dense vegetation
community in the buffer adequate to protect the wetland functions and values. When a buffer
lacks adequate vegetation, the Technical Administrator may increase the standard buffer,
require buffer planting or enhancement, and /or deny a proposal for buffer reduction or buffer
averaging.
C. The standard buffer shall be based on the intensity of the ei1 land use and
the functions and values provided by the wetland} i'1 18irf� �a�3!
wetland than that contemplated under the buffer standard otherwise appropriate for the land
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 55
For wetlands that have a high level of function for wildlife habitat as indicated by a
habitat function score of twenty nine (29) points or more on the wetland rating form,
the buffers shall be as follows:
Wetiand
Category
High
intensity
Moderate
Intensity
Low Intensity
Buffer
Width feet
Category 1
300
225
150
Category II
275
150
100
Category III
1 150
110
75
Category IV
1 50
40
25
Definitions for high, moderate and low intensity land use are
provided in Article 8.
2. For wetlands that have a moderate level of function for wildlife habitat as indicated
by a habitat function score of twenty to twenty eight (20 -28) points on the wetland
rating form, the buffers shall be as follows:
Wetiond
High
Intensiltv
Moderate
Intensity
Low Intensity
Buffer
idth . feet
Category 1
150
110
75
Category II
150
110
75
Category III
150
100
60
Category IV
50
40
25
Definitions for high, moderate and low intensity land use are
provided in Article 8.
3. For wetlands that have a low level of function for wildlife habitat as indicated by a
habitat function score of less than twenty (20) points on the wetland rating form, the
buffers shall be as follows:
Wetland
�'O*dqry,
High
ntensi
Moderate
Intensity
Low Intensity
Buffer
Width feet
Category 1
100
75
50
Category II
1 100
75
50
Category III
1 80
60
50
Category IV
1 50
40
25
Definitions for high, moderate and low intensity land use are
provided in Article 8.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
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ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
16.16.640 Standards — Wetland Buffer Reduction
56
The Technical Administrator shall have the authority to reduce the standard buffer widths identified
in WCC 16.16.630, provided that the general standards for avoidance and minimization per
16.16.260.A(1)(a) and (b) shall apply, and provided further that all of the following apply:
A. The buffer reduction shall not adversely affect the functions and values of the adjacent
wetlands;
B. The buffer of a Category I or II wetland shall not be reduced to less than seventy -five (75)
percent of the required buffer or fifty (50) feet, whichever is greater;
C. The buffer of a Category III or IV wetland shall not be reduced to less than fifty (50) percent
of the required buffer, or twenty five (25) feet, whichever is greater;
D. The applicant implements all reasonable measures to reduce the adverse effects of
adjacent land uses and ensure no net loss of buffer functions and values. The specific
measures that shall be implemented include, but are not limited to, the following:
1. Direct lights away from the wetland and buffer.
2. Locate facilities that generate substantial noise (such as some manufacturing,
industrial and recreational facilities) away from the wetland and buffer.
3. Establish covenants limiting use of pesticides within one hundred -fifty (150) feet of
wetland.
4. Implement integrated pest management programs.
5. Infiltrate or treat, detain and disperse runoff into buffer.
6. Post signs at the outer
edge of the critical area or buffer to clearly indicate the location of the critical area
according to the direction of the County.
7. Plant buffer with native vegetation appropriate for region to create screens or
barriers to noise, light, human intrusion andlof discourage domestic animal intrusion.
8. Use Low Impact Development where appropriate.
9. Establish a permanent conservation easement to protect the wetland and the
associated buffer.
16.16.660 Standards - Wetland Buffer Averaging
The Technical Administrator shall have the authority to average wetland buffer widths on a case -by-
case basis, provided that the general standards for avoidance and minimization per
16.16.260A(1)(a) and (b) shall apply, and when all the following criteria are met:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
A. The buffer averaging does not reduce the functions or values of the wetland;
57
B. The total area contained in the buffer area after averaging is no less than that which would
be contained within the standard buffer, and all increases in buffer dimension for averaging
must be generally parallel to the wetland boundary to avoid creating buffer "panhandles ";
C. The wetland contains variations in sensitivity due to existing physical characteristics or the
character of the buffer varies in slope, soils, or vegetation;
D. The minimum buffer width -a Category I ork"fland shall not be less than seventy -five
(75) percent of the widths established under WCC 16.16.630; or fifty feet (50) feet,
whichever is greaten 41
The buffer has not been reduced in accordance with WCC 16.16.640. Buffer averaging is
not allowed if the buffer has been reduced.
16.16.660 Standards - Wetland Buffer Increases
The Technical Administrator shall have the authority to increase the width of the standard buffer
width on a case -by -case basis when there is sound evidence that a larger buffer is required by an
approved habitat management plan as outlined in WCC 16.16.750, or such increase is necessary
to:
A. Protect the function and value of that wetland, including but not limited to compensating for
a poorly vegetated buffer or a buffer that has a steep slope (greater than thirty percent); or
B. Prevent windthrow damage; or
C. Maintain viable populations of species such as herons and other priority or fish and wildlife;
or
D. Protect wetlands or other critical areas from landslides, erosion or other hazards.
16.16.670 Review and Reporting Requirements
A. Review Process for Non Single- family Development. When County critical area maps or
other sources of credible information indicate that a site proposed for development or
alteration may contain or abut wetlands or wetland buffers, the Technical Administrator may
require a site evaluation (field investigation) by a qualified professional to determine whether
or not a regulated wetland is present and if so, its relative location in relation to the
proposed project area or site. If the Technical Administrator determines that a wetland is
more likely than not present, the Technical Administrator shall require a wetland
assessment report pursuant to WCC 16.16.255 and WCC 16.16.670.B. If no regulated
wetlands are present, then wetland review will be considered complete.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 139 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
B. A wetland assessment report describes the characteristics of the subject property and
adjacent areas. The assessment shall include determination of the wetland category and
standard wetland buffers as set forth in WCC 16.16.630. The investigation shall also include
field identification and delineation of wetland boundaries, and may include analysis of
historical aerial photos, review of public records, and interviews with adjacent property
owners. Assessment reports shall include the following site- and proposal - related
information unless the Technical Administrator determines that any portion of these
requirements is unnecessary given the scope and /or scale of the proposed development:
1. Location information (legal description, parcel number, and address);
2. A qualitative written assessment and accompanying maps of critical areas and
buffers within three hundred (300) feet of the site and an estimate of the existing
acreage for each. For on -site wetlands, the assessment shall include the dominant
and subdominant plant species; soil type, color and texture; sources of hydrology
(patterns of surface and subsurface water movement, precipitation, etch,
topography, and other pertinent information. The assessment of off -site wetlands
shall be based on available information and shall not require accessing off -site
properties;
3. Existing wetland functions and values and a detailed description of the effects of the
proposed development on wetland and buffer function and value, including the area of
direct wetland disturbance; area of buffer reduction or averaging including
documentation that functions and values will not be adversely affected bythe reduction
or averaging; effects of storm water management; proposed hydrologic alteration
including changes to natural drainage or infiltration patterns; effects on fish and wildlife
species and their habitats; clearing and grading impacts; temporary construction
impacts; and effects of increased noise, light or human intrusion;
4. Existing physical features of the site including buildings, fences, and other
structures, roads, parking lots, utilities, water bodies, etc.,
5. Copies of the wetland rating forms from the Ecology Wetland Rating System for
Western Washington (Ecology Publication #04 -06 -025).
C. Review Process for Single- family Development. The following options shall apply when
development of a single - family dwelling is proposed on site that contains wetlands or
wetland buffers:
1. An assessment report shall be required when the single - family dwelling and
associated features are proposed within the wetland or standard buffer of a
regulated wetland. The applicant may hire a qualified professional to prepare the
assessment report or may request that the County assess the regulated wetland(s)
and determine the impacts associated with the project, subject to the following:
a. Field investigation by County staff shall be at the discretion of the Technical
Administrator and subject to workload and scheduling constraints.
b. Fees for County staff services shall be in accordance with the unified fee
schedule.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
59
2. When the proposed single - family dwelling and associated features are located
outside the standard buffer required under WCC 16.16.630 (no encroachment), no
assessment report shall be required.
3. If regulated wetland buffer from a neighboring property extends onto a proposed
development site for which review under this chapter is required, the Technical
Administrator shall have the authority to require that permanent, clearly visible,
wetland buffer signs be placed at the edge of the buffer in accordance with WCC
16.16.265. The applicant shall provide written documentation that no buffer
encroachment will occur. The documentation shall be in the form of a letter or similar
affidavit.
16.16.680 Standards — Wetland Mitigation
Activities that adversely affect wetlands and /or wetland buffers shall include mitigation sufficient to
achieve no net loss of wetland function and values in accordance with WCC 16.16.260 and this
section.
A. In determining the extent and type of mitigation required, the Technical Administrator may
consider all of the following:
The ecological processes that affect and influence critical area structure and
function within the watershed or sub basin;
2. The individual and cumulative effects of the action upon the functions of the critical
area and associated watershed;
3. Observed or predicted trends regarding the gains or losses of specific wetland types
in the watershed, in light of natural and human processes;
4. The likely success of the proposed mitigation measures;
5. Effects of the mitigation actions on neighboring properties; and
6. Opportunities to implement restoration actions formally identified by an adopted
Shoreline Restoration Plan, watershed planning document prepared and adopted
pursuant to RCW 90.82, a watershed plan prepared pursuant to WAC 400 -12, a
Salmonid Recovery Plan or project that has been identified on the Salmon Recovery
Board Habitat Project List or by the Washington Department of Fish and Wildlife as
essential for fish and wildlife habitat enhancement.
B. Type of Mitigation.
Wetland alterations. Compensatory mitigation projects shall restore, create,
rehabilitate, enhance`, and /or preserve equivalent wetland functions and values.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 60
Compensation for wetland alterations shall occur in the following order of
preference:
a. Re- establishing (also referred to as restoring) wetlands on upland sites that
were formerly wetlands.
b. Creating wetlands on disturbed upland sites such as those consisting
primarily of nonnative, invasive plant species.
C. Rehabilitation of wetlands for the purposes of repairing or restoring natural
and /or historic functions
d. Enhancing significantly degraded wetlands.
e. Preserving Category I or I I wetlands that are under imminent threat, provided
that preservation shall only be allowed in combination with other forms of
mitigation and when the Technical Administrator determines that the overall
mitigation package fully replaces the functions and values lost due to
development.
2. Buffer alterations. Compensatory mitigation for buffer impacts shall include
enhancement of degraded buffers by planting native species, removing structures
and impervious surfaces within buffers, and other measures to achieve equivalent or
greater buffer functions.
C. Mitigation Ratios.
Compensation for wetland buffer impacts shall occur at a minimum 1:1 ratio.
2. Compensatory mitigation for wetland alterations shall be based on the wetland
category and the type of mitigation activity proposed. The replacement ratio shall be
determined according to the ratios provided in the Table below, provided that
replacement ratio for preservation shall be 10 times the ratio for re- establishment or
creation. The created, re- established, rehabilitated, or enhanced wetland area shall
at a minimum provide a level of function equivalent to the wetland being altered and
shall be located in an appropriate landscape setting.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
Replacement Ratio*
Wetland
Category
Re -establishment
or Creation
Rehabilitation
Enhancement Only
Category I
No alteration allowed
Category II
3:1
1 6:1
1 12:1
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
Category III
2 :1
4:1
8:1
Category
IV
1.5:1
3:1
6:1
*Ratio is the replacement area: impact area
a."No
61
D. Replacement wetlands established pursuant to these mitigation provisions shall have
adequate buffers to ensure their protection. The buffer shall be based on the category of the
re- established, created, rehabilitated, enhanced, or preserved wetland provided that the
Technical Administrator shall have the authority to approve a smaller buffer when existing
site constraints (such as a road) prohibit attainment of the standard buffer. Replacement
wetlands shall not create buffer encumbrances on adjoining properties.
KLI 117-11 • 1 V-AGJ M 11 L01 - • - • • , 1 • - • •
11-1 _ •11. 1. •1 • ._ •1 ..� •_ 1- • ••• -• - t-
of altered wetland <1! 1. be replaced at • through re-establishment-Qr
creation, and the remainder of - area needed t6 meet the ratio can be replaced-b
enhancement • • - .11 - /1 to 1 acre of -g•1 11 wetland
-• 1• a 3A ratio for creation can be compensated by - - and
enhancing 4 acres (instead of the additional 2 acres of creation that would othenmis-e
be required)
2. When the pro*ect proponent demonstrated ability based on pasUerformance
• successfully design, construct, • • and maintain w- r_l� 11 �- •1
• • - -
3. When meetina the required ratigs would ady-ersely affecLgther natural and valuable
1, - • .1 • 1 -,, - .•s •� - • • - 11 �. •1
F. Compensatory mitigation shall be provided on -site or off -site in the location that will provide
the greatest ecological benefit and have the greatest likelihood of success, provided that
mitigation occurs as close as possible to the impact area and within the same watershed as
the permitted alteration. This provision may be waived upon demonstration through a
watershed- or landscape -based analysis that mitigation within an alternative sub basin of
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
the same basin would have the greatest gds€ ecological benefit and the gMatad
Will provided that limiting functions shall not be removed from sensitive
watersheds identified in WCC Title 20. Mitigation shall occur within WRIA 1 or 3.
G. All mitigation areas shall be protected and managed to prevent degradation and ensure
protection of critical area functions and values into perpetuity. Permanent protection shall be
achieved through deed restriction or other protective covenant in accordance with WCC
16.16.265.
H. Where feasible, mitigation projects shall be completed prior to activities that will disturb
wetlands. In all other cases, mitigation shall be completed as quickly as possible following
disturbance and prior to use or occupancy of the activity or development. Construction of
mitigation projects shall be timed to reduce impacts to existing fish, wildlife and flora,
provided that the Technical Administrator may adjust the timing requirements to allow
grading, planting, and other activities to occur during the appropriate season(s).
16.16.690 Standards — Compensatory Wetland Mitigation Plan
A. In addition to meeting the requirements of WCC 16.16.260.B, a compensatory mitigation
plan for wetland and wetland buffer impacts shall meet the following requirements:
1. The plan shall be based on applicable portions of the Washington State Department
of Ecology's Guidelines for Developing Freshwater Wetland Mitigation Plans and
Proposals, 2004 or other appropriate guidance document that is consistent with Best
Available Science.
2. The plan shall contain sufficient information to demonstrate that the proposed
activities are logistically feasible, constructible, ecologically sustainable, and likely to
succeed. Specific information to be provided in the plan shall include:
a. The rationale for site selection;
b. General goals of the plan, including wetland function, value, and acreage;
C. Description of baseline (existing) site conditions including topography,
vegetation, soils, hydrology, habitat features (i.e., snags), surrounding land
use, and other pertinent information;
d. Field data confirming the presence of adequate hydrology (surface and /or
groundwater) to support existing and compensatory wetland area(s);
e. Nature of mitigation activities, including area of restored, created, enhanced,
rehabilitated and preserved wetland, by wetland type;
Detailed grading and planting plans showing proposed post- construction
topography; general hydrologic patterns; spacing and distribution of plant
species, size and type of proposed planting stock, watering or irrigation
plans, and other pertinent information;
g. A description of site treatment measures including invasive species removal,
use of mulch and fertilizer, placement of erosion and sediment control
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
63
devices, and best management practices that will be used to protect existing
wetlands and desirable vegetation;
h. A demonstration that the site will have adequate buffers sufficient to protect
the wetland functions in perpetuity.
B. All compensatory mitigation projects shall be monitored in accordance with WCC
16.16.260.0 for a period necessary to establish that performance standards have been
met... The Technical Administrator shall have the authority to extend the monitoring period
for up to ten (10) years and require additional
monitoring reports when any of the following conditions apply:
The project does not meet the performance standards identified in the mitigation
plan.
2. The project does not provide adequate replacement for the functions and values of
the impacted critical area.
3. The project involves establishment of forested plant communities, which require
longer time for establishment.
C. Reports shall be submitted annually for the first three (3) years following construction and at
the completion of years 5, 7, and 10 if applicable to document milestones, successes,
problems, and contingency actions of the compensatory mitigation.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ARTICLE 7 HABITAT CONSERVATION AREAS (HCAs)
16.16.700 Purpose
The purposes of this article are to:
64
A. Maintain fish and wildlife populations, especially populations of anadromous fish species, by
protecting and conserving valuable fish and wildlife habitat and protecting the ecological
processes that sustain these resources.
B. Protect marine shorelines, valuable terrestrial habitats, and natural rivers and streams and
their associated riparian areas, and the ecosystem processes on which these areas depend.
C. Regulate development so that isolated populations of species are not created and habitat
degradation and fragmentation are avoided especially along riparian corridors.
D. Maintain the natural geographic distribution, connectivity, and quality of fish and wildlife
habitat.
16.16.710 Designation, Mapping and Classification - Habitat Conservation Areas
A. Habitat conservation areas are those areas identified as being of critical importance to the
maintenance of certain fish, wildlife, and /or plant species. Theses areas are typically
identified either by known point locations of specific species (such as a nest or den) or by
habitat areas or both. All areas within the County meeting these criteria are hereby
designated critical areas and are subject to the provisions of this article (see also Appendix
D).
B. The approximate location and extent of identified fish and wildlife habitat areas are shown
on the County's critical area maps. These maps are to be used as a guide and do not
provide a definitive critical area determination. The County shall update the maps as new
fish and wildlife habitat areas are identified.
C. For purposes of this chapter, habitat conservation areas shall include all of the following:
Streams. Streams shall be designated according to the following criteria:
a. Shoreline streams are those streams identified and regulated as shorelines
of the state as defined by WAC 173 -18 -310 and designated in the Whatcom
County Shoreline Master Program (WCC Title 23).
b. Other fish bearing streams that do not meet the definition of shorelines of the
state but have known or potential use by anadromous or resident fish
species. The Technical Administrator shall make determinations of known or
potential fish use in consultation with federal, state and tribal biologists and
in accordance with Best Available Science and shall take into consideration
factors such as species life cycle requirements, habitat suitability, channel
gradient, presence or lack of barriers, and a reasoned evaluation of current,
historic, and potential fish use by a qualified professional.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
65
C. Non -fish bearing streams are those streams that have no known or potential
use by anadromous or resident fish.
