HomeMy WebLinkAboutord1995-019WIIATCOM COUNTY COUNCIL AGENDA BILL
CLEARANCES
Initial
Date
Date Received in Council Office:
Agenda date
Assigned to:
Originator.
4/11/95
Council
Division Head:
Dept. Head:
Prosecutor.
11C
Yls(Ys
Purchasing/Budget:
Executive:
SUBJECT An emergency ordinance adopting Critical Areas Regulations for sixty days.
ATTACHMENTS:
Proposed emergency ordinance
SUAMIARY STATEMENT Please complete sections of box as appropriate & explain the item below.
Related County contract #: Should Clerk schedule a hearing? NO YES /Requested date: '
CLERK'S RECOMMENDED MOTION (for final action):
"I move that the Council adopt the emergency ordinance."
COUNCIL ACTION TAKEN:
4/11/95: Council adopted the ordinance. 6 - 1; with Harris opposed
Related File Numbers: Or+dinm:ce or Resolution Number (this item only):
Ord. 95 -019
caoemcy.405 4/5/95 SPONSORED BY: CONSENT
AB95 -189 PROPOSED BY: PLANNING
INTRODUCTION DATE: 3/14 /95
ORDINANCE NO 95 -019
2 AN EMERGENCY ORDINANCE ADOPTING CRITICAL AREAS REGULATIONS FOR
3
SIXTY DAYS
4 WHEREAS, the Washington State Legislature passed the Growth Management Act
5 (GMA) in 1990, and amended it in 1991, requiring counties and cities to define, identify,
6 and manage environmentally critical areas and ecosystems; and
7 WHEREAS, on May 26, 1992, at a public meeting, the Council unanimously approved
8 the recommendations of the Planning Commission to put into law a temporary Critical
9 Areas Ordinance (CAO); and
10 WHEREAS, in November 1992, the County Auditor validated over 11,000 signatures
11 to a petition to strike certain provisions from the original CAO and put the petition on the
12 ballot as Referendum 92 -3, and on November 2, 1993, a majority voted to support the
13 referendum version of the CAO; and
14 WHEREAS, the referendum process was appealed to the State Growth Hearings
15 Board; and
16 WHEREAS, on June 30, the Growth Hearings Board ruled that the State
17 Environmental Policy Act (SEPA) must be applied to the amended CAO and further ruled
18 that the referendum process did not comply with the expanded public participation required
19 by GMA and remanded the CAO back to the county for compliance; and
20 WHEREAS, the County Council passed a resolution on June 28, 1994, directing the
21 Planning and Development Services Department to prepare a modified CAO; and
22 WHEREAS, pursuant to RCW 36.70.590, legal notice was published in the
23 Bellingham Herald on Saturday, October 15, 1994; and
Page 1
1 WHEREAS, a Mitigated Determination of Non - Significance was issued on October
2 26, 1994, that required four measures to be addressed as a condition for approval of the
3 modified CAO; and
4 WHEREAS, on appeal from the SEPA official's Mitigated Determination of Non -
5 Significance, the Whatcom County Hearing Examiner determined that the MDNS conditions
6 were not legitimately imposed as a condition of SEPA approval; and
7 WHEREAS, the County Council and the Planning Commission held a joint public
8 hearing on the proposal on October 26, 1994, and considered all testimony; and
9 WHEREAS, the Planning Commission held a work session on November 9, 1994, to
10 review the proposal and recommend a revised CAO based on the referendum version; and
11 WHEREAS, on December 8, 1994, the Washington State Supreme Court ruled the
12 referendum to be invalid and therefore, the original CAO was legally again in effect; and
13 WHEREAS, Council wishes to adopt a temporary CAO as an interim measure until
14 a final package of regulations and incentives can be developed; and
15 WHEREAS, there is a need for continuity of administration while additional work is
16 completed on these regulations; and
17 WHEREAS, the Council at a public meeting on December 13, 1994, reviewed the
18 Planning Commission recommendation and found the proposed amendments to be necessary
19 for the immediate preservation of the public health, safety, and welfare; and
20 WHEREAS, the Council adopted Ordinance #95 -004 which adopted Critical Areas
21 Ordinance regulations for sixty days; and
22 WHEREAS, that sixty day emergency ordinance is scheduled to expire, and a final
23 version will not be in place at that time; and
24 WHEREAS, the Council feels it is necessary to adopt the emergency regulations for
25 another sixty days or until a final version is in place, whichever occurs first; and
26 WHEREAS, the Council has adopted the following Findings and Conclusions:
27 FINDINGS
28 1. Whatcom County has a number of areas subject to natural hazards or which, in their
29 natural state, carry, hold or purify water and /or support unique or fragile natural
30 resources. These areas are identified as Critical Areas.
Page 2
1 2. Whatcom County is mandated by the Growth Management Act to protect these areas
2 as well as to protect the community from hazards associated with these areas.
3 3. Additional modifications based upon staff suggestions and public impact have refined
4 the administrative provisions of the referendum version -of the CAO.
5 4. This ordinance represents the third attempt by Whatcom County to strike a balance
6 between environmental management and the rights of individuals.
7 5. A comprehensive management package of environmental controls and incentives is
8 being developed.
9 6. The Washington State Supreme Court has ruled the referendum version of the CAO
10 to be invalid, requiring the need to administer some other regulations.
11 7. Whatcom County was in compliance with the Growth Management Act under the
12 original CAO.
13 8. It is recognized that changes to the original ordinance are desirable.
14 9. In addition to the Supreme Court ruling, additional information on regulatory reform
15 will be available in the near future and could be incorporated.
16 CONCLUSION
17 This emergency ordinance will allow the county to immediately continue to administer a
18 replacement to the referendum while allowing additional time to incorporate changes which
19 will create regulations that balance environmental control with property rights until the final
20 comprehensive package of environmental controls and incentives can be completed.
21 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
22 Section 1: Whatcom County hereby adopts the Whatcom County Critical Areas
23 Regulations, Exhibit "A ", for sixty days or until a final version of the regulations are in place,
24 whichever occurs first.
25 Section 2: Adjudication of invalidity of any of the sections, clauses, or provisions of this
26 Ordinance shall not affect or impair the validity of the Ordinance as a whole or any part
27 thereof other hat the part so declared to be invalid.
Page 3
1 Section 3: This ordinance should take effect immediately until expiration sixty days
2 hereafter, or until another version of the regulations in place, whichever occurs first.
v.
3 ADOPTED this 1 l th day of A= ;1 • 1995.
4
5 ATTEST:
6
7 Dana- - a ' , cil lerk
8 APPROVED AS TO FORM:
9
10 Dan Gibson
11 Civil Deputy Prosecutor
12
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
(✓Approved
Shirley Van ZaAten, Exec6Ave
Date:
Page 4
U 5 q5 SUBSTITUTE
Staff
4
EMIET A
** = Changes in MDNS language
* = Changes made at 3/28 meeting.
CRITICAL AREAS ORDINANCE
PAGE
SECTION 1
PURPOSE
4
SECTION 2
DEFINITIONS
5
SECTION 3
ADMINISTRATIVE PROVISIONS
19
3.1
Authority ............... ...............................
19
3.2
Applicability & Jurisdiction . ...............................
19
3.3
Resource Information and Maps .............................
19
3.4
Permit Exemptions ....... ...............................
19
3.5
Permit Requirements ...... ...............................
20
3.6
Fees ................... ...............................
21
3.7
Variances ............... ...............................
21
3.8
Nonconforming Uses /Buildings ............................ ,.-..22
3.9
Appeal ................. ...............................
22
3.10
Penalties and Enforcement ............................
23
3.11
Suspension, Revocation ............................... ..
24
3.12
Severability ............. ...............................
24
SECTION 4 GEOLOGICALLY HAZARDOUS AREA: Landslide Hazards 25
4.1 Purpose ................ ............................... 25
4.2 Critical Areas: Landslide Hazard Areas ................. 25
4.3 Exemptions ............. ............................... 25
4.4 Regulatory Requirements ... ............................... 26
SECTION 5 GEOLOGICALLY HAZARDOUS AREA: Seismic Hazards 27
5.1 Purpose ................ ............................... 27
5.2 Critical Areas: Seismic Hazards ............................. 27
5.3 Permit Exemptions ........ ............................... 27
5.4 Regulatory Requirements ... ............................... 27
SECTION 6 GEOLOGICALLY HAZARDOUS .AREA Mine Hazard 28
6.1 Purpose ................ ............................... 28
6.2 Critical Areas: Mine Hazard Areas ........................... 28
6.3 Permit Exemptions ........ ............................... 28
6.4 Regulatory Requirements ... ............................... 28
SECTION 7 ALLUVIAL. FAN HAZARD AREAS 29
7.1 Purpose .............. ............................... 29
7.2 Critical Areas: Alluvial Fan Hazard Areas ................. 29
7.3 Permit Exemptions ......... ............................... 29
7.4 Regulatory Requirements ... ............................... 29
SECTION 8 CRITICAL AQUIFER RECHARGE AREAS 31
8.1 Purpose ................ ............................... 31
8.2 Critical Areas: Critical Aquifer Recharge Areas ................. 31
8.3 Permit Exemptions ........ ............................... 31
8.4 Administrative Authority ................... 31
SECTION 9
WETLAND
33
9.1
Purpose ............... ...............................
.33
9.2
Critical Areas: Wetlands ....................................
34
9.3
Wetland Categories ....... ...............................
35
9.4
Determination of Wetland Boundaries ....... ..............I...
37
9.5
Permit Exemptions ......................... ............
37
9.6
94
AuthefizMiea
Relationship To Other Jurisdictional Agencies ..................
39
939-.8
Regulatory Requirements ..................................
40
} 913
Mitigation Requirements ... ...............................
43
94-0
Wetland Enhancement ..... ...............................
47
N.-I
Public Interest Test .. ...............................
48
..9
Agriculture Restrictions: Wetlands ...........................
48
SECTION 10 RIVERS AND STREAMS 50
10.1 Purpose ................ ............................... 50
10.2 Critical Areas: Rivers and Streams ........................... 50
10.3 Permit Exemptions ........ ............................... 50
10.4 Aather-iza4ie ........... ............................... c�
Relationship To Other Jurisdictional Agencies .................. 52
€H Regulatory Requirements ... ............................... 52
0.51E 7 Agricultural Restrictions: Rivers and Streams ................... 54
SECTION 11 FISH HABITAT CONSERVATION AREAS 55
11.1 Purpose ............ ..... ............................... 55
11.2 Critical Areas: Fish Habitat Conservation Areas ................. 55
SECTION 12 WILDLIFE HABITAT CONSERVATION AREAS 57
12.1 Purpose ................ ............................... 57
12.2 Critical Areas: Wildlife Habitat Conservation Area ............... 57
12.3 Permit Exemptions ........ ............................... 58
-5 Relationship To Other Jurisdictional Agencies .................. 59'
Regulatory Requirements ... ............................... 59
LIST OF APPENDICES 60
Appendix
A
Aquifer Recharge Rating System ..........................
60
Appendix
B.
Sources of Groundwater Contamination .....................
61
Appendix
C
Federal and State Endangered Species List ...................
65
Appendix
D
Whatcom County Wetlands Rating System ...................
66
Appendix
E
Water Category ........ ...............................
77
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 3
PREAMBLE
As part of the Growth Management process, the Temporary Critical Areas Ordinance
is designed to set standards that can be applied to help protect the health, safety and
welfare of the public by allowing careful development in and around geologically
hazardous, alluvial fan, wetland, river, stream, aquifer recharge, fish, and wildlife
areas.
This ordinance and the permanent ordinance seek to specify the framework that will
be applied to define and protect those areas considered critical, while still allowing
development to continue in the county (in these areas). A variety of exemptions and
options exist so that property owners can still continue to improve and develop their
properties. What is regulated are the impacts that further development will have on
critical areas.
The county also affirms that zoning code (Title 20) is a companion document which
provides property owners with yet more options, such as clustering the allowable_
number of buildings, in order to avoid adverse impacts on critical areas.
There is no intent on the part of government to "take" any land as, the result of this
process. If such an extreme situation were to occur, the county recognizes existing
Federal and State laws and procedures which are already in place to guarantee a fair
hearing and just compensation to any private property owner.
The ordinance is complex because the issues are complex. If there were simple
solutions, there would be no concern. But the problems associated with population
and growth will continue. The ordinance is temporary, not because the problems are
expected to go away, but because the knowledge and experience gained from this
temporary ordinance, will allow our community to make changes in this and the
permanent ordinance which will carry us into the Twenty -first Century with balance
and common sense.
EMERGENCY CRITICAL AREAS ORDINANCE. JANUARY 1995
PAGE 4
SECTION 1
PURPOSE
1.1 PURPOSE
.1 The purpose of this ordinance is to carry out the goals of the Whatcom County
Comprehensive Land Use Plan by identifying and managing environmentally critical
areas and ecosystems. This ordinance seeks to maintain harmonious relationships
between human activity and the natural environment.
.2 By regulating development and alterations to those areas sensitive to human activity,
this ordinance seeks to:
a) Give county staff time to develop a permanent ordinance while complying
with State and local laws.
b) Protect the health, safety and welfare of the public;
C) Reduce potential losses to property and human life;
d) Protect the public from damage due to landslide, subsidence, erosion,
seismic, volcanic, flooding and other natural hazards;
e) Protect the public against losses from unnecessary maintenance of public
facilities, property damage and cost for emergency rescue relief operations;
f) Prevent adverse impacts to the quality and quantity of water resources;
g) Alert appraisers, assessors, real estate agents, owners, potential buyers or
lessees, and other members of the public to natural conditions which limit
development of sensitive areas;
h) Prevent destruction to the natural resources necessary to maintain the
viability of natural ecosystems;
i) Protect and restore environmentally sensitive areas, and /or mitigate impacts
to environmentally sensitive areas by regulating their development;
j) Protect unique, fragile and valuable elements of the environment, including
fish and wildlife habitat;
k) Protect wetlands and streams;
1) Provide county officials with information to approve, condition, or deny
development proposals.
