HomeMy WebLinkAboutord1997-056WHATCOM COUNTY COUNCIL AGENDA BILL No. 97-226P.
CLEARANCES
Initial
Date
Date Received in Council Office:
Agenda date
Assigned to:
Originator: Sylvia Goodwin
-7
��
� [" `,� C U
49,E O�
..ice. .
,p { , S' `-
Y V HA I GOW1 GOU I �1 I t
COUNU L
7129197
Introduction
Division Head:Sylvia Goodwin
/ip�
8/12/97
Public Hearin
Dept. Head: Michael Knapp
/
"1
Prosecutor:
-7115Tka
Purchasing/Budget:
Executive:
�%` o�`r/
SUBJECT. • An Ordinance adopting a permanent Chapter 16.16, Whatcom County Code, "Critical Areas" to comply
with the Washington State Growth Management Act.
ATTACHMENTS:
Proposed Ordinance
Exhibit A
Planning Commission Agency Report
SUMMARY STATEMENT: Please complete sections of box as appropriate & explain the item below.
Related County contract #: n/a I Should Clerk schedule a hearing? NO / / YES /x/ Requested date: August 12, 1997
Amount budgeted for this item/project: $ n/a Is it (or will it be) within budget? YES /X/ NO / / (Please explain below) n/a
Budget line item number(s): n/a
The request is to replace Ordinance #96 -032 with a permanent ordinance, to be adopted as Chapter 16.16, Whatcom
County Code, "Critical Areas" (see Exhibit "A "). This request is made in response to a Western Washington Growth
Planning Hearings Board ruling on September 12, 1996. In the ruling, the Board invalidated Articles IX (Wetlands),
X (River and Streams), XI (Fish Habitat Conservation Areas), and XII (Wildlife Habitat Conservation Areas) citing
non - compliance with the Growth Management Act and remanded the CAO back to the county for compliance within
180 days of the order. Several Emergency and Interim Ordinances have been adopted to protect Critical Areas while
the County was working on a permanent ordinance, the most recent of which is Ordinance 97 -032, which will expire
January 9, 1998.
The Planning Commission held two public hearings and seven public work sessions on the proposed ordinance. These
Critical Area Regulations will provide adequate protection to Critical Areas and bring the County into compliance with
the Growth Management Act.
ORIGINATOR'S RECOMMENDED ACTION. • The Planning and Development Services Director recommends that
Council accept the recommendation and adopt the proposed ordinance.
COMMITTEE ACTION TAKEN.•
7UNCIL ACTION -TAKEN-
_17 - 226 A 7/29/97: Introduction
8/12/97: Public Hearing. Written record held open until 8/26/97.
Held in committee until 9 /9/97.
919197: Held in Committee
9/23/97: Held in Committee
1017/97: Held in Committee
10/21/97: Amended & Adopted 6 - 1, Brenner opposed. Ord.
lance or Resolution Number (this item only):
krzo+q-�06-,p
File #1 -97:
SPONSORED BY:
PROPOSED BY:
INTRODUCTION DATE:
1 ORDINANCE NO. 97 -056
Consent
Planning
7/29/97
2 AN ORDINANCE ADOPTING CHAPTER 16.16, "CRITICAL AREAS" OF THE
3 WHATCOM COUNTY CODE ON A PERMANENT BASIS TO COMPLY WITH THE
4 WASHINGTON STATE GROWTH MANAGEMENT ACT
5 WHEREAS, the Washington State Legislature passed the Growth Management Act
6 in 1990, requiring counties and cities to designate and protect critical areas; and
7 WHEREAS, critical areas includes geologically hazardous areas, frequently flooded
8 areas, aquifer recharge areas, wetlands, and fish and wildlife habitat conservation areas;
9 and
10 WHEREAS, on May 26, 1992, after extensive public input, Whatcom Council
11 adopted a Critical Areas Ordinance (CAO) on an interim basis; and
12 WHEREAS, subsequent versions of the CAO have been found by the Growth
13 Management Hearings Board to substantially interfere with the goals of the Growth
Management Act; and
15 WHEREAS, on September 12, 1996 the Growth Management Hearings Board found
16 continued non - compliance with the County's previous CAO, citing inadequate wetland,
17 stream, and shellfish protection, and remanded the CAO and its amendments to the
18 County, requiring compliance with the Act within 180 days; and
19 WHEREAS, planning staff proposed revisions to the CAO in response to the
20 Hearings Board; and
21 WHEREAS, a Determination of Non - Significance was issued on March 6, 1997 on
22 the staff proposal; and
23 WHEREAS, the Planning Commission held two public hearings on the proposal on
24 March 13 and 27, 1997, and considered all testimony; and
25 WHEREAS, pursuant to RCW 36.70.590, legal notice was published in the
26 Bellingham Herald on February 27, 1997 for the Planning Commission hearings; and
27 WHEREAS, the Planning Commission held seven public work sessions on the
28 proposal on April 10, 17, 24; May 22; June 12, 26; and July 10, 1997, and re- structured
1
1 and amended the proposed ordinance in response to public testimony and in order to
2 further address the Growth Managment Hearings Board ruling, base critical area protection
3 on best available science, provide flexibility while protecting critical area functions, remove
4 unnecessary text, and re- organize and add sections for greater consistency with the Act;
5 and
6
7 WHEREAS, on July 10, 1997, the Planning Commission recommended the adoption
8 of the new CAO to the Whatcom County Council; and
9 WHEREAS, an extended Determination of Non- Significance was issued on the
10 Planning Commission revisions on July 21, 1997; and
11 WHEREAS, the County Council held a public hearing on the proposal on August 12,
12 1997, reviewed the Planning Commission recommendation. and considered further
13 testimony; and
14
15 WHEREAS, the Council has adopted the following Findings and Conclusions:
16 FINDINGS
17 1. A 1995 amendment to the Growth Management Act, RCW 36.70A.172, requires
18 counties to include the best available science in developing regulations to protect
19 the functions of critical areas, and to give special consideration to conservation or
?0 protection measures necessary to preserve or enhance anadromous fisheries.
21 2. Riparian buffer width recommendations by scientific investigations varies widely
22 depending upon the specific functions to be maintained. Most of the research
23 suggests buffers of approximately 30 meters to protect water quality and salmonid
24 habitat, buffers of approximately 15 meters to maintain erosion and shoreline
25 protection, and buffers ranging from 15 meters to greater than 30 meters for
26 maintaining various wildlife functions.
27 3. Buffers are unnecessary to protect wetlands that primarily. provide storm water
28 storage or attenuation functions. Buffer protection where it does not serve to
29 protect any function not only directs development toward areas which may
30 possess equal or greater environmental value, it also causes the needless
31 expenditure of time and money as property owners respond to additional regulation
32 for no significant beneficial purpose.
33 4. While fixed width riparian buffers offer predictability and ease in administration and
34 enforcement, such buffers may also result in arbitrarily protecting some function
35 that may not exist in an area.
36 5. Variable width buffers allow greater flexibility for the County and landowners, as
37 they can be appropriately tailored to existing site conditions and functions.
2
1 Variable buffers entail a more costly and time - consuming process, but will protect
2 the environment more completely without undue losses to landowners.
3 6. Most published scientific literature on the effectiveness of riparian buffers focuses
4 primarily upon protecting or maintaining functions without any direct connections
5 to stream typing or wetland categorization.
6 7. Adopting any one particular wetland or stream functional assessment method
7 precludes flexibility in choosing the method best suited to a particular area. In
8 addition, other agencies involved in regulating a given wetland may require a
9 different method than one specified in an ordinance. This may result in greater
10 cost for an applicant without benefit.
11 8. Functional assessment is useful in determining the potential functions of existing
12 systems. While assessment models have no direct relationship to the
13 establishment of protective buffer dimensions, they assist in determining what
14 functions are present to protect or mitigate.
15 9. The addition of clear administrative procedures, and the re- organization and
16 removal of unnecessary text, will create a document more understandable to the
17 public and reduce administrative discretion.
18 10. Based upon National Wetlands Inventory data, it is estimated that in Western
19 Whatcom County there are 528 isolated wetlands outside of standard stream
buffers that are less than one third of an acre in size. These 528 wetlands total
21 approximately 94 acres. State and Federal wetland rules maintain standard
22 exemptions for isolated wetlands less than one third acre.
23 11. Allowing a minor level of exemptions which does not significantly .effect critical
24 areas is reasonable and necessary. Their exclusion from this regulatory scheme is
25 warranted in light of the competing interests of affordable housing, minimizing
26 intrusion on private property interests, encouragement of economic development,
27 and expediting the permit process.
28 12. In most cases it is unnecessary to duplicate regulations adopted and administered
29 by other jurisdictions such as the state and federal governments, and such
30 duplication was not the intent of the Growth Management Act.
31 13. Maintenance and enhancement of the local agricultural economy and of the
32 functions of critical areas at times represent competing interests which the County
33 must seek to balance as it adopts regulations to protect critical areas.
34 14. The intricacies of agricultural practice, as well as the many variables involved, call
35 for a level of expertise to properly regulate the areas where agricultural land,
36 wetlands, aquifer recharge areas and /or streams intersect.
Ic
1 15. The Whatcom Conservation District has a history of successful cooperation with
2 county farmers to achieve maintenance and enhancement of critical areas in
3 conjunction with agriculture.
4 16. The additional designation and protection of Frequently Flooded Areas and Fish and
5 Wildlife Habitat Conservation Areas, as described by WAC 365 -190, will result in
6 greater compliance with the Growth Management Act.
7 17. Shellfish habitat conservation areas in Whatcom County are threatened by a
8 number of bacterial sources including failing sewer and storm water systems,
9 failing septic systems, storm water runoff, and poor agricultural, practices. State
10 rules and municipalities govern sewer systems. Storm water discharges in
11 unincorporated areas are controlled through the Whatcom County Development
12 Standards. Failing septic systems are unlawful under County and State on -site
13 sewage system rules. Agricultural runoff violates Clean Water Act rules at times
14 enforced by the State Department of Ecology and Federal Environmental Protection
15 Agency. Nevertheless, and without undue regulatory overlap, Whatcom County
16 can further protect shellfish areas through the protection of wetland, river and
17 stream functions, namely the maintenance of water quality. In addition, further
18 protection can occur by a requirement for storm water discharges to meet state
i9 water quality, standards, farmers to write and abide by conservation plans utilizing
20 best management practices, and septic system owners to write maintenance
21 agreements with the County governing their proper use.
2 18. The amendments contained in Exhibit "A" constitute Whatcom County's response
23 to the Growth Hearings Board ruling on September 12, 1996, the Growth
24 Management Act, as amended, and regulatory reform efforts to streamline
25 regulations.
26 CONCLUSION
27 These Critical Areas Regulations as amended will provide adequate protection.to. Critical
28 Areas and bring Whatcom County into compliance with the Growth Management Act.
29 The adoption process has been sufficient to comply with the public participation
30 requirements of the GMA.
4
1 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
2 Section 1. Whatcom County hereby amends Chapter 16.16, Whatcom County Code,
3 "Critical Areas," by repealing the existing Interim Chapter 16.16 and replacing it with the
4 new Chapter 16.16 text attached as Exhibit A.
5 Section 2. Adjudication of invalidity of any of the articles, sections, clauses, or
6 provisions of this Ordinance shall not affect or impair the validity of the ordinance as a
7 whole or any part thereof other than the part so declared to be invalid.
9
10
ADOPTED this 21 day of October
ATTEST:
13
14
15
APPROV as to form-
Karen Frakes, Civil Deputy Prosecutor
1997.
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
l
LWard Nelson, qChairperson
( Ap roved () Denied
ete remen, Executive
16
17 Date: AO o2�
5
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
EXHIBIT A
WHATCOM COUNTY
CRITICAL AREAS ORDINANCE
TITLE 16
CHAPTER 16.16
Whatcom County Planning and Development
Effective Date of Ordinance: November 3, 1997
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
TITLE 16
Chapter 16.16
CRITICAL AREAS ORDINANCE OF WHATCOM COUNTY, WASHINGTON
TABLE OF CONTENTS
ARTICLE I PURPOSE
16.16.100 Purpose Statement ... ............................... J.
16.16.110 SE PA Policy ......... ............................... 1.
ARTICLE II ADMINISTRATIVE PROVISIONS
16.16.200 Authority .......... ............................... 2
16.16.205
Authorizations Required . ...............................
2
16.16.210
Applicability and Jurisdiction ................. .........
3
16.16.215
Relationship To Other Jurisdictional Agencies ................
3
16.16.220
Resource Information and Maps ..........................
4_
16.16.225
Activities Allowed Without a Permit .......................
4
16.16.230
Technical Administrative Authority and Interdisciplinary Team .....
6
16.16.235
Submittal Requirements and General Application Review Process ...
7
16.16.240
Critical Areas Assessment Report .........................
7
16.16.245
Mitigation Requirements for Wetlands, Rivers and Streams .......
8
16.16.250
Fees ............................................
11
16.16.255
Variances ......... ....... .I.......................
11
16.16.260
Nonconforming Uses /Buildings .........................
12
16.16.265
Appeals .......... ...............................
12
16.16.270
Penalties and Enforcement ............................
12
16.16.275
Suspension, Revocation ...............................
13
16.16.280
Severability ........ ...............................