2. Areas with which federally and /or state listed species have a primary association.
3. State priority habitats and areas associated with state priority species.
4. Commercial and recreational shellfish areas, including designated Shellfish Habitat
Conservation Areas.
5. Kelp and eelgrass beds.
6. Surf smelt, Pacific herring, and Pacific sand lance spawning areas.
7. Naturally occurring ponds under 20 acres in size.
8. Naturally occurring lakes over 20 acres and other waters of the State including
marine waters, and waters planted with game fish by a government or tribal entity.
9. Natural Area Preserves and natural resource conservation areas.
10. Locally important species and habitats that have recreational, cultural, and /or
economic value to citizens of Whatcom County, including the following:
a. Species
i. Osprey
ii. Turkey vulture
iii. Nooksack dace
iv. Salish sucker
b. Habitats
i. The Marine nearshore habitat and the associated vegetated marine
riparian zone. These areas support productive eelgrass beds, marine
algal turf, and kelp beds provide habitat for numerous priority fish
and wildlife species including but not limited to forage fish, and
seabird and shorebird foraging and nesting sites, and harbor seal
pupping and haulout sites. This designation applies to the area from
extreme low tide limit to the ordinary high water mark. Provided that
reaches of the marine shoreline that were lawfully developed for
commercial and industrial uses, prior to the adoption of this chapter,
may be excluded from this designation, but not otherwise exempt
from this chapter. See Appendix E.
Identified elk wintering and calving grounds.
iii. Unique natural plant communities designated by the Washington
Department of Natural Resources.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 131 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
R.
iv. The Chuckanut wildlife corridor, which extends east from Chuckanut
Mountain including Lookout Mountain, Stewart Mountain, and the
northern portions of Anderson Mountain to Chuckanut Bay and the
adjacent marine waters and represents the last remaining place in
the Puget Trough where the natural land cover of the Cascades
continues to the shore of Puget Sound. See Appendix E.
D. In addition to the species, a" habitats, and wildlife corridors identified in WCC
16.16.710.C.10, the County may designate additional species, a habitats of local
importance, and /or wildlife corridors as follows:
In order to nominate an area, ef==a species or corridor to the category of Locally
Important an individual or organization must:
a. Demonstrate a need for special consideration based on:
i. Declining population,
ii. Sensitivity to habitat manipulation, or
iii. Commercial, recreational, cultural, or other special valueas
meal;
iy,. Maintenance of connectivity between habitat areas.
b. Propose relevant management strategies considered effective and within the
scope of this chapter;
C. Identify effects on property ownership and use; and
d. Provide a map showing the species or habitat location(s).
2. Submitted proposals shall be reviewed by the County and may be forwarded to the
state departments of Fish and Wildlife, Natural Resources, and /or other local, state,
federal, and /or Tribal agencies or experts for comments and recommendations
regarding accuracy of data and effectiveness of proposed management strategies.
3. If the proposal is found to be complete, accurate, and consistent with the purposes
and intent of this chapter; and the various goals and obiectives of the Whatcom
County Comprehensive Plan, and the Growth Management Act, the County Council
will hold a public hearing to solicit comment. Approved nominations will become
designated locally important habitats, of species . or corridors and will be subject to
the provisions of this chapter.
16.16.720 Habitat Conservation Areas — General Standards
The following activities may be permitted in habitat conservation areas and /or their buffers when all
reasonable measures have been taken to avoid adverse effects on species and habitats,
compensatory mitigation is provided for all adverse impacts that cannot be avoided, and the amount
and degree of the alteration are limited to the minimum needed to accomplish the project purpose,
provided that locally important species and habitats shall be subject to WCC 16.16.730:
A. Developments that meet the reasonable use and variance standards set forth in WCC
16.16.270.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
67
B. Relocation of streams, or portions of streams, when there is no other feasible alternative
and when the relocation will result in equal or better habitat and water quality and quantity,
and will not diminish the flow capacity of the stream or other natural stream processes,
provided that the relocation meets state Hydraulic Project Approval requirements and that
relocation of shoreline streams shall be prohibited unless the relocation has been identified
formally by the Washington Department of Fish and Wildlife as essential for fish and wildlife
habitat enhancement or identified in watershed planning documents prepared and adopted
pursuant to RCW 90.82, the Salmonid Recovery Plan or the Salmon Recovery Board
Habitat Project List or County Shoreline Restoration Plan.
C. Road, trail, bridge, and right -of -way crossings provided they meet the following criteria:
1. There is no other feasible alternative route with less impact on critical areas.
2. The crossing minimizes interruption of natural processes such as channel migration,
the downstream movement of wood and gravel and the movement of all fish and
wildlife. Bridges are preferred for all stream crossings and should be designed to
maintain the existing stream substrate and gradient, provide adequate horizontal
clearance on each side of the ordinary high water mark and adequate vertical
clearance above ordinary high water mark.
3. Culverts shall be designed according to applicable state and federal guidance
criteria for fish passage as identified in Fish Passage Design at Road Culverts,
WDFW March 1999, and /or the National Marine Fisheries Service Guidelines for
Salmonid Passage at Stream Crossings, 2000, (and subsequent revisions) and in
accordance with a state Hydraulic Project Approval. The applicant or property owner
shall maintain fish passage through bridge or culvert.
4. The County may require that existing culverts be removed or corrected as a
condition of approval if the culvert is detrimental to fish passage or water quality,
and a feasible alternative exists.
5. Crossings shall be limited to the minimum width necessary. Common crossings are
the preferred approach where multiple properties can be accessed by one crossing.
6. Access to private development sites may be permitted to cross habitat conservation
areas, if there are no feasible alternative alignments. Alternative access shall be
pursued to the maximum extent feasible, including through the provisions of RCW
8.24. Exceptions or deviations from technical standards for width or other
dimensions, and specific construction standards to minimize impacts may be
specified, including placement on elevated structures as an alternative to fill, if
feasible.
D. Construction of a structure that is associated with an agricultural use; or the reconstruction,
remodeling, or maintenance of such structures in a habitat conservation area buffer, subject
to all of the following criteria:
The structure is located within an existing lot of record and is an existing agricultural
use.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 68
2. There is no other feasible location with less impact to critical areas.
3. Clearing and grading activity and impervious surface are limited to the minimum
necessary to accommodate the proposed structure and, where possible, surfaces
shall be made of pervious materials.
4. Unavoidable adverse effects on critical areas are mitigated in accordance with this
chapter.
E. Storm water management facilities limited to detention /treatment ponds, media filtration,
lagoons and infiltration basins may be permitted in a stream buffer, subject to all of the
following standards:
1. The facility is located the outer fifty percent (50 %) of the standard stream buffer and
does not displace or impact a forested riparian community;
2. There is no other feasible location for the storm water facility and the facility is
located, constructed, and maintained in a manner that minimizes adverse effects on
the buffer and adjacent critical areas;
3. The storm water facility meets applicable County or state storm water management
standards and the discharge water meets state water quality standards; and
4. Low impact development approaches have been considered and implemented to
the maximum extent feasible.
F. Storm water conveyance or discharge facilities such as dispersion trenches, level
spreaders, and outfalls may be permitted in a habitat conservation area buffer on a case -by-
case basis when the Technical Administrator determines that all of the following are met:
Due to topographic or other physical constraints there are no feasible locations for
these facilities outside the buffer;
2. The discharge is located as far from the ordinary high water mark as possible and in
a manner that minimizes disturbance of soils and vegetation;
3. The discharge outlet is designed to prevent erosion and promote infiltration; and
4. The discharge meets freshwater and marine state Water Quality Standards,
including total maximum daily load (TMDL) standards as appropriate at the point of
discharge. Standards should include filtration through mechanical or biological
means, vegetation retention, timely reseeding of disturbed areas, use of grass -lined
bioswales for drainage, and other mechanisms as appropriate within approved
stormwater "special districts."
G. Clearing and grading, when allowed as part of an authorized activity or as otherwise allowed
in these standards, may be permitted provided that the following shall apply:
1. Grading is allowed only during the designated dry season, which is typically
regarded as May to October of each year, provided that the County may extend or
shorten the designated dry season on a case -by -case basis, based on actual
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
weather conditions.
-
2. Appropriate erosion and sediment control measures shall be used at all times. The
soil duff layer shall remain undisturbed to the maximum extent possible. Where
feasible, disturbed topsoil shall be redistributed to otherareas of the site. Areas shall
be revegetated as needed to stabilize the site.
3. The moisture - holding capacity of the topsoil layer shall be maintained by minimizing
soil compaction or reestablishing natural soil structure and infiltrative capacity on all
areas of the project area not covered by impervious surfaces.
H. Stream bank stabilization and shoreline protection may be permitted subject to all of the
following standards:
1. Natural shoreline processes will be maintained to the maximum extent practicable.
The activity will not result in increased erosion and will not alter the size or
distribution of shoreline or stream substrate, or eliminate or reduce sediment supply
from feeder bluffs.
2. Stream and shoreline protection and launching ramps on shorelines of the state
shall comply with WCC Title 23 and with state Hydraulic Project Approval
requirements.
3. No adverse impact to critical fish or wildlife habitat areas or associated wetlands will
occur.
4. No alteration of juvenile fish migration corridors will occur.
5. No net loss of intertidal or riparian habitat function will occur.
6. Nonstructural measures, such as placing or relocating the development further from
the shoreline, planting vegetation, or installing on -site drainage improvements, are
not feasible or not sufficient.
7. Stabilization is achieved through bioengineering or soft armoring techniques in
accordance an applicable hydraulic permit issued by the Washington Department of
Fish and Wildlife.
8. Hard bank armoring is discouraged and may occur only when the property contains
an existing permanent structure(s) that is in danger from shoreline erosion caused
by wave action or riverine processes and not erosion caused by upland conditions,
such as the alteration of natural vegetation or drainage, and the armoring shall not
increase erosion on adjacent properties and shall not eliminate or reduce sediment
supply.
9. Normal sloughing, erosion of steep bluffs, or shoreline erosion itself, without a
scientific or geotechnical analysis, is not demonstration of need.
10. The bank stabilization or shore protection will not adversely affect habitat
conservation areas or mitigation will be provided to compensate for adverse effects
where avoidance is not feasible.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
70
Construction of trails and roadways less than or equal to thirty (30) feet wide, may be
permitted in a habitat conservation area buffer subject to all of the following standards:
1. There is no other feasible alternative route with less impact on the critical area.
2. The road or trail minimizes erosion and sedimentation, hydrologic alteration, and
disruption of natural processes such as channel migration, wood recruitment and
natural wildlife movement patterns.
3. Trails in riparian (stream) buffers shall be located on the outer fifty percent (50°x6) of
the standard buffer, except for limited viewing platforms and crossings; shall not
exceed 12 feet in width and shall be made of pervious material where feasible.
4. The road or trail is constructed and maintained in manner that minimizes
disturbance of the buffer and associated critical areas.
J. New utility lines and facilities may be permitted when all of the following criteria are met:
Impacts to fish and wildlife habitat shall be avoided to the maximum extent possible.
2. Where feasible, installation shall be accomplished by boring beneath the scour
depth of the stream or water body and the width of the channel migration zone
where present.
3. The utilities shall cross streams at an angle greater than sixty (60) degrees to the
centerline of the channel or perpendicular to the channel centerline whenever boring
under the channel is not feasible.
4. Crossings shall be contained within the footprint of an existing road or utility crossing
where possible.
5. The utility installation shall not increase or decrease the natural rate, extent, or
opportunity of channel migration.
K. New public flood protection measures and expansion of existing ones may be permitted,
subject to WCC Title 17, Article 4 of this chapter and a state Hydraulic Project Approval,
provided that bioengineering or soft armoring techniques shall be used where feasible. Hard
bank armoring may occur only when in situations where soft approaches do not provide
adequate protection.
L. Instream structures, such as, but not limited to, high flow bypasses, dams, and weirs, shall
be allowed only as part of a watershed restoration project as defined pursuant to WCC
23.50.32 or identified in watershed planning documents prepared and adopted under RCW
90.82, the Salmonid Recovery Plan or Salmon Recovery Board Habitat Project List and the
County's Shoreline Restoration Plan and upon acquisition of any required state or federal
permits. The structure shall be designed to avoid adverse effects on stream flow, water
quality, or other habitat functions and values.
M. Construction, reconstruction, repair and maintenance of docks and public or private
launching ramps may be permitted subject to the following:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
71
The dock or ramp is located and oriented and constructed in a manner that
minimizes adverse effects on navigation; wave action, water quality, movement of
aquatic and terrestrial life; ecological processes; eelgrass beds, shellfish beds,
spawning habitat, and wetlands.
2. Docks or ramps on shorelines of the state shall comply with WCC Title 23 and state
Hydraulic Project Approval requirements.
3. Natural shoreline processes will be maintained to the maximum extent practicable.
The activity will not result in increased erosion and will not alter the size or
distribution of shoreline or stream substrate, or eliminate or reduce sediment supply
from feeder bluffs.
4. No adverse impact to critical fish or wildlife habitat areas or associated wetlands will
occur.
5. No alteration of juvenile fish migration corridors will occur.
6. No net loss of intertidal or riparian habitat function will occur.
N. On -site sewage disposal systems (OSS) may be permitted when accessory to an approved
residential structure, for which it is not feasible to connect to a public sanitary sewer system
and when operated and maintained in accordance with WCC 24.05.170, provided that
adverse effects on water quality and slope stability are avoided.
O. Single family developments may be permitted to encroach into stream buffers subject to the
Technical Administrators approval provided that all of the criteria in WCC 16.16.270.A are
met.
P. All other developments may be allowed in Shellfish Gense-watien Protection Districts outside
of actual shellfish habitats, when permitted by zoning and when the requirements of
16.16.720.N are met.
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16.16.730 Standards — Locally Important Habitats and Species
Alterations that occur within a locally important habitat area or that may affect a locally important
species as defined herein shall be subject to review on a case -by -case basis. The Technical
Administrator shall have the authority to require an assessment of the effects of the alteration on
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
72
species or habitats and may require mitigation to ensure that adverse effects do not occur. This
standard is intended to allow for flexibility and responsiveness with regard to locally important
species and habitats.
16.16.740 Standards — Habitat Conservation Area Buffers
The Technical Administrator shall have the authority to require buffers from the edges of all habitat
conservation areas in accordance with the following:
A. Buffers shall be established for activities adjacent to habitat conservation areas as
necessary to protect the integrity, functions and values of the resource. Buffer widths shall
reflect the sensitivity of the species or habitat present and the type and intensity of the
proposed adjacent human use or activity. Buffers shall not include areas that are
functionally and effectively disconnected from the habitat area by a road or other substantial
developed surface.
B. Stream Buffers. The standard buffer widths required by this article are considered to be the
minimum required and presume the existence of a dense vegetation community in the buffer
zone adequate to protect the stream functions and values at the time of the proposed activity.
When a buffer lacks adequate vegetation to protect critical area functions, the Technical
Administrator may increase the standard buffer, require buffer planting or enhancement, and /or
deny a proposal for buffer reduction or buffer averaging.
G The standard buffer shall be measured landward horizontally on both sides of the stream
from the ordinary high water mark as identified in the field, provided that for streams with
identified channel migration zones, the buffer shall extend outward horizontally from the
outer edge of the channel migration zone on both sides. The required buffer shall be
extended to include any adjacent regulated wetland(s), landslide hazard areas and /or
erosion hazard areas and required buffers, but shall not be extended across roads or other
lawfully established structures or hardened surfaces. The following standard buffer width
requirements are established, provided that portions of streams that flow underground may
be exempt from these buffer standards at the Technical Administrator's discretion when it
can be demonstrated that no adverse effects on aquatic species will occur:
1. Shoreline streams - 150 feet
2. Fish bearing streams -100 feet
3. Non -fish bearing streams - 50 feet
C. Buffers for Other Habitat Conservation Areas. The Technical Administrator shall determine
appropriate buffer widths for other habitat conservation areas based on the best available
information. Buffer widths for non - stream habitat conservation areas shall be as follows:
.: t%n Area
Buffer Re uilrement
Areas with which federally listed species
Buffers shall be based on
recommendations provided by the
Washington Department of Fish and
Wildlife PHS Program: provided that local
have a primary association
State Priority Habitats and areas with
which Priority Species have _g Primary
and site specific factors shall be taken into
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
73
Habitat Conservation Area
Buffer Requirement
Association
consideration and the buffer width based
on the best available information
concerning the species /habitat(s) in
question and /or the opinions and
recommendations of qualified professional
with appropriate ex ertise.
Commercial and recreational shellfish
Buffers shall extend one hundred -fifty
areas
(150) feet landward from ordinary high
water mark of the marine shore. Buffers
shall not be required adjacent to Shellfish
Protection Districts, but only in nearshore
areas where shellfish reside.
Kelp and Eelgrass Beds
Buffers shall extend one - hundred fifty
(150) feet landward from ordinary high
water mark of the marine shore
Surf Smelt, Pacific Herring, and Pacific
Buffers shall extend one - hundred fifty
(150) feet landward from ordinary high
Sand Lance Spawning Areas
water mark of the marine shore
Natural Pond and Lakes
Pond under 20 acres - buffers shall extend
50 feet from the ordinary high water mark;
Lakes 20 acres and larger - buffers shall
extend 100 feet from the ordinary high
water mark, provided that where vegetated
wetlands as associated with the shoreline,
the buffer shall be based on the wetland
buffer requirements in WCC 16.16.630.
Natural Area Preserves and Natural
Buffers shall not be required adjacent to
these areas. These areas are assumed
Resource Conservation Areas
to encompass the land required for
species preservation.