1.2 SEPA Policy:
The goals, policies and purposes set forth in this ordinance- shall be considered
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
. PAGE 5
policies of Whatcom County under the State Environmental Policy Act.
SECTION 2
DEFINITIONS
Words and phrases used in this ordinance shall be interpreted as defined below and, where
ambiguity exists, words or phrases shall be interpreted so as to give this ordinance its most
reasonable application in carrying out it regulatory purpose.
Activity: Human activity associated with the use of land or its resource.
Adequate Water Supply: A water supply which meets the requirements specified in the
Whatcom County Health Department Interim Water Availability Policy.
Agricultural Activities: Those activities conducted on agricultural lands defined in ' this
section, and those activities involved in the production of crops or livestock; for example,
the operation and maintenance of farm and stock ponds or drainage ditches, operation and
maintenance of ditches; irrigation systems including irrigation laterals, canals, or irrigation
drainage ditches; changes between agricultural activities, and normal maintenance, repair,
or operation of existing serviceable structures, facilities, or improved areas. * * "-yes
. (MDNS
Agricultural Land: Land composed of prime agricultural soils as defined by the U.S. Soil
Conservation Service, or land primarily devoted to the production of horticultural
viticulture, floricultural, dairy, apiary, vegetable, or animal products; or of berries, grain, hay,
straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100
through 84.33.140; or livestock, and that has long -term significance for agricultural
production.
Alluvial Fan: 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.
Alluvial Fan Hazard Areas: Those areas on alluvial fans where the underlying zoning may
allow for any development and is in the path of flooding, boulder floods, and /or debris
torrents from streams forming the alluvial fan. Alluvial Fan Hazard Areas are delineated
into "High Hazard Areas" and "Low Hazard Areas" as follows:
High Hazard Area: 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 and hydrology. Areas subject to a 1% or greater chance of debris torrents,
boulder flooding, or water flooding annually. This area shall also be known as the
"Active Fan."
Low Hazard Area: The area corresponding to all other areas of the alluvial fan which
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 6
has historically been subject to stream flooding, boulder flooding, and /or debris
torrents in the geologic past, but which does not exhibit recent hydrologic or
topographic evidence of flood or debris torrent events. This area is known as the
"Inactive Fan."
Alluvium: 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.
Anadromous Fish: Fish species that ascend rivers from the sea to spawn.
Aquifer: A geologic formation, group of formations, or part of a formation capable of
yielding a significant amount of groundwater to wells or springs. (WAC 173 -160)
Bedding Surface: A surface, typically conspicuous, within a mass of stratified rock or soil,
representing an original surface of deposition; the surface of separation or interface between
two adjacent beds of sedimentary or volcanic rock. If the surface is more or less regular or
nearly planar, it is called a bedding plane.
Bedrock: A general term for rock, typically hard, consolidated geologic material, that
underlies soil or other unconsolidated, superficial material.
Best Management Practices: 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 groundwater flow, circulation
patterns, and to the chemical, physical, and biological characteristics of water.
Best Management Practices (Aquifer Recharge Areas): Schedules of activities, prohibitions
of practices, maintenance of procedures, and other management practices, to prevent or
reduce the pollution of the state's groundwater. BMPs also include treatment requirements,
operating procedures and practices to control plant site runoff, spillage or leaks, sludge or
water disposal, or drainage from raw material storage. (WAC 173 -200)
Buffer (The Buffer Zone): The vegetated area adjacent to the outer boundaries of the below
listed areas which provide separation as required by this ordinance, thus minimizing adverse
impact to these areas or to the public:
- Wetlands
- Streams
Commercial Fish: Those species of fish that are classified under the Washington
Department of Fisheries Food Fish Classification as commercial fish. (WAC 220 -12 -010)
Compensatory Mitigation: Replacing project - induced losses or adverse impacts on critical
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 7
areas such as Wetlands, Rivers, Streams, or Fish Habitat Conservation Areas, including, but
not limited to, the following:
A. "Restoration" - Actions performed to re- establish a Critical Area, including the
functional characteristics and processes which have been lost by alterations, activities,
or catastrophic events.
B. "Creation" - Actions performed to intentionally establish a Critical Area, a portion
of a Critical Area where one did not formerly exist.
C. "Enhancement" - 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.
Consolidation: A process whereby loosely aggregated, soft, or liquid earth materials become
firm and coherent rock.
Contaminant: Any chemical, physical, biological, or radiological substance that does not
occur naturally in groundwater or that occurs at concentrations greater than those in the
natural levels. (WAC 172 -200)
Contiguous Wetlands: Wetlands are contiguous to a stream, river, pond, lake or marine
water when they are connected for not less than 65 consecutive days by wetland hydrology
as defined in the 1987 edition, and as amended, Corps of Engineers Wetlands Delineation
Manual.
Critical Aquifer Recharge Areas: Areas with a critical recharging effect on aquifers used
for potable water; where an aquifer that is a source of drinking water is vulnerable to
contamination that would affect the certifiable potability of water.
Critical Areas: The following areas as required in this ordinance shall be regarded as critical
areas:
- Geologically Hazardous Areas - Wetlands
- Alluvial Fan Hazard Areas - Streams
- Critical Aquifer Recharge Areas - Fish Habitat Conservation Areas
- Wildlife Habitat Conservation Areas
Critical Facilities: Includes modification of selected critical facilities identified under the
occupancy categories of Essential Facilities, Hazardous Facilities, and Special Occupancy
Structures in the Uniform Building Code, 1988 Edition, Table No. 23 -K. These include:
Essential Facilities
1. Fire and police stations;
2. Tanks or other structures containing housing. or supporting water or other fire -
suppression materials or equipment required for the protection of essential or
hazardous facilities, or special occupancy structures;
3. Emergency vehicle shelters and garages;
4. Structures and equipment in emergency- preparedness centers;
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 8
5. Stand -by power generating equipment for essential facilities;
6. Structures and equipment in government communication centers and other facilities
required for emergency response.
Hazardous Facilities
Structures supporting or containing sufficient quantities of toxic or explosive substances
dangerous to the safety of the general public if released.
Special Occupancy Structures
1. Covered structures where primary occupancy is public assembly;
2. Buildings for schools, colleges, adult education or day -care centers;
3. Hospitals and other medical facilities;
4. Jails and detention facilities.
Debris Avalanche: Rapid and sudden sliding or flow of rock and /or soil materials; or the
deposits of such materials.
Debris Flow: A moving mass of rock fragments, soil, and mud; more than half of� "the
particles being larger than sand size.
Debris Torrent: A violent and rushing mass of water, logs, boulders and other debris.
Deepwater Habitats: 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 Lacustrine
Systems lies at a depth of 2 meters (6.6 feet) below low water; however, if emergent
vegetation, shrubs, or trees grow beyond this depth at any time, their deepwater edge is the
boundary. (Cowardin, et al).
Delineation: The precise determination of wetland boundaries in the field according to the
application of specific methodology as described in the 1987, and as amended, Corps of
Engineers Wetlands Delineation Manual and the mapping thereof.
Development: Any activity that requires Federal, State, or local approval for the use or
modification of land or its resource. These activities include, but are not limited to,
subdivision and short subdivisions; binding site plans; planned unit developments; variances;
shoreline substantial development; clearing activity; fill and grade work; activity conditionally
allowed; building or construction; revocable encroachment permits; and septic approval.
Drainage Ditch: An artificially created watercourse constructed to drain surface or
Earthflow: A mass - movement landform and process characterized by downslope translation
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 9
of soil and weathered rock over a discrete basal shear surface within well defined lateral
boundaries. Earthflows grade into mudflows through a continuous range associated with
increasing water contact.
Emergent Wetland: A wetland with at least 30 percent of the surface area covered by erect,
rooted, herbaceous vegetation as the uppermost vegetative strata.
Exotic: Any species of plants or animals that is not indigenous to the area.
Farm Pond: A deepwater habitat created from a non - wetland site in connection with
agricultural activities where the pond is smaller than five (5) acres.
Fault: A fracture in the earth or a zone of fractures along which there has been
displacement of the sides relative to each other.
Fault Plane: A fault surface that is more or less planar.
Fen: Wetlands which derive peat from herbaceous materials which are less acidic and have
a higher nutrient status and greater plant diversity than other bogs.
Fish Habitat: 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 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.
Forest Practices: Any activity conducted on or directly pertaining to forest land and related
to growing, harvesting or processing timber (222 -16 WAC). This does not include the
conversion of forested land to a use incompatible with growing timber.
Forested Wetland: 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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 10
cottonwood that average eight inches diameter at breast height or less.
Function` Characteristics: The beneficial roles served by critical areas *
such as Wetlands, Rivers and Stream and Fish Habitat Conservation Areas, including the
protection and enhancement of water quality; stream flow maintenance; storage, conveyance
and attenuation of floodwaters; groundwater recharge and discharge; erosion control and
wave attenuation; production of waterfowl, game, and non -game birds and mammals;
protection of habitat for rare, threatened, and endangered species; food chain and habitat
support for a broad range of fish and wildlife. These beneficial roles are listed in order of
priority.
Functional Value: The magnitude or degree to which a natural system provides beneficial
roles defined as functional characteristics in this ordinance.
Game Fish: Those species of fish that are classified by the Washington Department of
Wildlife as game fish. (WAC 232 -12 -019)
Geologist: At minimum, a qualified Geologist must possess a Bachelor's Degree in Geology
and have 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.
Geologically Hazardous Areas: 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:
1. Landslide Hazards
2. Seismic Hazards
3. Mine Hazards
Geotechnical Engineer: A qualified Geotechnical Engineer must be licensed as a Civil
Engineer with the State of Washington and have five years of recent related experience as
a professional Geotechnical Engineer.
Gradient: 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).
Groundwater: 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. (RCW 90.44)
Growing Season: The portion of the year when soil temperatures are above biologic zero
(41° F) as defined by "Soil Taxonomy." The following growing season months are assumed
for each of the soil temperature regimes: (1) thermic (February - October), (2) mesic
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 11
(March - October), (3) frigid ( May - September).
High Quality Wetlands: Those wetlands which meet the following criteria:
A. Little or no human alteration of the wetland topography;
B. No human- caused alteration of the hydrology, or else the wetland appears to
have recovered from the alteration;
C. Low cover and frequency of exotic plant species;
D. Relatively little human - related disturbance of the native vegetation, or
recovery from past disturbance;
E. If the wetland system is degraded, it still contains a viable and high quality
example of a native wetland community; and
F. No known major water quality problems.
High Quality Native Wetlands: Wetlands which are on record with the Washington Natural
Heritage Program as a high quality native wetland.
Holding Habitat: Habitat that supports anadromous fish in the winter months, during
periods of low or high flow, or for other 'reasons during the migration phase of a fish's life
cycle.
Holocene Epoch: An epoch of the Quaternary Period, from the end of the Pleistocene,
approximately 10,000 years ago, to the present time.
Hydric Soil: A soil that is saturated, flooded or ponded long enough during the growing
season to develop anaerobic conditions in the upper part. The presence of hydric soil shall
be determined following the methods described in the 1987 edition, and as amended, of the
Corps of Engineers Wetlands Delineation Manual.
Hydrophytic Vegetation: Macrophytic plant life growing in water or on a substrate that is
at least periodically deficient in oxygen as a result of excessive water content. The presence
of hydrophytic vegetation shall be determined following the methods described in the 1987
edition, and as amended, of the Corps of Engineers Wetlands Delineation Manual.
Impervious Surface: Any manufactured surface that does not allow water to pass from the
surface to be absorbed by the soils directly below it.
In -kind Compensation: To replace wetlands with substitute wetlands whose characteristics
closely approximate those destroyed or degraded by a regulated activity.
Isolated Wetlands: Those wetlands which:
A. Are outside of and not contiguous to any 100 -year floodplain of a lake, river,. or
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 12
stream; or
B. Have, under natural conditions, no contiguous connection to a stream, river, pond,
lake or marine water.
Joint: A surface of fracture or parting in a rock, without lateral displacement; the surface
is usually planar: and commonly occurs in groups to form a joint set.
Joint System: Two or more groups of joint sets that intersect.
Lahar. A mudflow or debris flow (mass movement) composed chiefly of volcaniclastic
materials on the flank of a volcano. The debris carried in the flow includes pyroclasts,
blocks from primary lava flows, and other rock debris.
Lake: 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.
Landslide: A general term covering a wide variety of mass movement landforms' "and
processes involving the downslope transport, under gravitational influence of soil and rock
material en masse; included are Debris Flows, Debris Avalanches, Earthflows, Mudflows,
Slumps, Mudslides, Rock Slides, and Rock Falls.
Landslide Hazard Areas: Areas potentially subject to risk of mass movement due to a
combination of geologic, topographic, and hydrologic factors.
Maintenance and Repair: Work required to keep existing improvements in their existing
state. This does not include any modification that changes the character, scope, or size of
the original structure, facility, utility or improved area.
Mass Wasting (a.ka. Mass Movement): A general term for the dislodgement and
downslope transport of soil and rock material under the direct application of gravitational
body stresses. Mass wasting includes slow displacements, such as creep and solifluction; and
rapid movements such as rockfalls and rockslides or mud, earth, and debris flows.
Mature Forested Wetland: A forested wetland with an overstory dominated by mature trees
having a wetland indicator status of facultative (FAQ, facultative -wet (FACW), or obligate
(OBL) (Reed, 1988) and that meet all of the following criteria:
A. Mature trees comprise at least 50% of the tree canopy coverage. Mature trees are
considered to be deciduous trees over 50 years and evergreen trees over 80 years
in age.
B. The forested area is greater than three acres in size.
Mean Annual Flow: The average flow of a stream (measured in cubic feet per second) from
measurements taken throughout the year.