14
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
16.16.285 Conservation Program On Agricultural Lands ................. 14
16.16.290 Other Federal, State and County Regulations ................ 14
16.16.295 Incentives ......... ............................... 15
ARTICLE III GEOLOGICALLY HAZARDOUS AREAS
16.16.300
Purpose .......... ...............................
16
16.16.310
Critical Area - Landslide Hazard Areas ....................
16
16.16.320
Critical Area - Seismic Hazard Areas ......................
16
16.16.330
Critical Area - Mine Hazard Areas .......................
17
16.16.340
Critical Area - Alluvial Fan Hazard Areas ...................
17
16.16.350
Regulatory Requirements .............................
17
ARTICLE IV FREQUENTLY FLOODED AREAS
16.16.400 Purpose .......... ............................... ..19
16.16.410 Critical Areas - Frequently Flooded Areas .................. 19
16.16.420 Regulatory Requirements ............................. 19
ARTICLE V CRITICAL AQUIFER RECHARGE AREAS
16.16.500 Purpose .......... ............................... 20
16.16.510 Critical Area - Critical Aquifer Recharge Areas ............... 20
16.16.520 Administrative Requirements ........................... 20
ARTICLE VI WETLANDS
16.16.600 Purpose .......... ............................... 22
16.16.610 Critical Area - Wetlands .............................. 22
16.16.620 Wetland Area Functional Rating ......................... 22
16.16.630 Determination of Wetland Boundaries ..................... 23
16.16.640 Regulatory Requirements ............................. 23
16.16.650 Standard Buffer Adjustment ........................... 24
16.16.660 Storm Water Discharge .............................. 25
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
ARTICLE VII . FISH AND WILDLIFE HABITAT CONSERVATION AREAS (HCAs)
16.16.700 Purpose .......................................... 26
16.16.710 Critical Area - Fish and Wildlife Habitat Conservation Areas ...... 26
16.16.720 Regulatory Requirements ............................. 26
16.16.730 Habitat Management Plan ............................. 30
ARTICLE VIII DEFINITIONS
16.16.800 Definitions ........ ............................... 31
APPENDICES
Appendix A Conservation Program on Agricultural Lands ................ 41
Appendix B Sources of Groundwater Contamination ................... 49
Appendix C Listed Species and Species of Local Importance .............. 53
Appendix D Non- Native Plants .. ............................... , 55
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
CRITICAL AREAS ORDINANCE (WCC 16.16)
ARTICLE I PURPOSE
16.16.100 Purpose
1
A. The purpose of this chapter is to carry out the goals of the Whatcom County
comprehensive land use plan by identifying and managing environmentally
critical areas and ecosystems. This chapter seeks to maintain harmonious
relationships between human activity and the natural environment.
B. By regulating
development and alterations to critical areas, this chapter seeks
to:
1.
Protect the health, safety and welfare .of..the public;.:
2.
Reduce potential losses to property and human life;
3.
Protect the public from harm due to landslide, subsidence, erosion,
seismic, flooding and other natural hazards;
4.
Protect the public against losses from unnecessary maintenance of public
facilities, property damage and cost for emergency rescue relief
operations;
5.
Minimize adverse impacts to the quality and quantity of water resources;
6.
Alert appraisers, assessors, real estate agents, owners, potential buyers
or lessees, and other members of the public to natural conditions which
limit development of critical areas;
7.
Prevent destruction to the natural resources necessary to maintain the
viability of natural ecosystems;
8.
Protect and restore critical areas, and /or mitigate impacts to critical
areas by regulating their development;
9.
Protect unique, fragile and valuable elements of the environment,
including fish, shellfish, and wildlife habitat;
10.
Protect the beneficial functions of wetlands, rivers and streams and
avoid, minimize, or mitigate for damage to wetlands, rivers or streams
whenever practicable;
11.
Provide county officials with information to- approves condition, or deny
project proposals.
12.
Protect private property rights and allow for adequate and appropriate
public services and facilities. Where property rights or public services are
seriously compromised by the goal of critical area protection, adverse
impacts may be permitted provided appropriate mitigation measures are
taken.
16.16.110 SEPA POLICY
The goals, policies and purposes set forth in this chapter shall be considered policies of
Whatcom County under the State Environmental Policy Act.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
ARTICLE II ADMINISTRATIVE PROVISIONS
16.16.200 Authority
2
This ordinance 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. Authorizations required under this ordinance overlay other permit and approval
requirements of the Whatcom County Code. Critical. areas review pursuant to this
chapter shall be conducted as part of the underlying permit or approval.' Any
proposed critical areas alteration that does not require any other county project
permit or approval must still comply with the substantive and procedural
requirements of this chapter before proceeding with the alteration.
B. ..Maintenance Permit: A maintenance permit may be issued to those public and
private entities that require routine maintenance of ongoing activities in critical
areas and /or buffers. To obtain a maintenance permit, the applicant shall submit
a management plan to the Technical Administrator with the following included:
1. Projected scope of work for a 5 year period.
2. Type of equipment to be used.
3. Manner in which the equipment will be used.
4. A detailed explanation of best management practices to be used.
The maintenance permit shall be issued pursuant to the standards set forth in this
Ordinance. The plan must be reviewed and updated every five years for
conformance and updated to reflect current best management practices. T h e
County shall notify the applicant within 90 days of permit expiration.
C. Procedures: No land use development permit or land division approval required by
zcounty ordinance shall be granted until the applicant has demonstrated compliance
. -with the applicable provisions of this ordinance.
1. The applicant shall:
a. demonstrate that the proposal submitted is generally consistent with
the purposes and standards of this ordinance,
b. assess impacts on the critical area from activities and uses proposed,
and
C. identify protective mechanisms adequate to meet the requirements
of this ordinance.
2. Unless specifically permitted by this ordinance, the County shall determine
if the proposal is consistent with applicable regulations of the ordinance and
if the protective mechanisms proposed are sufficient to protect the critical
area, public health, safety and welfare, and if so, shall condition approval
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
accordingly.
3 -
3. Takings or hardships associated with dimensional requirements and
grievances are addressed through the variance procedures (WCC16.16.255)
and appeal provisions (WCC16.16.265) respectively.
D. Conflicts with Other Provisions. If any provision of this Ordinance conflicts with
any other applicable provision of the Whatcom County Code, the more restrictive
shall apply.
E. Satisfaction of the requirements of this chapter shall also be sufficient to satisfy
the requirements for critical areas analysis and mitigation pursuant to RCW 43.21 C
and WCC 16.08 (SEPA).
16.16.210 Applicability and Jurisdiction
This chapter shall be consistently applied to any land use or development within
geographical areas that meets the definition and criteria for critical areas as set forth 'in
this chapter.
16.16.215 Relationship To Other Jurisdictional Agencies
A. In cases where other agencies possess jurisdictional control over critical areas and
it is determined by the county that the permit conditions satisfy the requirements
of this chapter, those requirements shall substitute for the requirements of this
chapter. Such requirements shall be a condition of critical area approval and
enforceable by the County. Such agencies may include, but are not limited to, the
Lummi Indian Nation; the Nooksack Tribe; the United States Army Corps of
Engineers, Environmental Protection Agency, and Fish;and Wildlife Service; and the
Washington State Department of Ecology and Department of Fish and Wildlife. The
County shall notify the applicant in writing.
B. There are state and federal regulations which apply: to projects conducted. within
critical areas. Uses otherwise allowed_ by. .County codes::da-_not,:elim.inate other
agency regulatory requirements. Federal Regulations include:
• Clean Water Act, Sect. 404 401
• Coastal Zone Management Act
• Endangered Species Act
• Federal Water Pollution Control Act
• Food Security Act - Swampbuster
• National Environmental Policy Act
• National Floodplain Insurance Program
• River and Harbor Act, Section 10
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
State Regulations include:
• RCW 43.211
• RCW 75.20
• RCW 76.09
• RCW 77.12
• RCW 78.44
• RCW 90.48
• RCW 90.58
State Environmental Policy Act
Hydraulic Project Approval
Forest Practices Regulations
Bald Eagle Protection Rules
Surface Mining Act.
State Water Pollution Control Act
Shoreline Management Act
16.16.220 Resource Information and Maps
4
A. Recognizing the necessity for accurate geographic information, the Whatcom
...-County Planning and Development Services Department shall continue to work on
- a comprehensive inventory identifying the location, size, and other characteristics
of critical areas in Whatcom County.
B. The results of the inventory shall be transferred to maps and published. These
maps shall be available at the Planning and Development Services Department for
public inspection.
C. When completed; environmentally critical area maps shall serve as guides to the
location and extent of such critical areas. In the interim, critical areas preliminary
inventory maps shall be used to alert the public and responsible officials to the
potential presence of critical areas on the site of proposed projects.
D. Map identification of critical areas provides only approximate boundaries and
locations in Whatcom County. The actual locations and boundaries of critical areas
shall be based upon. the presence of the features applicable to each critical area
element in this chapter.
16.16.225 Activities Allowed Without a Permit
The following activities are authorized within critical areas and standard buffers provided
that the activity will not result in increased risk or hazard and that adverse impacts to
critical areas are minimized and disturbed areas are immediately restored:
A. Emergency construction or activity necessary for the immediate preservation of the
public health, safety and welfare as determined by the Technical Administrator
including emergency projects which prevent, minimize, and /or mitigate flood
damages to public and private property.
B. All activity undertaken by diking or drainage districts whose activities are allowed
subject to Chapters 85.05 and 85.06 RCW, and activities of that same nature
performed by a flood control zone district, which activities are allowed by RCW
86.15; provided that:
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
5
1. The district submits an annual work plan to the Technical Administrator
each year for approval provided:
a. Adverse impacts to wetlands, rivers and streams- and fish habitat
conservation areas are minimized; and
b. Adverse impacts to water quality and quantity are minimized during
such activity; and
2. Resource agencies shall be notified (by the County) of the proposed work
plans thirty calendar days prior to the annual: review meetings. Comments
by agencies shall be made at the review meetings.
C. Construction work located within the footprint of the building or on.the exterior
walls of an existing structure provided that construction does not extend beyond
the roof line of the structure.
D. Maintenance and repair of developed rights -of -way, trails, roads, and utilities within
rights -of -way, provided that the maintenance and repair does not further impact the
functions of wetlands or fish bearing rivers or streams.
E. Conservation or preservation of soil, water, vegetation, fish, shellfish, and other
wildlife.
F. Low impact activities such as hiking, canoeing, viewing, nature study,
photography, hunting , fishing, education or scientific research.
G. Activities such as .mowing and normal pruning that do not expose soils, alter
topography, destroy or clear native vegetation nor diminish water quality and
quantity.
H. The non - chemical maintenance (but ;not °construction) of drainage ditches and other
constructed storm water management facilities.
I. Navigation aids and boundary markers.
J. Boat mooring buoys.
K: Low impact site investigative work necessary for land use application submittals
such as surveys, soil logs, percolation tests and other related activities.
L. Pesticide application applied in accordance with Washington State Department of
Agriculture regulations.
M. Normal maintenance, repair and minor• modification of lawfully located existing
serviceable structures, facilities, utilities or improved areas.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
N. Removal or destruction of noxious weeds, as listed in Chapter 16 -750 WAC.
11
0. Construction of structures not subject to project permit requirements which are
designed solely for the personal use of the property owners.
P. Alteration or removal of beaver built structures provided there is no adverse impact
to wetland or river or stream functions.
Q. River gravel bar extractions within the jurisdiction of the shoreline management
program.
R. Construction of public and private trails on critical areas provided they adhere to
the construction and maintenance standards in the United States Forest Service
-_ "Trails Management Handbook" (FSH 2309.18, June 1984). Trails do not include
- routes allowing motorized vehicles.
1.
S. Construction of accessory structures not involving human occupancy on
geologically hazardous areas.
T. Agriculture activities conducted on Wetlands, Fish and Wildlife Habitat
Conservation Areas, or Aquifer Recharge Areas or their buffers in compliance with
Section 16.16.285.
U. Agriculture activities conducted on Geologically Hazardous Areas and Frequently
Flooded Areas.
V. Clearing and re- vegetation of buffer areas for view purposes provided that use of
this exemption requires written authorization by the Technical Administrator, and
further provided that:
1. Only single - family homeowners may use this exemption.
2. Clearing is limited to the minimum necessary for view purposes.
-3.. Clearing shall not take place where adverse impacts, including cumulative
impacts, to critical area functions are likely to occur.
W. Fish, wildlife, and /or wetland enhancement activities not required as mitigation
provided that the project is approved. by either the U.S. Department of Fish and
Wildlife or the Washington State Department of Fish and Wildlife.
16.16.230 Technical Administrative Authority. and Interdisciplinary Team
A. The Technical Administrator shall administer and enforce the provisions of this
ordinance. All decisions of the Technical Administrator shall be subject to appeal:
B The Technical Administrator or the Hearing Examiner may utilize an interdisciplinary
team if the Technical Administrator determines that additional technical assistance
is required to assess the site.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
7
1. Members of the interdisciplinary team shall be selected by the Technical
Administrator or Hearing Examiner as appropriate. Selection of the team
shall include the proponents (upon.their request) and may include, but is not
limited to local, state, or federal representative with expertise in the field
and /or independent professionals with expertise relating to the critical area
issue.
2. The functions of the interdisciplinary team are to field check- and verify
critical area determinations by reviewing the information included with an
application, identify areas of concern, and help focus the preparation of
'subsequent reports and environmental documentation on the most relevant
issues.