Locally Important Habitat Areas
The buffer for marine nearshore habitats
shall extent landward 150 feet from the
ordinary high water mark.
The need for and dimensions of buffers for
other locally important species or habitats
shall be determined on a case by case
basis, according to the needs of specific
species or habitat area of concern. Buffers
shall not be required adjacent to the
Chuckanut wildlife corridor. The Technical
Administrator shall coordinate with the
Washington Department of Fish and
Wildlife and other state, federal or Tribal
exerts in these instances, and may use
WDFW PHS management
recommendations when available.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
74
D. The Technical Administrator shall have the authority to reduce strea+A buffer widths on a
case -by -case basis, provided that the general standards for avoidance and minimization per
16.16.260.A(1)(a) and (b) shall apply, and when the applicant demonstrates to the
satisfaction of the Technical Administrator that all the following criteria are met:
1. The buffer reduction shall not adversely affect the habitat functions and values of the
adjacent streaFn habitat conservation area or other critical area.
2. The buffer shall not be reduced to less than seventy -five (75) percent of the
standard buffer as defined in WCC 16.16.740.C.
3. The slopes adjacent to the seam habitat conservation area within the buffer area
are stable and the gradient does not exceed thirty percent (30 %).
E. The Technical Administrator shall have the authority to average StFearA buffer widths on a
case -by -case basis, provided that the general standards for avoidance and minimization per
16.16.260.A(1)(a) and (b) shall apply, and when the applicant demonstrates to the
satisfaction of the Technical Administrator that all the following criteria are met:
1. The total area contained in the buffer area after averaging is no less than that which
would be contained within the standard buffer and all increases in buffer dimension
are parallel to the stream habitat conservation area.
2. The buffer averaging does not reduce the functions or values of the stream habitat
conservation area or riparian habitat, or the buffer averaging, in conjunction with
vegetation enhancement, increases the habitat function.
3. The buffer averaging is necessary due to site constraints caused by existing
physical characteristics such as slope, soils, or vegetation.
4. The buffer width is not reduced to less than seventy -five percent (75 %) of the
standard width as defined in WCC 16.16.740.C.
5. The slopes adjacent to the stream habitat conservation area within the buffer area
are stable and the gradient does not exceed thirty percent (30 %).
6. S#8am bBuffer averaging shall not be allowed if steam habitat conservation area
buffers are reduced pursuant to Subsection D above.
F. The Technical Administrator shall have the authority to increase the width of a stream
habitat conservation area buffer on a case -by -case basis when suck► there is clear evidence
that such increase is necessary to achieve any of the following:
Comply with the requirements of a habitat management plan prepared pursuant to
WCC 16.16.750.
2. Protect fish and wildlife habitat, maintain water quality, ensure adequate flow
conveyance; provide adequate recruitment for large woody debris, maintain
adequate stream temperatures, or maintain in- stream conditions.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
75
3. Compensate for degraded vegetation communities or steep slopes adjacent to the
atFeam habitat conservation area.
4. Maintain areas for channel migration.
5. Protect adjacent or downstream areas from erosion, landslides, or other hazards.
6. Protect streams from high intensity adjacent land uses.
72- -7
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
76
16.16.750 Review and Reporting Requirements
A. When County critical area maps or other sources of credible information indicate that a site
proposed for development or alteration is more likely than not to contain habitat
conservation areas, or buffer or could adversely affect a habitat area or buffer, the Technical
Administrator shall require a site evaluation (field investigation) by a qualified professional or
other measures to determine whether or not the species or habitat is present. If no habitat
conservation areas are present, then review will be considered complete. If the site
evaluation determines that the species or habitat is present, the Technical Administrator
shall require a critical areas assessment report or habitat management plan (HMP),
provided that no report or evaluation shall be required for developments outside of buffers
within the upland portions of Shellfish Conservation Areas. The Technical Administer shall
have the authority to waive the report requirement when he /she determines that
Tthe project is a single - family development that involves less than 0.5 acre of
clearing and /or vegetation removal and will not directly disturb the species, or specific areas
or habitat features that comprise the habitat conservation area (nest trees, breeding sites,
etc.) as indicated by a site plan or scaled drawing of the proposed developmentef
B. The assessment report / HMP shall describe the characteristics of the subject property and
adjacent areas. The assessment shall include determination of appropriate buffer as set
forth in WCC 16.16.740. The assessment shall also include field identification and /or
delineation of habitat areas, analysis of historical aerial photos, review of public records, and
interviews with adjacent property owners as necessary to determine potential effects of the
development action on critical areas. Assessment reports shall include the following site -
and proposal - related information unless the Technical Administrator determines that any
portion of these requirements is unnecessary given the scope and /or scale of the proposed
development:
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 77
A map drawn to scale or survey showing the following information:
a. Topographic, hydrologic, and vegetative features.
b. The location and description of wildlife and habitat features, and all critical
areas on or abutting the site.
C. Proposed development activity.
d. Existing physical features of the site including buildings, fences, and other
structures, roads, parking lots, utilities, water bodies, etc.
2. An analysis of how the proposed development activities will affect the fish and
wildlife habitat conservation area and /or buffer; including the area of direct
disturbance; effects of storm water management; proposed alteration to surface or
subsurface hydrology; natural drainage or infiltration patterns; clearing and grading
impact; temporary construction impacts; effects of increased noise, light or human
intrusion.
3. Provisions to reduce or eliminate adverse impacts of the proposed development
activities including, but not limited to:
a. Buffering and clustering of development,
b. Retention of native vegetation,
C. Access limitations,
d. Seasonal restrictions on construction activities in accordance with the
guidelines developed by the Washington Department of Fish and Wildlife,
the US Army Corps of Engineers, the Salmonid Recovery Plan and /or other
agency or tribe with expertise and jurisdiction over the subject species/
habitat, and
e. Other appropriate and proven low impact development techniques.
4. Management recommendations #ef developed by WDFW through its PHS program.
5. When appropriate due to the type of habitat or species potentially present or the
project area conditions, the Technical Administrator may also require that the report
include additional information including, but not limited to direct observations of
species use or detailed surface and subsurface hydrologic features both on and
adjacent to the site. The assessment of off -site conditions shall be based on
available information and shall not require accessing off -site properties.
6. Bald eagle habitats shall be protected pursuant to the Washington State Bald Eagle
Protection Rules (WAC- 232 -12 -292), the provisions of which require a cooperative
Habitat Management Plan to be developed in coordination between the WDFW and
landowner whenever projects that alter habitat are proposed within a nest territory or
communal roost. The County shall issue development permits only after certification
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
78
from the WDFW that the development is in compliance with an approved Habitat
Management Plan.
C. All habitat management plans shall be prepared in consultation with the state Department of
Fish and Wildlife and /or other federal, state, local ortribal resource agencies with jurisdiction
and expertise in the subject species /habitat.
D. At the request of the applicant, the County may gather the required information in this
section for applicants seeking to develop a single - family home, provided that:
1. Availability of County staff shall be at the discretion of the Technical Administrator
and subject to workload and scheduling constraints.
2. Fees for County staff services shall be in accordance with WCC 16.16.260.
16.16.760 Mitigation Standards for Habitat Conservation Areas
Activities that adversely affect habitat conservation areas and /or their buffers as determined by the
Technical Administrator shall include mitigation sufficient to achieve no net loss of habitat functions
and values in accordance with WCC 16.16.260 and this section.
A. In determining the extent and type of mitigation required, the Technical Administrator may
consider all of the following:
The ecological processes that affect and influence critical area structure and
function within the watershed or sub basin;
2. The individual and cumulative effects of the action upon the functions of the critical
area and associated watershed;
3. Observed or predicted trends regarding the gains or losses of specific habitats or
species in the watershed, in light of natural and human processes;
4. The likely success of the proposed mitigation measures;
5. Effects of the mitigation actions on neighboring properties; and
6. Opportunities to implement restoration actions formally identified by an adopted
Shoreline Restoration Plan, watershed planning document prepared and adopted
pursuant to RCW 90.82, a Salmonid Recovery Plan or project that has been
identified on the Salmon Recovery Board Habitat Project List or by the Washington
Department of Fish and Wildlife as essential for fish and wildlife habitat
enhancement.
B. The following additional mitigation standards shall apply:
Compensatory mitigation for alterations to habitat areas shall achieve equivalent or
greater biologic functions, and shall provide similar functions to those that are lost or
altered.
B
This FeqwiFernent s- in the existing Gode, but was moved to tNs sentien
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 79
2. Compensatory mitigation in the form of habitat restoration or enhancement is
required when a habitat is altered permanently as a result of an approved project.
Alterations shall not result in net loss of habitat.
3. Where feasible, mitigation projects shall be completed prior to activities that will
disturb habitat conservation areas. In all other cases, mitigation shall be completed
as quickly as possible following disturbance and prior to use or occupancy of the
activity or development. Construction of mitigation projects shall be timed to reduce
impacts to existing fish, wildlife and flora, provided that the Technical Administrator
may adjust the timing requirements to allow grading, planting, and other activities to
occur during the appropriate season(s).
4. Compensatory mitigation shall be provided on- site or off -site in the location that will
provide the greatest ecological benefit to the species and /or habitats affected and
have the greatest likelihood of success. Mitigation shall occur as close to the impact
site as possible, within the same sub basin, and in a similar habitat type as the
permitted alteration unless the applicant demonstrates to the satisfaction of the
Technical Administrator a watershed- or landscape -based analysis that mitigation
within an alternative sub basin of the same watershed would have greater ecological
benefit.
5. All mitigation sites shall have buffers consistent with the buffer requirements of this
chapter, provided that the Technical Administrator shall have the authority to
approve a smaller buffer when existing site constraints (such as a road) prohibit
attainment of the standard buffer. Mitigation actions shall not create buffer
encumbrances on adjoining properties.
6. The Technical Administrator shall have authority to require annual monitoring of
mitigation activities and submittal of annual monitoring reports in accordance with
WCC 16.16.260.0 to ensure and document that the goals and objectives of the
mitigation are met. The frequency and duration of the monitoring shall be based on
the specific needs of the project as determined by the Technical Administrator.
7. All mitigation areas shall be protected and managed to prevent degradation and
ensure protection of critical area functions and values into perpetuity. Permanent
protection shall be achieved through deed restriction or other protective covenant in
accordance with WCC 16.16.265.
8. Mitigation projects involving instream work including, but not limited to, installation of
large woody debris shall be designed to ensure there are no adverse hydraulic
effects on upstream or downstream properties. The County River and Flood Division
shall review any such mitigation projects for compliance with this provision.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 80
ARTICLE 8 DEFINITIONS
"Accessory structure" means a structure that is incidental and subordinate to a primary use. Barns,
garages, storage sheds, and similar structures are examples.
"Active alluvial fan" means a portion or all of a fan that has experienced channel changes, erosion,
or deposition. Active fans can be identified based on determination by field geomorphic and
topographic evidence, and by historical accounts.
"Actively farmed" means land that has a documented history of ongoing agricultural use and that is
currently used primarily for the production of crops and /or raising or keeping livestock.
"Activity" means human activity associated with the use of land or resources.
"Adaptive management" means using scientific methods to evaluate how well regulatory and non -
regulatory actions protect the critical area. An adaptive management program is a formal
and deliberate scientific approach to taking action and obtaining information in the face of
uncertainty. Management policy may be adapted based on a periodic review of new
information.
"Adequate water supply" means a water supply that meets requirements specified in the Whatcom
County Drinking Water Ordinance (WCC 24.11)_
"Agricultural activities" means those activities directly pertaining to the production of crops or
livestock including but not limited to cultivation, harvest, grazing, animal waste storage and
disposal, fertilization, the operation and maintenance of farm and stock ponds or drainage
ditches irrigation systems, canals, and normal maintenance, repair, or operation of existing
serviceable structures, facilities, or improved areas. Activities that bring an area into
agricultural use are not agricultural activities.
"Agricultural land" is land primarily devoted to the commercial production of horticultural, viticultural,
floricultural, dairy, apiary, or animal products or of berries, grain, hay, straw, turf, seed,
Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through
84.33.140, or livestock, and/ or lands that have been designated as capable of producing
food and fiber, which have not been developed for urban density housing, business, or other
uses incompatible with agricultural activity.
"Alluvial fan" means a fan shaped deposit of sediment and organic debris formed where a stream
flows or has flowed out of a mountainous upland onto a level plain or valley floor because of
a sudden change in sediment transport capacity (e.g. significant change in slope or
confinement).
"Alluvium" means a general term for clay, silt, sand, gravel, or similar other unconsolidated detrital
materials, deposited during comparatively recent geologic time by a stream or other body of
running water, as a sorted or semi -sorted sediment in the bed of the stream or on its
floodplain or delta.
"Alteration" means any human - induced change in an existing condition of a critical area or its
buffer. Alterations include, but are not limited to grading, filling, channelizing, dredging,
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
r
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 81
clearing (vegetation), draining, construction, compaction, excavation, or any other activity
that changes the character of the critical area.
"Anadromous fish" means fish species that spend most of their lifecycle in salt water, but return to
freshwater to reproduce.-
"Animal unitW" means 1,000 pounds of livestock live weight.
expFessed in pounds peF day peF 1,000 pounds of IRye6tGGk live weight (Ibldil Ogg#).
"Aquifer" means a geologic formation, group of formations, or part of a formation capable of yielding
a significant amount of ground water to wells or springs (Chapter 173 -160 WAC).
"Aquifer susceptibility" means the ease with which contaminants can move from the land surface to
the aquifer based solely on the types of surface and subsurface materials in the area.
Susceptibility usually defines the rate at which a contaminant will reach an aquifer
unimpeded by chemical interactions with the vadose zone media.
"Aquifer vulnerability" is the combined effect of susceptibility to contamination and the presence of
potential contaminants.
"Base flood" is a flood event having a one percent (1 %) chance of being equaled or exceeded in
any given year, also referred to as the 100 -year flood. Designations of base flood areas on
flood insurance map(s) always include the letters A (zone subject to flooding during a 100 -
year flood, but less so than V zones) or V (zone subject to the highest flows, wave action,
and erosion during a 100 -year flood).
"Bedrock" means a general term for rock, typically hard, consolidated geologic material that
underlies soil or other unconsolidated, superficial material or is exposed at the surface.
"Best available science" means information from research, inventory, monitoring, surveys,
modeling, synthesis, expert opinion, and assessment that is used to designate, protect, or
restore critical areas. As defined by WAC 365 - 195 -900 through 925, Best Available Science
is derived from a process that includes peer- reviewed literature, standard methods, logical
conclusions and reasonable inferences, quantitative analysis, and documented references
to produce reliable information.
"Best management practices" means conservation practices or systems of practices and
management measures that:
(a) Control soil loss and reduce water quality degradation caused by nutrients, animal
waste, toxins, and sediment;
(b) Minimize adverse impacts to surface water and ground water flow, circulation
patterns, and to the chemical, physical, and biological characteristics of waters,
wetlands, and other fish and wildlife habitat.
(c) Control plant site runoff, spillage or leaks, sludge or water disposal, or drainage from
raw material.
"Buffer (the buffer zone)" means the vageta ed area adjacent to the outer boundaries of critical
areas including wetlands; habitat conservation areas such as streams and marine
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 82
shorelines, and /or landslide hazard areas that separates and protects critical areas from
adverse impact associated with adjacent land uses.
"Channel migration zone" means the area along a river or stream within which the channel can
reasonably be expected to migrate overtime as a result of normally occurring processes. It
encompasses that area of current and historic lateral stream channel movement that is
subject to erosion, bank destabilization, rapid stream incision, and /or channel shifting, as
well as adjacent areas that are susceptible to channel erosion. There are three components
of the channel migration zone: (1) the Historical Migration Zone (HMZ) —the collective area
the channel occupied in the historical record; (2) the Avulsion Hazard Zone (AHZ) —the area
not included in the HMZ that is at risk of avulsion over the timeline of the CMZ; and (3) the
Erosion Hazard Area (EHA) —the area not included in the HMZ or the AHZ that is at risk of
bank erosion from stream flow or mass wasting over the timeline of the CMZ. The channel
migration zone may not include the area behind a lawfully constructed flood protection
device. Channel migration zones shall be identified in accordance with guidelines
established by the Washington State Department of Ecology.
"Clearing" means the removal of vegetation or plant cover by manual, chemical, or mechanical
means. Clearing includes but is not limited to actions such as cutting, felling, thinning,
flooding, killing, poisoning, girdling, uprooting, or burning.
"Commercial fish" means those species of fish that are classified under the Washington
Department of Fisheries Fish and wildlife Food Fish Classification as commercial fish (WAC
220 -12 -010).
"Compensatory mitigation" means a mitigation project for the purpose of replacing, at an equivalent
or greater level, unavoidable critical area and buffer impacts that remain after all appropriate
and practicable avoidance and minimization measures have been implemented.
Compensatory mitigation includes, but is not limited to, wetland creation, restoration,
enhancement, and preservation; stream restoration and relocation, rehabilitation; and buffer
enhancement.
"Conservation" means the prudent management of rivers, streams, wetlands, wildlife and other
environmental resources in order to preserve and protect them. This includes the careful
utilization of natural resources in order to prevent depletion or harm to the environment.
"Conservation easement" means a legal agreement that the property owner enters into to restrict
uses of the land for purposes of natural resources conservation. The easement is recorded
on a property deed, runs with the land, and is legally binding on all present and future
owners of the property.
"Contaminant" means any chemical, physical, biological, or radiological substance that does not
occur naturally in ground water, air, or soil or that occurs at concentrations greater than
those in the natural levels (Chapter 172 -200 WAC).
"County" means Whatcom County, Washington.