Mitigation: Avoiding, minimizing, or compensating for adverse impacts to critical areas.
Mitigation, in the following order of preference is:
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 13
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 the action;
E. Compensating for the adverse impact by replacing, enhancing, or providing substitute
resources or environments;
F. Monitoring the adverse impact and the compensation project and taking appropriate
corrective measures.
Mitigation Plan: A detailed plan indicating actions necessary to mitigate adverse impacts
to critical areas.
Mudflow: A general term for a mass - movement landform and a process characterized by
a flowing mass of predominantly fine- grained earth material possessing a high degree of
fluidity during movement. If more than half of the solid fraction of such a mass consists of
material larger than sand size, the term debris flow is preferable. The water content of
mudflows may range up to 60 %; with increasing fluidity, mudflows grade into muddy floods;
with less fluidity, they grade into earth flows.
Mudslide: A relatively slow - moving type of. mudflow in which movement occurs
predominantly by sliding upon a discrete boundary shear surface.
Native Vegetation: Plant species which are indigenous to the area.
Natural Heritage Wetlands: Wetlands that are relatively pristine native wetlands. They
closely resemble wetlands which existed prior to European settlement. Their physical
characteristics, biota, ecosystem functions, processes, and settings are essentially natural.
Non -Game Fish: All species of fish that are not classified by the Washington Department
of Wildlife as game fish under WAC 232 -12 -019.
Off -site Compensation: To replace wetlands away from the site on which a wetland has
been adversely impacted by a regulated activity.
On -Site Compensation: To replace wetlands at or adjacent to the site on which a wetland
has been adversely impacted by a regulated activity.
Ordinary High Water Mark: The mark on all lakes, streams and tidal water that will be
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 14
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)]
Out -of -kind Compensation: To replace wetlands with substitute wetlands whose
characteristics do not closely approximate those destroyed or degraded by a regulated
activity.
Passive Activity: 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.
Perennial Stream: A stream that normally has surface water flowing year round along most
of its length.
Person: Any person, proprietorship, partnership, corporation, Indian tribe, Federal, State
or local government, or part thereof.
Pond: 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.
Potable: Water which is suitable for drinking by the public. (WAC 246 -290)
Project: Any proposed or existing development activity regulated by Whatcom County
unless specifically exempted by this ordinance.
Public Interest: A demonstrable long range benefit to the community based on a clear
public need for the proposed activity; a long term economic or social benefit to the general
area; clear indications that there will be no adverse impact to the public health or safety or
to the natural environment.
Pyroclastic: Pertains to clastic rock material formed by volcanic explosion or aerial
expulsion from a volcanic vent.
Pyroclastic Flow: Hot clouds of ash, gas, and volcanic rock that flows rapidly downslope
under gravity. These may flow at velocities up to 150 km /hr and may be projected from a
laterally directed blast.
Qualified Wildlife Consultant: A professionally trained wildlife biologist or ecologist or
other professional with expertise in the scientific disciplines necessary to identify, evaluate
and manage habitat.
Quaternary: The second period of the Cenozoic Era, following the Tertiary; also, the
corresponding system of rocks. It began two to three million years ago and extends to the
present. It consists of two grossly unequal epochs: the Pleistocene, up to about 10,000 years
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 15
ago, and the Holocene since that time.
Rearing Habitat: Habitat that supports juvenile fishes.
Regulated Wetlands: Ponds and Category I, H, III Wetlands. Regulated wetlands do
not include those artificial ponds or wetlands intentionally created from non - wetland sites;
including, but not limited to, irrigation and drainage ditches, grass -lined swales, canals,
detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities.
Resident Fish: A freshwater fish species or subspecies that does not migrate to saltwater.
A single species can have both a resident and an anadromous form, such as resident
cutthroat and sea -run cutthroat.
Riparian Corridor: An area between aquatic and terrestrial ecosystems defined by the
presence of vegetation that requires moist conditions and, usually, periodic free flowing
water. The benefits of vegetation cover and food 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.
Riparian Vegetation: 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 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.
River: 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.
Scrub -Shrub Wetland: A regulated wetland with at least 30 percent of its surface area
covered by woody vegetation less than 20 feet in height at the uppermost strata.
SEPA: Commonly used abbreviation for the State Environmental Policy Act.
Seismic Hazard Areas: Areas subject to risk of severe damage as a result of earthquake
induced ground shaking, slope failure, settlement, or soil liquefaction.
Shoreline: (Shoreline Management Act) "Shoreline" 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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 16
B. Shorelines on lakes less than 20 acres in size and wetlands associated with such small
lakes.
Slope: (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 ten
feet of vertical relief.
Slope Failure: Gradual or rapid downslope movement of soil or rock under gravitational
stress.
Slump: A landslide characterized by a shearing and rotary movement of a generally
independent mass of rock or earth along a curved slip surface by backward tilting of the
mass.
Smolting: The transitional process of anadromous fish as they adapt to salt water.
Soil: 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.
Spawning. The act of fish reproduction; the deposition and fertilization of eggs.
Sphagnum Bog: 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 sphagnum bogs.
Sport Fish: Those species of fish that are classified under the Washington Department of
Fisheries Food Fish Classification as sport fish. (WAC 220 -12 -010)
Stream: 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 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. * * ,
eanals, of ether ar-fifieial water- eaurses whieh were natural str-eftwis pr-ier- to huffian edtefmie
. For purposes
of this Ordinance a stream shall fall into Type ...1 through 5 Water pursuant to Appendix E
of this Ordinance. :;.. >.:::; •.;::.:;;:::;€ :.:.::.::.:::t)
... ..:::::::...::..:....".:::.....::::....:.:. a.:......:...::...:..:....::::.
Sub - basin: Any hydrologic basin that is drained by a stream that is a Type 1, 2, or 3 Waters
and feeds into a watershed as defined in this ordinance.
Toe: The lowest part of a slope or cliff; the downslope end of an alluvial fan, landslide, etc.
Top: The top of a slope; or in this ordinance it may be used as the highest point of contact
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 17
above a Landslide Hazard. Area.
Volcanic Hazard-Areas: Areas subject to hazards created by direct or indirect volcanic
activity such as pyroclastic flows, lava flows, and inundation by_ debris flows, mudflows, or
related flooding.
Watershed: A geographic region within which water drains into a particular river, stream
or body of water. For the purposes of this ordinance, watersheds shall include the following:
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.
Nooksack River Drainages: North Fork, Middle Fork, South Fork, Kamm Slough, Upper
Nooksack, Bertrand /Fishtrap Creeks, Ten Mile Creek, Lower Nooksack.
Canadian Drainages: Chilliwack River, Saar Creek, Sumas River.
Well Head Protection Area: The area (surface and subsurface) managed to protect
groundwater 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.
Wetlands: Those areas that are inundated or saturated by surface or groundwater 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.
Wetland Classification (Class): Wetlands are classified by the U.S. Fish & Wildlife Service
Classification of Wetlands and Deepwater Habitats of the United States. (Cowardin, et al)
Wetland Creation: See "compensatory mitigation."
Wetland Enhancement: See "compensatory mitigation."
Wetland Functions: The beneficial roles served by wetlands including the protection and
enhancement of water quality; storage, conveyance and attenuation of floodwaters;
groundwater recharge and discharge; erosion control and wave attenuation; production of
waterfowl, game, and non -game birds, mammals; protection of habitat for rare, threatened,
and endangered species; food chain and habitat support for a broad range of fish and
wildlife. These beneficial roles are listed in order of priority.
Wetland Identification: Wetlands are identified according to the methodology described
in the following publication: 1987, and as amended, A= Corps of Engineers Wetlands
Delineation Manual.
Wet Meadow: Palustrine emergent wetlands, typically having up to six inches of standing
water during the wet season and disturbed site conditions from agricultural activities,
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 18
including disturbance of soils, vegetation, or hydrology; and the vegetation is composed
predominantly of meadow emergents such as reed canary grass and /or other non - native
species. During the growing season, the soil is often saturated but not covered with water.
Wet Meadows frequently have been or are being used for livestock or other agricultural
activities.
Wetland Restoration: See "compensatory mitigation."
Opp land Specialist: A person who has earned a Bachelor's Degree in Bielegieal
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 19
SECTION 3
ADMINISTRATIVE PROVISIONS
3.1 AUTHORITY This document shall implement by reference Ordinance No.
passed by the Whatcom County Council on this day of the month of the year
1992.
3.2 APPLICABILITY and JURISDICTION
.1 This ordinance shall be consistently applied to any development within geographical
areas that meets the definition and criteria for critical areas as set forth in this
ordinance.
.2 In order that this ordinance shall be consistently applied to all applicants, county
officials are responsible for applying regulations consistently.
3.3 RESOURCE INFORMATION AND MAPS
.1 Recognizing the necessity for accurate geographic information, the Whatcom County
Planning and Development Services Department shall immediately begin a
comprehensive inventory resulting in a product that will identify the location, size,
and other characteristics of critical areas in Whatcom County.
.2 Within three years of the implementation of this ordinance or at the time that the
permanent ordinance becomes effective, the results of the inventory shall be
transferred to maps and published. These maps shall be named the Environmentally
Critical Areas Maps, and shall be available at the Planning and Development
Services Department for public inspection.
.3 When completed, environmentally critical areas 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.
.4 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 ordinance.
3.4 PERMIT EXEMPTIONS The following exemptions are authorized:
.1 Emergency construction or activity necessary for the immediate preservation of the
public health, safety and welfare as determined by the county.
.2 Exemptions relating to critical areas found in corresponding sections of this
ordinance.
.3 Projects in the public interest which prevent, minimize, and /or mitigate flood
EMERGENCY CRITICAL A. RE,4S ORDINANCE JANUARY 1995
PAGE 20
damages to public and private property.
.4 All activity undertaken by diking or drainage districts whose activities are allowed
subject to RCW, Chapter 85.05 and 85.06; provided that:
A. The diking or drainage district submits an annual work plan to the county each
year; and,
B. Adverse impacts to wetlands, rivers and streams and Fish Habitat Conservation
Areas are minimized; and,
C. Adverse impacts to water quality and quantity are minimized during such activity;
and,
D. The county has the option to comment on all hydraulic permit applications
submitted to either the Washington State Department of Fisheries or Wildlife.
.5 Development activity located inside the footprint or exterior walls of an existing
structure.
3.5 PERMIT REQUIREMENTS
Development within a Critical Area requires approval of a development permit,
conditioned upon compliance with this ordinance, unless otherwise exempted or allowed
in this ordinance.
.1 Development Permit: Review and approval for a proposed development within a
Critical Area may be initiated through the application for any development permit
in Whatcom County.
A. Maintenance Permit: As an alternative to requiring development permits for
each development activity, an annual maintenance permit may be issued to those
public and private service entities that routinely maintain roads and other
transportation facilities, utilities, diking and drainage, energy and communication
facilities under the following conditions:
1. The permit shall be issued pursuant to the requirements set forth in this
Ordinance;
2. The applicant shall submit a Management Plan to the county with the
following included:
a. Projected scope of work for a one year period;
b. Type of equipment to be used;
c. Manner in which the equipment will be used;
d. A detailed explanation of Best Management Practices to be used.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 21
3.6 FEES
.1 The following fees shall be paid upon filing any application requiring review for
compliance with this ordinance:
A. ESTIMATED PROTECT COSTS FEE
up to $ 2,500 $ 35.00
$2,500 - $ 5,001 $ 50.00
$2,501 - $ 50,000 $100.00
$500000 - $200,000 $200.00
for each additional $100,000 $100.00
up to $5,000.00
B. Each application for a variance shall be accompanied by a fee as stated in
chapter 20.84.250 of Title 20.
C. Each application for an appeal of an administrative decision to the Hearing
Examiner shall be accompanied by a fee as stated in chapter 20.84.250 of Title
20.
D. Critical areas delineations and /or boundary determinations E
b e performed
pursuant to subsection 10.4.3 of this ordinance at a rate of thirty -five
dollars ($35) per hour, payable in advance by the applicant.
3.7 VARIANCES
.1 The Hearing Examiner shall grant a variance from the requirements in this
ordinance under the following circumstances:
A. The applicant proves by clear, cogent and convincing evidence all of the
following elements:
1. The variance does not constitute a grant of special privilege, and is not based
upon reasons of hardship caused by previous actions of the property owner;
and,
2. Because of special circumstances applicable to the subject property, including
size, shape, topography, location or surroundings, the application of this
ordinance precludes all reasonable uses of the property otherwise allowed in
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 22
the identical zone classification under Title 20; and,
3. The granting of the variance will not be injurious to the health or safety of
the community.
Or,
B. The applicant proves all of the following elements:
1. The variance does not constitute a grant of special privilege, and is not based
upon reasons of hardship caused by previous actions of the property owner;
and,
2. The activity will have no adverse impact on the functions of the Critical Area
or their value; and,
3. No portion of the project is located within a Wetland, River /Stream,.Fish
Habitat Conservation Area, or a Wildlife Habitat Conservation Area; and,
4. The Critical Area for which a variance is sought is not a Geologically
Hazardous Area or an Alluvial Fan Hazard Area; and,
5. Any party of record may appeal a Hearing Examiner decision pursuant to
Whatcom County Code 20.92.
.2 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
Whatcom County Code 20.92.
.3 Procedural requirements for variances shall be as set forth in 20.84.230, Title 20.
3.8 NONCONFORMING USES /BUILDINGS
The lawful use of any building, land, or premises existing on the effective date of
adoption or amendment of this ordinance may be continued, although such use does not
conform to the provisions hereof. If such nonconforming use is discontinued for a period
of twelve months or more, then any future use of said building, land or premises shall
be consistent with the provisions of this ordinance.