3. The Technical Administrator or. Hearing.:`: Exam.iner.°: _as •.:appropriate will
coordinate this effort and pursue a consensus - process- in-'seeking advice
from the team.
16.16.235 Submittal Requirements and General Application Review Process
A. Project Permit. Review and approval for a proposed development within a critical
area may be initiated through the application for any project permit in Whatcom
County.
B. Review. 'rhe County will use the following procedure for Critical Areas review
upon submittal of a project proposal (application):
1. Initial Determination: Upon submittal of a project proposal, the technical
administrator shall use the-best available information to determine if the
project is more probably than not located within a Critical Area or its
potential buffer area.
2. Determination To Stop Further--Review: Ifthe project is an allowed activity
and does not require a permit pursuant to 16.16:225, no further critical
areas review is required.
3. Determination Of The Need For A Site Inspection: If the proposed activity
requires a permit and is more probable than not located within a Critical
Area or its potential buffer area , the Technical Administrator shall confirm
the presence or absence of Critical Areas through site inspection or other
appropriate means.
16.16.240 Critical Areas Assessment Report
A. A Critical Areas Assessment Report for a project shall be required when the
Technical ,Administrator determines that any part. =of the project may impact a
regulated Critical Area.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 8
B. A Critical Area Specialist shall prepare the assessment report provided that if both
parties agree, or if the application is for a single - family dwelling unit or its
accessory use, a specialist may not be required.
C. The applicant and /or critical area specialist shall consult with the Technical
Administrator prior to preparation of a site assessment to determine precisely what
information will be required in the Assessment Report.
D. The Technical Administrator may reject or request revision of the conclusions
reached in a Critical Areas Assessment Report when the Technical Administrator
can demonstrate that the assessment is inaccurate, or does not fully address the
critical areas concerns involved.
E. .:��The recommendations and conclusions of the approved Critical Areas Assessment
Report shall. be used to assist the Technical Administrator in making final
administrative decisions concerning critical areas jurisdiction and appropriate
mitigating measures.
F. At a minimum, a Critical Areas Assessment Report shall include the following
information:
1. The purpose 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
2. A description of the critical areas affected by the proposal; and
3. An assessment of the critical area and an analysis of the potential adverse
impacts as a result of the activity; and
4. An analysis of how these impacts have been avoided and /or minimized.
16.16.245 Mitigation Requirements for Wetlands, Rivers and Streams
There'`shall be no activity allowed within a regulated wetland, river or stream area or
buffer without mitigation unless the activity is authorized through section 16.16.225.
Proposed critical area or buffer alterations shall include mitigation sufficient to maintain
or enhance the functions of the critical area. Subject to the variance provisions of section
16.16.255, any proposed critical area or buffer alteration that cannot adequately mitigate
its impacts to a regulated critical area shall be denied.
A. . Mitigation Guideline
1. Projects otherwise permitted pursuant to this chapter shall avoid, minimize,
or mitigate for adverse impacts to the functions of regulated critical areas
or their buffers by one or more of the following, in a manner such that the
most effective protection or mitigation to critical area functions will take
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
place with the greatest likelihood of success:
L•7
a. Avoiding the adverse impact altogether by not taking a certain action
or parts of an action;
b. Minimizing_ adverse impacts by limiting the degree or magnitude of
the action and its implementation by using appropriate technology,
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 maintenance operations during the life.of; action;
e. Mitigating for the adverse impact by replacing;- enhancing, or
providing substitute resources. or environments and monitoring.the
adverse impact and the mitigation project and taking appropriate
corrective measures.
2. Mitigation for individual projects may include a combination of the above
measures.
B. Off -Site Mitigation
Off -site mitigation, including mitigation banking, may be accepted as appropriate
mitigation under the following conditions:
1. On -site mitigation is not scientifically feasible due to hydrology, soils,
waves, or other factors; or
2. On -site mitigation is not practical. due to potentially adverse impact from
surrounding land uses; or
3. Mitigation occurs within an area where the most-significant improvement to
the critical area will take place with the greatest likelihood of success, and
4. Mitigation occurs within the subbasin which is adversely impacted. "this
provision may be waived upon demonstration through a watershed analysis
that mitigation within an alternative subbasin of the same watershed would
have greater ecological benefit than mitigation within the impacted subbasin.
Mitigation may occur outside of the impacted watershed given the above
demonstration on a watershed to watershed comparison and when no
suitable site within the impacted watershed is available.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
C. ' Determining Mitigation Requirements
10
In making a determination of the extent and type of mitigation required, Whatcom County
will consider all of the following:
1. The functional characteristics of the critical area within the watershed or
subbasin in which the critical area is located.
3. The isolated and cumulative adverse impacts of the action upon the
functions of the critical area and associated ecosystem and watershed;
4. Observed or predicted trends regarding the gains or losses of this type. of
- critical area in the watershed, in light of natural and human processes; and
- 1.15.. The likely success of the possible mitigation measures..
D. Mitigation - .General Requirements
1. Mitigation projects shall restore, enhance, or create equivalent areas at a
scientifically based ratio appropriate for the function(s) being replaced in
order to mitigate for functional losses. The restored, enhanced, or created
area shall at a minimum provide an equivalent level of function, provided
that replacement ratios shall not exceed (6:1).
2. Mitigation plans shall be completed and approved prior to critical area
alteration and an appropriate installation schedule and completion date shall
be set.
3. The applicant and their representatives shall demonstrate sufficient scientific
expertise and supervisory capability, and shall demonstrate the capability for
monitoring the site and making corrections if the project fails to meet
projected goals.
_.v_s4.. A performance bond, assignment of savings, or other like security may be
required for mitigation projects in an amount necessary to insure full
performance of all required and approved construction. Upon completion of
the project, the. performance bond shall be released.
5. A maintenance bond, assignment of savings, or other like security may be
required in an amount necessary to provide for future site monitoring and
possible corrective action required for mitigation projects. This bond,
assignment of savings, or the security shall be released no later than five
years after completion of the mitigation project. .
E. Cooperative Mitigation Projects
The county may encourage, facilitate, and approve cooperative mitigation projects among
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
more than one applicant subject to general mitigation requirements.
F. Mitigation Plan
11
Any person required to develop a mitigation project shall submit a mitigation plan to
Whatcom County. The plan should use as a guideline applicable portions of the
Washington State Department of Ecology's Guide lines for Developing Freshwater
Wetland Mitigation Plans and Proposals, March 1994.
16.16.250 Fees
A. Each application for an appeal of an administrative decision to the Hearing Examiner
shall be accompanied by a fee as stated in WCC- 20.84..250.
B. Each application for a variance shall be accompanied -by °a fee -as stated in WCC
20.84.250.
C. Critical areas delineations and /or boundary determinations and other technical
services for single family developments may be performed by the county at the
request of the applicant and at the discretion of the county at a rate of $35.00 per
hour, payable as a deposit in advance by the applicant.
D. All other fees are defined in the Unified Fee Schedule.
16.16.255 Variances
A. The Hearing Examiner shall grant a variance from the requirements in this chapter
when the applicant proves by clear, cogent and convincing evidence 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 reasonable uses of the property by�;the- propertyr�owner 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
3. The variance does not constitute a grant of special privilege, and is not
based upon reasons of hardship caused by previous actions of the current
property owner after July 1, 1990 and the proposed modification to a
critical area will be the minimum necessary to allow reasonable and
economically viable use of the property.
B. The Hearing Examiner shall have the authority to set an expiration date for any or
all variance approvals.. The Hearing Examiner will render a decision pursuant to
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
Chapter 20.92 WCC.
12
C. Procedural requirements for variances shall be as set forth in WCC 20.84.230.
D. Any party of record may appeal the Hearing Examiner decision pursuant to Chapter
20.92 WCC.
16.16.260 Nonconforming Uses /Buildings
The lawful use of any building, land, or premises existing on the effective date of adoption
or amendment of this chapter may be continued, although such use does not conform to
the provisions hereof, provided that agricultural activities shall conform to section
16.16.285. If such nonconforming use is intentionally discontinued for a period of 12
months or more, then any future use of said building, land or premises shall be consistent
with the provisions of this chapter.
16.16.265 Appeals
A. Any person may appeal to the Hearing Examiner a final administrative order, final
requirement, final permit.decision; or final determination made; provided that such
:appeal shall be filed in writing within 14 calendar days of the date the written
decision, order, requirement, or determination is signed.
B. Any person or agency may appeal to the Hearing Examiner a final order, final
requirement, final permit decision, or final determination made by the Whatcom
Conservation District; provided that, such appeal shall be filed in writing within 14
calendar days of the date that the county receives a written decision from the
district.
C. For the purpose of this subsection, the county's order, requirement, permit
decision, or determination shall not be deemed final until it is reduced to writing
::.and mailed to the applicant.
D. ;The appeal will be upheld if the applicant proves that the decision appealed is
-clearly erroneous or based upon error of law.
E. 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.
16.16.270 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.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
13
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 after the notice is received, the person incurring..the
penalty may apply in writing to the county for remission or mitigation of such
penalty. Upon receipt of the application, the county may remit or mitigate the
penalty upon whatever terms the county in its discretion deems proper. The
county's final decision on mitigation or revision shall be reviewed by the Hearing
Examiner if the aggrieved, party files a- written appeal ;therewith of. said decision
within 10 calendar days of its issuance.
D. The Prosecuting Attorney may enforce compliance with this ordinance by such
injunctive, declaratory or other actions as deemed necessary to ensure that
violations are prevented, ceased, or abated.
E. If work activity has occurred on a site in violation of this ordinance, prompt
corrective action, restoration or mitigation of the site will be required when
appropriate. If this provision is not complied 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.
F. Stop Work Order: 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;within10 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 _ord.er- _;.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 $500.00 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.
16.16.275 Suspension, Revocation
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.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
16.16.280 Severability
14
Should any section or provision .of this chapter be declared invalid, such decision shall not
affect the validity of this chapter as a whole.
16.16.285 Conservation Program on Agriculture Lands
A. Notwithstanding all other provisions in this chapter, pre- existing agriculture
activities may only. be conducted within Wetlands, Fish and Wildlife Habitat
Conservation Areas or their buffers, or Aquifer Recharge Areas upon completion
of a conservation plan in conformance with Appendix A,. Conservation Program on
Agriculture Lands, provided that:
1. pre- existing farming activity is authorized when the activity involves no
more than five animal units and two acres or less of tilled cropland; and
2. such activity is conducted consistent with Whatcom Conservation District
best management practices including the containment of livestock waste.
B. The Conservation District shall provide a report to the County Council annually on
or before the budget session. The report shall provide the Council with an update
on the status of the Conservation Program. Upon receipt of the Conservation
District report, the Council shall hold a meeting open to the public and all agencies
to assess performance of the program and make program adjustments.
16.16.290 Other Federal, State and County Regulations
In addition to the provisions established in this ordinance, the County shall coordinate its
own programs with those of other public and private organizations to enhance
management of Critical Areas in Whatcom County. A partial list of public and private
programs providing additional protection to critical areas includes:
A. Local Regulations:
• Whatcom County Clearing Regulations and Standards
• Whatcom County Flood Damage Prevention Ordinance
• Whatcom County SEPA review
• Whatcom County Shoreline Management Program
• Whatcom County Solid Waste Permits
• Whatcom County Stormwater Management Regulations and Standards
• Whatcom County On -Site Sewage Disposal Permits (septic systems)
B. Local Plans or Programs:
Drayton Harbor Watershed Management Plan
• Lake Whatcom Watershed Management Plan
• Kamm Creek Watershed Management Plan
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
• Nooksack Initiative
• Nooksack Salmon Enhancement Association
• Silver Creek Watershed Management Plan
• Tenmile Creek Watershed Management Plan
• Whatcom County Open Space Taxation Program
• Whatcom County Sewer and Water Management Plan
C. State and Federal Programs
• Washington State Hydraulic Project Permits
• Washington State Pesticide Applicator License .Requirements
• Washington State Waste Discharge Permits
• Washington State Water Quality Certification Requirements (401)
• Washington State Forest Practices Permits
• Federal Corps 404 Permits and Section 1.0. Permits
16.16.295 Incentives
15
The following incentives are intended to minimize the burden to individual property owners
from application of the provisions of this chapter:
A. Open Space. Any property owner on whose property contains a critical area or its
associated buffer 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 tract that qualifies for open space tax assessment described
in Subsection (A) above. The purpose of the easement shall be to preserve,
protect, maintain, restore and limit use of ithe affected property. The terms of the
conservation easement may include- prohibitions -or restrictions orv-access and shall
be approved by the property owner and the county.
C. ' Density Credit. On lands containing critical areas or their associated buffers, the
county shall allow a transfer of density for residential uses from the property
containing the critical areas and their buffers to appropriate receiving areas
designated through the TDR process outlined in the Whatcom County
Comprehensive Plan. Transfer of residential density may also occur from one
portion of the property to another through clustering options allowed in a PUD,
short plat, binding site plan or subdivision process consistent with the
Comprehensive Plan.
D. Conservation Futures Fund. The County shall .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.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
ARTICLE III GEOLOGICALLY HAZARDOUS AREAS
16.16.300 Purpose
It is the purpose of this article:
16
A. To minimize hazards to the public and to reduce the risk of property damage from
-- ...development activities on or adjacent to geologically hazardous areas; and
B. To regulate land use so as to avoid the need for construction of flood control
devices on alluvial fans and allow for natural ,hydrologic changes.