"Critical areas" The following areas as required in this chapter shall be regarded as critical areas:
(a) Critical Aquifer Recharge Areas
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 83
(b) Wetlands
(c) Geologically Hazardous Areas
(d) Frequently Flooded Areas
(e) Fish and Wildlife Habitat Conservation Areas
"Critical area report" means a report prepared by a qualified professional or qualified consultant
based on Best Available Science, and the specific methods and standards for technical
study required for each applicable critical area. Geotechnical reports and hydrogeological
reports are critical area reports specific to geologically hazardous areas and critical aquifer
recharge areas, respectively.
"Critical area tract" means land held in private ownership and retained in an open undeveloped
condition (native vegetation is preserved) in perpetuity for the protection of critical areas.
"Critical aquifer recharge area" means areas designated by WAC 365 - 190 - 080(2) that are
determined to have a critical recharging effect on aquifers (i.e., maintain the quality and
quantity of water) used for potable water as defined by WAC 365 - 190 - 030(2).
"Critical facilities (Essential facilities)" means buildings and other structures that are intended to
remain operational in the event of extreme environmental loading from flood, wind, snow or
earthquakes pursuant to
etFUstWes-in. the International Building Code I( BC), 2003 Edition. These include but are not
limited to:
(a) Buildings and other structures that represent a substantial hazard to human life in
the event of failure including, but not limited to:Esse„t ;a':'m es.
Buildinas and other structures where more than 300 people conareaate in
one area ;
(ii) Buildings and other structures with elementary school, secondary school or
day care facilities with an occupant load greater than 250Tanks- eFOt#�ef
;
(iii) Buildings and other structures with an occupant load greater than 500 for
colleges or adult education facilities
des;
(iv) Health care facilities with an occupant load of 50 or more resident patients
but not having surgery or emergency treatment facilities
equipment in emeFgenGy ffeparedn
(v) Jails and detention facilities:
NO Any other occupancy with an occupant load greater than 5,000;
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
84
(vii S#and- b"E!ower generating stations, water treatment for potable water,
waste water treatment facilities and other public utility facilities not included
in Subsection (b)eq ipmeRt fi,, essential faGiritie .
(viii
S.Buildings and structures not included in Subsection (b) supperiRg -ef
containing sufficient quantities of toxic or explosive substances to be
dangerous to the Qafety of the neneFal public if released.
(bs) Buildings and other structures designed as essential facilities including, but not
limited to: .
(i) Hospitals and other health care facilities having surgery or emergency
treatment facilities
assembly;
(ii) Fire, rescue and police stations and emergency vehicle garagestwildifgsfef
,
(iii) Designated earthquake, hurricane or other emergency shelters Hospitals and
(iv) Designated emergency preparedness, communication, and operation
centers and other facilities required for emergency response;jails -and
detention f.+nilities
(v) Structures containing highly toxic materials as defined by IBC Section 307
where the quantity of the material exceeds the maximum allowable
quantities of IBC Table 307.7(2);
vi) Aviation control towers, air traffic control centers and emeraencv aircraft
hangars;
NO Buildings and other structures having_ critical national defense functions;
(viii) Water treatment facilities required to maintain water pressure for fire
suppression;
(ix) Power - generating stations and other public utility facilities required as
emergency backup facilities for structures listed above.
"Critical habitat" means habitat areas with which endangered, threatened, sensitive or monitored
plant, fish, or wildlife species have a primary association (e.g., feeding, breeding, rearing of
young, migrating). Such areas are identified herein with reference to lists, categories, and
definitions promulgated by the Washington Department of Fish and Wildlife as identified in
WAC 232 -12 -011 or 232 -12 -014; in the Priority Habitat and Species (PHS) program of the
Department of Fish and Wildlife; or by rules and regulations adopted by the U.S. Fish and
Wildlife Service, National Marine Fisheries Service, or other agency with jurisdiction for such
designations.
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 85
"Debris flow" means a moving mass of rock fragments, soil, and mud; more than half of the
particles being larger than sand size general term that describes a mass movement of
sediment mixed with water and air that flows readily on low slopes.
"Debris torrent" means a violent and rushing mass of water, logs, boulders and other debris.
"Deepwater habitats" means permanently flooded lands lying below the deepwater boundary of
wetlands. Deepwater habitats include environments where surface water is permanent and
often deep, so that water, rather than air, is the principal medium in which the dominant
organisms live. The boundary between wetland and deepwater habitat in the marine and
estuarine systems coincides with the elevation of the extreme low water of spring tide;
permanently flooded areas are considered deepwater habitats in these systems. The
boundary between wetland and deepwater habitat in the riverine and lacustrine systems lies
at a depth of two meters (6.6 feet) below low water; however, if emergent vegetation,
shrubs, or trees grow beyond this depth at any time, their deepwater edge is the boundary.
"Delineation" means the precise determination of wetland boundaries in the field according to the
application of specific method described in the 1997 Washington State Wetland Delineation
manual and /or the, Corps of Engineers Wetlands Delineation Manual 1987 Edition, as
amended.
"Development" means any activity that requires federal, state, or local approval for the use or
modification of land or its resource. These activities include, but are not limited to:
subdivision and short subdivisions; binding site plans; planned unit developments;
variances; shoreline substantial development; clearing activity; fill and grade work; activity
conditionally allowed; building or construction; revocable encroachment permits; and septic
approval.
"Drainage ditch" means an artificially created watercourse constructed to drain surface or ground
water. Ditches are graded (man- made), channels installed to collect and convey runoff from
fields and roadways. Ditches may include irrigation ditches, waste ways, drains, outfalls,
operational spillways, channels, storm water runoff facilities or other wholly artificial
watercourses, except those that directly result from the modification to a natural
watercourse. Ditched channels that support fish are considered to be streams.
"Emergency activities" are those activities which require immediate action within a time too short to
allow full compliance with this chapter due to an unanticipated and imminent threat to public
health, safety or the environment. Emergency construction does not include development of
new permanent protective structures where none previously existed. All emergency
construction shall be consistent with the policies of 90.58 RCW and this chapter. As a general
matter, flooding or other seasonal events that can be anticipated and may occur but that are
not imminent are not an emergency.
"Emergent wetland" means a wetland with at least 30 percent of the surface area covered by erect,
rooted, herbaceous vegetation as the uppermost vegetative strata.
"Enhancement" means actions performed within an existing degraded critical area and /or buffer to
intentionally increase or augment one or more functions or values of the existing critical area
or buffer. Enhancement actions include but are not limited to increasing plant diversity and
cover, increasing wildlife habitat and structural complexity (snags, woody debris), installing
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 86
environmentally compatible erosion controls, or removing non - indigenous plant or animal
species.
"Erosion" means a process whereby wind, rain, water and other natural agents mobilize, and
transport, and deposit soil particles.
"Erosion hazard areas" means lands or areas underlain by soils identified by the U.S. Department of
Agriculture Natural Resource Conservation Service (NRCS) as having "severe" or "very
severe" erosion hazards and areas subject to impacts from lateral erosion related to moving
water such as river channel migration and shoreline retreat.
"Essential public facility" means those facilities that are typically difficult to site, such as airports,
state education facilities, and state or regional transportation facilities, state and local
correctional facilities, solid waste handling facilities, and inpatient facilities including
substance abuse facilities, mental health facilities, and group homes.
"Estuarine wetland" means the zero - gradient sector of a stream where it flows into a standing body
of water together with associated natural wetlands; tidal flows reverse flow in the wetland
twice daily, determining its upstream limit. It is characterized by low bank channels
(distributaries) branching off the main stream to form a broad, near -level delta; bank; bed
and delta materials are silt and clay, banks are stable, vegetation ranges from marsh to
forest, and water is usually brackish due to daily mixing and layering of fresh and salt water.
"Existing and ongoing agricultural activities" means those activities conducted on lands defined in
RCW 36.70A.030 and those activities involved in the production of crops and livestock,
including but not limited to operation and maintenance of existing farm and stock ponds or
drainage ditches, irrigation systems, changes between agricultural activities, and
maintenance or repair of existing serviceable structures and facilities. Activities that result in
the filling of an area or bring an area into agricultural use are not part of an ongoing activity.
An operation ceases to be ongoing when the area on which it was conducted has been
converted to a non - agricultural use, or has lain idle for more than five years unless that idle
land is registered in a federal or state soils conservation program. Forest practices are not
included in this definition.
"Exotic" means any species of plants or animals that is not indigenous to the area.
"Feasible alternative" means an alternative that is available and reasonably capable of being
carried out after taking into consideration, sest-, existing technology; and logistics in light of
overall project purposes, and leg that has less impact to critical areas. Cost shall not be
the sole basis for determining feasibility.
"Farm pond" means an open water depression created from a non - wetland site in connection with
agricultural activities.
"Fen" means a mineral -rich wetland formed in peat that has a neutral to alkaline pH. Fens are
wholly or partly covered with water and dominated by grass -like plants, grasses, and
sedges.
"Fill material" means any solid or semi -solid material, including rock, sand, soil, clay, plastics,
construction debris, wood chips, overburden from mining or other excavation activities, and
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 87
materials used to create any structure or infrastructure, that when placed, changes the
grade or elevation of the receiving site.
"Filling" means the act of transporting or placing by any manual or mechanical means fill material
from, to, or on any soil surface, including temporary stockpiling of fill material.
_Fish and wildlife habitat conservation areas" are areas important for maintaining species in suitable
habitats within their natural geographic distribution so that isolated populations are not
created.
"Fish habitat" means a complex of physical, chemical, and biological conditions that provide the life
supporting and reproductive needs of a species or life stage of fish. Although the habitat
requirements of a species depend on its age and activity, the basic components of fish
habitat in rivers, streams, ponds, lakes, estuaries, marine waters, and nearshore areas
include, but are not limited to, the following:
(a) Clean water and appropriate temperatures for spawning, rearing, and holding;
(b) Adequate water depth and velocity for migrating, spawning, rearing, and holding,
including off - channel habitat;
(c) Abundance of bank and in- stream structures to provide hiding and resting areas and
stabilize stream banks and beds;
(d) Appropriate substrates for spawning and embryonic development. For stream and
lake dwelling fishes, substrates range from sands and gravel to rooted vegetation or
submerged rocks and logs. Generally, substrates must be relatively stable and free
of silts or fine sand;
(e) Presence of riparian vegetation as defined in this article. Riparian vegetation creates
a transition zone, which provides shade and food sources of aquatic and terrestrial
insects for fish;
(f) Unimpeded passage (i.e. due to suitable gradient and lack of barriers) for upstream
and downstream migrating juveniles and adults.
"Flood or Flooding" means a general and temporary condition of partial or complete inundation of
normally dry land areas from the overflow of inland waters and /or the unusual and rapid
accumulation of runoff of surface waters from any source.
"Floodplain" means the total land area adjoining a river, stream, watercourse, or lake subject to
inundation by the base flood.
" Floodway" means the channel of a river or other watercourse and the adjacent land area that must
be reserved in order to discharge the base flood without cumulatively increasing the surface
water elevation more than one (1) foot. Also known as the "zero rise floodway."
"Forested wetland" means a wetland with at least 30 percent of the surface area covered by woody
vegetation greater than 20 feet in height, excluding monotypic stands of red alder or
cottonwood that average eight inches diameter at breast height or less.
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"Frequently flooded areas" means lands in the floodplain subject to a one percent (1 %) or greater
chance of flooding in any given year and those lands that provide important flood storage,
conveyance and attenuation functions, as determined by the County in accordance with
WAC 365 - 190 - 080(3). Classifications of frequently flooded areas include, at a minimum, the
100 -year floodplain designations of the Federal Emergency Management Agency and the
National Flood Insurance Program.
"Function and value" means the beneficial roles served by critical areas and the values people
derive from these roles including, but not limited to, water quality protection and
enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and
attenuation, ground water recharge and discharge, erosion control, wave attenuation,
protection from hazards, providing historical and archaeological resources, noise and visual
screening, open space, and recreation. These beneficial roles are not listed in order of
priority.
"Function assessment or Functions and values assessment" mean a set of procedures, applied by
a qualified consultant, to identify the ecological functions being performed in a wetland or
other critical area, usually by determining the presence of certain characteristics, and
determining how well the critical area is performing those functions. Function assessments
can be qualitative or quantitative and may consider social values potentially provided by the
wetland or other critical area. Function assessment methods must be consistent with Best
Available Science.
"Functions" means the processes or attributes provided by areas of the landscape (e.g. wetlands,
rivers, streams, and riparian areas) including, but not limited to, habitat diversity and food
chain support for fish and wildlife, ground water recharge and discharge, high primary
productivity, low flow stream water contribution, sediment stabilization and erosion control,
storm and flood water attenuation and flood peak desynchronization, and water quality
enhancement through biofiltration and retention of sediments, nutrients, and toxicants.
These beneficial roles are not listed in order of priority.
"Game fish" means those species of fish that are classified by the Washington Department of
Wildlife as game fish (WAC 232 -12 -019).
"Geologically hazardous areas" means areas that because of their susceptibility to erosion, sliding,
earthquake, or other geological events, pose unacceptable risks to public health and safety
and may not be suited to commercial, residential, or industrial development.
"Gradient" means a degree of inclination, or a rate of ascent or descent, of an inclined part of the
earth's surface with respect to the horizontal; the steepness of a slope. It is expressed as a
ratio (vertical to horizontal), a fraction (such as meters/ kilometers or feet/miles), a
percentage (of horizontal distance), or an angle (in degrees).
"Grading" means any excavating or filling of the earth's surface or combination thereof.
"Ground water" means all water that exists beneath the land surface or beneath the bed of any
stream, lake or reservoir, or other body of surface water within the boundaries of the state,
whatever may be the geological formation or structure in which such water stands or flows,
percolates or otherwise moves (Chapter 90.44 RCW).
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 89
"Ground water management area" means a specific geographic area or subarea designated
pursuant to Chapter 173 -100 WAC for which a ground water management program is
required.
"Ground water management program" means a comprehensive program designed to protect
ground water quality, to assure ground water quantity, and to provide for efficient
management of water resources while recognizing existing ground water rights and meeting
future needs consistent with local and state objectives, policies and authorities within a
designated ground water management area or subarea and developed pursuant to Chapter
173 -100 WAC.
"Growing season" means the portion of the year when soil temperatures are above biologic zero
(41 degrees Fahrenheit).
"Growth Management Act" means RCW 36.70A, and 36.7013, as amended.
"Hazard tree" means any tree that is susceptible to immediate fall due to its condition (damaged,
diseased, or dead) or other factors, and which because of its location is at risk of damaging
permanent physical improvements to property or causing personal injury.
"Hazardous substance" means any liquid, solid, gas, or sludge, including any material, substance,
product, commodity, or waste, regardless of quantity, that exhibits any of the physical,
chemical or biological properties described in WAC 173 - 303 -090 or 173 - 303 -100.
"High intensity land use" means land use that includes the following uses or activities: commercial,
urban, industrial, institutional, retail sales, residential (more than 1 unit/acre), high- intensity
new agriculture (dairies, nurseries, greenhouses, raising and harvesting crops requiring
annual tilling, raising and maintaining animals), high- intensity recreation (golf courses, ball
fields), hobby farms.
"Hydraulic Project Approval" (HPA) means a permit issued by the state Department of Fish and
Wildlife for modifications to waters of the state in accordance with Chapter 75.20 RCW.
"Hydric soil" means a soil that is saturated, flooded or ponded long enough during the growing season
to develop anaerobic conditions in the upper part. The presence of hydric soil shall be
determined following the methods described in the Washington State Wetland Identification
and Delineation Manual (RCW 36.70A.175).
"Hydrologic soil groups" means soils grouped according to their runoff - producing characteristics
under similar storm and cover conditions. Properties that influence runoff potential are depth
to seasonally high water table, intake rate and permeability after prolonged wetting, and
depth to a low permeable layer. Hydrologic soil groups are normally used in equations that
estimate runoff from rainfall, but can be used to estimate a rate of water transmission in soil.
There are four hydrologic soil groups:
(a) Low runoff potential and a high rate of infiltration potential;
(b) Moderate infiltration potential and a moderate rate of runoff potential;
(c) Slow infiltration potential and a moderate to high rate of runoff potential; and
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 90
(d) High runoff potential and very slow infiltration and water transmission rates.
"Hydrophytic vegetation" means macrophytic plant life growing in water or on a substrate that is at
least periodically deficient in oxygen as a result of excessive water content.
" Hyporheic zone" means the saturated zone located beneath and adjacent to streams that contain
some proportion of surface water from the surface channel. The hyporheic zone serves as a
filter for nutrients, as a site for macro invertebrate production important in fish nutrition and
provides other functions related to maintaining water quality.
"Impervious surface" means a hard surface area that either prevents or retards the entry of water
into the soil mantle as under natural conditions prior to development or that causes waterto
run off the surface in greater quantities or at an increased rate of flow compared to natural
conditions prior to development. Common impervious surfaces may include, but are not
limited to, roof tops, walkways, patios, driveways, parking lots or storage areas, concrete or
asphalt paving, gravel roads, packed earthen materials, and oiled macadam or other
surfaces which similarly impede the natural infiltration of storm water. Impervious surfaces
do not include surface created through proven low impact development techniques.
"Infiltration" means the downward entry of water into the immediate surface of soil.
"In -kind compensation" means to replace critical areas with substitute areas whose characteristics
and functions mirror GIGSely appFoximate those destroyed or degraded by a regulated
activity.
"Intertidal zone" means the substratum from extreme low water of spring tides to the upper limit of
spray or influence from ocean derived salts. It includes areas that are sometimes
submerged and sometimes exposed to air, mud and sand flats, rocky shores, salt marshes,
and some terrestrial areas where salt influences are present.
"Invasive species" means a species that is 1) non - native (or alien) to Whatcom Countv and 2)
whose introduction causes or is likely to cause economic or environmental harm or harm to
human health. Invasive species can be plants, animals, and other organisms (e.g:,:,
microbes). Human actions are the riimmary means of invasive species introductions.
"Lahar" means a mudflow and debris flow originating from the slopes of a volcano.
"Lahar inundation zone" means areas that have been or potentially could be inundated by lahars or
other types of debris flows, according to a map showing Volcano Hazards from Mount
Baker, Washington.