3.9 APPEALS
.1 Any person may appeal to the Hearing Examiner a final order, final requirement,
final permit decision, or final determination made; provided that, such appeal shall
be filed in writing within twenty (20) working days of the date the written decision
is signed.
.2 Any person or agency may appeal to the Hearing Examiner a final order, final
requirement, final permit decision, or final determination made by the Soil
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 23
Conservation District; provided that, such appeal shall be filed in writing within
twenty (20) days of the date that the county receives a written decision from the
District.
.3 For the purpose of this sub - section, 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.
.4 The appeal will be upheld if the applicant proves that the decision appealed is
clearly erroneous.
.5 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
Whatcom County Code 20.92.
3.10 PENALTIES AND ENFORCEMENT
.1 Any person who engages in work at a project site within a Critical Area, and
A. Fails to obtain a development permit or authorization when required pursuant
to this ordinance; or
B. Fails to comply with any permit condition required pursuant to this ordinance;
or
C. Fails to comply with any condition of a permit, exemption, zr,::;
`v shall be guilty of a civil offense and shall be fined a sum not
to exceed one thousand dollars ($1,000.00) for each offense. Each day of site
work in conjunction with any of the above violations shall constitute a separate
offense.
.2 The penalty provided in the above Section shall 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 ordering the
act or acts constituting the violation or violations to cease and desist or, in
appropriate cases, requiring necessary corrective action to be taken within a specific
and reasonable time.
.3 Within thirty (30) 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 ten (10) days of its
issuance.
.4 The Prosecuting Attorney may enforce compliance with this ordinance by such
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 24
injunctive, declaratory or other actions as deemed necessary to ensure that violations
are prevented, ceased, or abated.
.5 If work activity has occurred on a site in violation of Section 3.
restoration of the site will be reouired ' t .
.6 In the event any person violates any of the provisions of this Ordinance, the county
shall issue a notice of violation to be delivered to the owner or operator, or to be
conspicuously posted at the site and order all work to cease until authorized to
proceed. Failure to comply with the order to stop work shall be a gross misdemeanor
punishable upon conviction by a minimum fine of five hundred dollars ($500.00) up
to a maximum fine of one thousand dollars ($1,000.00) or one (1) year in jail, or
both. Under no circumstance may the court defer or suspend any portion of the
minimum five hundred dollar ($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.
3.11 SUSPENSION, REVOCATION
The county may suspend or rev oke 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.
3.12 SEVERABILITY
Should any Section or provision of this ordinance be declared invalid, such decision shall
not affect the validity of this ordinance as a whole.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 25
SECTION 4
GEOLOGICALLY HAZARDOUS AREAS
Landslide Hazard Areas
4.1 PURPOSE
.1 It is the purpose of this Section to minimize hazards to the public from development
activities on or adjacent to Landslide Hazard Areas.
4.2 CRITICAL AREA - Landslide Hazard Areas
Landslide Hazard Areas fall into two categories: Landslide Hazard Areas and High
Hazard Landslide Areas. Both Landslide Hazard Areas and High Hazard Landslide
Hazard Areas are Geologically Hazardous Areas. and therefore critical areas under this
ordinance.
1 Landslide. Hazard Areas shall include areas potentially subject to landslides based
on a combination of geologic, topographic and. hydrologic factors. They include any
areas 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:
A. Areas with all three of the following characteristics:
1. Slopes between fifteen and thirty -five percent; and
2. Hillsides intersecting geologic contacts with a relatively permeable
sediment overlying a relatively impermeable sediment or bedrock; and
3. Springs or groundwater seepage; or
B. Slopes exceeding thirty -five percent (35 %); or
C. Areas that show evidence of, or are at risk from, snow avalanches.
.2 High Hazard Landslide Areas are those Landslide Hazard Areas where risk from a
landslide due to slope failure is extreme. These include the following:
A. Slopes having gradients steeper than eighty percent (80 %) subject to rockfall
during seismic shaking.
B. Potentially unstable slopes resulting from rapid stream incision, stream bank
erosion, or undercutting by wave action. These include slopes adjacent to
waterways exceeding ten feet in height and sloping at more than a thirty percent
(30 %) gradient.
4.3 PERMIT EXEMPTIONS
.1 Trails: Public and private trails are allowed on Landslide Hazard Areas provided
they adhere to the construction and maintenance standards in the United States
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 26
Forest Service'Trails Management Handbook" (FSH 2309.18, June 1984). Trails do
not include routes allowing motorized vehicles.
.2 Maintenance and reconstruction of roads and utilities.
.3 Agr-ietthur-al activity
4.4 REGULATORY REQUIREMENTS
.1 Projects are prohibited in High Hazard Landslide. Areas.
.2 No critical facilities shall be constructed or located in Landslide Hazard Areas.
.3 Other projects are allowed in Landslide Hazard Areas subject to the following
requirements:
A. The project must cause no increase in surface water, discharge or sedimentation
to other properties and shall not decrease slope stability on or off site.
B. Land divisions shall be clustered where appropriate to reduce disturbance to the
area.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 27
SECTION 5
GEOLOGICALLY HAZARDOUS AREAS
Seismic Hazard Areas
5.1 PURPOSE
It is the purpose of this Section to reduce the risk to life and property damage that
results from earthquakes, and to accelerate recovery from such events.
5.2 CRITICAL AREA: Seismic Hazards
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 (5) 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 ordinance.
5.3 PERMIT EXEMPTIONS
.1 Accessory structures not involving human occupancy.
.2 Maintenance and reconstruction of roads and utilities.
.3 Agricultural activity.
5.4 REGULATORY REQUIREMENTS
.1 No critical facilities shall be constructed or located in Seismic Hazard Areas 'W?E3t
....................
.2 All development shall conform to the provisions of the Uniform Building Code which
contains structural safeguards to reduce risks from seismic activity.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 28
SECTION 6
GEOLOGICALLY HAZARDOUS AREAS
Mine Hazard Areas
6.1 PURPOSE
It is the purpose of this Section to minimize hazards to the public from abandoned
underground coal mines.
6.2 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 tunnels),
pillars (coal left for support) and air shafts. Mine Hazards include subsidence, which is
the uneven downward movement of the ground surface caused by underground workings
caving in; contamination 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
ordinance.
6.3 PERMIT EXEMPTIONS
.1 Accessory structures not involving human occupancy.
.2 Maintenance and reconstruction of roads and utilities.
.3 Agriculture activity.
6.4 REGULATORY REQUIREMENTS
Alteration of a site containing a Mine Hazard Area may be permitted only when all
significant risks associated with abandoned mine workings have been eliminated or
mitigated so that the site is safe and off -site impacts have been mitigated.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 29
SECTION 7
ALLUVIAL FAN HAZARD AREAS
7.1 PURPOSE
.1 It is the purpose of this Section to pursue the following goals:
A. To protect public and private property as well as the health and safety of citizens
from damage due to flooding and catastrophic debris torrents on Alluvial Fans;
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 while
protecting the property and safety of citizens.
7.2 CRITICAL AREA: Alluvial Fan Hazard Areas
.1 Alluvial Fan Hazard Areas: Those areas on alluvial fans where flooding, boulder
floods, and /or debris torrents have the potential to damage or harm the health or
welfare of the community. Alluvial Fan Hazard Areas are critical areas under this
ordinance and are delineated into "High Hazard Areas" and "Low Hazard Areas" as
follows:
A. High Hazard Area: 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 and hydrology; areas subject to a 1% or greater
chance of debris torrents, boulder flooding, or water flooding annually. This area
shall also be known as the "Active Fan."
B. Low Hazard Area: The area corresponding to all other areas of the Alluvial Fan
which has historically been subject to stream flooding, boulder flooding, and /or
debris torrents in the geologic past, but which does not exhibit recent hydrologic
or topographic evidence of flood or debris torrent events. This area is known as
the "Inactive Fan."
7.3 PERMIT EXEMPTIONS
.1 Accessory structures not involving human occupancy.
.2 Maintenance and reconstruction of roads and utilities.
.3 Agriculture activity.
7.4 REGULATORY REQUIREMENTS
.1 No critical facilities shall be constructed or located within an Alluvial Fan Hazard
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 30
Area
.2 All projects on an Alluvial Fan must be engineered and constructed to withstand
water levels produced by a debris torrent with a 100 year return interval.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 31
SECTION 8
CRITICAL AQUIFER RECHARGE AREAS
8.1 PURPOSE
.1 It is the purpose of this Section to pursue the following goals:
A. To preserve, protect, and conserve Whatcom County's groundwater resources for
current and future generations by protecting them from contamination and
depletion of Critical Aquifer Recharge Areas;
B. To prioritize the management, protection and conservation of groundwater
recharge areas that provide groundwater which is currently used for or planned
to be a source of potable water.
8.2 CRITICAL AREA: Critical Aquifer Recharge Areas
Critical Aquifer Recharge Areas are critical areas under this ordinance.
.1 Critical Aquifer Recharge Areas: Those areas of high susceptibility to aquifer
contamination. Criteria for high susceptibility are contained in the Aquifer Recharge
Rating System contained in Appendix A. They have been generalized below as
follows:
A. The project is located on either Soil Conservation Service Hydrologic Soil Group
(HSG) A or B; and,
B. The project is located on either the Sumas Outwash geologic unit or the
Nooksack River Floodplain Alluvium geologic unit; and,
C. More than 50% 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,
D. 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.
8.3 PERMIT EXEMPTIONS
.1 Those activities and projects exempt from SEPA regulations.
8.4 ADMINISTRATIVE AUTHORITY
.1 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
groundwater quality and quantity.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 32
.2 7-1#'. e the Aquifer Recharge Rating System contained in Appendix
A of this ordinance as part of a preliminary checklist to help determine if a project
is located in an Aquifer Recharge Area. The Aquifer Recharge Rating System
consists of the general criteria outlined in subsection 9.2.1
.3 A SEPA Checklist shall be used as part of a critical areas supplement to assist the
county in taking final action.
.4 The SEPA official shall review the SEPA checklist and make a SEPA threshold
determination. The SEPA official shall use Appendix B, Sources of Groundwater
Contamination, and other available sources of information when reviewing a project
for potential groundwater 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 Non - Significance, or any other relevant environmental
analysis.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 33
SECTION 9
WETLANDS
9.1 PURPOSE
The County Council hereby declares that wetlands are among the county's most valuable
and fragile resources and are essential to preservation of the public health, safety, welfare
and natural environment. In particular, wetlands are of vital importance to fish, wildlife,
water quality, and flood control.
.1 It is the purpose of this Section to pursue the following goals:
A. To recognize that property rights and public services are an essential component
of our political and economic system. Where such rights and public services are
seriously compromised by the goal of wetland preservation, adverse wetland
impacts may be permitted provided there is appropriate mitigation which may
include restoration, enhancement, creation or off -site compensation for any net
loss of wetland functions.
B. To recognize and preserve the beneficial wetland, functions for fish and wildlife
habitat, water quality preservation, plant diversity, flood attenuation and low flow
contribution, and water storage.
C. To pursue a "no net loss" of wetlands function policy.
D. To promote planning to avoid or minimize damage. to wetlands whenever
practicable. Approved activities should not threaten public safety, the natural
functions of wetlands, or otherwise cause nuisance or hazard by:
1. Restricting floodways, reducing flood storage areas or destroying storm
barriers, thereby raising the flood stage and /or increasing flow velocities and
increasing flood damages;
2. Causing water pollution through unauthorized application of pesticides and
algacides; disposal of waste or stormwater runoff at inappropriate sites; or
the creation of unstable fills;
3. Increasing erosion;
4. Increasing runoff of sediment and stormwater;
5. Decreasing habitat value for fish and wildlife, including rare, threatened, and
endangered plant and animal species, and commercially and recreationally
important fish and wildlife;
6. Interfering with the exchange of nutrients needed by fish and other forms of
wildlife;
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 34
7. Adversely affecting groundwater recharge or summer low flows in streams;
8. Destroying sites needed for education and scientific research as outdoor
biophysical laboratories, living classroom, and training areas;
9. Reducing the benefits of public property to the public;
10. Adversely impacting property values.
9.2 CRITICAL AREA: Wetlands
.1 A regulated wetland is a Critical Area.
.2 Wetlands:
Wetlands are those areas that are inundated or saturated by surface or groundwater
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.
.3 Regulated Wetlands:
Regulated Wetlands include:
A. Category I Wetlands:
B. Category II Wetlands:
C. Category III Wetlands:
.4 Non - regulated Wetlands:
Non - regulated Wetlands include:
A. Category IV Wetlands;
all
all
t3 acre or greater (MDNS requirement)
B. Intentionally created artificial wetlands from a non - wetland site that were not
required to be constructed as mitigation for adverse wetland impacts. These may
include, but are not limited to, irrigation and drainage ditches, grass -lined swales,
canals, detention facilities, wastewater treatment ponds, farm ponds not
contiguous, as defined in this ordinance, and landscape amenities. The applicant
shall bear the burden of proving that the wetland was intentionally created. In
the case where enhancements or restorations are made to non - regulated, or
Category IV or III Wetlands, for purposes other than mitigation, the original
rating shall be maintained even if the changes would otherwise result in a higher
classification.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 35
9.3 WETLAND CATEGORIES
.1 Whatcom County shall utilize the wetland category system for purposes of
determining wetland functions and the value of those functions. Wetland categories
shall be applied as the regulated wetland exists on the date of adoption of this
ordinance as the regulated wetland may naturally change thereafter; or as the
regulated wetland may change in accordance with permitted activities. Wetland
categories shall not be altered to recognize illegal modifications.