16.16.310 Critical Area - Landslide Hazard Areas
Landslide hazard areas are geologically hazardous areas and therefore critical areas under
this chapter.
A. Landslide hazard areas shall include areas potentially subject to landslides based'on
a combination of geologic, topographic and hydrologic factors. They include any
areas including bordering uplands susceptible to landslides because of any
.combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology,
or other physical factors. These include, but are not limited to, the following:
1. Areas with all three of the following characteristics:
a. Slopes between 15 and 35 percent; and
b. Hillsides intersecting geologic contacts with a relatively permeable
sediment overlying a relatively impermeable sediment or bedrock; and
C. Springs or ground water seepage; or
.2. Slopes exceeding 35 percent; or
3. Potentially unstable slopes resulting from rapid river or stream incision, river
or stream bank erosion, or undercutting by wave action. These include
slopes adjacent to waterways exceeding 10 feet in height and sloping at
more than a 35 percent gradient.
16.16.320 Critical Area - Seismic Hazard Areas
Seismic hazard areas are areas subject to a severe risk of earthquake damage as a result
of seismically induced ground shaking, differential settlement, or soil liquefaction. This
includes areas where surface deposits of manmade fill or partially decomposed organic
material average at least five feet in depth, filled wetlands, and areas of alluvial deposits
subject to liquefaction. Seismic hazard areas are geologically hazardous areas and
therefore critical areas under this chapter.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 17
16.16.330 Critical Area - Mine Hazard Areas
Mine hazard areas are those lands in proximity to abandoned coal mines and associated
underground mine workings. These mine workings include adits (mine entrances),
gangways (.haulage tunnels), rooms and' chutes (Large voids), drifts (water level tunnel's),
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 to ground and surface water from tailings and underground
workings; concentrations of lethal or noxious gases; and underground mine fires. Mine
hazard areas are geologically hazardous areas and therefore critical areas under this
chapter.
16.16.340 Critical Area - Alluvial Fan Hazard Areas
Alluvial fan hazard areas are those areas'' -on alluvial fans where- f=loodin-g i> - boulder floods,
and /or debris torrents have the potential to damage or harm the health or welfare of the
community. They include the area generally corresponding to the path of recent and
potential future stream flooding, boulder flooding, and /or debris torrents as determined by
local topography, hydrology, and depositional history on the fan. This area shall also b-e
known as the "active fan." Alluvial fan hazard areas are geologically hazardous areas and
therefore critical areas under this chapter.
16.16.350 Regulatory Requirements
A. No critical facilities shall be constructed or located in geologically .hazard areas
without fully mitigating the hazard.
B. Projects shall be assessed through the Critical Areas Assessment Process.
C. Projects shall be engineered and /or constructed to fully mitigate the hazard, and
protect the building and occupants From the hazard.
D. Land divisions may be clustered where permitted by- zoning and as appropriate to
reduce disturbance to the area..
E. Projects in landslide hazard areas must cause no increase in surface water
discharge or sedimentation to other properties and shall not decrease slope stability
on or off -site.
F. All development in seismic hazard areas shall conform to the provisions of the
Uniform Building Code which contains structural safeguards to reduce impacts from
seismic activity.
G. Projects within a mine hazard area where mine workings are less than 200 feet
below ground level shall be engineered and /or constructed to fully mitigate .the
hazard, and protect the building and occupants from the hazard. -
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
Im
H. All projects on an alluvial fan hazard area must be engineered and constructed to
withstand alluvial fan hazards and /or flooding equivalent to the largest known event
evident on the fan as determined by professional assessment.
I. Clearing within alluvial fan hazard areas is prohibited without adequately addressing
the significance of tree retention in an Assessment Report.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 19
ARTICLE IV FREQUENTLY FLOODED AREAS
16.16.400 Purpose
It is the purpose of this article to reduce the risk to life and property damage that result
from floods.
16.16.410 Critical Areas - Frequently Flooded Areas
Frequently flooded areas are areas subject to a one percent recurrence interval of flood
water inundation or a 100 year base flood as mapped by the Federal Emergency
Management Agency's Flood Insurance Rate Maps (FIRM) as amended for Whatcom
County. Such areas are located along major rivers, streams;-:and .coastal_ areas where the
depth, velocity, intensity and frequency of flood water during-major events is of such a
magnitude that risk to human -life and property improvements- . -m:ay- :occur. -:: ,Fre.q:uently
flooded areas are critical areas.
16.16.430 Regulatory Requirements
A. No critical facilities shall be constructed or located in frequently flooded areas
without fully mitigating for flood hazards.
B. All development shall conform to the provisions of Title 17, Flood Damage
Prevention of the Whatcom .County Code.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
ARTICLE V CRITICAL AQUIFER RECHARGE AREAS
16.16.500 Purpose
It is the purpose of this article to pursue the following goals:
20
A. To preserve, protect, and conserve Whatcom County's ground water resources for
current and future generations by protecting critical aquifer recharge areas from
contamination;
B. To prioritize the management, protection and conservation of groundwater recharge
areas providing ground water which is currently used or has the potential to be a
source of potable water.
16.16.510 Critical Area - Critical Aquifer Recharge Areas
A. Critical aquifer recharge areas are critical areas under this chapter.
B. Critical Aquifer Recharge Areas. Those areas of high susceptibility to aquifer
contamination as follows:
1. The project is located on either soil conservation service hydrologic soil
group (HSG) A or B; or
2. The project is located on either the Sumas Outwash geologic unit or the
Nooksack River floodplain alluvium geologic unit; or
3. More than 50 percent of the documented well logs within half -mile of the
project indicate a static water level of less than 50 feet below the ground
surface as indicted by the most recent well log; and
4. The project is located on a subsurface above the first occurrence of water
which consists of highly permeable materials that are unobstructed by
poorly permeable strata.
16.16.520 Administrative Requirements
A. Projects in critical aquifer recharge areas for which Whatcom County is the lead
agency under SEPA shall be evaluated for their potential adverse impacts on ground
water quality and quantity.
B. A SEPA checklist shall be used as part of a critical areas supplement to assist the
county in taking final action. Those activities, projects and thresholds, exempt
from SEPA regulations, will not be reviewed for compliance with this ordinance by
the Technical Administrator.
C. The SEPA official shall review the SEPA checklist and make a SEPA threshold
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
21
determination. The SEPA official shall use Appendix B, Sources of Ground Water
Contamination, and other available sources of information when reviewing a project
for potential ground water contamination in critical aquifer recharge areas. The
county shall condition or deny any project to minimize the potential contamination
from such sources. Conditions or denial of any project shall be based upon
information and analysis contained in an environmental impact statement, a
mitigated declaration of nonsignificance, or any other relevant environmental
analysis.
D. See Article II for additional administrative requirements.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
a
ARTICLE VI WETLANDS
16.16.600 Purpose
22
It is the purpose of this article to recognize and protect the beneficial functions provided
by wetlands including 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.
16.16.610 Critical Area - Wetlands
A. ..A wetland is a critical area.
B. Wetlands. 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. Wetlands generally include swamps, marshes,
bogs, and similar areas.
C. Non - regulated Wetlands. Non - regulated wetlands include:
1. Areas in which wetlands were created by activity, intentional or
unintentional, other then mitigation subsequent to July 1, 1990
2. Isolated wetlands less than 1/3 acre in size.
3. Any wetland hydrologically isolated, with vegetation dominated by invasive
species or pasture grasses, and the dominant functions of which are
restricted to stormwater storage /flood attenuation, and the functions of
which are no greater than all alternative nonwetland sites on the parcel of
property in question.
D. Regulated Wetlands. Regulated wetlands include all other wetlands.
16.16.620 Wetland Area Functional Rating
A. The functional attributes of wetland, river, and stream areas and their associated
buffers shall be assessed by either the Technical Administrator or a qualified
Critical Area Specialist prior to any modification of standard buffers or for the
purposes of mitigation.
B. The County shall utilize the best suited and most scientifically valid functional
rating system for purposes of determining applicable wetland, stream, or river
buffer adjustments or mitigation requirements. Any functional assessment utilized
CRITICAL AREAS ORDINANCE - NOVEMBER; 1997 23
by the County shall address the following functional attributes:
1. Erosion control and shoreline stabilization;
2. Fish habitat;
3. Groundwater recharge and base flow maintenance;
4. Stormwater attenuation;
5. Water quality improvement
6. Wildlife habitat
C. Wetland area functions shall be applied as the regulated wetland area existed on
the date of adoption of the ordinance codified in this chapter; and
1. as the regulated wetland area may naturally- change, thereafter; or
2. as the regulated wetland area may change in accordance with mitigation
.requirements.
D. Wetland area functional ratings shall not recognize illegal wetland modifications.
16.16.630 Determination Of Wetland Boundaries
A. When regulated wetlands or their buffer areas may be affected by a proposed
development, a wetland boundary determination shall be made.
B. Determination of wetland boundaries shall be done in accordance with the
delineation methodology specified in the 1987 edition, or as amended, of the Army
Corps of Engineers Wetlands Delineation Manual. Evidence documenting the results
of the boundary survey may be required.
C. Determination of wetland boundaries shall be the responsibility of the applicant, to
.be determined from a field survey by a wetland specialist. At the request of the
applicant, the - county may waive the :requirements:for..a delineation when sufficient
information exists to reasonably determine the boundaries of.:a wetland without a
delineation.
16.16.640 Regulatory Requirements
A. There shall be no activity allowed within a regulated wetland or applicable buffer
without meeting the mitigation requirements of section 16.16.245 unless the
activity is authorized through section 16.16.225.
B. Land divisions may be clustered where permitted by zoning and as appropriate to
reduce disturbance to regulated wetlands and buffers.
C. Buffer areas;. shall be established to protect wetland functions. All regulated
wetlands shall be protected by a standard 100' buffer, except that:
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 24
1. Isolated wetland areas not characterized as mature forested, fens,
sphagnum bogs, or estuarine wetlands shall. be protected by a standard 50'
buffer; and
2. Isolated wet meadows shall be exempt from the standard buffer requirement
when it is determined that the wetland functions are restricted primarily to
stormwater storage or attenuation.
D. All buffers shall be measured on a horizontal. plane from the wetland edge.
E. Buffers shall remain naturally vegetated except where the buffer can .be enhanced
to improve the wetlands functional attributes.
16.16-650 Standard Buffer Adjustment
Standard buffers may be adjusted on a site specific basis by the Technical Administrator
using the following methods:
A. Buffer Width Averaging: Standard buffers may be modified by averaging buffer
widths. buffer width averaging shall be allowed where:
1. Averaging is necessary to avoid hardship to the applicant caused by
circumstances peculiar to the property, and
2. Buffer width averaging will not adversely impact the wetland, river or stream
functions, and
3. The total area contained within the buffer after averaging is no less than
that contained within the standard buffer prior to averaging.
B. Increased Buffer Widths: The County shall increase standard buffer widths when
�-Js determined that a larger buffer is necessary to protect wetland, river or stream
Junctions based on local conditions. This determination shall be supported by
.appropriate documentation showing that it is reasonably related to protection of the
functions of the regulated wetland, river or stream. Such determination shall be
attached as a permit condition and shall demonstrate that:
1. A larger buffer is required by an approved habitat. management plan as
outlined in section 16.16.720 (A) and (B), or
2. The impacts of proposed land uses require greater buffers to protect
wetland, river or stream functions, or
3. The adjacent land. is subject to slope instability or severe erosion; or
4. The standard buffer is subject to windthrow damage, provided that the
increase in buffer width to protect against windthrow damage shall not
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 25
exceed 50 feet.
C. Reduced Buffer Width. The county shall reduce the standard buffer widths under
the following conditions:
1. The project includes a buffer enhancement plan using native vegetation,
artificial habitat features, buffering, vegetative screening, barrier fencing,
grass -lined swales or other enhancement tool as appropriate to site
conditions and the wetland, river or stream functions. The applicant must
clearly demonstrate that an enhanced buffer will provide additional
protection for the wetlands functions at least equal to the administratively
determined buffer; or,
2. The- applicant demonstrates, that- smaler buff ers.:will I adequately protect
wetland, river or stream functions.
16.16.660 Storm Water Discharge
A. Storm Water Discharge. The requirements below apply to storm water discharges
into degraded wetlands through a conveyance system:
1. Degraded wetlands may be used for the management of storm water under
the following conditions:
a. The use of upland sites is determined by the county to be unfeasible;
and,
b. The activity enhances the functions of the existing wetland.
2. Storm water discharges to wetlands shall be controlled and treated. to
provide all known and reasonable methods of prevention, control, and
treatment as mandated in the: State Water .Quality Standards, Chapter
173 -201 A WAC, as required by state. law. .
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
ARTICLE VII FISH AND WILDLIFE HABITAT CONSERVATION AREAS (HCAs)
16.16.700 Purpose
It is the purpose of this article to pursue the following goals:
A. Ensure the continued existence and enhancement of fish and wildlife populations
by protecting and conserving valuable fish and wildlife habitat.
B. Encourage the preservation of natural river and stream functions that support fish
and wildlife populations and preserve marine shorelines.