"Lake" means a naturally or artificially created body of deep (generally greater than 6.6 feet) open
water that persists throughout the year. A lake is larger than a pond, greater than one acre
in size, equal or greater than 6.6 feet in depth, and has less than 30 percent (30 %) aerial
coverage by trees, shrubs, or persistent emergent vegetation. A lake is bounded by the
ordinary high water mark or the extension of the elevation of the lake's ordinary high water
mark with the stream where the stream enters the lake.
"Landfill" means a disposal facility or part of a facility at which solid waste is permanently placed in
or on land including facilities that use solid waste as a component of fill.
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"Landslide" means a general term covering a wide variety of mass movement landforms and
processes involving the downslope transport, under gravitational influence of soil and rock
material en masse; included are debris flows, debris avalanches, earthflows, mudflows,
slumps, mudslides, rock slides, and rock falls.
"Landslide hazard areas" means areas that, due to a combination of site conditions like slope
inclination and relative soil permeability are susceptible to mass wasting.
"Low intensity land use" means land use that includes the following uses or activities: forestry
(cutting of trees only), low- intensity open space (such as passive recreation and natural
resources preservation), unpaved trails.
"Maintenance and repair" means work required to keep existing improvements in their existing
operational state. This does not include any modification that changes the character, scope,
or size of the original structure, facility, utility or improved area.
"Major development" means any project for which a major project permit is required pursuant to
WCC 20.88. For the purposes of this chapter major development shall also mean any
project associated with an existing development for which a major development permit has
been required or other existing legally nonconforming development for which a major
development permit would otherwise be required if developed under the current land use
regulations outlined in WCC Title 20.
"Mass wasting" means downslope movement of soil and rock material by gravity. This includes soil
creep, erosion, and various types of landslides, not including bed load associated with
natural stream sediment transport dynamics.
"Mature forested wetland" means a wetland with an overstory dominated by mature trees having a
wetland indicator status of facultative (FAC), facultative -wet (FACW), or obligate (OBL).
Mature trees are considered to be at least 21 inches in diameter at breast height.
"Mean annual flow" means the average flow of a river, or stream (measured in cubic feet per
second) from measurements taken throughout the year. If available, flow data for the
previous 10 years should be used in determining mean annual flow.
"Mitigation" means individual actions that may include a combination of the following measures,
listed in order of preference:
(a) Avoiding an impact altogether by not taking a certain action or parts of actions;
(b) Minimizing impacts by limiting the degree or magnitude of an action and its
implementation;
(c) Rectifying impacts by repairing, rehabilitating, or restoring the affected environment;
(d) Reducing or eliminating an impact over time by preservation and maintenance
operations during the life of the action;
(e) Compensating for an impact by replacing or providing substitute resources or
environments; and
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 92
(f) Monitoring the mitigation and taking remedial action when necessary.
"Mitigation bank" means a site where wetlands or similar habitats are restored, created, enhanced,
or in exceptional circumstances, preserved, expressly for the purpose of providing
compensatory mitigation in advance of authorized impacts to aquatic resources.
"Mitigation bank instrument" means the documentation of agency and bank sponsor concurrence on
the objectives and administration of the bank. The "bank instrument" describes in detail the
physical and legal characteristics of the bank, including the service area, and how the bank will
be established and operated.
"Mitigation bank review team" or "MBRT" means an interagency group of federal, state, tribal and local
regulatory and resource agency representatives that are invited to participate in negotiations
with the bank sponsor on the terms and conditions of the bank instrument.
"Mitigation bank review team process" or "MBRT Process" means a process in which the County and
other agencies strives to reach consensus with the MBRT members on the terms, conditions,
and procedural elements of the bank instrument.
"Mitigation bank sponsor" means any public or private entity responsible for establishing and, in most
circumstances, operating a bank.
"Mitigation plan" means a detailed plan indicating actions necessary to mitigate adverse impacts to
critical areas.
"Moderate intensity land use" means land use that includes the following uses or activities:
residential (1 unit/acre or less), moderate - intensity open space (parks), moderate - intensity
new agriculture (orchards and hay fields), plant nurseries, paved trails, building of logging
roads.
"Monitoring" means evaluating the impacts of development proposals over time on the biological,
hydrological, pedological, and geological elements of such systems and /or assessing the
performance of required mitigation measures throughout the collection and analysis of data
by various methods for the purpose of understanding and documenting changes in natural
ecosystems and features, and includes gathering baseline data.
"Native vegetation" means plant species that are indigenous to the Whatcom County and the local
area.
" Nearshore habitat" means the zone that extends seaward from the marine shoreline to a water
depth of approximately 20 meters (66 feet). Nearshore habitat is rich biologically, providing
important habitat for a diversity of plant and animal species.
"No net loss" means the maintenance of the aggregate total of the County's critical area functions
and values as achieved through a case -by -case review of development proposals. Each
project shall be evaluated based on its ability to meet the no net loss goal.
"Off -site mitigation" means to replace critical areas away from the site on which a critical area has
been adversely impacted by a regulated activity.
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 93
naoina aariculture" means those activities conducted on lands defined in RCW 84.34.020(2). and
those activities involved in the production of crops and livestock, including but not limited to
operation and maintenance of existing farm and stock ponds or drainage ditches. irrigation
systems, changes between agricultural activities. and maintenance or repair of existing
serviceable structures and facilities. Activities that bring an area into agricultural use are not
part of an ongoing activity. An operation ceases to be ongoing when the area on which it
was conducted has been converted to a non - agricultural use, or has lain idle for more than
five consecutive years unless that idle land is reaistered in a federal or state soils
conservation program. Forest practices are not included in this definition.
"Ordinary high water mark" means the mark or line on all lakes, rivers, streams and tidal water that
will be found by examining the beds and banks and ascertaining where the presence and
action of waters are so common and usual and so long continued in all ordinary years, as to
mark upon the soil a character distinct from that of the abutting upland in respect to
vegetation (RCW 90.58.030(2)(b)).
" erson" means an individual, partnerships corporation, association, organization, cooperative.
public or municipal corporation. State agency or local governmental unit, however.
desianated, or Indian Nation or tribe.
"Planned Unit Development (PUD)" means one or a group of specified uses, such as residential,
resort, commercial or industrial, to be planned and constructed as a unit. Zoning or
subdivision regulations with respect to lot size, building bulk, etc., may be varied to allow
design innovations and special features in exchange for additional and /or superior site
amenities or community benefits.
"Pond" means an open body of water, generally equal to or greater than 6.6 feet deep, that persists
throughout the year and occurs in a depression of land or expanded part of a stream and
has less than 30 percent (30 %) aerial coverage by trees, shrubs, or persistent emergent
vegetation. Ponds are generally smaller than lakes. Farm ponds are excluded from this
definition. Beaver ponds that are two -years old or less are excluded from this definition.
"Potable" means water that is suitable for drinking by the public (Chapter 246 -290 WAC).
"PFa Gtin.+l alternative11 See feasible altern.+tive
"Preservation" means actions taken to ensure the permanent protection of existing, ecologically
important critical areas and /or buffers that the County has deemed worthy of long -term
protection.
"Primary association" means the use of a habitat area by a listed or priority species for
breading /spawning, rearing young, resting, roosting, feeding, foraging, and /or migrating on a
frequent and /or regular basis during the appropriate season(s) as well as habitats that are
used less frequently /regularly but which provide for essential life cycle functions such as
breed i ng /nesting /spawn i n g.
"Priority habitat" means a habitat type with unique or significant value to one or more species. An
area classified and mapped as priority habitat must have one or more of the following
attributes: Comparatively high fish or wildlife density; comparatively high fish or wildlife
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 94
species diversity; fish spawning habitat; important wildlife habitat; important fish or wildlife
seasonal range; important fish or wildlife movement corridor; rearing and foraging habitat;
important marine mammal haul -out; refuge; limited availability; high vulnerability to habitat
alteration; unique or dependent species; or shellfish bed. A priority habitat may be
described by a unique vegetation type or by a dominant plant species that is of primary
importance to fish and wildlife (such as oak woodlands or eelgrass meadows). A priority
habitat may also be described by a successional stage (such as, old growth and mature
forests). Alternatively, a priority habitat may consist of a specific habitat element (such as a
consolidated marine /estuarine shoreline, talus slopes, caves, snags) of key value to fish and
wildlife. A priority habitat may contain priority and /or non_priority fish and wildlife (WAC 173-
26- 020(24)).
"Priority species" means wildlife species of concern due to their population status and their
sensitivity to habitat alteration, as defined by the Washington Department of Fish and
Wildlife.
"Project" means any proposed or existing activity regulated by Whatcom County.
"Project permit or Project permit application" means any land use or environmental permit or
approval required by Whatcom County, including but not limited to building permits,
subdivisions, binding site plan, planned unit developments, conditional uses, shoreline
substantial development permits, variance, lot consolidation relief, site plan review, permits
or approvals authorized by a comprehensive plan or subarea plan.
"Qualified planning advisor" means those individuals who are have technical experience and
training necessary to prepare farm conservation plans for agricultural lands and who have:
(a) completed the 2 week training course delivered by the Technical Administrator and
achieved a minimum of 75% on the course exam and assignments and signed the
Practice and Confidentiality Agreement; or
(b) been certified a Technical Service Provider by the USDA Natural Resources
Conservation Service. (See http: / /techreg.usda.aov/ ) and signed the Practice and
Confidentiality Agreement.
"Qualified professional or qualified consultant" means a person with experience and training with
expertise appropriate for the relevant critical area subject in accordance with WAC 365 -195-
905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in
biology, soil science, engineering, environmental studies, fisheries, geology, geomorphology
or related field, and related work experience and meet the following criteria:
(a) A qualified professional for wetlands must have a degree in biology, ecology, soil
science, botany, or a closely related field and a minimum of five years of
professional experience in wetland identification and assessment in the Pacific
Northwest.
(b) A qualified professional for habitat conservation areas must have a degree in wildlife
biology, ecology, fisheries, or closely related field and a minimum of five years
professional experience related to the subject species /habitat type.
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WHATCOM COUNTY CRITICAL AREAS ORDINANCE 95
(c) A qualified professional for geologically hazardous areas must be a professional
engineering geologist or geotechnical engineer, licensed in the state of Washington.
(d) A qualified professional for critical aquifer recharge areas means a Washington state
licensed hydrogeologist, geologist, or engineer.
"Recharge" means the process involved in the absorption and addition of water from the unsaturated
zone to ground water.
"Re- establishment" means measures taken to intentionally restore an altered or damaged natural
feature or process including:
(a) Active steps taken to restore damaged wetlands, streams, protected habitat, and /or
their buffers to the functioning condition that existed prior to an unauthorized
alteration;
(b) Actions performed to reestablish structural and functional characteristics of the
critical area that have been lost by alteration, past management activities, or other
events; and
(c) Restoration can include restoration of wetland functions and values on a site where
wetlands previous existed, but are no longer present due to lack of water or hydric
soils.
"Rehabilitation" means a type of restoration action that restores a critical area to its original form or
type such as restoring a wetland to its original hydro geomorphic class.
"Repair or maintenance" means an activity that restores the character, scope, size, and design of a
serviceable area, structure, or land use to its previously authorized and undamaged condition.
Activities that change the character, size, or scope of a project beyond the original design and
drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.
"Resident fish "' means a fish species that completes all stages of its life cycle within freshwater and
frequently within a local area.
" "Restoration" See "re- establishment ".
°Rills" means steep -sided channels resulting from accelerated erosion. A rill is generally a few
inches deep and not wide enough to be an obstacle to farm machinery. Rill erosion tends to
occur on slopes, particularly steep slopes with poor vegetative cover.
"Riparian corridor or Riparian zone" means the area adjacent to a water body (stream, Lake or
marine water) that contains vegetation that influences the aquatic ecosystem, nearshore
area and /or and fish and wildlife habitat by providing shade, fine or large woody material,
nutrients, organic debris, sediment filtration, and terrestrial insects (prey production).
Riparian areas include those portions of terrestrial ecosystems that significantly influence
exchanges of energy and matter with aquatic ecosystems (i.e., zone of influence). Riparian
zones provide important wildlife habitat. They provide sites for foraging, breeding and
nesting; cover to escape predators or weather; and corridors that connect different parts of a
watershed for dispersal and migration.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 96
"Riparian vegetation" means vegetation that tolerates and /or requires moist conditions and periodic
free flowing water thus creating a transitional zone between aquatic and terrestrial habitats
which provides cover, shade and food sources for aquatic and terrestrial insects for fish
species. Riparian vegetation and their root systems stabilizes stream banks, attenuates high
water flows, provides wildlife habitat and travel corridors, and provides a source of limbs and
other woody debris to terrestrial and aquatic ecosystems, which, in turn, stabilize stream
beds.
"Scrub -shrub wetland" means a wetland with at least thirty percent (30 %) of its surface area
covered by woody vegetation less than twenty (20) feet in height as the uppermost strata.
"Seismic hazard areas" means areas that are subject to severe risk of damage as a result of
earthquake - induced ground shaking, slope failure, settlement, or soil liquefaction.
"SEPA" is a commonly used abbFeviatffien acronym for the State Environmental Policy Act.
"Shellfish" are invertebrates of the phyla Arthropoda (class Crustacea), Mollusca (class
Pelecypoda) and Echinodermata.
"Shellfish habitat conservation areas" are all public and private tidelands suitable for shellfish, as
identified by the Washington Department of Health classification of commercial growing
areas, and those recreational harvest areas as identified by the Washington Department of
Ecology are designated as Shellfish Habitat Conservation Areas pursuant to Chapter 365-
190-80 WAC. Any area that is or has been designated as a Shellfish Protection District
created under RCW 90.72 is also a Shellfish Habitat Conservation Area.
"Shellfish GensewatoeFv protection district' means the Drayton Harbor Shellfish Protection District
(DHSPD) (Ordinance 95 -036) and the Portage Bay Shellfish Protection District (PBSPD)
(Ordinance 98 -069), or other area formed by the County based on the Revised Code of
Washington (RCW) Chapter 90, in response to State Department of Health (DOH) closures
or downgrades of a commercial shellfish growing area due to a degradation of water quality
as a result of pollution. These areas include the watershed draining to the shellfish beds as
afe part of the Shellfish Habitat 6enver-satieR Conservation Area.
"Shoreline" (Shoreline Management Act) means all of the water areas of the state, including
reservoirs and their associated wetlands, together with lands underlying them, except:
(a) Shorelines on segments of streams upstream from a point where the mean annual
flow is 20 cubic feet per second or less and the wetlands associated with such
upstream segments; and
(b) Shorelines on lakes less than 20 acres in size and wetlands associated with such
small lakes.
"Shorelines" are all of the water areas of the state as defined in RCW 90.58.030, including
reservoirs and their associated shorelands, together with the lands underlying them except:
(a) Shorelines of statewide significance;
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 97
(b) Shorelines on segments of streams upstream of a point where the mean annual flow
is twenty cubic feet per second (20 cfs) or less and the wetlands associated with
such upstream segments; and
(c) Shorelines on lakes less than twenty (20) acres in size and wetlands associated with
such small lakes.
"Shorelines of statewide significance" means those areas defined in RCW 90.58.030(2)(e).
"Shorelines of the state" means the total of all "shorelines," as defined in RCW 90.58.030(2)(d), and
"shorelines of statewide significance" within the state, as defined in RCW 90.58.030(2)(c).
"Shorelands or Shoreland areas" means those lands extending landward for two hundred (200) feet
in all directions as measured on a horizontal plane from the ordinary high water mark;
floodways and contiguous floodplain areas landward two hundred (200) feet from such
floodways; and all wetlands and river deltas associated with the streams, lakes and tidal
waters which are subject to the provisions of Chapter 90.58 RCW.
"Single family development" means the development of a single family residence permanently
installed and served with utilities on a lot of record.
"Site" means any parcel or combination of contiguous parcels, or right -of -way or combination of
contiguous rights -of way under the applicant's ownership or control where the proposed
project impacts an environmentally critical area.
"Slope" means:
(a) Gradient.
(b) The inclined surface of any part of the earth's surface, delineated by establishing its
toe and top and measured by averaging the inclination over at least 10 feet of
vertical relief.
"Soil" means all unconsolidated materials above bedrock described in the Soil Conservation
Service Classification System or by the Unified Soils Classification System.
"Sphagnum bog" means a type of wetland dominated by mosses that form peat. Sphagnum bogs
are very acidic, nutrient poor systems, fed by precipitation rather than surface inflow, with
specially adapted plant communities.
"Streams" are those areas where surface waters produce a defined channel or bed. A defined
channel or bed is an area that demonstrates clear evidence of the annual passage of water
and includes, but is not limited to, bedrock channels, gravel beds, sand and silt beds, and
defined- channel swales. The channel or bed need not contain water year- round. This
definition includes drainage ditches or other artificial water courses where natural streams
existed prior to human alteration, and /or the waterway is used by anadromous or resident
salmonid or other fish populations or the flows directly into Shellfish Habitat Conservation
Areas.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 98
"Structure" means a permanent or temporary building or edifice of any kind, or any piece of work
artificially built up or composed of parts joined together in some definite matter whether
installed on, above, or below the surface of the ground or water, except for vessels.
'Technical Administrator" means the Director of the Planning & Development Services Department
or staff member designated by the Director to perform the review functions required in this
chapter.
'Toe" means the lowest part of a slope or cliff; the downslope end of an alluvial fan, landslide, etc.
'Top" means the top of a slope; or in this chapter it may be used as the highest point of contact
above a landslide hazard area.
"Unavoidable" means adverse impacts that remain after all appropriate aR prastisa avoidance
and minimization measures have been implemented.
"Utilities" means all lines and facilities used to distribute, collect, transmit, or control electrical
power, natural gas, petroleum products, information (telecommunications), water, and
sewage.
"Volcanic hazard areas" means geologically hazardous areas that are subject to pyroclastic flows,
lava flows, debris avalanche, or inundation by debris flows, mudflows, or related flooding
resulting from volcanic activity.