.2 A determination of wetland categories shall be made. The Wetland Rating System
attached as Appendix D shall be used to assist in making category determinations
.3 Portions of a Category I or II Wetland may be classified a Category II or III
Wetlands based upon its functional characteristics if it meets the following criteria:
A. The portion of the wetland subject to Category III distinction meets,, , -the
minimum threshold required for regulatory purposes;
B. The portion of the wetland subject to Category II or III distinction meets the
technical criteria required for a Category II or III Wetland as determined in the
Wetland Rating System adopted as Appendix D;
C. The portion of the wetland rated lower in category functions as a buffer for the
portion of the wetland rated higher in category;
D. The portion of the wetland rated lower in category has a width of at least twice
the required buffer width of that portion of the immediately adjacent wetland
that is rated higher in category.
.4 Wetland Category System
A. Category I Criteria: Wetlands or ponds which have exceptional resource value
based on unique qualities, presence of rare wetland communities and sensitivity
to disturbance. These wetlands have one or more of the following features:
1. Documented habitat for endangered or threatened fish, or animal species or
plant species recognized by State or Federal agencies; or,
2. Wetland communities which qualify as quality Natural Heritage wetlands; or,
3. High quality wetlands with irreplaceable ecological functions, including peat
wetlands, estuarine wetlands, or mature forested wetlands; or,
4. Wetlands of exceptional local significance. The criteria for such a
designation includes, but is not limited to, rarity, groundwater recharge areas,
significant habitats, unique educational sites or other specific functional
values within a watershed.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 36
a. Wetlands of exceptional local significance may only be designated by the
Whatcom County Council. Such designation shall occur only after a
public hearing in which notice has been given to all property owners
within .5 miles of the proposed wetland of exceptional local significance.
B. Category H Criteria: Wetlands or ponds that do not contain features outlined in
Category I but do contain:
1. Documented habitats for sensitive plant, fish or animal species recognized by
Federal or State agencies; or,
2. Wetlands with significant functions, including peat wetlands, estuarine
wetlands, or mature forested wetlands, which are not high quality but which
cannot be adequately replicated through creation or restoration; or,
3. Wetlands with significant water quality functions, and habitat value
determined through a score of at least 35 points in the Section Q5 of. the
Whatcom County Wetlands Rating System (Appendix D); or,
4. Regulated wetlands which provide documented habitat for salmonids.
C. Category III Criteria: Ponds that do not contain the features outlined in Category
I and II criteria, or wetlands that do not contain features outlined in Category
I or II, but have one or more of the following features:
1. Wetlands that are contiguous to other wetlands constituting a total of five
acres or larger;
2. Wetlands over W acres that are contiguous with a stream, river, pond,
lake or marine water;
3. Isolated wetlands that are five acres or larger;
4. Wetlands (isolated or contiguous) over OW acres that provide a critical
aquifer recharge function;
5. Isolated wetlands over .5 acres that have a less than 80% cover of hardhack,
soft rush or alder at least 20 years of age;
6. Isolated wetlands over .5 acres that have less than a 80% cover of non - native
species; including, but not limited to, reed canary grass and common pasture
grasses.
D. Category IV Criteria: Wetlands one' acre or greater that are not included in
Categories I, II or III.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 37
9.4 DETERMINATION OF WETLAND BOUNDARIES
.1 Determination of wetland boundaries shall be done in accordance with the
delineation methodology specified in the 1987, or as amended, Corps of Engineers
Wetlands Delineation Manual., Evidence documenting the results of the boundary
survey may be required.
.2 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.
9.5 PERMIT EXEMPTIONS
.1 The following uses within a regulated wetland or its buffer area are exempt from the
requirements of.this section; provided that, adverse wetland impacts are minimized,
hydrology is not altered and disturbed areas are immediately restored:
A. Conservation or preservation of soil, water, vegetation, fish, shellfish, and
other wildlife;
B. Passive activities, including fishing, hunting, bird watching, boating,
swimming, and use of existing trails;
C. The harvesting of wild crops in a manner that is not injurious to natural
reproduction of such crops and provided the harvesting does not require
tilling of soil, planting of crops, or alteration of the wetland by changing
existing topography, water conditions or water sources;
D. The non - chemical maintenance (but not construction) of drainage ditches and
other constructed stormwater management facilities;
E. Low impact education or scientific research;
F. Navigation aids and boundary markers;
G. Boat mooring buoys;
H. Low impact site investigative work necessary for land use application
submittals such as surveys, soil logs, percolation tests and other related
activities;
I. Agricultural activities conducted in those wetlands defined as wet meadows
under this ordinance.
J. Pesticide or fertilizer application applied by applicators licensed by the
Washington State Department of Agriculture.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 38
. A normal maintenance and repair of lawfully located existing serviceable
structures, facilities, utilities or improved areas.
$E. Minor modification of lawfully located existing serviceable structures,
facilities, utilities or improved areas.
GM. Removal or destruction of noxious weeds, as listed in chapter 16 -750 WAC.
D The cleaning and maintenance of wetlands within rights -of -way; provided
that, the vegetation is not disturbed beyond that necessary to gain reasonable
access to the water body, and further; provided that, the water body does not
support anadromous fish.
. Construction of structures not subject to development permit requirements
which are designed solely for the personal use of the property owners.
G '. Alteration or removal of beaver built structures provided that in a Category
I and H Wetland there is no adverse impact pursuant to 10.8.2.
.2 The following uses are exempt from the requirements of this Section when located
in a regulated wetland buffer area (but not a wetland); provided that, adverse
wetland impacts are minimized, hydrology is not altered and disturbed areas are
immediately restored:
A. Normal maintenance and repair of lawfully located existing facilities, structures
or landscaping such as fences, buildings, driveways, roads, lawns, drainage
facilities and utilities, including water and sewer lines, power, petroleum and
telephone lines.
B. Development, including fill, of up to 12,000 sq. ft. in the buffer of a Category H
or III Wetlands under the following conditions:
Category II wetlands: the total surface area of the buffer is 75% or greater
in size than the wetland;
2. The development activity shall intrude no further than the outside half of the
standard buffer for each wetland category;
3. The exemption applies only to existing lots of record or the first legal sub-
division of an existing lot of record, and does not apply to subsequent sub-
division within the parent parcel.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 39
:n
.. .. i ...........
j'
Y.
i i i
Wiff.
RELATIONSHIP TO OTHER JURISDICTIONAL AGENCIES
1 In cases where the United States Army Corps of Engineers requires an individual
permit in accordance with the Clean Water Act, it is determined that the permit
conditions satisfy the requirements of this ordinance, (requirements imposed by the
Army Corps substitute for the requirements of this ordinance).
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 40
9:8 ` REGULATORY REQUIREMENTS
.1 There shall be no activity allowed within a regulated wetland or its buffer without
authorization unless specifically exempted or otherwise allowed in this ordinance.
.2 Beaver built structures shall not be altered in any way that will adversely impact a
Category I and II Wetland, its vegetation, or affect the surface water or groundwater
level of the wetland.
.3 The county shall issue permits in accordance with the Wetlands Category System as
defined in Section 10.3.4 of this Ordinance.
.4 Buffers shall remain naturally vegetated except where the buffer can be enhanced
to improve its functional attributes.
.5 All regulated wetlands shall be surrounded by a buffer zone as follows:
A: Category I Wetlands:
100 feet wide
B. Category, II Wetlands:
50 feet wide.
C. Category III Wetlands:
25 feet wide
D. All buffers shall be measured on .a horizontal plane from the wetland edge.
.6 Uses within the f Ig wetland that are allowed are as follows:
.......... ...............................
.......... ...............................
.......... ...............................
A. Category I Wetlands: Unless exempted from requirements pursuant to Sections
3.4 and 10.5 or allowed by authorization pursuant to 10.6 of this ordinance, no
activity shall be permitted within a Category I Wetland except those necessary
for public access or utilities; or those necessary for public educational or research
purposes; or those necessary to enhance or repair the wetland. Permit
application for the above activities shall not be approved unless the applicant can
demonstrate that the use meets all of the following conditions:
1. The project is in the public interest;
2. The project will result in minimum adverse impacts to the wetland's
functional characteristics; including topography, vegetation, fish and wildlife
resources; and hydrological conditions;
3. The project will not cause significant degradation of groundwater or surface
water quality;
4. The project will provide for appropriate mitigation pursuant to Section 10.9.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 41
B. Category H Wetlands: Unless exempted from requirements pursuant to Sections
3.4 and 10.5 or allowed by authorization pursuant to 10.6 of this ordinance, no
activity shall be permitted within a Category II Wetland except those projects
described in Category I above, and those projects that meet all of the following
conditions:
1. The project will result in minimum adverse impacts to the wetland's
functional characteristics; including topography, vegetation, fish and wildlife
resources, and hydrological conditions;
2. The project will not cause significant degradation of groundwater or surface
water quality;
3. The project will provide for appropriate mitigation pursuant to Section 10.9.
C. Cateory III Wetlands: Activities may be permitted within a Category III
Wetland; provided that, the function of the wetland is replaced.
.7 Standard Wetland Buffer Width Averaging
A. Standard wetland buffers may be modified by averaging buffer widths. Wetland
buffer width averaging shall be allowed where:
1. Averaging is necessary to avoid hardship to the applicant caused by
circumstances peculiar to the property;
2. The wetland contains variations in sensitivity due to existing physical
characteristics;
3. Low intensity land uses would be located adjacent to areas where buffer
width is reduced, and that such low intensity land uses are guaranteed in
perpetuity by covenant, deed restriction, easement, or other legally binding
mechanism;
4. Width averaging will not adversely impact the wetland functions or its values;
5. The total area contained within the wetland buffer after averaging is no less
than that contained within the standard buffer prior to averaging.
.8 Increased Wetland Buffers Width
A. The county may require increased standard buffer widths as a permit
condition when it is determined that a larger buffer is necessary to protect
wetland functions based on local conditions. This determination may be
made when a larger buffer zone is reasonably related to the viability of the
regulated wetland's function and when at least one of the following apply:
1. The wetland has been designated a Wildlife Habitat Conservation Area; or,
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 42
2. The adjacent land is susceptible to severe erosion and erosion control
measures will not effectively prevent adverse wetland impacts; or,
3. The adjacent.land use is likely to result in a significant adverse impact to the
wetland functions.
.9 Reduced Wetland Buffer Width
A. The county may reduce the standard wetland buffer widths where:
1. The adjacent land is on a stable high bank above the wetland and it can be
clearly determined that -no adverse impact will result from the activity; or,
2. The project includes a buffer enhancement plan using native vegetation. The
applicant must clearly demonstrate that an enhanced buffer will provide
additional protection for wetlands functions.
.10 Stormwater Discharge
A. The requirements below apply to stormwater discharges into wetlands through
a conveyance system:
1. Stormwater 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 -201A WAC, as required by State law.
2. Created wetlands that are intended to mitigate for loss of wetland
acreage function and value shall be designed using Best Management
Practices to replicate and protect all functions of natural wetlands.
3. Wetlands shall not be used for the treatment of stormwater except
when the stormwater facility meets all of the following criteria:
a. The use of upland sites is determined by the county to be
unfeasible. Criteria for such a determination shall be included in
the Whatcom County Development Standards.
b. The functions and values of the existing wetland are enhanced by
the creation of a constructed wetland not materially degraded by
its use in stormwater management.
4. Upon meeting the criteria above in 9.8.10(A.3), constructed wetlands
may be located in category 1H wetlands when the existing condition
of the wetland is degraded.
5. A degraded wetland is one that has over 80% of non.- native
. vegetation species; including, but not limited to, reed canary grass
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 43
and common pasture grasses, hardtack, soft rush, and alder less than
25 years of age.
" MITIGATION REQUIREMENTS
Wetlands serve numerous functional attributes, many that provide irreplaceable
ecological functions which cannot be replicated. Mitigation of wetlands may take place
when it can be shown that the functional characteristics of the existing wetland can be
restored, recreated or enhanced.
.1 Mitigation Sequence
A. Projects otherwise permitted pursuant to this ordinance shall avoid, minimize, or
compensate for adverse impacts to regulated wetlands or their buffers in the
following order of preference:
1. Avoiding the adverse impact altogether by not taking a certain action or parts
of an action;
2. 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;
3. Rectifying the adverse impact by repairing, rehabilitating or restoring the
affected environment;
4. Reducing or eliminating the adverse impact over time by preservation and
maintenance operations during the life of the action;
5. Compensating for the adverse impact by replacing, enhancing, or providing
substitute resources or environments;
6. Monitoring the adverse impact and the compensation project and taking
appropriate corrective measures.
B. The above sequencing order may be disregarded within Urban Growth Areas or
high intensity land use areas.
C. Mitigation for individual projects may include a combination of the above
measures.
.2 Scope of Mitigation: In making a determination of the extent to which mitigation
shall be required, Whatcom County will consider all of the following:
A. The functional characteristics of the wetland within the watershed or sub -basin
in which the wetland is located, where information is available and upon request.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 44
B. The short and long range adverse impacts of the action upon the wetland and
associated ecosystem, and the reversible potential of the impairment or loss;
C. The isolated and cumulative benefit of the wetland functions loss;
D. The type, size, and location of the wetland being altered, and the effect it may
have upon the remaining system or watershed of which the wetland is a part;
E. Observed or predicted trends regarding the gains or losses of this type of wetland
in the watershed, in light of natural and human processes;
F. The likely success of the possible mitigation measures; and
G. The degree to which the applicant has demonstrated a good -faith effort to
incorporate measures to minimize and avoid adverse wetland impacts within the
proposed project.
.3 Compensato , Mitigation: General Requirements
Compensatory mitigation shall be required for projects in Category I and II Wetlands
when alteration of the wetland result in a loss to the wetland, or results in an adverse
impact to the wetland's functions.
A. Any person who alters wetlands which require compensatory mitigation shall
restore, create, or enhance equivalent areas of those wetlands at a minimum 2:1
ratio (mitigation site: altered site) in order to compensate for wetland losses.
The restored, created, or enhanced mitigation project shall at a minimum provide
an equivalent level of wetland functions.
B. On -site restoration or replacement of the adversely impacted wetland will be the
preferred alternative for compensatory mitigation efforts.