C. ,To preserve critical wildlife habitats so that isolated populations of species are not
.:cr.eated and habitat fragmentation is avoided especially along riparian corridors.
D. To maintain the natural geographic distribution of fish and wildlife habitat.
16.16.710 Critical Area - Fish and Wildlife Habitat Conservation Areas
Fish and Wildlife Habitat Conservation Areas are critical areas. Fish and Wildlife Habitat
Conservation Areas include:
A. Areas with which listed species have a primary association;
B. Habitats and Species of Local Importance;
C. Shellfish Habitat Conservation Areas;
D. Kelp and Eelgrass Beds, Pacific Herring Spawning Areas
E. Surf smelt and Pacific Sand Lance Spawning Areas;
F. Ponds and Wetlands;'
G. Lakes and Marine Water Bodies
H. . Rivers and Streams;
I. Natural Area Preserves
16.16.:7;20: Regulatory Requirements
A. Listed _ Species: Listed species are those officially designated by the State
Department of Fish and Wildlife and /or U.S. Fish & Wildlife Service as endangered,
threatened, sensitive, or candidate (refer to species list in Appendix Q. These are
species known to be experiencing or have experienced failing or declining
populations due to factors such as limited numbers, disease, predation,
exploitation, or a loss of suitable habitat. These species are in jeopardy of
extirpation or extinction because of population declines.
1. Where a project is proposed within an area where listed species have a
primary association, a habitat management plan will be required. The limits
of.development and other related activities within the HCA shall utilize the
recommendations of the plan. The habitat management plan shall be
prepared in compliance with section 16.16.,730.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
27
2. Activities may be permitted within an area where listed species have a
primary association subject to conditions designed to avoid adverse impacts,
provided that the county may deny a project if such impacts cannot be
avoided.
3. Bald eagle habitats shall be protected pursuant to the Washington State Bald
Eagle Protection Rules (WAC- 232 -12 -292), where a cooperative Habitat
Management Plan is required 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 support this
process through the appropriate exchange of information.
B. Habitats and Species of Local Importance:. Habitats and. species ofJocal importance
include habitat supporting both vulnerable1and-. recreational ly important species
(refer to species list in Appendix GG) Vulnerable species. , includes those susceptible
to significant population declines because they are uncommon (either within a
specific area or statewide), have a very limited distribution, or have special space
or habitat requirements. These characteristics make them particularly vulnerable to
significant population declines because of disease, extreme weather, or loss of
suitable habitat.
Recreationally important species includes species (native or introduced) with high
recreational importance (consumptive or non - consumptive) or high public profile
and that are vulnerable to habitat loss or degradation. These species contribute to
local economies and /or provide opportunities for human interaction that are
especially valued by the public.
1. Where a project is proposed within an area where habitats and species of
local importance have a primary association, and the Technical
Administrator determines that habitat disruption is likely to occur from the
project as proposed, then a habitat management plan will be required. The
limits of development and other related activities within.the..HCA shall utilize
the recommendations of the plan: -; The. habitat,m -anagement plan shall be
prepared in compliance with section 16.16.730.
2. Activities may be permitted within an area where habitats and species of
local importance have a primary association subject to conditions designed
to avoid adverse impacts, provided that the county may deny a project if
such impacts cannot be avoided.
C. Shellfish Habitat Conservation Areas: Shellfish Habitat Conservation Areas are
found in estuarine wetland systems, and are protected from dredging or filling
activities through Article VI Wetlands, as well as the Washington State Department
of Fish and Wildlife Hydraulic Project Approval process and through policies and
regulations of the Whatcom County Shoreline Management Program, An addition,
Shellfish Habitat Conservation Areas are protected from water quality impacts
through the protection of wetlands, rivers and streams which protect water quality
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
28
by establishing appropriate buffers from the ordinary high water mark of rivers,
streams, and wetlands. In addition, the following provisions apply in order to
further protect Shellfish Habitat Conservation Areas:
.1. All owners of on -site sewage disposal systems (OSS) within any Shellfish
Habitat Conservation Area, shall operate and maintain their 'OSS in
accordance with WCC 24.05.17 Operation and Maintenance. In addition,
as part of the OSS permitting process for new systems, all owners of OSS
shall sign an operation and maintenance agreement provided by the
Whatcom County Health Department, detailing operation and maintenance
requirements as specified in WCC 24.05.17,(1_) and (3).
.2. Stormwater discharges to Shellfish Habitat Conservation Areas shall be
controlled and treated to provide all known and reasonable methods of
prevention, control, and treatment to meet freshwater and marine State
Water Quality Standards, as appropriate at the point of discharge.
Standards. should .include filtration through mechanical or bio-Filtration,
vegetation retention, timely reseeding of disturbed areas, use of grass -lined
bioswales for drainage, and other mechanisms as appropriate within
stormwater "special districts." The project shall conform with Chapters two
and three of the Whatcom County Development Standards.
D. Kelp and Eelgrass Beds, Pacific Herring Spawning Areas: Pacific Herring spawn.on
kelp and eelgrass beds, therefore protection of kelp and eelgrass beds will serve to
protect Pacific Herring spawning areas. Kelp and eelgrass beds are found in
estuarine wetland systems, and are protected from dredging or filling- activities
through Article VI Wetlands, as well as the Washington State Department of Fish
and Wildlife Hydraulic Project Approval process and through policies and
regulations of the Whatcom County Shoreline Management Program. In addition,
kelp and eelgrass beds are protected from the detrimental effects of sediment
deposition through the protection of wetlands, rivers and streams which protect
. .;_water quality by establishing appropriate buffers from the ordinary high water
j mark of rivers, streams, and wetlands.
E. Surf smelt and Pacific sand lance spawning areas: Surf smelt and Pacific sand
lance spawn along shoreline areas by depositing their eggs on upper intertidal
sandy- gravel beaches. These areas are protected from dredging or filling activities
through the Washington State Department of Fish and Wildlife Hydraulic Project
Approval process and through policies and regulations of the Whatcom County
Shoreline Management Program. In addition, the following requirements are
applicable through this ordinance:
1. All development including docks, jetties, and bulkheads shall avoid or
mitigate impacts to surf smelt and Pacific sand lance spawning areas.
2. Shoreline protection projects shall not adversely affect the supply of beach
sands and gravels necessary for supplying surf smelt and Pacific sand lance
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
spawning area substrate.
29
F. Ponds and Wetlands: The nearshore and deepwater habitats of wetlands and
ponds providing fish and wildlife habitat shall be protected according to the
provisions of Article VI in addition to the above sections (A) and (B).
G. Lakes and Marine Water Bodies: The nearshore and deepwater habitats of lakes
and marine water bodies providing fish and wildlife habitat shall be protected
according to the provisions of Article VI in addition to the above sections (A) and
(B).
H. Rivers and Streams: River and stream buffer areas shall be established from the
ordinary high water mark to protect.-riparian functions that influence -fish and
wildlife habitat: quality, in addition to. floodwater-attenuation,. erosion control, and
cultural or recreational uses.
1: There shall be no activity allowed within a river or a stream or its buffer
without meeting the mitigation requirements of section 16.16.245 unless
the activity is exempt through section 16.16.225 or as provided for in this
section.
2. Land divisions may be- clustered where permitted by zoning and as
appropriate to reduce disturbance to rivers and streams and buffers.
3. Buffer areas shall be established to protect river and stream functions. All
rivers and streams shall be protected by a standard 100' buffer, provided,
however, that a standard 50' buffer shall be applied to those waterways not
utilized by salmonid fish populations and which .do not directly, flow into
such waterways.
4. Buffers shall remain naturally vegetated except where the vegetation has
been invaded by noxious. weeds or where the natural buffer can be
enhanced for habitat, bank stabilization or water; qua Iity� purposes.
5. All buffers shall be measured on a horizontal plane from the ordinary high
water mark.
6. Standard buffer adjustment shall be allowed in accordance with 16.16.650.
I. Natural Area Preserves: Natural area preserves shall be protected from identifiable
off -site impacts where the integrity of the preserve is threatened, provided that the
owners of the preserve propose relevant management strategies considered
effective and within the scope of this ordinance, provide maps of the requested
FWHCA and provide a description of habitat features and ecological importance of
the site.
1 Submitted proposals will be reviewed by the Technical Administrator and
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
30
forwarded to the Departments of Fish and Wildlife, Natural Resources,
and /or other local and state agencies or experts for comments and
recommendations regarding accuracy of data and effectiveness of proposed
management strategies.
2. The Whatcom County Planning Commission will hold a public hearing for
proposals found to be complete, accurate,. potentially effective and within
the scope of this Ordinance. If approved, projects will become subject to
the provisions of the management plan as appropriate.
16.16.730 Habitat Management Plan
A. :.::When required pursuant to 16.16.720 (A) and (B) a management plan shall be
,,prepared by a wildlife habitat specialist, with experience assessing the relevant
_species and habitats.
B. Based on.the characteristics of the site and information submitted by the applicant,
the Technical Administrator may require that all or a portion of the following be
included in a habitat management plan:
1. 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,
C. Proposed development activity.
2. An analysis of how the proposed development activities will affect the
wildlife habitat conservation area;
3. Provisions to reduce or eliminate the impact of the proposed development
activities including:
a. Buffering and clustering of development,
b. Retention of native vegetation,
C. Access limitations, and
d. Seasonal restrictions on construction activities.
4. Management recommendations for Priority Habitats and Species developed
by WDFW through its PHS program.
C. All habitat management plans shall be prepared in consultation with the State
Department of Fish and Wildlife.
D. At the request of the applicant, the county will gather the required information in
this section for applicants seeking to develop a single - family home.
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
ARTICLE VIII DEFINITIONS
16.16.800 Definitions
31
Words and phrases used in this chapter shall be interpreted as defined below and, where
ambiguity exists, words or phrases shall be interpreted so as to give this chapter its most
reasonable application in carrying out its regulatory purpose.
1. "Activity" means human activity associated with the use of land or its resource.
2. "Adequate water supply" means a water supply which meets the requirements
specified in the Whatcom County health department interim water availability
policy.
3. "Agricultural activities" means those activities directly pertaining to:the .production
of crops or livestock including but -not. 1i m-ited-. to °- cultivation, :harvest, grazing,
animal waste storage and disposal; fertilization; the.nperati.on= 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 which bring an area into agricultural use are not
agricultural activities.
4. "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.
5. "Alluvium" means a general term for clay, silt, sand, gravel, or similar
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.
6. "Anadromous fish" means fish species that ascend rivers from the sea to spawn.
7. "Animal Unit" in terms of wastes produced, 10 animal units are equal to 10 head
of beef cattle, 7 dairy cattle, 2,900 broiler chickens, 15 horses, 1,800 laying hens,
550 turkeys or 1 20 sheep (1,000 pound equivelant = 1 animal unit).
8. "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 WAG).
9. "Bedrock" means a general term for rock, .typically hard, _:consolidated geologic
material, that underlies soil or other unconsolidated, superficial material.
10. "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; and
b. Minimize adverse impacts to surface water and ground water flow,
circulation patterns, and to the chemical, physical, and biological
characteristics of water.
11. "Best . Management Practices (aquifer recharge areas)" means schedules of
activities, prohibitions of practices, maintenance of procedures, and other
management practices, to prevent or reduce the pollution of the state's ground
water. BNIPs also include treatment requirements, operating procedures and
practices to control plant site runoff, spillage or leaks, sludge or water disposal, or
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
drainage from raw material storage (Chapter 173 -200 WAC).
32
12.
"Buffer (the buffer zone)" means the vegetated area adjacent to the outer
boundaries of wetlands or the ordinary high water mark of rivers and streams
which provide separation as required by this chapter, thus minimizing adverse
impacts to these areas.
13.
"Commercial fish" means those species of fish that are classified under the
Washington Department of Fisheries Food Fish Classification as commercial fish
=�
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
33
iii. Hospitals and other medical facilities;
iv. Jails and detention facilities.
20. "Debris flow" means a moving mass of rock fragments, soil, and mud; more than
half of the_ particles being larger than sand size.
21. "Debris torrent" means a violent and rushing mass of water, logs, boulders and
- other debris.
22. "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 within 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; acustrine- syst,emsdies. at:_,.a depth. of two
meters (6.6 feet) below low water; however.;-:if -emergent :Negetation, shrubs, or
trees grow beyond this depth at any time, their deepwater ,edgeJs the boundary
(Cowardin, et al.).
23. "Degraded Wetland" means a wetland that has over 80 percent cover of nonnative,
invasive vegetation species.
24. "Delineation" means the precise determination of wetland boundaries in the field
according to the application of specific methodology as described in the 1987
Edition, and as amended, Corps of Engineers Wetlands Delineation Manual and the
mapping thereof.
25. "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.
26. "Drainage ditch" means an artificially created watercourse constructed to drain
surface or groundwater.
27. "Emergent wetland" means a wetland:_wuith.:at:]east :30 percent.of .the surface area
covered by erect, rooted, herbaceous_ vegetation .as,._th.e -.' uppermost vegetative
strata.
28. "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
streamway 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.
29. "Exotic" means any species of plants or animals that is not indigenous to the area.
30. "Farm pond" means a deepwater habitat created from a non - wetland site in
connection with agricultural activities where the pond is smaller than five acres.
31. "Fen means wetlands. which derive peat from herbaceous materials which are less
acidic and have a higher nutrient status and greater plant diversity than other bogs.