'Watershed" means a geographic region within which water drains into a particular river, stream or
body of water. There are approximately 122 watersheds (e.g. Bertrand, Ten Mile, Dakota,
Canyon Creek, Lake Whatcom, Lake Samish) identified in WRIA 1 and WRIA 3 these are
nested within approximately 14 -sub basins (e.g. North Fork Nooksack, Drayton Harbor,
Sumas River, Friday Creek) which are nested within in 4 basins (e.g. Nooksack River,
Fraser River ��L< C- Qastal).
'Watershed improvement district" means a special district established pursuant to RCW 85.38
citation.
'Well head protection area" means the area (surface and subsurface) managed to protect ground
water based public water supplies.
'Wet meadow" means palustrine emergent wetlands, typically having disturbed soils, vegetation, or
hydrology.
'Wet season" means the period generally between November 1 and March 30 of most years when
soils are wet and prone to instability. The specific beginning and end of the wet season can
vary from year to year depending on weather conditions.
°Wetland" means areas that are inundated or saturated by surface water or ground water at a
frequency and duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not
include those artificial wetlands intentionally created from nonwetland sites, including but not
limited to irrigation and drainage ditches, grass -lined swales, canals, detention facilities,
retention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE 99
those wetlands created after July 1, 1990, that were unintentionally created as a result of
the construction of a road, street, or highway. However, wetlands include those artificial
wetlands intentionally created to mitigate wetland impacts.
"Wetland buffer" means a designated area contiguous or adjacent to a wetland that is required for
the continued maintenance, function, and ecological stability of the wetland.
"Wetland class" means the general appearance of the wetland based on the dominant vegetative
life form or the physiography and composition of the substrate. The uppermost layer of
vegetation that possesses an aerial coverage of 30 percent (30 %) or greater of the wetland
constitutes a wetland class. Multiple classes can exist in a single wetland. Types of wetland
classes include forest, scrub /shrub, emergent, and open water.
"Wetland delineation" means the precise determination of wetland boundaries in the field according
to the application of specific methodology as described in the 1997 Washington State
Wetland Delineation Manual or 1987 edition, as amended, Corps of Engineers Wetlands
Delineation Manual and the mapping thereof.
"Wetland edge" means the boundary of a wetland as delineated based on the definitions contained in
this chapter.
"Wetland enhancement" See " mitigation."
"Wetland mitigation bank" means a site where wetlands and buffers are restored, created,
enhanced, or in exceptional circumstances, preserved expressly for the purpose of
providing compensatory mitigation in advance of authorized impacts to similar resources.
"Wetland Restoration" See "mitigation" and "Ye tabI*sheFnF;V "re- establishment ".
"Windthrow" means a natural process by which trees are uprooted or sustain severe trunk damage
by the wind.
"Wood waste" means solid waste consisting of wood pieces or particles generated as a by- product or
waste from the manufacturing of wood products, handling and storage of raw materials and
trees and stumps. This includes but is not limited to sawdust, chips, shavings, bark, pulp, hog
fuel, and log sort yard waste, but does not include wood pieces or particles containing chemical
preservatives such as creosote, pentachlorophenol, or copper - chrome- arsenate.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
ACRONYMS
AASHTO American Association of State Highway and Transportation Officials
AFO
Animal Feeding Operation
AHZ
Avulsion Hazard Zone
CAFO
Concentrated Animal Feeding Operations
CFR
Code of Federal Regulations
CMZ
Channel Migration Zone
CPAL
Conservation Program on Agriculture Lands
DHSPD
Drayton Harbor Shellfish Protection District
DOH
Washington Department of Health
EHA
Erosion Hazard Area
ESU
Ecologically Significant Unit
FAC
Facultative
FACW
Facultative -Wet
FIMA
Federal Insurance and Mitigation Administration
FIRM
Flood Insurance Rate Maps
Fco
Federal species of concern
FE
Federal Endangered
FT
Federal Threatened
HGM
Hydrogeomorphic
HMP
Habitat Management Plan
HMZ
Historical Migration Zone
HPA
Hydraulic Project Approval
IBC
International Building Code
LWD
Large Woody Debris
MBRT
Mitigation Bank Review Team
MTBE
Methyl Tertiary Butyl Ether
MRL
Mineral Resource Lands
NGPE
Native Growth Protection Easement
NOAA
National Oceanic and Atmospheric Administration
NRCS
Natural Resource Conservation Service
OBL
Obligate
OSS
On -site Sewage disposal System
PBSPD
Portage Bay Shellfish Protection District
PCE
Perch loroethylene
PHS
Priority Habitat and Species
PUD
Planned Unit Development
RCT
Recreational. Commercial or Tribal importance
RCW
Revised Code of Washington
Sc
State Candidate
SE
State Endangered
SEPA
State Environmental Policy Act
SM
State Monitor
SMA
Shoreline Management Act
SMP
Shoreline Management Program
SS
State Sensitive
ST
State Threatened
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
100
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
TMDL
Total Maximum Daily Load
U
Unstable
UOS
Unstable Old Slides
URS
Unstable Recent Slides
USC
United States Code
USDA
United States Department of Agriculture
USEPA
United States Environmental Protection Agency
VA
Vulnerable Aggregations
WAC
Washington Administrative Code
WCC
Whatcom County Code
WDFW
Washington Department of Fish and Wildlife
WRIA
Water Resource Inventory Area
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
101
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
CRITICAL AREAS ORDINANCE
APPENDICES
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE A -1
APPENDIX A
CONSERVATION PROGRAM ON AGRICULTURE LANDS
Purpose Statement
The well -being of farms and ranches in Whatcom County depends in part on good quality soil,
water, air and other natural resources. Agricultural operations that incorporate protection of the
environment, including critical areas as defined by this chapter are essential to achieving this goal.
Overview
A conservation farM plan identifiies the farming or ranching activities and the practice(s) necessary
to avoid their potentr l,.neg ove impacts (resource concerns). Practice selection depends upon the
types of lives ti `�# ari crops grown. Based upon the type and intensity of operation, some
generalize nIs in be made as to the resource concerns and remedies that apply.
Somw6perafts present relatively low risks to critical areas because of their benign nature, timing,
tnti� or locatio n. For these operations, the resource concerns and remedies are relatively
easy t and implement. These are described in more detail as Low - impact Agricultural
Oratio Sject to Standardized Farm Conservation Plans in section 1 below.
Where the potential negative impacts to critical areas are moderate or high, solutions are more
difficult to formulate and implement. In those circumstances, a more rigorous planning process is
required. In such cases, a formal written plan shall provide the desired environmental protection.
These types of operations are described Agricultural Operations Requiring Custom Farm
Conservation Plans in section 2 below.
Farm conservation plans prepared pursuant to Section 1 or Section II shall include all reasonable
measures to maintain existing critical area functions and values.
Section I. Low - impact Agricultural Operations Subject to Standardized Farm
Conservation Plans
These operations present a low potential risk to critical area degradation including ground / surface
water contamination because the animals kept generate fewer nutrients than can be used by the
crops grown there.
Criteria - To qualify fef as a Low Impact Operation, a farm shall not exceed one
animal unit per one acre of grazable pasture °
One resource for
guidance is "Tips on Land & Water Management for Small Farm & Livestock Owners
in Western Washington ". It can be obtained at: http: /twww.kingcd.org /pub sma.htm
or from the Whatcom Conservation District. Other guidance may also be used
provided it is consistent with the Best Available Science criteria in WAC 365 -195-
900 through 925.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE A -2
2. Benchmark System and Resource Concerns. Keeping horses and other large
animals creates potential adverse impacts to critical areas:
a. Nutrient pollution of water — Animal waste contains nutrients (Nitrogen and
Phosphorous). With each rain, these wastes can wash off the land and into
the nearest, stream, lake or wetland. In surface water phosphorous and
nitrogen fertilize aquatic plants and weeds. As the plants and weeds
proliferate and decay, the dissolved oxygen that fish need to survive is
depleted. Nitrogen in the form of Nitrate is easily dissolved in and carried
with rainfall through our permeable soils to groundwater. Nitrate
concentrations exceeding the maximum contaminate level for safe drinking
water *e found in many wells of Whatcom County. These can present a
significaiif human health risk, particularly to the very old and young.
b. Pailiboaq y. pollution of water — Manure contains bacteria and other
w pai4ogenS. These can make the water unfit for drinking without treatment or
."'shell ish unfit for human consumption. They can also make water unsafe for
_m n contact and recreational sports such as fishing, swimming or water
°. skiing. Both surface and groundwater are vulnerable to this type of pollution.
�a
..; Sediment pollution to surface water — Regardless of the amount of
supplemental feed provided, large animals will continue grazing until all
palatable vegetation is gone. On especially small lots (one or two acres),
the animals that are allowed free and continuous access to vegetation
quickly graze -out and trample pasture grasses and forbs. These areas are
then susceptible to invasion by weeds, including noxious weeds, and brush.
The resulting bare ground is subject to erosion from wind and water. Lands
that lack adequate vegetation are subject to erosion and contaminated runoff
from these areas can MGFe enter waterbodies and wetlands and interfere
with fish and wildlife habitat.
d. Degradation of riparian areas — The term "riparian" is defined in Article 8 of
this chapter and includes the areas adjacent to streams, lakes, marine
shorelines and other waters. A healthy riparian area is essential to
protecting fish and wildlife, including salmon and shellfish. Dense riparian
vegetation along the water's edge will slow and protect against flood flows,
secure food and cover for fish, birds and wildlife and keep water cooler in
summer. Uncontrolled grazing removes important riparian vegetation.
3. Standard Farm Conservation Plan Requirements - Owners of Low - impact Livestock
Operations have limited options to control animal waste because their operations
are small. The required conservation farm plan can be prepared by the landowner
and include a simple map of the property, a standard checklist designed to protect
water quality, and the following additional components:
a. System Siting & Design. Barns, corrals, paddocks or lots are to be sited to
avoid runoff directly into critical areas. Where structures exist and cannot be
relocated, corrective measures must be taken to avoid runoff of pollutants
and bacteria to critical areas. Where trees and shrubs are absent along a
stream, lake, pond or wetland, a strip or area of herbaceous vegetation shall
be established and maintained between barns, corrals, paddocks and
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
A -3
grazing areas pursuant to the "r=RteF Strip "(National NRCS Conservation
Practice 393) "Filter Strip." guidaRGe. Livestock shall be excluded from the
filter strips established to protect Critical Areas pursuant to NRCS Practice
472 "Livestock Exclusion" . Where trees and shrubs
exist along a stream, lake, pond, or wetland, they shall be retained and
managed to preserve the existing functions of the buffer pursuant to the
NRCS Conservation Practice 391 "Riparian Forest Buffer" (NRGGS
GeRsewation PFaGtiGe 391), whiGh FequiFes a 35 feet wide buffeF along the
sritisat -afea.
b. Manure Collection, Storage & Use - Manure and soiled bedding from stalls
and paddocks are to be removed are to be placed in a storage facility
protecte"Orn rainfall so that runoff does not carry pollutants and bacteria to
critical areat.-`Manure is to be used as cropland fertilizer. The rate of
man' application shall not exceed crop requirements. It is to be applied in
a nighner`to avoid runoff of nutrients and bacteria to critical areas.
o:= ture Management - Pastures are to be established and managed
pursuant to "Prescribed Grazing" (NRCS Practice 528A).
d._ Exercise or Barn Lots - These normally bare areas must be stabilized and
managed to prevent erosion and sediment movement to critical areas. A
diversion terrace shall be installed, where necessary, to hinder flow to and
across the lot or paddock. Runoff from the lot must be treated via the filter
strip or riparian buffer as described in 3a above to avoid contaminants
reaching critical areas.
e. Existing native vegetation within critical area buffers shall be retained to the
extent practicable.
Section 2. Agricultural Operations Requiring Custom Farm Conservation Plans
These operations present a potential moderate or high risk to critical area degradation including
ground or surface water contamination because the nutrients applied from manure or commercial
fertilizers may exceed that which can be easily used by the crops grown there without careful
planning and management. The agricultural activities are also likely to be much more intense than
low- impact operations posing greater potential risks to other critical areas.
1. Moderate - impact Operations — Examples include liyeste&
FnGFe than 0
subsest+ea- farms that exceed one animal unit per one acre of grazable pasture;
and orchards, vineyards, small fruit field and row crops; and Drainage Improvement
Districts.
2. High- impact Operations — Examples include Dairies and Animal Feeding
Operations /Concentrated Animal Feeding Operations (AFO /CAFOs). These
operations are already highly regulated by state and federal governments (See
RCW 90.64 et seq.; 40 CFR 122.23 and 40 CFR Part 412).
3. Custom Farm Conservation Plan Requirements —
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
A-4
a. Moderate Impact Operations: Where potential significant impacts to critical
areas are identified, through a risk assessment, then plans shall be prepared to
mitigate same by:
1. A Planning Advisor, or
2. Through the USDA Natural Resources Conservation Service, or the
3. Whatcom Conservation District, or
4. An eligible farmer or rancher, who participates in this program by:
• Attending a County- sponsored or approved workshop, and
• Conducting a risk assessment of their farm or ranch, alone or with a
Planning Advisor's assistance, and
• Developing a plan to mitigate any identified risks, and
• Having the plan approved pursuant to 16.16.290.
b. High- impact Operations: Farm conservation plans meeting the criteria of these
state and federal laws fulfill the requirements of this chapter. (See USEPA Final
Guidance - Managing Manure Guidance for Concentrated Animal Feeding
Operatio*CAFOs) at: http: / /epa.gov /quide /cafo /.
4. Plan Stan01M�.,1n,developing the elements that an approved farm conservation plan
mucont.-01,,!Y;th #'Technical Administrator may authorize the use of methods and
technblpgie& other than those developed by the Natural Resources Conservation
hen such alternatives have been developed by:
A land grant college, or
b.' A professional engineer with expertise in the area of farm conservation planning.
5. Plan Performance: Implementation of the farm conservation Ian must protect existing
>. P P P 9
x-% values and functions of critical areas. Benchmark conditions are to be captured and
described in the plan. This may consist of photo documentation, written reports or both.
6. Treatment of Wetlands: Wetlands shall be conserved a" pursuant to the provisions
of Title 180 - National Food Security Act Manual (See
hftp:/twww.nrcs.usda.gov/programs/wetiands/index.htmi .
7. Custom farm conservation plans need not address the application, mixings
and /or loading of insecticides, fungicides, rodenticides and pesticides provided that
such activities are carried out in accordance with the Washington State Department
of Agriculture and all other applicable regulations including but not limited to: the
provisions of Chapter 90.48 RCW, Clean Water Act, United States Code (USC) 136
et seq. (Federal Insecticide, fungicide, and Rodenticide Act), Chapter 15.58 RCW
(Pesticide control Act), Chapter 17.21 RCW (Pesticide Application Act)..
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
APPENDIX B
NOTIFICATION EXAMPLE
Date
Whatcom County Planning and Development Services
Land Use Division Northwest Annex, Suite B
5280 Northwest Drive
Bellingham, WA 98226 -9097
Notice of Work to be preformed in or near a Critical Area - In compliance of the Whatcom County
Code 16.16.235. This Notific, ' ' should be submitted to the Whatcom County Planning and
Development Services at least 't 1Q working days before start.
Contractor Land Oft Other Type of Utility
Contact Name Phone
Address
and /or Tax Parcel Number
date Proposed finish date
Type of affected Critical Area
Cell
Phone
List equipment, specific work and / or activity to be conducted (if more space is needed attach
additional information sheets)
I / We understand this work and / or activity may have adverse effects on the Critical Area, and
acknowledge that special care must be taken to reduce or eliminate adverse effects. Disturbed
critical areas shall be restored as near as possible to the previous condition.
Description of Restoration
B -1
I / We the undersigned acknowledge and except the responsibility for the progress and completion of
this project. Any unforeseen problems or plan changes will immediately be brought to the attention
of the County Technical Administrator.
Signed Date Signed Date
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
5 ft.
2 fi
Mir
APPENDIX C
Native Growth Protection Easement
Sign Installation Guidelines
NATIVE GROWTH
PROTECTION
THIS UPLAND BUFFER
AM CRITICAL AREA I•
PROTECTED TO PROVIDE
WILDLJFE HABITAT AND
MAINTAIN MATER QUALITY
PLEASE DO NOT D18TUM
THIS VALUABLE RESOURCE
Avs OIACIIat
EASEMENT
C -1
12" X 18" Aluminum sign with white
reflective background. Install one per
protected feature in a conspicuous
place.
4' X 4' pressure treated wooden post
with %" chamber at top.
Magnetic locator pin (e.g. pipe, rebar,
20 penny nail, etc.) placed 8 " -12" from
post along NGPE line.
Quick -set Concrete
Compacted native material
NOTES:
1) NGPE signs shall be placed no greater than 100 feet apart around the perimeter of the NGPE. Minimum placement shall
include one Type 1 sign per wetland, and at least one Type 1 sign shall be placed in any lot that borders the NGPE unless
otherwise approved by the Technical Administrator.
2) Sign placement shall be subject to the approval of Whatcom County. Alternative sign designs may be submitted to Whatcom
County for approval.
3) All signs must be secure and permanent. Type 2 signs may be used in conjunction with Type 1 signs at the discretion of the
Whatcom County Technical Administrator.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
4f
1.5
M11
C -2
Paint white with black lettering
Pressure treated 2" X 4" (NOM.)
Wooden stake, metal or fiberglass
post.
(Carsonite style is OK provided it
has an anchor)
Magnetic locator pin (e.g. pipe,
rebar, 20 penny nail, etc.)
Placed 8 " -12" from post along
NGPA line.
Quick -set Concrete
Steel anchor or similar anchor
may be substituted for concrete
on Type 2 signs provided it firmly
anchors the post.