C. Where on -site mitigation is not feasible due to technical constraints, Whateem
accept an alternative proposal. Such proposal may involve the
restoration, enhancement or creation of a wetland off -site, or participation in a
mitigation banking system.
D. Compensation plans shall be completed and approved prior to wetland alteration.
Compensation projects shall be completed concurrent with the development
activity unless a delay of the compensation project will reduce adverse impacts
to fish, wildlife, and water quality and /or quantity.
E. Construction of compensation projects shall be timed to reduce adverse impacts
to fish, wildlife and flora. Construction shall be timed to assure grading and soil
movement occurs during the dry season; and planting of vegetation is specifically
timed to the needs of the target species. This may require the construction of
the compensation area over several seasons (late summer through spring).
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 45
F. Compensatory mitigation shall be conducted on property which will be protected
and managed to avoid further development or degradation. The applicant or
violator must provide for long -term preservation of the compensation area.
G. The applicant and their representatives shall demonstrate sufficient scientific
expertise, supervisory capability, and financial resources to carry out the project;
and shall demonstrate the capability for monitoring the site and. making
corrections if the project fails to meet projected goals.
H. A performance bond, assignment of savings, or other like security shall be
required for compensatory 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.
I. A maintenance bond, assignment of savings, or other like security shall be
required in an amount necessary to provide for future site monitoring and
possible corrective action required for compensatory mitigation projects. This
bond, assignment of savings, or the. security shall be released no later than five
years after completion of the mitigation project.
J. Site Selection: compensation sites shall be selected in the following order: of
preference: 1) filled, drained, or cleared sites which were formerly viable
wetlands and where appropriate hydrology exists; 2) upland sites adjacent to
wetlands, if the upland is significantly disturbed and does not contain a mature
forested or shrub community of native species, and where appropriate natural
sources of hydrology exist.
.4 Off -Site Compensatory. Mitigation
A. Off -site compensation may be accepted as appropriate mitigation in high
intensity land use areas q f
.......... ....
€ -ern -site compensation is not scientifically feasible due to hydrology, soils,
waves, or other factors; orb
e., .'p-site compensation is not practical due to potentially adverse impact from
surrounding land uses; or,
P?`roposed functions at the site of the proposed restoration are significantly
greater than lost wetland functions; or
Y regional goals for flood storage, flood conveyance, habitat or other wetland
functions have been established and strongly justify location of compensatory
measures at another site.
B. Off -site compensation shall occur
fix: `'ithin an area where the most significant improvement to the water
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 46
resource will take place with the greatest likelihood of success.
2rG?ithin the watershed sub -basin which is adversely impacted. This provision
f may be waived only under one of the following conditions:
4—= The existing sub -basin is so degraded that another basin location would
be more ecologically beneficial.
.5 Compensato , Mitigation: Cooperative Compensation Projects
A. The county may encourage, facilitate, and approve cooperative mitigation
compensation projects among more than one applicant where:
1. The mitigation compensation project includes one or more larger wetlands
as opposed to many small wetlands;
2. The group demonstrates the organizational and fiscal capability to act
cooperatively;
3. The group demonstrates that long term management of the compensation.
area can and will be provided;
4. There is a clear likelihood for success of the proposed compensation project
at the compensation site.
.6 Mitigation Plan
A. Any person required to develop a wetland mitigation project or contribute to a
mitigation bank, shall submit a mitigation plan to Whatcom County. The plan
shall describe at a minimum:
1. The location of the proposed project site; ownership;
2. The size and type of existing wetland; complete ecological assessment (flora,
fauna, hydrology, functions, etc.) of the wetland being restored, enhanced, or
the area where a new wetland will be created;
3. The natural suitability of the proposed site for establishing the replacement
wetland (i.e., water source and drainage patterns, topographic position, fish
and wildlife habitat opportunities, value of the existing area to be converted,
etc.);
4. An estimation of likely success based on comparable mitigation efforts;
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 47
5. Quantifiable goals and objectives in order to determine the success of the
plan over time and to release performance. bonds, or require contingency
actions, if necessary;
6. A plane view and cross - sectional scaled drawings; topographic survey data,
including slope percentage and final grade elevation; and other technical
information as required in sufficient detail to describe and provide for:
a. Soil and substrate conditions; topographic elevation; grading and
excavation; erosion and sediment control needed for wetland /stream
construction and long -term survival;
b. Planting plans specifying plant species types, quantities, locations,
size, spacing, or density; source of plant materials, starts or seeds;
timing, water needs, nutrient requirements for planting; and, where
appropriate, measures to protect plants from predation;
c. Water quality parameters, water source, water depths, water control
structures, and water level maintenance practices needed to achieve
the necessary water conditions and hydrocycle /hydroperiod
characteristics;
d. Project maintenance, monitoring and replacement plan establishing
responsibility in the event of initial failure or interference from
undesirable or nuisance vegetation and permanent establishment of
the wetland /stream system and all its components;
e. A demonstration of fiscal, administrative, and technical competence
of sufficient standing to successfully execute the overall project and
the capability for monitoring the site and making corrections if the
project falls to meet projected goals.
.7 Mitigation Banking
A mitigation banking system shall be developed by a Technical Committee and
reviewed by the Citizens Advisory Committee to be integrated into the permanent
Critical Areas Ordinance.
9A WETLAND ENHANCEMENT
.1 Whatcom County may waive the requirements of this ordinance when a proposal is
intended exclusively for the enhancement of an existing regulated wetland, when the
following conditions are met:
A. The enhancement project is not associated with development activity; and
B. The project is approved by either the U.S Department of Fish and Wildlife or
the Washington State Department of Fisheries and Wildlife.
EMERGENCY CRITICAL AREAS ORDINANCE
9-. � PUBLIC INTEREST TEST
JANUARY 1995
PAGE 48
.1 The Public Interest Test is based upon 33 Code of Federal Regulations 320.4 A as
it exists at the date of adoption of this ordinance, which is hereby incorporated by
reference and paraphrased below.
A. To perform the public interest test, Whatcom County shall balance the benefits
which may reasonably be expected to accrue from a proposed regulated activity
against its reasonably foreseeable adverse wetland /stream impacts. For a
proposed activity to be found contrary to the public interest, the outcome of this
balancing process must show the adverse impacts of the proposal to significantly
outweigh its benefits.
B. Factors which shall be taken into account in the balancing process include, but
are not necessarily limited to the following: general environmental concerns;
wetlands /streams; fish and wildlife values; flood hazards; floodplain values;
conservation of resources; water quality; energy needs; food and .fiber
production; mineral needs; land use; private property values; economics; historic
and aesthetic values, and the general safety and welfare of the residents of the
county.
C. The following general criteria shall be used to evaluate the factors used in the
balancing process:
1. The extent of the public and private need for the proposed activity;.
2. The extent and permanence of the beneficial and /or adverse impacts that the
proposed regulated activity may have on the public and private uses to which
the area is suited;
3. The quality of the functions of the affected wetland /stream and the extent
of wetland /stream disturbance;
4. The economic value of the proposed regulated activity to the public;
5. The probable impact of the proposed regulated activity on the health and
welfare of plants, fish, wildlife and people.
.2 The county shall issue a public written summary of its findings of fact and the results
of the balancing process used to evaluate each proposed activity.
9420 AGRICULTURE RESTRICTIONS: Wetlands
.1 Notwithstanding all other provisions in this ordinance, agriculture_ activities may be
conducted on agricultural land within a regulated wetland or its buffer upon:
A. Submission of a Conservation Plan approved by the Whatcom County
Conservation District; and,
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 49
B. Conformance with the Soil Conservation minimum standards and specifications.
.2 The Whatcom County Conservation District shall approve all Conservation Plans
with assistance and consultation from the U.S. Soil Conservation Service. A District
determination is not final until it is reduced to writing and mailed to the county.
.3 Preparation of a Conservation Plan shall be the responsibility of the applicant. Upon
completion of the proposed Conservation Plan, the applicant is required to provide
copies of the Conservation Plan to the Conservation District, the Departments of
Fisheries or Wildlife, and Whatcom County for review. A properly completed
Conservation Plan shall be approved, conditioned or disapproved by the
Conservation District within 30 calendar. days of receipt of the Conservation Plan.
If no action is taken within 30 days, the Conservation Plan shall be deemed
approved.
.4 Upon approval from the Whatcom County Conservation District, the Conservation
Plan shall be sent, by the landowner, to Whatcom County, who will maintain. an
updated file of all Conservation Plans for public inspection.
.5 An approved Conservation Plan satisfies all requirements under this ordinance.
6 To remain valid, a Conservation Plan must be reviewed and updated every five years
to insure adequate protection of critical areas.
EMERGENCY CRITICAL AREAS ORDINANCE
SECTION 10
RIVERS AND STREAMS
10.1 PURPOSE
.1 It is the purpose of this Section to pursue the following goal:
JANUARY 1995
PAGE 50
A. To recognize the beneficial functions of streams, including wildlife and. fisheries
habitat, water resource enhancement, open space.
10.2 CRITICAL AREA: Rivers and Streams
Rivers, streams are critical areas.
.1 River: Those areas where surface waters produce a defined channel or bed and the
mean annual flow is 20 cubic feet per second or greater.
.2 Stream: 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 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.
.3 All rivers and streams shall be designated as Type 1 through 5 Waters in accordance
with the criteria set forth in Appendix E. River or stream segments that meet the
criteria for more than one Type shall be classified the lowest numerical Type.
10.3 PERMIT EXEMPTIONS
.1 The following uses within a river or stream and its buffer are exempt from the
requirements of this Section; provided that, adverse impacts are minimized,
hydrology is not altered and disturbed areas are immediately restored:
A. Conservation or preservation of soil, water, vegetation, fish, shellfish, and
other wildlife;
B. Passive activities, including fishing, bird watching, boating, swimming, and use
of existing trails;
C. The harvesting of wild crops in a manner that is not injurious to natural
reproduction of such crops and provided the harvesting does not require
tilling of soil, planting of crops, or alteration of the river or stream by
changing existing topography, water conditions or water sources;
D. The non - chemical maintenance (but not construction) of drainage ditches
and other constructed stormwater management facilities;
E. Low impact education or scientific research;
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 51
F. Navigation aids and boundary markers;
G. Boat mooring buoys;
H. Low impact site investigative work necessary for land use application
submittals such as surveys, soil logs, percolation tests and other related
activities.
I. River gravel bar extractions within the jurisdiction of the Shoreline
Management Program.
J. Pesticide or fertilizer application applied by applicators licensed by the
Washington State Department of Agriculture.
<--- <--- '__ Normal maintenance and repair of lawfully located existing serviceable
structures, roads, railroads, utilities, improved areas or facilities;
Minor modification of lawfully located existing serviceable structures,
faciliteis, utilities, or improved areas.
Removal or destruction of noxious weeds, as listed in chapter 16 -750' WAC.
US The cleaning and maintenance of rivers or streams within rights -of -way;
provided that, the vegetation is not disturbed beyond that necessary to gain
reasonable access to the water body and, further; provided that, the water
body does not support anadromous fish.
£ Pesticide or fertilizer application.
Ft. Construction of structures not subject to development permit requirements
which is designed solely for the personal use of the property owner.
.2 The following uses are exempt from the permit requirements of this Section when
located in a the buffer area of a river or stream; provided that, adverse wetland
impacts are minimized, hydrology is not altered and disturbed areas are immediately
restored:
A. Normal maintenance and repair of lawfully located existing facilities, structures
or landscaping such as fences, buildings, driveways, roads, lawns, dikes, drainage
facilities and utilities, including water and sewer lines, power, petroleum and
telephone lines.
Ind
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EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 52
1%" RELATIONSHIP TO OTHER JURISDICTIONAL AGENCIES
.2 When development falls within the jurisdiction of the Shoreline Management
Program, the buffers required under this ordinance shall not exceed the shore
setbacks of the Shoreline Management Program.
40; REGULATORY REQUIREMENTS
. There shall be no activity allowed within a stream; or its buffer without
authorization unless specifically exempted or otherwise allowed by this ordinance.
. Buffer requirements:
streams shall be vrotected on both sides by a buffer as
A. Buffer Widths:
1. Type 1 Water:
200
2. Type 2 Water:
100 ft.
3. Type 3 Water:
50 ft.
4. Type 4 Water:
10 ft.
5. Type 5 Water:
0 ft. (MDNS requirement)
Fes. Buffers shall remain naturally vegetated except where the vegetation has
been invaded by noxious weeds or would substantially benefit from the
increased diversity of introduced species; or where the natural buffer can be
enhanced for habitat, bank stabilization or water quality purposes.
E . All buffers shall be measured horizontally from the ordinary high water
mark; provided that, on erosional or otherwise geologically unstable banks
exceeding ten feet in height and sloping at more than 40% gradient, such
buffers shall be measured from the bank rim or crest of such slope.
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 53
E— A-`.-"*-`*`> ncreased Standard Rivef a-ad Stream Buffer Width
equire increased buffer
widifis as a permit condition when a larger buffer is necessary to protect
ostream functions. This determination may be made when at least
one of the following apply:
a. The adjacent land is susceptible to severe erosion and erosion control
measures will not effectively prevent degradation to water quality; or,
b. A larger buffer is necessary to maintain relatively constant annual
water flows.
F4 Reduced Standard River- and Stream Buffer Width
........... . ....... :.::.... °:: >: ..
. . ....... .. ....... ....... .:
X.- Ee u
. ...... . . ...
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d ce the standard river or
tr
. .... ... . ...
...........
stream buffer widths where:
b. The protect includes a buffer enhancement
P.M.T.1 M RNMINTPR M NEW-=
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b. The protect includes a buffer enhancement
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 54
:.:::.::::.::::.::.
t` < >:z`€dr:li:< The a licant must clearl
prove that an enhanced buffer will provide additional protection for the
Fivef -of- stream.