32. "Fish and Wildlife Habitat Conservation Area" Fish and Wildlife Habitat
Conservation Areas include listed species habitats, habitats and species of local
importance, shellfish habitat conservation areas; kelp and eelgrass beds, pacific
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
34
herring spawning areas, surf smelt and pacific sand lance spawning areas, ponds
and wetlands, lakes and marine water bodies, rivers and streams, and natural area
preserves.
33.
"Fish habitat" means a complex of physical 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 and streams and lakes include, but are
not limited to, the following:
a. Good water quality and appropriate temperatures for spawning, rearing, and
holding;
b. Adequate water depth and velocity for spawning, rearing, and holding;
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 native riparian vegetation. Riparian vegetation creates a
transition zone which provides shade and food sources of aquatic and
terrestrial insects for fish. Riparian 'vegetation and their root systems
stabilize stream banks and provide limbs and other natural debris which, in
_
turn, stabilize stream beds.
34.
"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.
35.
"Functions" means the processes or attributes provided by wetlands, rivers,
_
streams, and riparian areas including 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.
36.
'.;Game fish" means those species of fish that are classified by the Washington
Department of Wildlife as game fish (WAC 232 -12 -019).
37.
"Geologist" means at minimum, a qualified geologist with a Bachelor's Degree in
geology and five years of recent post - graduate related experience as a professional
geologist in geotechnical engineering application. A Master's Degree in geology
may substitute for two years of experience.
38.
"Geologically hazardous areas" means areas that because of their susceptibility to
erosion, sliding, earthquake, or other geological events, may not be suited to
seating commercial, residential, or industrial development consistent with public
health or safety concerns. They include areas that are susceptible to one or more
of the following types of hazards:
a. Landslide hazards;
b. Seismic hazards;
C. Mine hazards;
d. Alluvial Fan hazards.
39.
" Geotechnical Engineer" means a qualified geotechnical engineer licensed as a civil
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
35
engineer with the state of Washington with five years of recent related experience
as a professional geotechnical engineer.
40. "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).
41. "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).
42. "Growing season" means the portion of the year when soil temperatures are above
biologic zero (41 degrees Fahrenheit)- as defined -by-'the, 1987, Edition, Corps of
Engineers Wetlands Delineation Manual, and as amended. .
43. "Isolated wetlands" means those wetlands which:
a. Are outside of and not contiguous to any 100 -year floodplain of a lake,
river, or stream; or
b. Have, under natural conditions, no contiguous connection to a stream, river,
pond, lake or marine water.
44. "Lake" means a naturally or artificially created body of deep (generally greater' than
6.6 feet) open water, 20 acres or greater, that persists throughout the year and
meets the definitional criteria for a deepwater habitat.
45. "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.
46. "Low impact activity" means those low intensity activities such as hiking,
canoeing, viewing, nature study, photography, hunting and fishing which do not
require structural improvements or result in any alteration of hydrology, vegetation
or other adverse impacts to the environment.
47. "Maintenance and repair" means work °required -to keep. existing-improvements in
their existing state. This does - not include any, mod ification-'that changes the
character, scope, or size of the original structure, facility utility at improved area.
48. "Mature forested wetland" means a forested wetland with an overstory dominated
by mature trees having a wetland indicator status of facultative (FAC),
facultative -wet (FACW), or obligate (OBL) (Reed, 1988) and that meet all. of the
following criteria:
a. Mature trees comprise at least 50 percent of the tree canopy coverage.
Mature trees are considered to be deciduous trees. over 18" DBH and
evergreen trees over 20 "1313H.
b. The forested area is greater than three acres in size.
49. "Mean annual flow" means the average flow of a river, stream (measured in cubic
feet per second) from measurements taken throughout the year.
50. "Mitigation' means replacing project - induced losses'-or adverse impacts on critical
areas such as wetlands, rivers, streams; or fish habitat conservation areas,
including, but not limited to, the following:
a. "Restoration" means actions performed to re- establish a critical area,
including the functional characteristics and processes which have been lost
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
36
by alterations, activities, or catastrophic events.
b. "Creation" means actions performed to intentionally establish a critical area
or a portion of a critical area where one did not formerly exist.
C. "Enhancement" means actions performed to improve the condition of
existing critical areas so that the functions they provide are of a higher value
and provide a greater diversity of functions.
51. "Mitigation plan" means a detailed .plan indicating actions necessary to mitigate
adverse impacts to critical areas.
52. "Native vegetation" means plant species which are indigenous to the area. (Refer
to Appendix D for a list of non - native plants).
53. "Off -site mitigation" means to replace wetlands away from the site on which a
_ wetland has been adversely impacted by a regulated activity.
54. __Zon -site mitigation" means to replace wetlands at or adjacent to the site on which
,a, wetland has been adversely impacted by a regulated activity.
55. a "ordinary high water mark" means the mark 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)).
{ 56. "Person" means any person, proprietorship, partnership, corporation, indian tribe,
federal, state or local government, or part thereof.
57. "Pond" means a naturally or artificially created body of deep (generally greater than
6.6 feet) open water, under 20 acres, that persists. throughout the year and meets
the definitional criteria for a deepwater habitat. Farm ponds are excluded from this
definition.
58. "Potable" means water which is suitable for drinking by the public (Chapter
246 -290 WAC).
59. "Primary Association -.means limiting fish and wildlife habitats (e.g. breeding or
spawning areas) or areas that support a relatively higher number of individuals (e.g.
regular concentrations).
60. "Project" means any proposed or existing development activity - regulated by
Whatcom County..
61. "Project Permit or Project Permit Application" means any land use or environmental
,p_ermit or license required from Whatcom County for a project action, 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.
62. "Riparian corridor" means an area between aquatic and terrestrial ecosystems
defined by the presence of vegetation that requires moist conditions and, usually,
periodic free flowing water. -rhe benefits of vegetation cover and 7food sources and
the availability of water in riparian corridors means that they are likely to be
preferentially used by wildlife and enable wildlife movement between wetlands and
along streams, rivers, and lakes.
63. "Riparian vegetation" means vegetation that tolerates and /or requires moist
conditions and periodic free flowing water thus creating a transitional zone which
provides shade and food sources of aquatic and terrestrial insects for fish. Riparian
vegetation and their root systems stabilize stream banks, attenuate high water
flows,'and provide limbs and other natural debris which, in turn, stabilize stream
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 37
beds. The benefits of vegetation cover and food sources and the availability of
water in riparian corridors mean that they are likely to be preferentially used by
wildlife and enable wildlife movement. between wetlands and along streams, rivers
and lakes.
64. "River" means those areas where surface waters produce a defined channel or bed
and the mean annual flow is 20 cubic feet per second or greater. This definition
includes all rivers within the jurisdiction of the Whatcom County shoreline
management program.
65. "SEPA" is a commonly used abbreviation for the State Environmental Policy Act.
66. "Shellfish" are invertebrates of the phyla Arthropoda (class Crustacea), Mollusca
(class Pelecypoda) and Echinodermata. For the': purposes of this ordinance,
however, only the commercially and recreationally important species of the class
Pelecypoda (bivalves - clams, oysters, scallops, and .mussels) :are: included:_
67 "Shellfish Habitat Conservation Areas" are -all -public -and? °private == •tidelands suitable
for shellfish, as identified :by the Washington Department of- Health:cFassification
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. These areas currently
include, but may not be limited to, the tidelands of the following areas: Drayton
Harbor, the west side of Semiahmoo Spit, Birch Bay, Lummi Bay, Legoe Bay on
Lummi Island, Portage Bay and the Tidelands of Portage Island, Chuckanut Bay
including Clayton Beach Tidelands and Mud Bay, and Tidelands at Point Roberts
Lighthouse Park. Any area which is or has been designated as a Shellfish
Protection District created under RCW 90.72 is also a Shellfish Habitat
Conservation Area.
68. "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
Shorelines on lakes`�less than 20 acres- ,and wetlands associated with
such small lakes.
69. "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.
70. "Soil" means all unconsolidated materials above bedrock described in the Soil
Conservation Service Classification System or by the Unified Soils Classification
System. These unconsolidated materials may be divided into two categories; the
upper layers which are called soil. These are typically made up of broken and
decomposed rock and decayed organic matter; and the lower layers, between the
soil and the bedrock which are called regolith. Regolith is typically made up of
unconsolidated sediment (e.g. alluvium) .and weathered rock.
71. "Sphagnum bog" means a bog characterized by the presence of sphagnum moss
species and a preponderance of sphagnum peat. Bogs have low pH and low
nutrient availability. They typically develop in cold drainage basins. This set of
conditions give rise to an unusual flora, many species of which are unique to
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997
38
sphagnum bogs.
72. "Sport fish" means those species of fish that are classified under the Washington_
Department of Fisheries Food Fish Classification as sport fish (WAC 220 -12 -010).
73. "Streams" are those areas where surface waters produce a defined channel or bed
..and--the mean annual flow is under 20 cubic feet per second. A defined channel or
bed is an area which 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 the waterway
is utilized by salmonid fish populations or the water courses flow directly into
Shellfish Habitat Conservation Areas.
74. "Technical Administrator" means the Director of the Planning & Development
Services Department or designated by the Director to perform the review functions
required in this ordinance.
75. "Toe" means the lowest part of a slope or cliff; the downslope. end of an alluvial
fan, landslide, etc..
76. "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.
77. "Utilities" means all lines and facilities used to distribute, collect, transmit, or
control electrical power, natural gas, petroleum products, information
(telecommunications), water, and sewage.
78. "Watershed" means a geographic region within which water drains into a particular
river, stream or body of water. For the purposes of this chapter, watersheds shall
include the following:
a. Coastal Drainages: Drayton Harbor, Pt. Roberts, Birch Bay, Silver Creek, North
Bellingham Bay, South Bellingham Bay, Squalicum Creek, Lake Whatcom,
Whatcom Creek, Padden Creek, Chuckanut Bay, Cherry Point/Sandy Point.
b. Nooksack River Drainages: North Fork, Middle Fork, South Fork, Karnm Slough,
Upper Nooksack, Bertrand /Fishtrap Creeks, Ten Mile Creek, Lower Nooksack.
C. Canadian Drainages: Chilliwack River, Saar Creek, Sumas River.
79.. "Well head protection area" means the area (surface and subsurface) managed to
protect ground water based public water supplies. The designation of these areas
should be consistent with that defined by the department of health in its Well Head
Protection Program.
80. "Wetland Area" means a portion of a wetland ecosystem sharing similar features
distinctly differing from other portions of the wetland ecosystem. A wetland area can
include the entire wetland ecosystem when the entire system shares similar features.'
81. "Wetland Enhancement" See " mitigation."
82. "Wetland and /or stream specialist" means a person who has earned a Bachelor's
Degree in science with specific or related course work in wetland and /or stream
ecology, hydrology or soils science from an .accredited college or university and
- two years of professional experience in wetland delineation, and stream and
wetland functional assessment and mitigation or equivalent experience.
83. "Wet meadow" means palustrine emergent wetlands, typically having up to six
inches of standing water during the wet season and disturbed site conditions from
agricultural activities, including disturbance of soils, vegetation, or hydrology; and
the vegetation is composed predominantly of meadow emergents such as reed
canary grass and /or other nonnative species. During the growing season, the soil
CRITICAL AREAS ORDINANCE - NOVEMBER, 1997 39
is often saturated but not covered with water. Wet meadows frequently have been
or are being used for livestock or other agricultural activities.
84. "Wetland Restoration" See " mitigation."
85. "Wildlife Habitat Specialist " means a professionally trained wildlife biologist or
ecologist or other professional biologist with expertise in the scientific disciplines
necessary to identify, evaluate and manage habitat.
86. "Windthrow" means a natural process by which trees are uprooted or sustain
severe trunk damage by the wind.
CRITICAL AREAS ORDINANCE
NOVEMBER 1997
APPENDICES
40
l
APPENDIX A
Conservation Program On Agriculture Lands
PURPOSE
The purpose of this program is to provide a level of environmental protection on agriculture lands
sufficient to meet the requirements of the Washington State Growth Management Act. This program
is required pursuant to sections 1 6.16.285 and .225 WCC, Critical Areas, and applies to agricultural
activities as defined in the ordinance.
GOALS
This program addresses the following goals of the Environment and Resource Lands chapters of the
Whatcom County Comprehensive Plan:
1) Conserve and enhance Whatcom County's agricultural land base for the continued production
of food and forage [Goal 8A];
2) Maintain and enhance Whatcom County's agricultural products industry as a long -term and
sustainable industry [Goal 8B];
3) Preserve and enhance the cultural heritage that is related to agriculture [Goal 8C];
4) Reduce land use conflicts between Whatcom County's agricultural and non - agricultural
landowners [Goal 81)].