Compacted native material
NOTES:
1) NGPE signs shall be placed no greater than 100 feet apart around the perimeter of the Native Growth
Protection Easement. Minimum placement shall include one Type 1 sign per wetland, and at least one Type
1 sign shall be placed in any lot that borders the native Growth Protection Easement unless otherwise
approved by the County Critical Areas Specialist.
2) Sign placement shall be subject to the approval of Whatcom County. Alternative sign designs may be
submitted to Whatcom County for approval.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
APPENDIX D
D -1
SPECIAL STATUS FISH AND WILDLIFE SPECIES PROTECTED PURSUANT TO
ARTICLE 7
Table D -1. Listed, Sensitive, and Candidate Species Known or Suspected to Occur in Whatcom
County. For special status fish, please see Table D -3.
Species
Status'
Habitat Requirements and Distribution
Bald eagle
FT, ST
Numerous nest territories and foraging areas in major drainages and along
marine shorelines of western Washington 2,1
Brandt's
none, SC
Winter resident seabird of inland marine waters. Breeds on outer coast 2b
cormorant
Brown pelican
FE, SE
Occasional summer sighting in marine waters . 2b
Cascades frog
Fco, SM
Wepands and small streams in between 2,000 ft and 6,2000 ft elevation in
WiA. B Ore. Whatcom County population is disjunct from populations to
aouth 2
Columbia spotted `
.,fco, S &`
Aquatic habitat, especially emergent vegetation in wetlands, ponds, and streams
frog
in the Cascade Mountains and in eastern Washington. zo
Common loon
S
Nests on secluded shorelines of lakes larger than 30 acres; winters on lakes and
}
marine waters .2" Known to occur at Lummi Bay and Lummi Flats.
Com"n m
one, SC
Winter resident seabird of inland marine waters. Breeds on outer coast zP
F' r
Fco, SE
Very rare forest carnivore closely associated with late - successional coniferous
',d
and mixed forests of Olympic and North Cascade Mtns.ze
Golden le
none, SC
Uncommon western Washington raptor associated with open country. Nests on
cliffs or large trees?°
Gray whale
none, SS
Migratory marine mammal found in coastal waters in spring and summer. Often
forages on or near bottom, ingesting sediment.zp
Gray wolf
FT, SE
Rare carnivore of forested and open habitat requiring adequate ungulate prey.
Occasional recent records from North Cascades National Park . 2h
Grizzly bear
FT, SE
Rare omnivore of wilderness areas. Occasional recent records from North
Cascades National Park . 2h
Killer whale (orca)
none, SE
Resident marine mammal of coastal waters, including Strait of Georgia. Salmon
principal prey in Puget Sound 2D
Marbled murrelet
FT, ST
Uncommon seabird that nests in late - successional conifer forests within 50 miles
of marine shoreline. Winters in nearshore marine waters.ze
Northern Abalone
none, SC
Shellfish found in subtidal rock reefs, low abundance, harvest closed . 2n
Northern goshawk
Fco, SC
Raptor that nests in relatively dense mature conifer and mixed forests. Sensitive
to clear -cut timber harvest in nest and foraging stands. za
Northern spotted
FT, SE
Resident in coniferous forests below 5,000 feet elevation. Closely associated
owl
with late- successional forests. 2j
Olympia oyster
none, SC
Shellfish found in intertidal gravel, locally extirpated in Whatcom Co., restoration
effort in progress.zn
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
D -2
Species
Status'
Habitat Requirements and Distribution
Pacific harbor
none, SC
Relatively shy marine mammal of inland marine waters.zb
porpoise
Peregrine falcon
Fco, SS
Year -round resident; nests in cliffs (> 150 ft in height); and feeds on birds,
especially shorebirds and waterfowl.Ze Occurrences at Nooksack Delta and
Portage Bay.
Pileated
none, SC
Large resident woodpecker of mature forests requiring trees > 17 -inch diameter
woodpecker
for nesting and roosting. Important primary excavator providing cavities for a
number of species.ze
Purple martin
none, SC
A migratory, cavity- nesting songbird that nests over or near water. Will use
artificial nest boxes.ze
Red legged frog
Fco, none
Found from sea level to 2,800 ft elevation in western Washington. Breeds in
freshwater wetlands and slow- moving streams.Z`
Sandhill crane
none, SE
Nests, and roosts in relatively open, large wet meadows and emergent
wetlands. Highly wary and sensitive to disturbance. Will forage in upland
.:
meadows, pastures, and agricultural fields. Seen in Washington primarily
, <�turing *ration; a few nesting pairs in eastern Washington. 9
Steller (Northern)
FT,
A pion that breeds in the northern Pacific and winters as far south as
Sea lion
'°
w CaH mia. Seen on Washington's inland waters occasionally in winter. °, 2k
Tailed frog
Fco, SIM,.
tream- dwelling frog of cold, rock substrate streams up to 5,250 ft elevation.`
Townsend's big-
Fbo, SC��,>
A year -round resident that inhabits caves and abandoned mines and buildings.
eared bat 4 t
44;
Extremely sensitive to human disturbance. 2i Recent records from Chuckanut
Mtn.21
4 4
Vau)e , 'M i _, 4
none, SC
A summer resident and breeder of western Washington closely associated with
xi4,
late - successional conifer forests. Requires hollow, large- diameter snags for
x
nesting and roosting.°
.
West rebe
none, SC
A winter resident on inland waters, especially Samish and Bellingham Bays.b
Westem `nd
Fco. SE
Occur in streams, ponds, lakes, and permanent and ephemeral wetlands. In
Washington, pond turtles use wetlands that have open uplands and overwinter
turtle
in mud bottoms of lakes or ponds or in upland habitats adRacent to water
bodies.
Western toad
Fco, SC
Found near emergent wetlands and small lakes from 0 to 6,530 ft elevation.Z`
Willow flycatcher
Fco, none
A neotropical migrant that breeds in forested or shrub riparian habitat or
forests.Z°
Wolverine
Fco, SC
A wide- ranging scavenger that requires large tracts of remote boreal or
montane habitat. Rare in Washington, but recent Whatcom County records. zm
' FE = federal endangered, FT = federal threatened, Fco = federal species of concern; SE = state endangered,
ST = state threatened, SC = state candidate, SS = state sensitive, SM = state monitor (WDFW 2004a).
Y Sources:' Rodrick and Milner 1991; ° Angell and Balcomb 1982; ` Leonard et al. 1993; d Hays et al. 1999; e
Larsen et al. 2004; f PacificBio 2004; ° Smith et al. 1997;'' National Park Service 2004;' NPWRC 2004; l King
County 2003; kAMFSC 2004;1 WCPDS 2004;" Band 1994; " Penttila 2004; ° Nordstrom and Milner 1997;
Cassidy 2003.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
D -3
Table D -2. Priority Species Known or Suspected to Occur in Whatcom County.' For Priority Fish
See Table D -3).
Species /Sites
Criteria
Band - tailed pigeon — breeding areas, regular concentrations, occupied mineral springs
RCT
Bats — roosting concentrations of big brown bat, Myotis bats, pallid bat
VA
Blue grouse — breeding areas, regular concentrations
RCT
Brant — regular large concentrations
VA, RCT
California sea lion — haulout areas
VA
Cavity- nesting ducks (wood duck, Barrow's goldeneye, common goldeneye, buffifehead,
hooded merganser) — breeding areas
RCT
Columbian black- tailed deer — regular large concentrations migration corridors
RCT
Cormorants and alcids — breeding concentrations
VA
Dall's porpoise — regular concentrations
VA
Dungeness crab — breeding are!! �jegular concentrations
VA, RCT
Geoduck — regular concentrations ,
VA, RCT
Great blue heron — breeding areas
VA
Harbor seal — haulout areas,.`°
Harlequin duck — bre ing areas, regular marine concentrations
VA, RCT
Manila clam 4i entrations
VA, RCT
Marten —r ular occurrences
RCT
Mink 7,:wqu cu*ces
RCT
M se — gulacentrations
RCT
Mo n goat = breeding areas, regular concentrations
RCT
Native eck clam
VA, RCT
Nonbreeding concentrations of Barrow's goldeneye, common goldeneye, buftlfehead
VA, RCT
Nonbreeding concentrations of loons, grebes, cormorants, alcids
VA
Nonbreeding concentrations of plovers, sandpipers, phalaropes
VA
Pacific oyster — regular concentrations
VA, RCT
Pandalid shrimps — regular concentrations
VA, RCT
Red urchin — regular concentrations
RCT
Roosevelt elk — regular concentrations, calving areas, migration corridors
RCT
Snow geese — regular concentrations
VA, RCT
Trumpeter and tundra swans — regular concentrations
VA, RCT
Waterfowl concentrations (other than Canada geese in urban areas) — significant breeding
areas and regular large wintering concentrations
VA, RCT
VA = vulnerable aggregations, RCT = recreational, commercial, or tribal importance vulnerable to habitat loss or
degradation (WDFW 1999b).
2 Sources: Penttila 2004; Leonard at al. 1993; ° Larsen et al. 2004; a PacificBio 2004; f Smith et al. 1997;
National Park Service 2004; h NPWRC 2004;' King County 2003; iAMFSC 2004; k WCPDS 2004;1 Band
1994; m Penttila 2004.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
D-4
Table D -3. Habitat Associations and distribution of priority and listed fish species in Whatcom
County (Primary sources: Smith 2002, WDFW et al. 1994, WDFW 1998, WDFW 2000, Bargmann
1998, Close et al. 1995, Anchor 2003)
Species
Federal and
General Location /Distribution
State Status'
Chinook salmon
FT, SC,
Habitat Juveniles and adults require cold, well -oxygenated water. Spawning
(Puget Sound
Priority
generally occurs in riffle areas with clean gravel and cobble substrates. Juveniles
ESU)
Species
use pool habitat and instream cover such as LWD, spaces among cobbles, and
undercut banks as resting areas and /or for refuge from predators. Cobble
Oncorhynchus
substrate and off - channel habitats such as secondary channels, backwaters, or
tschawytscha
ponds provide important refuge from flows for overwintering juveniles. After river
entry, adults on spawning migration use resting pools, which provide refuge from
river currents and high water temperatures that are often encountered in the
summer and early autumn. Nearshore marine areas are important for feeding
and refuge for juveniles after entering the ocean.
Distribution: Whatcom County supports both fall and spring Chinook salmon
k'
stocks. Late run (fall) Chinook spawn in portions of the mainstem, North Fork,
";Middle
Pork, and South Fork Nooksack Rivers, and in tributaries that include
A_.Orson, Bertrand, Fishtrap, Hutchinson, Smith, and Tenmile Creeks. Fall
Crook salmon have also been documented in the Sumas River, and in Dakota,
<--;Squalicum,
and Whatcom Creeks. Two spring Chinook runs are found in
Whatcom County. One stock primarily spawns in the North Fork Nooksack
between RM 45 and RM 64 and in the lower Middle Fork Nooksack to a lesser
extent. The other spring Chinook stock spawns in the South Fork Nooksack River
and some larger tributaries such as Hutchinson, Skookum, Deer, and Plumbago
Creeks.
When habitats are occupied: Spring Chinook adults migrate and are in streams
from February to October and spawn from July to October. Fall Chinook adults
-
migrate and are in streams from June to November and spawn from September to
December. Juveniles of both stocks can be found rearing in streams year- round.
Coho salmon
Priority
Habitat Similar general habitat associations as Chinook salmon (see above).
Oncorhynchus
Species
Juveniles use pool habitat and instream cover such as LWD, spaces among
k1sutch
cobbles, and undercut banks as resting areas and /or refuge. Juvenile Coho
salmon overwinter in freshwater so overwinter habitat such as deep pools and off -
channel habitats are of particular importance for survival, especially in coastal
streams subject to high fall and winter flows.
Distribution: Coho salmon occur throughout all three forks of the Nooksack
watershed and associated tributaries, and in many smaller independent drainages
including California, Chuckanut, Colony, Dakota, Oyster, Padden, Silver,
Squalicum, Terrell, and Whatcom Creeks.
When habitats are occupied: Coho salmon adults migrate and are in streams
from July to as late as February, and spawn from October to as late as February.
Juveniles can be found rearing in streams year- round.
Chum salmon
Priority
Habitat: Chum salmon rear in freshwater for only a few days to weeks before
Oncorhynchus
Species
migrating downstream to saltwater, therefore juveniles have limited habitat needs
keta
in freshwater. Migrating spawning adults require cold well - oxygenated water,
resting pools, and clean gravel spawning substrate. Chum salmon also often
spawn in shallower, slower - running streams and side channels in low gradient
lower reaches of rivers.
Distribution: Two stocks of chum salmon occur in the Nooksack River Basin. One
spawns in the South Fork and mainstem Nooksack Rivers and tributaries, while
the other spawns in the North Fork Nooksack River and below the diversion dam
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
D -5
Species
Federal and
General Location /Distribution
State Status'
on the Middle Fork Nooksack River. Other populations are found in smaller
independent watersheds such as the Chilliwack, Lummi, and Sumas Rives, and in
Chuckanut, Colony, Oyster, Padden, Squalicum, and Whatcom Creeks.
When habitats are occupied: Chum salmon adults migrate and are in streams
from August to February, and spawn from October to February. Fry can be found
in streams from February to July, but fry migrate seaward shortly after hatching
and there is no juvenile rearing in freshwater.
Pink salmon
Priority
Habitat. Similar early life history and freshwater habitat requirements as for chum
Oncorhynchus
Species
salmon (see above).
gorbuscha
Distribution: Two stocks of odd -year pink salmon identified in the Nooksack basin
as well as small numbers of even -year pink salmon. One stock is distFibuted
found in the mainstem and tributaries of the Middle Fork (up to the diversion dam)
and the North Fork up to Nooksack Falls (RM 65). The other stock is found in the
South Fork Nooksack and spawn up to RM 25, and also in some tributaries
IN.i
including Deer, Cavanaugh, Hutchinson, Plumbago, and Skookum Creeks.
-
4When.t abitats are occupied. Pink salmon adults migrate and are in streams from
i) goio October, and spawn from August to October. Fry can be found in
streams from December to June, but fry migrate seaward shorty after hatching
'and there is no juvenile rearing in freshwater.
e; 4
Sockeye
�,�1
Habitat. Similar general instream habitat requirements for migration and
salmon/ <:
Species"
spawning as other salmonid species. Sockeye salmon are unique in that
Kokane&,v^,,,
'4._
juveniles rear in freshwater lakes for up to a year prior to migrating to the ocean.
Oncor'ii�ynchu�.;,
Kokanee rear and reproduce in freshwater lakes.
p
n
Distribution: Small numbers of sockeye salmon have been documented in the
North and South Fork Nooksack Rivers and occasionally recorded in the lower
4 4
reaches of the Middle Fork. A native population of kokanee reproduces in the
4>
Lake Whatcom watershed. A hatchery at the south end of the lake produces
native kokanee brood stock for lakes around the world.
When habitats are occupied. Sockeye salmon adults migrate and are in streams
from April to November, and spawn from August to November. Fry and juvenile
rearing occurs year -round in freshwater lakes.
Bull trout
FT, Priority
Habitat. Similar general instream habitat requirements as other salmonids except
Salvelinus
Species
that bull trout require much colder water temperatures than other salmonid
confluentus
species, and require relatively pristine habitats. Migratory forms of bull trout
inhabit lower river reaches and nearshore marine habitats for migration, rearing,
and feeding.
Distribution: Because bull trout require very cold water temperatures for certain
life- history stages, the distribution of bull trout is generally restricted to upper
reaches of sub - basins. Bull trout have been found in the North Fork sub -basin up
to RM 65, and in Boulder, Canyon, Comell, Glacier, Kenney Racehorse,
Thompson, and Wells Creeks. In the Middle Fork Nooksack River, bull trout are
found upstream of the diversion dam, and are either present or presumed to be
present in Canyon Lake, Clearwater, Green, Rankin, Ridley, Sisters, and Warm
Creeks. In the South Fork Nooksack sub - basin, bull trout are known to spawn in
the mainstem of the South Fork and in Bells, Howard, and Wanlick Creeks. Bull
trout/dolly varden are also known to spawn in the Chilliwack River system outside
of the Nooksack system. However, because portions of bull trout populations
have an anadromous life history strategy and may migrate upstream and
downstream for foraging, spawning, and dispersal, all tributaries of the Nooksack
and Fraser River watersheds are considered potentially inhabited by bull trout
unless data indicates that water quality (primarily water temperature) is impaired
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
M
Species
Federal and
General Location /Distribution
State Status'
to an extent that resident or migratory life- stages of bull trout cannot be
supported. In general though, the larger lower reaches of main tributaries and the
mainstem Nooksack River are primarily used as migratory corridors for bull trout.
When habitats are occupied: Though portions of some populations are
anadromous, this behavior is not obligatory and bull trout adults and juveniles
may occur in freshwater year- round.
Rainbow
SC, Priority
Habitat. Similar general instream habitat requirements as other salmonids.
Trout/steelhead
Species
Steelhead have an extended freshwater juvenile as with Chinook and Coho
Oncorhynchus
salmon, but also require habitat for feeding and resting during an extended adult
mykiss
freshwater phase.
Distribution: Three winter -run and one summer -run stock are found in Whatcom
County. These stocks include the Mainstem /North Fork stock, the Middle Fork
stock, and the South Fork stock. A summer -run stock spawns in the upper South
Fork Nooksack River. Winter steelhead also occur in Chuckanut, Dakota,
Padden, Squalicum, Terrell, and Whatcom Creeks, and in the Sumas River. In
`=ndditio
native resident rainbow trout are found in the upper North Fork and
Mii 016 Fork Nooksack River sub - basins as well as some South Fork Nooksack
trif3�itaries.
Men habitats are occupied: Resident rainbow trout are found in freshwaters
year- round. Summer steelhead adults are potentially found in streams year -
round, but spawning occurs from February to April, with surviving adults
outmigrating to the ocean shortly thereafter. Winter steelhead are found in
streams from October to July, and spawning may occur from December to July.