.34' No activity shall be permitted within a stream except those that meet all of the
following conditions:
A. The project will result in minimum adverse impacts to the fkw ef- stream,
including its topography, vegetation, and fish and wildlife resources;
B. The project will not cause significant degradation of groundwater or surface
water quality.
4Or7X§ AGRICULTURE RESTRICTIONS: Rivers and Streams
.1 Notwithstanding all other provisions in this. ordinance, agriculture activities may be
conducted on agricultural land within regulated river /stream or their buffer upon:
A. Submission of a Conservation Plan approved by the Whatcom County
Conservation District; and,
B. Conformance with the Soil Conservation minimum standards and specifications
.2 The Whatcom County Conservation District shall approve all Conservation Plans
with assistance and consultation from the U.S. Soil Conservation Service. A District
determination is not final .until . it is reduced to writing and mailed to the county.
.3 Preparation of a Conservation Plan shall be the responsibility of the applicant. Upon
completion of the proposed Conservation Plan, the applicant is required to provide
copies of the Conservation Plan to the Conservation District, the Departments of
Fisheries or Wildlife, and Whatcom County for review. A properly completed
Conservation Plan shall be approved, conditioned or disapproved by the
Conservation District within 30 calendar days of receipt of the Conservation Plan.
If no action is taken within 30 days, the Conservation Plan shall be deemed
approved.
.4 Upon approval from the Whatcom County Conservation District, the Conservation
Plan shall be sent, by the landowner, to the Whatcom County Administrator who will
maintain an updated file of all Conservation Plans for public inspection.
.5 The approval of a Conservation Plan satisfies all requirements under this ordinance.
.6 To remain valid, a Conservation Plan must be reviewed and updated every five years .
to insure adequate protection of critical areas.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE SS
SECTION 11
FISH HABITAT CONSERVATION AREAS
11.1 PURPOSE
.1 It is the purpose of this Section to pursue the following goals:
A. Ensure the continued existence, and encourage enhancement of anadromous and
resident fish species in Whatcom County by protecting and conserving valuable
fish habitat.
B. Encourage the preservation of natural stream functions that support fish
populations.
11.2 CRITICAL AREA: Fish Habitat Conservation Areas
Fish Habitat Conservation Areas are critical areas. Fish Habitat Conservation Areas _can
be divided into two categories as follows:
.1 Fish Habitat Area (FHA): A Fish Habitat Area (FHA) is any lake, shoreline, river,
stream, pond, or wetland where fish presently reside or where the habitat is suitable
for viable populations of fish to reside. These waters generally consist of Type 1, 2,
or 3 Waters but may include Type 4 Waters seasonally.
.2 Critical Fish Habitat Areas (CFHA): Critical Fish Habitat. Areas are those Fish
Habitat Areas (FHA) which provide one or more types of essential habitats as
defined below:
A. Essential Habitat Utilized by Sensitive, Threatened, Endangered, or Candidate
Species: These species are listed under the heading of Listed Species under the
Federal or State Endangered Species Act.
B. Essential Habitat Utilized by Species of Local Importance: Habitats for fish
determined to be of local importance which are essential for their continued
existence.
1. Fish of Local Importance: Fish of Local Importance are those species or
races of anadromous or resident fish whose diminished population size
severely restricts commercial or recreational fishing opportunities —as
deterwAtied by the Fish Habitat Beafd. This includes species or races of
anadromous or resident fish that may be abundant elsewhere but in
Whatcom County their distribution or abundance is limited. Protection of
habitat for these fish populations play a significant role in the recovery of the
species.
2. The following fish are likely candidates for the designation of Fish of Local
Importance:
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE-56
a. Native Chinook Salmon
b. Naturally Spawning Coho
c. Native Steelhead
d. Bull Trout
e. Kokanee in Lake Whatcom and Lake Samish
f. Native Chum Salmon
g. Longfin Smelt (Hooligans)
h. White and Green Sturgeon
i. Sockeye Salmon
j. Sea -run Cutthroat
k. Lake Whatcom Cutthroat
1. Pink Salmon
C. Essential Habitats Supporting Critical Life Stages: Those habitats supporting
anadromous and resident fish during a life stage that is critical to their life cycle.
.3 The following are geographic areas or environments in which essential habitats.. are
most likely to occur and should be considered for inclusion in a Fish Habitat
Conservation Area (FHCA):
A. Stream segments, ponds, and side channels where spawning gravel is a
limiting factor to fish populations. The critical life stage is spawning.
B. Wetlands, ponds, and side channels that are frequently used by anadromous
and resident fish. The critical life stage is over - winter rearing and holding.
C. Estuarine habitat. The critical life stage is juvenile rearing and smolting.
D. Near -shore lake habitats with suitable substrate for spawning. The critical
life stage is spawning.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 57
SECTION 12
WILDLIFE HABITAT CONSERVATION AREAS
12.1 PURPOSE
.1 Many land use activities can adversely impact wildlife habitat. Where areas of
.critical wildlife habitat are subject to development pressure, all proposed activities
in proximity to the habitats should be evaluated to determine whether the proposed
land use is compatible with the wildlife and its associated habitat. Therefore, it is
the purpose of this Section to pursue the following goals:
A. To preserve Critical Wildlife Habitats so that isolated populations of species are
not created and habitat fragmentation is avoided.
B. To maintain the natural geographic distribution of Critical Wildlife Habitat.
C. To maintain the components necessary for the health and maintenance of a
viable wildlife population over time.
12.2 CRITICAL AREA: Wildlife Habitat Conservation Areas
.1 Wildlife Habitat Conservation Areas support Critical Wildlife and are therefore
critical areas.
.2 The following are Wildlife Habitat Conservation Areas:
A. Critical Habitat Areas: natural areas, open spaces or blocks of significant, locally
unique habitat(s) supporting a diversity and /or concentrations and /or abundance
of wildlife species. Critical Habitat Areas include, but are not limited to,
estuaries and estuarine wetlands, old- growth forests, snag rich areas, complex
wetlands, eelgrass beds, fresh water ponds and lakes, and associated shorelines;
or
B. Species Management Areas: areas delineated, actively monitored, and managed
for a specific species and its primary habitat, for which a Management Plan
exists. These areas include habitat associated with Federally or State listed
endangered, threatened, sensitive or candidate species and species of local
importance; or
. Reserves: designated State and Federal Natural Area Preserves, Natural
Resource Conservation Areas, State Parks, Land Trust and Nature
Conservancy lands, and significant wildlife areas planned for permanent
preservation through acquisition or other means.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 58
12.3 PERMIT EXEMPTIONS
.1 The following uses within a Wildlife Habitat Conservation Area are exempt from the
requirements of this Section; provided that, adverse impacts are minimized and
disturbed areas are immediately restored:
A. Conservation or preservation of soil, water, vegetation, fish, shellfish, and
other wildlife;
B. Passive activities, including fishing, bird watching, boating, swimming, and use
of existing trails;
C. The harvesting of wild crops in a manner that is not injurious to natural
reproduction of such crops and provided the harvesting does not require
tilling of soil, planting of crops, or alteration of the wetland by changing
existing topography, water conditions or water sources;
D. The non - chemical maintenance (but not construction) of drainage ditches
and other constructed stormwater management facilities;
E. Low impact education or scientific research;
F. Navigation aids and boundary markers;
G. Boat mooring buoys;
H. Low impact site investigative work necessary for land use application
submittals such as surveys, soil logs, percolation tests and other related
activities.
I. Normal maintenance and repair of lawfully located existing facilities,
structures or landscaping such as fences, buildings, driveways, roads, lawns,
drainage facilities and utilities, including such utilities as water and sewer
lines, power, petroleum and telephone lines.
J. Construction, repair or remodel of single family dwelling units.
K. Pesticidet application applied by applicators licensed by the
Washington State Department of Agriculture.
Minor modification of lawfully located existing serviceable structures,
facilities, utilities or improved areas.
$M. Removal or destruction of noxious weeds, as listed in chapter 16 -750 WAC.
The cleaning and maintenance of Wildlife Habitat Conservation Areas within
rights -of -way; provided that, the vegetation is not disturbed beyond that
necessary to gain reasonable access to the water body, and further; provided
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 59
that, the water body does not support anadromous fish.
. Construction of structures not subject` to development permit requirements
which are designed solely for: the personal use of the property owner.
Y_
in .
7
U5A RELATIONSHIP TO OTHER JURISDICTIONAL AGENCIES
.1 In cases where other agencies exert jurisdictional control over ,
:. :.:.::::::...... :..... :....:::: :.;;;; ;;; »; :::... SIM :.: �..i..... �... :;•: is •::.i:i: :S::: ;
including, ut not limited o
b t
the Lummi Indian Nation_::., the Nooksack Tribe �, the
United States Fish and Wildlife Service, the Environmental Protection Agency, or
the Washington State Departments of Fisheries Wildlife and Ecology; "' '•
gt p gy; it is
determined ":: >` c� €.. that the permit conditions satisfy the requirements of this
ordin ance, 1.;1 re q uirements imposed by...... .:: these jurisdictions
.......
s` te; substitute for the requirements of this ordinance. `` {'
REGULATORY REQUIREMENTS
Activities may be permitted within a Wildlife Habitat Conservation Area subject to
conditions designed to protect habitat from adverse impacts. Such conditions may
include establishment of a reasonable buffer. The county may deny a project in a
Wildlife Habitat Conservation Area if it presents a serious risk of significant adverse
impact or isolation of a Wildlife Habitat Conservation Area. The county may approve
development if it presents no serious risk of significant adverse impact or isolation of a
Wildlife Habitat Conservation Area.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 60
APPENDIX A
AQUIFER RECHARGE RATING SYSTEM
Critical Aquifer Recharge Areas shall be determined on the basis of hydrogeologic ,soils and
geologic data. The following sequence of questions provides a quantifiable means of
reaching a determination:
1. Does the project include any sources of groundwater contamination as listed in Appendix
B? Yes: go to question #2. No: A supplement (SEPA checklist) is not
required.
2. Is the project in an Aquifer Recharge area?
2a Is the soil type at the proposed location in Hydrologic Soil Group (HSG) either A
or B? (Refer to aggregated soil map; if scale too small, refer to HSG designations in
published Soil Conservation Service Soil Survey. HSG's shown on reference list.)
Yes:1 No:0
2b Is the location in either of the following geologic units: Sumac Outwash, or
Nooksack River Floodplain Alluvium? (Refer to map overlay based on Geologic Map
of Western Whatcom County, Washington; Easterbrook,1976; Misch,1966; Moen; 1963.)
Yes:1 No:0
2c Do more than half of the well logs within one mile radius show an initial static water
level of less than 50' below ground surface? (Refer to Planning Dept. Well Log
Database. If questions arise, consult hard copy version of well logs at Health Dept.)
Yes:1 No:0
2d Does the top 50' of subsurface consist of high - permeability materials in which it is
not likely that there is 6' of poorly permeable strata? (Refer to Planning Dept. Well Log
Database. If questions arise, consult hard copy version of well logs at Health Dept.)
[This question was originally evaluated in the negative sense: On the basis of
neighboring well logs, is it more likely than not that there is 6' of poorly permeable
strata within 50' of ground surface ?]
Yes:1 No:0
3. Is there adequate* well log data to make a decision on 2c and 2d? (* "Adequate" means
there is at least one well within V2 mile, in the same geologic unit, that has complete
information on the relevant well characteristics.).
If the answer is yes:
3a If points in 2a through d total 1, go to 4.
3b If points in 2a through d total 2 through 4, go to 5.
If the answer is no:
3c If points in 2a and 2b are 0, go to 4.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 61
3d If points in 2a and 2b are 1, go to 5.
3e If points in 2a and 2b are 2, go to 5.
4. Project considered to be in an area of low susceptibility to contamination of the aquifer.
No Supplement (SEPA checklist) required.
5. Project considered to be in an area of high susceptibility to contamination of the aquifer.
A Supplement (SEPA checklist) required.
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 Municipal
Local Health Department, Solid Waste
Sludge, Compost,
Department of Health
Other Similar
Washington State Department of Ecology
Soil Conservation Service
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 62
Land Application of Animal Soil Conservation Service
Waste Cooperative Extension
Conservation District
Washington State Department of Ecology
CATEGORY II - Sources designed to store, treat, and /or dispose of substances; discharge
through unplanned release
SOURCE
CONTACT(S)
Solid Waste:
Local Health Department, Solid Waste
- Landfills
County Solid Waste Department
- Animal burial
Washington State Department of Ecology
- Waste piles /tailings
- Illegal dumping
- Demolition and inert
landfills
- Woodwaste
- Recycling facilities
- Regulated landfills
- Home burial of trash
- Transfer Stations, Drop
Boxes
- Related sources
Municipal Waste Lagoons
Manure Lagoons
Local Health Department
Washington State Department of Ecology
.Soil Conservation Service
Conservation Districts
Cooperative Extension
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 63
Materials Stockpiles
Department of Ecology
Materials Transport and transfer
Local Health Department, Solid Waste
Graveyards
Local Health Department, Solid Waste
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 Buildings and Codes
Storage Tanks
County Health Department
Washington State Department of Ecology
CATEGORY III - Sources designed to retain substances during transport or transmission
Pipelines
Department of Ecology (Water Rights)
Soil: Conservation Service
Cooperative Extension
Conservation District
Materials Transport and transfer
Department of Emergency Services
operations
Local Health Department, Solid Waste
11
1 Department of Ecology
CATEGORY IV - Sources discharging substances as a consequence of other planned
activities
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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 64
Fertilizer applications
Department of Ecology - dairy discharge
Surface Mining
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
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, Buildings and
Codes,
Maintenance and Operations
CATEGORY V - Sources providing conduit or inducing discharge through altered flow
patterns
Wells
Department of Ecology
Surface Mining
Department of Natural Resources
Whatcom County Building and Codes
Construction Excavation
County Engineering, Building and Codes
CATEGORY VI - Naturally occurring sources whose discharge is created and /or
exacerbated by human activity
Saltwater Intrusion Department of Ecology
APPENDIX C
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 65
FEDERAL AND STATE ENDANGERED SPECIES LIST
FEDERALLY LISTED SPECIES under the Federal Endangered Species Act:
FE - FEDERAL ENDANGERED - A species which is in danger of extinction throughout
all or a significant portion of its range.