5) Protect natural resources and systems [Goal 11A];
6) Ease the burden of excessive and confusing regulations relating to the identification,
delineation, and protection of environmental features [1113];
7) In implementing Whatcom County's environmental policies, provide for protection of
private property rights, economic opportunities, and plan appropriately for growth [Goal
11 C];
8) Protect and enhance water quality and promote sustainable and efficient use of water
resources [Goal 11E];
9) Protect and enhance natural systems which - provide.. economic, ecological, and cultural
benefit [Goal 11J];
10) Protect and enhance natural systems that support native fish, shellfish and wildlife
populations, and habitats [Goal 11 K];
11) Conserve and enhance important wetlands [Goal I IK];
41
OBJECTIVES
This program seeks to achieve the above goals through pursuing the following objectives:
1) Provide an environmental protection program for agricultural activities which is consistent
with Chapter 16.16 WCC Critical Areas;
2) Provide an environmental protection program for agricultural activities which meets a1142
applicable State and Federal regulations;
3) Provide an environmental protection program for agricultural activities which is consistent
with the Whatcom County Comprehensive Plan;
4) Provide an alternative mechanism through which property owners conducting agricultural
;y activities can comply with Critical Areas requirements;
5) Provide a mechanism which incorporates increased flexibility for property owners while
:.meeting environmental requirements;
6) provide an environmental protection program which encourages resource management and
conservation planning;
7) Provide an environmental protection program which encourages the use of "Bost
Management Practices;"
8) Provide a mechanism which encourages property owner participation and choice; and
9) Utilize the expertise of the Whatcom Conservation District (WCD, an existing local agency
which has a history of working with the agricultural community.
OVERVIEW OF PROGRAM
A. Critical Areas Compliance
There are two mechanisms through which property owners conducting agricultural activities can
comply with applicable critical areas requirements. First, property owners can adhere to the
requirements which pertain to all development activities as set forth in chapter 16.16 WCC Critical
Areas.... Alternatively, such property owners can choose to meet the requirements set forth in the
Conservation Program on Agriculture Lands (OPAL). This program requires property owners to
develop conservation plans, and submit them to WCD for review and approval. The approval of
conservation plans is based on their ability to meet the program's environmental quality standards,
and their conformance with conservation practice standards developed primarily by the United States
Department of Agriculture, Natural Resources Conservation Service (MRCS), formerly the Soil
Conservation Service. Property owners are responsible for the preparation of conservation plans.
B. WCD Responsibilities
Whatcom Conservation District responsibilities include the following:
• Review and approve, condition or disapprove all properly submitted conservation plans;
• Provide assistance to property owners participating in the program at the. level and to the degree
42
they request it;
• Assist property owners in the development of site - specific conservation plans meeting the
program's requirements. Conservation plans shall consist of a combination of structural tools
and management practice standards, and shall be designed to protect potentially impacted critical
areas;
a While assisting property owners during the conservation plan development process, provide
opportunities for property owner input and choice;
• Where feasible, assist property owners to develop conservation plans which incorporate Federal,
State or local cost -share or incentive programs;
• Where applicable, provide technical assistance to property owners during the component- design
and implementation phases of their plans;
• Provide guidance. to property owners regarding ,operation and maintenance of incorporated
structural tools and management systems; _
• Monitor and evaluate conservation plan effectiveness;.as•needed;
a Be available to property owners to review and update conservation plans; which must be re-
approved every five years; and
• On an annual basis, report on the status of the program to the County Council.
C. Whatcom County Responsibilities
Whatcom County responsibilities include the following:
• Inform property owners whose existing or planned agricultural activities are not in compliance
with critical areas requirements about this conservation program and refer them to WCD;
• Review and comment on proposed conservation plans; and
• Enforce property owner compliance with approved conservation plans.
ADMINISTRATIVE PROCESS
This program requires property owner cooperation throughout the conservation plan development
or approval processes. Property owners may be asked to provide information regarding present and
future agricultural activities, and to allow WCD staff to Have access to the -subj ect properties with
prior notification.
A. Conservation Plan Development
Property owners are responsible for the development and preparation of conservation plans, and may
use whatever means available to them to do so. This may include preparing plans themselves, hiring
someone else, or utilizing the assistance of WCD or the Whatcom County Technical Administrator.
If WCD assistance is desired, the property owner must initiate this process by contacting WCD
either in person or in writing.
As a guide, it is recommended that property owners follow the steps in the WCD conservation plan
development process, outlined below:
43
1. Inventory. Conduct an on -site agricultural/ environmental inventory. This inventory should
identify both the principal agricultural activities -occurring on the property and the adjacent
critical areas. Additional information regarding topography , soils, vegetation, and existing
structures should also be gathered.
Applicable Critical Areas, as defined in chapter 16.16 WCC Critical Areas, include:
• Critical aquifer recharge areas;
• Fish and Wildlife habitat conservation areas;
• Wetlands;
2. Determination of property owner objectives and resources. Identify agricultural activities
planned for the future. Determine what the property owner wants to accomplish through
developing a conservation plan, as well as the available resources.
3. Analysis. Analyze the subject property, agricultural activities and critical areas, to determine
the level of critical areas protection needed at various locations. As a starting point, WCD has
divided agricultural activities into three broad categories, based on impact: low- impact,
moderate - impact, and high- impact. See Table 1.
Table l: Impact Categories for Agricultural Activities
Low - impact
Moderate - impact
High - impact
hayfields
tilled cropland
feed lots
orchards
pasture land
manure lagoons
woodlots
berry fields
confinement areas
vineyards
I fields receiving manure
I heavy use areas
This .categorization is understood to be somewhat generalized. The size and intensity of each activity
must :also be taken into consideration along with other factors, such as: the distances separating
agricultural activities from critical areas, the topography, existing vegetation, and soils. Critical areas
should be identified based on county critical areas maps and on -site inspection by qualified specialists.
4. Formulation of alternatives and plan selection. Taking all of the above information into consideration,
develop a site- specific plan, or plans. In some cases, there may be a number of way to achieve the
necessary level of critical areas protection. For example, given an activity typically requiring a buffer
separating it from a critical area, a reduced buffer width may be adequate, if sufficient vegetation is in
place, or can be established. Property owners must select the plan which best fits with their objectives
and available resources.
Conservation plans which meet CPAL requirements consist of a combination of structural tools and
management practice standards. Many such standards have been developed by NRCS and other
44
government agencies and institutions. A list of the tools and standards which WCD has determined to
be most applicable to agricultural activities in Whatcom County is available from WCD, as well as
information on each specific tool or standard. Information regarding the preparation of conservation
plans is also available from WCD. If property owners choose to incorporate conservation practice
standards or Best Management Practices from other sources, it must be demonstrated that these tools or
practices will provide the necessary level of environmental protection. At the property owner's request,
WCD can assist them in designing a conservation plan which goes beyond the protection of critical
areas, and which looks more broadly toward developing the property's potential in terms of soil, water,
air, plants, and animals.
5: Plan preparation. Prepare the selected conservation plan for submission to WCD, and include the
following:
.. The property owner's name;
The address and legal description of the subject property;
A nap which clearly shows the location of . -all.: critical = areas.:. and agricultural activities
occurring on the property;
Descriptions of the above critical areas and activities; .and
A detailed description of the tools and /or management practices which will be incorporated
into the plan, along with an explanation of how these components will provide the necessary
level of critical areas protection.
WCD will maintain a database containing information on property owners who are utilizing WCD
assistance in the development of their conservation plans. Once a plan has been completed, the
property owner can submit it to WCD for review and approval.
B. Conservation Plan Submittal
Property owners must submit three copies of their completed conservation plans to WCD, along with
a signed letter stating that they are submitting the plan for WCD review and approval.
C. Conservation Plan Review and Approval
Upon receipt of a properly submitted conservation plan, WCD will forward;copies.to the Washington
State Department of Fish and Wildlife, the -Department of Ecology, and the: Whatcom County
Critical Areas Technical Administrator for a 20 day review and comment period. WCD, in
consultation with NRCS, will approve, condition, or disapprove such a plan within thirty calendar
days from the date the plan is received at the WCD office. If no. action is taken within thirty days,
the conservation plan will be deemed approved.
Conservation plans which are approved will be marked as such and returned to the property owner.
WCD will also forward a copy of the approved plan to the Whatcom County Critical Areas
Administrator who will maintain a file of all conservation plans for public inspection.
If a conservation plan is disapproved, WCD will notify the,applicant in writing. This notification,
45
along with the disapproved plan, will be mailed to the property owner within ten days from the date
the plan is disapproved, and will indicate those portions of the plan which do not meet the program's \
requirements. Property owners who receive notifications of conservation plan disapproval are
encouraged to make the necessary modifications and resubmit their plans to WCD for approval.
WCD will maintain a database containing conservation plan approval and disapproval information.
D. Appeals
Any property owner who receives notification of conservation plan disapproval may appeal the
decision to the WCD Board, who will make a determination based on NRCS standards. If, after
considering the matter, the Board denies the appeal, the property owner may appeal the decision to
the county hearing examiner, pursuant to section 16.16.265 WCC. WCD will inform the Whatcom
County.Critical Areas Technical Administrator, in writing, of all such appeals which have been
denied.
CONSERVATION PROGRAM REQUIREMENTS
The CPAL Environmental Quality Standards and Conservation Practice Standards are included in
the WCD Conservation Planning Handbook. Copies of the Handbook are available at WCD and
Whatcom County Planning and Development Services.
Environmental Quality Standards
1. Unless otherwise specified, conservation plans shall be developed to meet the Resource
Management System Quality Criteria contained in section III of the NRCS Field Office
Technical Guide.
The following requirements also apply:
2. Conservation plans shall be developed so as to comply with Chapter 90.48 RCW: Water
Pollution Control and all regulations including amendments which implement it. Such plans
shaltmeet or exceed water quality standards as established in Chapter 173 -20.1A WAC: Water
Quality Standards for Surface Waters of the State of Washington and Chapter 173 -200 WAC:
Water Quality Standards for Ground Waters of the State of Washington.
B. Conservation Practice Standards
Conservation practices, sometimes referred to as "Best Management Practices," include physical or
structural tools and/or management practices which, when used singularly or in combination, prevent
or reduce the adverse impacts of agricultural activities on critical areas. WCD utilizes conservation
practice standards drawn from several sources, the most significant of which is the NRCS, which
began developing conservation standards in 1969. ]VRCS standards are described in detail in the
NRCS National Handbook of Conservation Standards. These NRCS standards and others used by
46
WCD cover a wide range of subject areas, and provide guidelines and specifications for both
structural tools and management practices. A complete listing of these standards, along with their
specifications, is contained in the Conservation Practice Standards section of the WCD Conservation
Planning Handbook.
To assist property owners in the conservation planning process, WCD has divided these conservation
practice standards into seven different groups based on the functions they perform. Many of the
standards most commonly incorporated into conservation plans are indicated below.
For each conservation plan, appropriate conservation practice standards must be, selected and applied
on a case by case basis so as to achieve the necessary level of critical areas protection. If the
applicable activities are present, standards from the first four groups must be incorporated into
conservation plans. Titles of NRCS or other standards -are showninside °brackets
Group 1: Critical Areas Management
This group of standards covers limiting or controlling the access which livestock or other uses have
to critical areas on a permanent, temporary, or seasonal basis [Livestock Exclusion/ Use Exclusion].
This is often achieved through the construction of appropriately located physical barriers [Fencing],
or by developing animal crossing and watering point plans [Access Roads]. Standards which limit
stream bank or stream channel erosion are also included in this group [Streambank and Shoreline
Protection, Stream Channel Stabilization].
Group 2: Waste Management _
The NRCS has identified at least 19 different standards which pertain to the management of wastes.
These include standards which specify appropriate livestock densities within a fully planned system
[Waste Management Systems], the storage and treatment of wastes [Waste Storage Facility, Waste
Treatment Lagoon], the use or field application of wastes [Nutrient Management], and runoff control
[Filter Strip].
Group 3: Confinement Area Management
This group of standards is closely related to the previous group and pertains�primarily to working
with areas in which livestock are concentrated:= -The size and characteristics of livestock holding or
feeding areas are covered [Managing Livestock Confinement and Holding Areas], as well as the
management of runoff to reduce both erosion and the movement of pollutants [Roof Runoff
Management].
Group 4: Cropland Management
These standards are designed to reduce impacts to critical areas from croplands. This is
accomplished through specifying the method, location, or timing of certain activities, such as
cropland tilling [Residue Management], the use of pesticides [Pest Management], and the planting
of crops to reduce erosion and sedimentation [Conservation Crop Rotation, Cover and Green Manure
Crop, Buffer Striperopping].
47
Standards drawn from groups 5 through 7 may be incorporated into plans when additional
management, or critical areas protection or enhancement is necessary, or desired.
Group 5: Grazing and Pasture Management
This group of standards covers all aspects of managing pasture and grazing areas [Grazing Land
Mechanical Treatment, Pasture and Hayfield Planting, and Prescribed Grazing].
Group 6: Buffer Enhancement
This group contains standards which pertain to the planting or maintaining of critical area buffers.
The size and composition of buffers, as well as their benefits, are covered [Tree/ Shrub
Establishment, Riparian Buffers for Agricultural Lands].
Group 7: Critical Area Enhancement
This group of standards specifies tools for protecting or improving rivers and streams [Fish Stream
Improvement, Channel Vegetation], for managing or restoring wetlands [Wildlife Wetland Habitat
Management, Wetland Development or Restoration], and for creating, maintaining or enhancing
wildlife habitat [Wildlife Upland Habitat Management].
Any critical areas enhancement undertaken as a required component of a conservation plan shall not
substitute for enhancement or mitigation measures required as a result of development activities
pursuant to chapter 16.16 WCC Critical Areas.