Juveniles of both life- history forms rear in freshwaters year -round prior to
outmigrating to the ocean.
Coss
Priority
Habitat. Cutthroat trout have similar general requirements as all salmonids and
Cutthro ut
Species
display varying degrees of migratory behavior, often moving out to nearshore
Oncorhynchus
marine waters and estuaries to feed in the summer and migrating freshwater
clarki
streams to overwinter prior to spawning in the spring.
Distribution: One stock of coastal cutthroat trout is widely found throughout
Whatcom County streams upstream and downstream of most migration barriers.
When habitats are occupied: The life- history of coastal cutthroats is highly
variable. Portions of populations are anadromous, but this behavior is not
obligatory and coastal cutthroat trout adults and juveniles occur in freshwaters
year- round.
River Lamprey
SC
Habitat. River lamprey are anadromous and require clean gravel substrate in
Lampetra syresi
streams for spawning and egg incubation. After hatching, lamprey burrow in silt
and mud, often in off -channel areas, where they typically remain for a period of
years. During this stage, lamprey require relatively stable habitats (Close et al
1995).
Distribution: Found in coastal streams from northern California to southeastern
Alaska, but little information available regarding the population status of river
lamprey in Washington. When habitats are occupied: River lamprey migrate up
small freshwater streams in the fall and spawn in the winter and spring. However,
the ammocoete (juvenile) stage lasts several years so river lamprey would be
expected to occur year -round in streams where they are found.
Pacific Herring
SC
Habitat. Most spawning occurs in shallow sub -tidal zones from 0 to -10 ft in tidal
C/upea pallasi
elevation. Eggs are deposited on vegetation or other shallow water substrate.
Distribution: Herring are abundant throughout the northeast Pacific Ocean.
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
D -7
Species
Federal and
General Location /Distribution
State Status'
Significant spawning concentrations are found in the Cherry Point, and Samish-
Portage Bay areas. Puget Sound stocks spend their first year in Puget Sound.
Some stocks remain entirely in Puget Sound while others migrate to other coastal
areas of Washington and southern British Columbia (Bargmann 1998).
When habitats are occupied: Pacific herring stocks spawn from late January
through early April. A notable exception is the Cherry Point stock (the largest in
the state), which spawns from early April through early June.
Pacific sand
Priority
Habitat Pacific sand lance deposit their eggs in sand - gravel substrates between
lance
Species
the mean high tide line and about +5 ft in tidal elevation. Eggs incubate in beach
Ammodytes
substrate for about one month before emerging. Larvae are a common
hexapterus
component of the nearshore plankton. Incubating sand lance eggs occur in the
same substrate with the eggs of surf smelt spawning populations, both species
using the same stretches of beach for spawning at the same times of year.
Distribution: The Pacific sand lance is found from southern California around the
44
north Pacific Ocean. It is common in nearshore marine waters throughout
= Washington state. Spawning areas are scattered along nearshore areas in
hatcom County (Bargmann 1998).
When habitats are occupied: Sand lance inhabit marine near -shore areas year-
"round, with with spawning in intertidal areas occurring annually from November 1
through about February 15.
Surf smelt, "
�Pnonty"
Habitat. Similar spawning and nearshore habitat requirements as the Pacific
H omes
Species
sand lance. Surf smelt have an entirely marine /estuarine life history (Bargmann
YP
pre tio u§,
1998).
Distribution: The surf smelt occurs from southern California to central Alaska and
are widespread in Washington. In Whatcom County, surf smelt are found in
similar areas as Pacific sand lance.
When habitats are occupied: Surf smelt inhabit marine near -shore areas year -
round, and spawning may occur year- round.
Longfin smelt
Priority
Habitat. Longfin smelt are anadromous and spawn in freshwater streams.
Sphinchus
Species
Spawning substrate is sand and gravel similar to that used by surf smelt in
thaleichthys
nearshore areas.
Distribution: Spawning populations occur locally throughout western Washington,
but the species is poorly understood or studied. Spawning is known to occur in
the lower Nooksack River, but actual spawning sites have not been identified
(Bargmann 1998).
When habitats are occupied: The longfin smelt spawning season in the lower
reaches of the Nooksack River is thought to only occur from November until as
late as April.
Numerous
Sebastes spp.
Habitat, Distribution, and When habitats are occupied: Rockfish and other
Rockfish
groundfish species can be found in marine nearshore and offshore areas year -
species
round. Estuaries often attract early life phases of groundfish species.
'FT = Federally Threatened, SC = State Candidate, SS = State Sensitive. Note: Candidate species are not
required to be included in the definition of fish and wildlife habitat conservation areas (WAC 366 - 190.080)
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
WHATCOM COUNTY CRITICAL AREAS ORDINANCE
001W.. 1 ,, ..
._i . ..,
ADOPTED BY WHATCOM COUNTY COUNCIL
September 13, 2005
E -1
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Adopted by County Council — September 13, 2005
EXHIBIT 2
Proposed WCC Title 2 and WCC Title 20 text amendments
to implement proposed amendments to Chapter 16.16 WCC in Exhibit 1
*Proposed text amendments are identified by single underline and single stFiket#reagh.
Chapter 2.33 WCC — Permit Review Procedures
1) 2.33.010 Purpose and applicability.
A. The purpose of this chapter is to consolidate the application, review, and approval
processes for land development in Whatcom County in a manner that is easily understood
and concise. It is further intended for this chapter to comply with state direction by
integrating environmental and land use review within a 120 -day period.
B. This chapter describes how the county will process applications for development.
The provisions of this chapter shall apply to all applications for a project permit that require
an open record hearing including, but not limited to:
1. Conditional uses;
2. Variances;
3. Subdivisions;
4. Shoreline permits when an open record hearing is required;
5. General binding site plans;
6. Lot consolidation relief;
7. Site - specific rezones,.-.
8. Reasonable use.
2) 2.33.060 Notice of application for a proposed land use action.
A. A notice of application shall be issued for project permit applications within 14 days
after a determination of completeness and at least 15 days prior to the open record
hearing.
B. If the county has made a determination of significance concurrently with notice of
application, the determination of significance and scoping notice shall be combined with
the notice of application.
C. Notice shall include:
1. The date of application, the date of notice of completion for the application, and
the date of the notice of application;
2. The date, time, place and type of the hearing, if applicable, and scheduled at the
date of notice of the application;
3. A description of the proposed project action and a list of the project permits
included in the application, and, if applicable, a list of any studies requested by the county;
4. The identification of other permits not included in the application to the extent
known by the county;
5. The identification of environmental reviews conducted including notice of
existing environmental documents that evaluate the proposed project (including but not
limited to reports, delineations, assessments and /or mitigation plans associated with
critical area reviewsl and, if not otherwise stated on the document providing notice of
application, the location where the application and any studies can be reviewed;
6. Any other information determined appropriate by the county;
7. A statement indicating those development regulations that will be used for
project mitigation or a determination of consistency if they have been identified at the time
of notice;
Adopted by County Council — September 13, 2005
EXHIBIT 2
8. A statement of the limits of the public comment period, the right of any person to
comment on the application within a 15-day time period (30 days for substantial
development permits and maior proiect permits for mitigation banks), receive notice of and
participate in any hearings, request a copy of the decision once made and to appeal a
decision when allowed by law. In addition, the statement shall indicate that any person
wishing to receive personal notice of any hearings must notify the hearing examiner's
office within 15 days (30 days for substantial development permits and major project
Dermits for mitigation banks) of the date of the notice of application.
D. A notice of application shall be issued in the following manner:
1. The notice shall be published once in the official county newspaper. The
applicant shall bear the responsibility of paying for such notice;
2. Additional notice shall be given using the following method:
a. For sites within urban growth areas: At least 12 days prior to the scheduled
hearing date, application notice shall be sent to all property owners within 300 feet of the
external boundaries of the subject property as shown by the records of the county
assessor. Applicants shall submit, with their completed application, a stamped envelope
with a typed address for each of the above referenced property owners;
b. For sites outside urban growth area: At least 12 days prior to the scheduled
hearing date, application notice shall be sent to all property owners within 1,000 feet of the
external boundaries of the subject property as shown by the records of the county
assessor. Applicants shall submit, with their completed application, a stamped envelope
with a typed address for each of the above referenced property owners.
3. All cost associated with providing notice shall be paid by the applicant.
E. Notices of application should be sent to neighboring cities and other agencies or
tribes that will potentially be affected, either directly or indirectly, by the proposed
development. (The county shall be responsible for such notification.)
F. With the exception of substantial development permit applications and major proiect
permit applictions for mitigation banks, a public comment period shall be 15 days following
the date of notice of application. Substantial development permit applications and major
proiect permit applictions for mitigation banks require a 30 -day period. All public comments
received on the notice of application must be received in the department of planning and
development services by 4:30 p.m. on or before the last day of the comment period. The
county may require the applicant to pay the cost of providing notice.
G. No SEPA threshold determination shall be issued until the expiration of the public
comment period established for the notice of application. This condition shall not apply if a
determination of significance is made by the county.
H. Public notice given for project permit applications, SEPA documents, project
hearings, and appeals hearings as required by this chapter and other provisions of the
county code may be combined when practical, where such combined notice will expedite
the permit review process, and where provisions applicable to each individual notice are
met through the combined notice.
3) 2.33.080 Consistency review and staff report
A. Fundamental land use planning choices made in adopted comprehensive plans and
development regulations shall serve as the foundation for project review. During project
review, the review authority shall determine if the project proposal is consistent with the
county's comprehensive plan, other adopted plans, existing regulations and development
standards. The review authority shall at a minimum use four criteria for determining
consistency, as follows:
1. Type of land use permitted on the site;
2. Density of development allowed on -site, such as units per acre or floor area ratio
or lot coverage;
2
Adopted by County Council — September 13, 2005
EXHIBIT 2
3. Availability and adequacy of public facilities and infrastructure (when applicable);
4. Character of the development.
B. The county may conduct a more specific evaluation in addition to the evaluation of
the four main categories listed in WCC 2.33.080(A) in considering project consistency
when other criteria are required by federal, state or local regulations.
C. County staff shall file one consolidated report with the hearing examiner at least 17
days prior to a scheduled hearing. The staff report shall address the proposed
development or action, summarizing the comments and recommendations of county
departments, affected agencies, special districts and public comments received within the
15-day or 30-day comment period as established in WCC 2.33.060 (€4. The report shall
also provide an evaluation of the project proposal for consistency as indicated in this
section. The staff report shall include findings, conclusions, and proposed
recommendations for response to the proposal.
D. The conclusions of a consistency determination made under this section shall be
documented in the project permit decision.
Chapter 20.88 WCC — Major Project Permits
4) 20.88.100 Major project permits.
.110 All major developments shall, prior to any construction, obtain a major project
permit.
.120 A major project permit will be required for mitigation banks proposed in
accordance with the provisions of Chapter 16.16 WCC and for any proposed development
that meets any two of the following conditions:
Cost
(estimated construction $5,000,000
cost exclusive of land value)
Size
retail 75,000 square feet
office or industrial 200,000 square feet
(gross leasable floor space)
residential 300 dwelling units
moteVhotel 200 units
Number of 250
Employees
SEPA Review An EIS is required
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Adopted by County Council — September 13, 2005
EXHIBIT 2
In addition the zoning administrator may make an administrative determination after
receiving a recommendation from the technical review committee that any project be
considered a major development, if in the opinion of the administration it is of a nature that
council review would be appropriate.
.130 The major project permit shall be issued by the county council when the applicant
has established that the proposed major development:
(1) Will comply with the development standards and performance standards of the
zone in which the proposed major development will be located; provided where a
proposed major development has obtained a variance from the development and
performance standards, standards as varied shall be applied to that project for the
purposes of this act.
(2) Where the project is conditionally permitted in the zone in which it is located,
the project must satisfy the standards for the issuance of a conditional use permit for the
zone in which the project is located.
(3) Will be consistent with applicable laws and regulations.
(4) Will not substantially interfere with the operation of existing uses.
(5) Will be served by, or will be provided with essential utilities, facilities and
services necessary to its operation, such as roads, drainage facilities, electricity, water
supply, sewage disposal facilities, and police and fire protection. Standards for such
utilities, facilities and services shall be those currently accepted by the state of
Washington, Whatcom County, or the appropriate agency or division thereof.
(6) Will not impose uncompensated requirements for public expenditures for
additional utilities, facilities and services, and will not impose uncompensated costs on
other property owned.
(7) Will be appropriately responsive to any EIS prepared for the project.
.140 In addition, the county council may impose any reasonable conditions precedent
to the establishment of the major development as may be required to mitigate impacts of
the proposal on the natural environment of the county, and to protect the health, safety
and general welfare of the people of the county consistent with the policies for
environmental protection set forth in the Comprehensive Plan.
.150 The county council may also approve alternative mitigation plans for maior proiect
permits in accordance with WCC 16.16.260E which may be used to satisfy the
requirements of Chapter 16.16 WCC and provide relief from the specific standards and
requirements therof.
Chapter 20.92 WCC - Hearing Examiner
5) 20.92.205 Recommended decisions.
The hearing examiner shall conduct an open record hearing and prepare a record thereof,
and make recommendations to the county council for approval or disapproval of:
(1) Major project permits, including maior proiect permit applications for mitigation
banks proposed in accordance with the provisions of Chapter 16.16 WCC;
(2) Planned unit developments;
(3) Site - speck rezones, including those processed as major project permits, PUDs
and /or concomitant rezones;
(4) Such other permits as may be required from the county along with subsections (1)
or (2) of this section for a given project. Applications where a major project permit is
required shall be processed as set forth in Chapter 20.88 WCC. Where the hearing
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Adopted by County Council — September 13, 2005
EXHIBIT 2
examiner would normally make a final decision to approve or deny an accompanying
permit, the decision shall instead be in the form of a recommendation and accompany the
hearing examiner's recommendation on the major project permit or planned unit
development to the county council for final approval.
(5) Proposed rates and charges or special assessments for lake management districts.
6) 20.92.210 Final decisions.
The hearing examiner shall conduct open record hearings and prepare a record thereof,
and make a final decision upon the following matters:
(1) Appeals from any orders, requirements, permits, decisions or determinations made
by an administrative official or committee in the administration of this title, WCC Title 16,
WCC Title 24, Health Regulations or WCC Title 21, Land Division Regulations.
(2) Appeals from a decision of the administrator of the Shoreline Management
Program.
(3) Applications for zoning ordinance conditional use permits.
(4) Applications for variances from the terms of the zoning ordinance.
(5) Applications for shoreline management substantial development permits not
accompanied by a major project permit when an open record hearing is required.
(6) Applications for variances from the terms of the Whatcom County Shoreline
Management Program.
(7) Applications for variances from the terms of Chapter 16.16 WCC, Critical Areas
Ordinance.
(8) Applications for reasonable use permits under the terms of Chapter 16.16 WCC
when an open record hearing is required.
(74 Jffi Applications for Shoreline Management Program conditional use permits.
(8) 0 0) Applications for flood damage prevention variances.
(9) (11) Appeals from SEPA determinations of significance, determinations of
nonsignificance, and mitigated determinations of nonsignificance.
0% (12) Preliminary subdivisions and subdivision variances.
(a 1) ) Preliminary binding site plan proposals.
¢124 (14) Application for variances from the provisions of WCC Title 22.
43) (15) Revocation proceedings involving previously approved zoning conditional use
permits, shoreline management substantial project permits and shoreline conditional use
permits.
(44) Applications to continue operations of nonconforming adult businesses
pursuant to WCC 20.83.015.
(45) (117) Appeals of decisions relating to water service issues under Section 9.2 of the
Coordinated Water System Plan.
(16) (18) Appeals from any orders, requirements, permits, decisions or determinations
made by an administrative official relating to essential public facilities.
7) 20.92.410 Final decision conditions — Applications and appeals.
The hearing examiner's final decision on all applications or appeals shall either grant or
deny the application or appeal. The hearing examiner may grant the application or appeal
subject to conditions, modifications or restrictions that the hearing examiner finds
necessary to make the application compatible with its environment, and carry out the
objectives and goals of the Comprehensive Plan, the zoning code, the subdivision code,
Critical Areas Ordinance, or other official policies and objectives of Whatcom County.
Performance bonds or other security, acceptable to the prosecuting attorney, may be
required to ensure compliance with the conditions, modifications and restrictions.
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Adopted by County Council — September 13, 2005 EXHIBIT 2
Title 20 Zone Districts
8) Amend WCC, Title 20 zone districts to include "mitigation banks" as a major
development project under the conditional use provisions of each zone district:
20.XX.xxx Mitigation banks as a form of compensatory mitigation for wetland and habitat
conservation area impacts when permitted in accordance with the provisions of Chapter
16.16 WCC: provided, applications for mitigation banks shall be processed as a maior
development project pursuant to Chapter 20.88 WCC.
9) Proposed WCC, Title 20 Sections:
20.20.192 — Urban Residential (UR)
20.22.192 — Urban Residential — Medium Density (URM)
20.24.192 — Urban Residential Mixed (UR -MX)
20.32.192 — Residential Rural (RR)
20.34.192 — Rural Residential — Island (RR -1)
20.35.186 — Eliza Island (EI)
20.36.196 — Rural (R)
20.37.196 — Point Roberts Transitional Zone (TZ)
20.40.192 — Agriculture (AG)
20.42.187 — Rural Forestry (RF)
20.43.188 — Commercial Forestry (CF)
20.44.163 — Recreation and Open Space (ROS)
20.60.186 — Neighborhood Commercial Center (NC)
20.61.248 — Small Town Commercial (STC)
20.62.196 — General Commercial (GC)
20.63.186 — Tourist Commercial (TC)
20.64.192 — Resort Commercial (RC)
20.65.186 — Gateway Industrial (GI)
20.66.196 — Light Impact Industrial (LII)
20.67.188 — General Manufacturing (GM)
20.68.188 — Heavy Impact Industrial (HII)
20.70.184 — Airport Operations (AO)
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