48
APPENDIX B
Sources of Groundwater Contamination
and Associated Contacts for Technical Expertise
Following is a list of potential sources which may contribute to groundwater contamination. To assist in
evaluating actions /conditions which may be necessary to prevent contamination from occurring, specific
agencies have been referenced which may be able to offer technical expertise. In addition, when proposed
.activities occur in the proximity of existing public water systems, the local health department should be .
contacted for comment. Other agencies and governments which are not referenced in the tables but which
may be appropriately contacted include:
- Department of Fisheries
- Tribal Governments
- Department of Wildlife
- Army Corp of Engineers
- Environmental Protection Agency
- Universities, colleges or other institutes
CATEGORY I - Sources designed to discharge substances
SOURCE
CONTACT(S)
Subsurface Percolation
Local Health Department, On -site Waste
(i.e. septic systems)
Washington State Department of Health
Department of Ecology
Injection Wells
Land Application of
Local Health Department, Solid Waste
Municipal Sludge, Compost,
Department of Health
Other Similar
Washington :State Department..of Ecology
Soil Conservation Service
Land Application of Animal
Soil Conservation Service
Waste
Cooperative Extension
Conservation District
Washington State Department of Ecology
49
CATEGORY II - Sources designed to store, treat, and /or dispose of
substances; discharge through unplanned release
SOURCE
CONTACT(S)
Solid Waste Disposal
Local Health Department, Solid Waste
County Solid Waste Department
Washington State Department of Ecology
Municipal Waste Lagoons
'Manure Lagoons
Local Health Department
Washington State Department of Ecology
Soil Conservation Service
Conservation Districts
Cooperative Extension
Materials Stockpiles
Department of Ecology
Local Health Department, Solid Waste
Graveyards
Open Burning
Northwest Air Pollution Authority
Department of Ecology
Fire Fighting Agencies
Department of Natural Resources
Containers
Local Health Department
Department of Ecology
Department of Emergency Services
-Detonation Sites
Radioactive Disposal
Department of Ecology
Local Health Department .
Above and Below ground
County Land Use Division
Storage Tanks
County Health Department
Washington State Department of Ecology.
50
CATEGORY III - Sources designed to retain substances during transport or
transmission
SOURCE
CONTACT(S)
Pipelines
Department of Ecology (Water Rights)
Materials Transport and transfer operations
Department of Emergency Services
Local Health Department, Solid Waste
Department of Ecology
CATEGORY IV - Sources discharging substances -as a consequence of other planned
activities
SOURCE
CONTACT(S)
Irrigation practices
Department of Ecology (Water Rights)
Soil Conservation Service
Cooperative Extension
Conservation District
Pesticide applications
Department of Ecology - private and commercial
pesticide applicator and operator license, water quality
standards
Department of Agriculture
Soil Conservation Service
Cooperative Extension
Conservation District
Fertilizer applications
Department of Ecology - dairy discharge permits,
complaints
Soil Conservation Service
Animal Feeding Operations
Department of Ecology - NPDES permits
Mining and mine drainage
Department of Natural Resources
Department of Ecology - water quality impacts,
complaint response
51
Urban runoff
Department of Ecology - combined sewer overflow,
technical manuals, best management practices
Department of Transportation - technical assistance on
runoff and treatment related to highways
Department of Fisheries /Game - hydraulic project
approval, proposed drainage standards
Center for Urban Water Resource Management
(University of Washington)- research, technical
assistance
County Engineering, Land Use Division,
Maintenance and Operations
CATEGORY V - Sources providing conduit or inducing discharge through altered
now patterns
SOURCE
CONTACT(S)
Wells
Department of Ecology
Surface Mining
Department of Natural Resources
Whatcom County Land Use Division
Construction Excavation
County Engineering, Land Use Division
CATEGORY VI - Naturally occurring sources whose discharge is created and /or
exacerbated by human activity
SOURCE
CONTACT(S)
Saltwater Intrusion
Department of Ecology
52
COMMON NAME
Bald eagle
Brown pelican
California wolverine
Cascade frog
Common loon
Fenders's soliperlan stonefly
Fisher
Golden hairstreak
Golden eagle
Gray whale
Gray wolf
Grizzly bear
Harlequin duck
Lewis's woodpecker
Lynn's clubtail
Marbled murrelet.
Northern goshawk
Northern spotted owl
Pacific harbor porpoise
Peregrine falcon
Pileated woodpecker
Puget Blue
Purple martin
Red legged frog
Sandhill crane
Sea lion, Steller (Northern)
Townsend's big -eared bat
Van Dyke's salamander
Vaux's swift
Western bluebird
APPENDIX C
LISTED SPECIES
SCIENTIFIC NAME
Haliaeetus leucephalus
Pelecanus occidentalis
Gulo gulo leteus
Rana cascadae
Gavia immer
Soliperla fenderi
Martes pennanti
Habrodais grunus herri
Aquila chrysaetos
Eschrichtius robustus
Canis lupus.
Ursus arctos
Histrionicus histrionicus
Melanerpes lewis
Gomphus lynnae
Brachyramphus marmoratus
Accipiter gentilis
Strix occidentalis
Phocoenaphocoena
Falco peregrinus
Dryocopus pileatus
Plebejus icarioides erymus
Progne subis
Rana aurora
Grus canadensis
Eumetopisa jubatus
Plecotus townsendii -
Plethodon vandykei
Chaetura vauxi
Sialia mexicana
53
COMMON NAME
American black oystercatcher
Band - tailed pigeon
Black Brant
Black- crowned night heron
Cavity nesting ducks
Wood duck
Barrow's goldeneye
Common goldeneye
Bufflehead
Hooded.merganser
Dall's porpoise
Diving Birds
Loons
Grebes
Cormorants
Alcids
Great blue heron
Harbor seal
Killer Whale
Marten
Mink
Osprey
Sea Lion, California
Seabirds
Cormorants
Terns
Alcids
Shorebirds
Plovers; etc.
Sandpipers, etc.
Phalaropes
Swans
Trumpeter swan
Tundra swan
Turkey Vulture
SPECIES OF LOCAL EUPORTANCE
SCIENTIFIC NAME
Haematopodidae
Columba fasciata
Branta bernicla
Nycicorax nycticorax
Aix. sponsa
Bucephala islandica
Bucephala clangula
Bucephala albeola
Lophodytes cucullatus
Phocoenoides dalli
Gaviidae
Podicipedidae
Phalacrocoracidae
Alcidae
Arede heodias
Phoca vitulina
Orcinus orca
Martes americana
Mustela vison
Pandion haliaetus
Zalophus californianus
Phalarocoracidae
Laridae
Alcidae: common murre, pigion guilemot,
Cassin`s auklet, rhinoceros auklet, tufted puffin
Charadriidae
Scolopacidae
Phalaropodidae
Cygnus buccinator
Cygnus colombianus
Cathartes aura
54
APPENDIX D
Non - Native Plants*
The following list includes non - native plants found in this region. The region includes Whatcom,
Skagit, Snohomish, San Juan, and Island counties.
COMMON NAME
alfalfa
barnyard grass
bean - caper, Syrian
bindweed
birdsfoot trefoil
blackberry, Himalayan
blackberry -
blackgrass
bluegrass.
blueweed
blueweed, Texas
broom, Scotch
bromes
bryony, white
bugloss, annual
bugloss, common
buffalobur
burdock
buttercup
camelthorn
canary grass, reed
cinquefoil; sulphur
clovers
cordgrass, common
cordgrass, salt meadow
cordgrass, smooth
crabgrass
creeping buttercup
crupina, common
deadnettle, hybrid
dogtail
elodea, Brazilian
fescue
fieldcress, Austrian
four o'clock wild
SCIENTIFIC NAME
Medicago sativa
Echinochloa crusgalli
Zygophyllunifabago
Convolvulus spp.
Lotus corniculatus
Rubus..laciniatus_ :::.-
Rubus: discolo-r;Rvestitus;:R:macrophyllus
Alopecurus -myosuroides � -. :.
Poa compressa, P. palustris, P. pratensis
Echium vulgare
Helianthus ciliaris
Cytisus scoparius
Bromus tectorum, B. rigidus, B.
brizaeformis, B. secalinus, B. japonicas, A
mollis, B. commutatus, B. inermis, B.
erectus
Bryonia alba
Anchusa arvensis
Anchusa offcinalis
Solanum rostratum
Arctium minus
Ranunculus repens
Alhagi pseudalhagi
Phalaris arundinacea
Potentilla recta -
Trifolium. dubium, : T - pratense,: -T : repens, T.
arvense, T :subterraneum,.:.T - Aybr_idum
Spartina anglica
Spartina patens
Spartina alterniflora
Digitaria sanguinalis
Ranunculus repens
Crupina vulgaris
Lamium hybridum
Cynosurus cristatus, C. echinatus
Egeria densa
Festuca arundinacea, F. pratensis
Rorippa austriaca
Mirabilis nyctaginea
55
foxtail barley
Hordeum jubatum
goatgrass, jointed
Aegilops cylindrica
gorse
Nex europaeus
green bristlegrass
Setaria viridis
hawkweed, yellow.
Hieracium pratense
hawkweed, mouseear
Hieracium pilosella
hawkweed, orange
Hieracium aurantiacum
hedge parsley
Torilis arvensis
hogweed, giant
Heracleum mantegazzianum
indigobush
Amorpha fruticosa
ivy, ground
Glecoma hederacea
COMMON NAME SCIENTIFIC NAME
johnsongrass
Sorghum halepense
knapweed, bighead
Centaurea macrocephala
knapweed, black
Centaurea nigra
knapweed, brown
Centaurea jacea
knapweed, diffuse
Centaurea diffusa
knapweed, meadow
Centaurea jacea x nigra
knapweed, Russian
Acroptilon repens
knapweed, spotted
Centaurea maculosa
knapweed, Vochin
Centaurea nigrescens
knapweeds
Centaurea solstitialis, C. cyanus
knotweed, Japanese
Polygonum cuspidatum
Knotweeds,
Polygonum aviculare, P. convolvulus,P.
lapathifolium, P. persicaria
kochia
Kochia scoparia
lepyrodiclis
Lepyrodiclis holsteoides
loosestrife, garden
Lysmachia vulgaris
loosestrife, purple
Lythrum salicaria
loosestrife, wand
Lythrum virgatum
mallow, Venice
Hibiscus trionum
meadow foxtai F
Alopecurus pratensis, A. aequalis
nightshade, bitter
Solanum dulcamara
nightshade, silverleaf
Solanum elaegnifolium
nutsedge, yellow
Cyperus esculentus
orchardgrass
Dactylis glomerata
oxtongue, hawkweed
Picris hieracioides
peganum
Peganum harmala
parrot feather
Myriophyllum brasiliense
pepperweed, perennial
Lepidium latifolium
pineapple weed
Matricaria matricarioides
poison - hemlock
Conium maculatum
purple loosestrife
Lythrum salicaria
quackgrass
Agropyron repens
ragwort, tansy
Senecio jacobaea
56
reed
Phragmites communis
reed canary grass
Phalaris arundinaceae
russian olive
Elaeagnus augustifolia
ryegrass
Lolium perenne, L. multiorum,
thistle, plumeless
L. temulentum
sage Mediterranean
Salvia aethiopsis
saltcedar
Tamarix sp.
sandbur, longspine
Cenchrus longispinus
scot's broom
Cytisus scoparius
skeletonweed, rush
Chondrilla juncea
soft .rush
Junc.us effusus
sowthistle, perennial
Sonchus'arvensis arvensis
spurge, leafy
Euphorbia esula
spurge
Euphorbia peplus
St. Johnswort, common
Hypericum perforatum
starthistle, yellow
Centaurea solstitialis
starthistle, purple
Centaurea calcitrapa
Swainson pea
Sphaerophysa salsula
sweet clover
Melilotus alba, M. ofcinalis
tansy, common
Tanacetum vulgare
teasel
Dipsacus sylvestris
thistle, bull
Cirsium vulgare
COMMON NAME SCIENTIFIC NAME
thistle, Canada
Cirsium arvense
thistle, Italian
Carduus pycnocephalus
thistle, milk
Silybum marianum
thistle, musk
Carduus nutam
thistle, plumeless
Carduus acanthoides
thistle, Russian
Salsola kali
thistle, Scotch
Onopordum acanthium
thistle, slenderflower
Carduus tenujlorus
timothy
Phleum pratense
toadflax, Dalmatian
Linariagenistifolia
spp. dalmatia
tumblemustard
Sisymbrium altissimum, S. loeselii, S.
ofcinale
unicorn -plant
Proboscidea louisianica
velvetleaf
Abutilon theophrasti
velvet grass
Holcus lanatus, H. mollis
watermilfoil, eurasian
Myriophyllum spicatum
woad, dyers
Isatis tinctoria
Cultivated species
barley, corn, rye, wheat, etc.
* Non - native plants: Species that are not indigenous to this region or area.
57
Sources
Restoring Wetlands In Washington (April 1993, Publication #93 =17)
Washington State Wetlands Rating System for Western Washington, Washington State Department of
Ecology, October 1991, Publication #91 -57
Northwest Weeds: The Ugly and Beautiful Villains of Fields. Gardens,
and Roadsides (1990) Ronald J. Taylor
Whatcom County Noxious Weed List (1995)
Personal Communication: Florence Caplow (Botanist, Calypso Consulting)
Personal Communication: Laurel Baldwin (Whatcom County Noxious Weed Control Board, Weed
Control Supervisor)
58