FT - FEDERAL THREATENED - A species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.
FC - FEDERAL CANDIDATE - Includes formally proposed endangered or threatened
species and candidate species for which the U.S. Fish and Wildlife Service has (1)
enough or (2) some information to indicate biological vulnerability and threat.
FS- FEDERAL SENSITIVE - A species that is informally considered a sensitive species
by the U.S. Fish and Wildlife Service, Region One.
STATE LISTED SPECIES under the State Endangered Species Act:
SE - STATE ENDANGERED - A species, native to the State of Washington, that is
seriously threatened with extirpation throughout all or a significant portion of its range
within the state. Endangered species are legally designated in WAC 232 -12 -014.
ST - STATE THREATENED - A species, native to the State of Washington, that is likely
to become endangered in the foreseeable future throughout a significant portion of its
range within the state without cooperative management or the removal of threats.
Threatened species are legally designated in WAC 232 -12 -011.
SS - STATE SENSITIVE - A species, native to the State of Washington, that is
vulnerable or declining and is likely to become endangered or threatened in a significant
portion of its range within the state without cooperative management or the removal of
threats. Sensitive species are legally designated in WAC 232 -12 -011.
SC - STATE CANDIDATE - These species are under review by the Department for
possible listing as endangered, threatened, or sensitive. A species will be considered for
State Candidate designation if sufficient scientific evidence suggests that its status may
meet criteria defined for endangered, threatened, or sensitive in WAC 232 -12 -297.
Currently listed State Threatened or State Sensitive Species may also be designated as
a State Candidate Species if their status is in question. State Candidate Species will be
managed by the Department, as needed, to ensure the long -term survival of populations
in Washington. They are listed in WDW Policy 4802.
SM - STATE MONITOR - State monitor species will be managed by the Department,
as needed, to prevent them from becoming endangered, threatened, or sensitive. A
species will be considered for State Monitor designation for the following reasons:
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 66
1) it was at one time classified as endangered, threatened, or sensitive;
2) it requires habitat that has limited availability during some portion of its life
cycle;
3) it is an indicator of environmental quality;
4) its population status must be determined through further field investigations;
5) it has unresolved taxonomy which may bear upon its status classification;
6) it may be competing with and adversely impacting other species of concern;
7) it has significant popular appeal.
.11 01013 /:1617
WHATCOM COUNTY
WETLANDS RATING SYSTEM
INTRODUCTION
This document is a revised version of the Washington State Wetlands Rating System, developed by the
Department of Ecology for use by local governments in developing and implementing their wetland
regulations.
This rating system was designed to differentiate between wetlands based on their sensitivity to disturbance,
rarity, irreplaceability and the functions and values they provide. The emphasis is on rating highly those
wetlands where our confidence in replacing them is low or their sensitivity to adjacent disturbance is high.
OVERVIEW FOR USERS
WHEN TO USE THE WETLANDS RATING SYSTEM
The system is designed to be used with the Whatcom County Critical Areas Ordinance, to determine the
Category of wetlands in the county.
HOW THE WETLANDS RATING SYSTEM WORKS
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 67
The system uses both an Wetlands Rating Office Data Form and a Wetlands Rating Field Data Form.
The Wetlands Rating Office Data Form is a step by step method for determining the category of wetland
based on criteria and subcriteria using information from agency sources. We recommend using the
Wetlands Rating Office Data Form before completing the Wetlands Rating Field Data Form. However,
please note that the Office Data Form will not provide a rating in most cases and you will need to use
the Field Data Form. This is because state agency inventories are not complete.
The Wetlands Rating Field Data Form is also a step by step method. We recommend careful reading of
the guidance.
WETLANDS RATING OFFICE DATA FORM
BACKGROUND INFORMATION:
Name of Rater:
Date:
Name of wetland (if known):
Government Jurisdiction of wetland:
Affiliation:
Location: 1/4 S: of 1/4 S: SEC: TWNSHP:
SOURCES OF INFORMATION: (Check all sources that apply)
Site visit: USGS Topo Map: NWI map: Aerial Photo:
Soils survey:
Other: Describe:
When office and /or field data forms are completed enter Category here:
1.1142 Cs
ANSWER ALL QUESTIONS BELOW. If the source DATA CATEGORY
agency identifies the wetland as satisfying any of the SOURC (the highest
questions below, circle the category in "CATEGORY" E qualifies)
column.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 68
Does the wetland contain individuals of Federal or
DNR
Yes: Category I
State -listed Threatened or Endangered plant species; or
( Natura
No:Next
is the wetland an historic location of a plant species
1
Question
thought to be possibly Extinct or Extirpated from
Heritag
Washington?
e)
Does the wetland contain documented habitats for
W D
Yes: Category I
State -listed or candidate Threatened or Endangered
Wildlife
No:Next
wildlife species managed by the Washington
Question
Department of Wildlife?
Does the wetland contain documented habitats of State
W D
Yes: Category I
or Federally listed or State or Federal candidate
Wildlife
No:Next
Threatened or Endangered fish species, or races of fish,
& W D
Question
managed by the Washington Department of Wildlife or
Fisherie
the Washington Department of Fisheries?
s
Is the wetland already on record with the Washington
DNR
Yes: Category, -I
Natural Heritage Program as a high quality native
( Natura
No:Next
wetland?
1
Question
Heritag
e)
Is the wetland documented as Category I Wetland of
Local
Yes: Category I
Local Significance?
Govt.
No:Next
Question
Does the wetland contain individuals of State - listed
DNR
Yes: Category
Sensitive plant species?
( Natura
II
1
No:Next
Heritag
Question
e)
Does the wetland contain documented habitat for State-
W D
Yes: Category
listed or candidate sensitive wildlife species managed by
Wildlife
II
the Washington Department of Wildlife?
No:Next
Question
Does the wetland contain documented habitats of
W D
Yes: Category
State or Federally listed or candidate Sensitive fish
Wildlife
II
species managed by the Washington Department of
& W D
No:Next
Wildlife or the Washington Department of Fisheries?
Fisherie
Question
s
Does the wetland contain documented habitat for
W D
Yes: Category ,
salmonids?
Fisherie
II
s
No: Go to
Wetlands
Rating Field
Data Form.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 69
WETLANDS RATING FIELD DATA FORM
BACKGROUND INFORMATION:
Name of Rater: Affiliation:
Date:
Name of wetland (if known):
Government Jurisdiction of wetland:
Location: 1/4 S: of 1/4
S: SEC: TWNSHP: RNGE:
SOURCES OF INFORMATION: (Check all sources that apply)
Site visit: USGS Topo Map: NWI map: Aerial Photo:
Soils survey:
Other: Describe:
WHEN THE FIELD DATA FORM IS COMPLETE ENTER
CATEGORY HERE:
Q.1. High Quality Natural Heritage Wetland.
Answer this question if you have adequate information or
experience to do so. If not find someone with the expertise to
answer the questions. Then, if the answer to questions la, lb and
lc are all NO, contact the Natural Heritage program of DNR.
la. Is there significant evidence of human - caused changes to
topography or hydrology of the wetland? Significant changes
Yes: go to Q.3.
could include clearing, grading, filling, logging of the
No: go to lb.
wetland or its immediate buffer, or culverts, ditches,
dredging, diking or drainage of the wetland.
lb. Are there populations of non - native plants which are currently
Yes: go to Q.3.
present and appear to be invading native populations?
No: go to lc.
lc. Is there significant evidence of human- caused disturbance of
the water quality of the system? Degradation of water quality
Yes: go to Q.3.
could be evidenced by culverts entering the system,
No: Possible
direct road /parking lot runoff, evidence of historic
Category I
dumping of wastes, oily sheens, extreme eutrophic
conditions, livestock use or dead fish etc.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 70
Q.3. Irreplaceable Ecological Functions:
Does the wetland-
- have at a least 1/2 acre of contiguous peat wetland;
Yes: go to 3a.
- or, have a forested class greater than 3 acres;
Yes: go to 3b.
- or, have characteristics of an estuarine system;
Yes: go to 3c.
If No to all, go
to Q.4.
3a. Peat Wetlands.
3a1. Does at least 1/2 acre of the peat wetland have greater than
Yes: Category
75% cover of living sphagnum?
No: go to 3a2.
3a2. Does at least 1/2 acre of the peat wetland have between 24%
Yes: Category
and 75% cover of living sphagnum?
II
No: go to 3a3.
3a1. Is the peat wetland at least 1/2 acre and has <25% areal
cover of any invasive /non- native plant species, and has < 80%
Yes: Category
areal cover of Spirea douglasii?
II
No: go to Q.4.
3b. Mature Forested Wetlands.
3b1. Is at least 50% of the tree canopy coverage conifers over 80
Yes: Category I
years in age and /or deciduous trees over 50 years in age?
No: go to 3b2.
3b2. Is at least 50% of the tree canopy coverage 40 -80 years in
Yes: Category
age, and is the structural diversity high as characterized by a
II
multi -layer community of trees > 50' tall and trees
No: go to Q.S.
20'49' tall and shrubs and herbaceous groundcover?
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 71
3c. Estuarine Wetlands.
3c1. Is the wetland listed as National Wildlife Refuge, National Yes: Category I
Park, National Estuary Reserve, Natural Area Preserve, State No: go to 3c2.
Park, or Educational, Environmental or Scientific Reserves
designated under WAC 332 -30 -151?
3c2. Is the wetland > 5 acres;
Yes: Category I
No: go to 36.
36. Does the wetland meet at least 3 of the following 4 criteria: Yes: Category I
- minimum existing evidence of human related disturbance such No: Category II
as diking, ditching, filling, cultivation, grazing or the presence of
non - native plant species (see guidance for definition);
- surface water connection with tidal saltwater or tidal I
freshwater;
- at least 75% of the wetland has a 100' buffer of ungrazed
pasture, open water, shrub or forest;
- has at least 3 of the following features: low marsh; high
marsh; tidal channels; lagoon(s); woody debris; or
contiguous freshwater wetland.
Q.4. Category IV wetlands.
4.1. Is the wetland: less than 5 acres and, Yes: Category
hydrologically isolated and, IV No: go to
not providing a significant aquifer recharge function and, Q.S.
not providing critical wildlife habitat and,
dominated (> 80% areal cover) by any combination of soft
rush, hardhack or alder under 20 years?
4.2. Is the wetland: less than 5 acres and,
hydrologically isolated and,
not providing a significant aquifer recharge function and,
not providing critical wildlife habitat and, Yes: Category
dominated by (> 80% areal cover) of non - native /invasive IV
species? No: go to Q.S.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 72
Q.S. Significant habitat value. Answer all questions and enter data
requested.
Circle scores
that qualify
5a.. Total wetland area
acres
> 20.00
Yes = 6
Estimate area, select from choices in the near -right
10-19.99
Yes = 5
column, and score in the far column:
5-9.99
Yes =4
1-4.99
Yes = 3
Enter. acreage of wetland here: acres, and
0.1-0.99
Yes =2
source:
<0.1
Yes =1
5b. Wetland classes: Circle the wetland classes below
# of
that qualify:
classes
Yes =1
Open Water: if the area of open water is > 1/2 acre
1........
Yes =3
or > 10% of the total wetland area. Source:
2 ........
Yes =5
3........
Yes =7
4........
Yes =10
Aquatic Beds: if the area of aquatic beds > 10% of
5 ........
the open water area or > 1/2 acre.
Emergent: if the area of emergent class is > 1/2 acre
or > 10% of the total wetland area.
Scrub- Shrub: if the area of scrub -shrub class is > 1/2
acre or > 10% of the total wetland area.
Forested: if area of forested class is > 1/2 acre or >
10% of the total wetland area.
Add the number of wetland classes, above, that qualify,
and then score according to the columns at right.
e.g. If there are 4 classes (aquatic beds, open water,
emergent & scrub- shrub), you would circle 7 points in
the far right column.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 73
5c. Plant species div
Class
ers
species
For all wetland classes
Aquatic bed
1 -2...
Yes =1
(at right) that qualify in
Aquatic bed
3...
Yes =2
5b. above, count the
Aquatic bed
>3...
Yes =3
number of different
plant species you can
Emergent
1 -2...
Yes = 1
find. You do not have
Emergent
3-4...
Yes= 2
to name them.
Emergent
>4 ...
Yes = 3
Score in column at far
Scub -Shrub
1 -2...
Yes =1
right:
Scub -Shrub
3 -4...
Yes =2
Scub -Shrub
>4...
Yes =3
e.g. If a wetland. has an
aquatic bed class with 3
Forested
1 -2...
Yes =1
species, an emergent
Forested
3 -4...
Yes =2
class with 4 species and
Forested
>4 ...
Yes =3
a scrub -shrub class with
2 species you would
circle 2, 2, and 1 in the
far column.
5d. Structural diversity
If the wetland has a forested class, add 1 point for each of the
following: -
Yes =1
-trees > 50' tall .....................
Yes =1
-trees 20'- 49' tall ...................
Yes =1
-shrubs ..............................
Yes =1
- herbaceous ground cover .............
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 74
5e. Decide from the diagrams below whether interspersion between
High =3
wetland classes is high, moderate, low or none?
Mod. =2
Low =1
None = 0
5f. Habitat Features
Answer questions below, circle features that apply, and score to right:
Is there evidence of current use by beavers ? ..............
Yes = 3
Is a heron rookery located within 300'? ................
Yes =2
Are raptor nest /s located within 300'? .................
Yes =1
Are there at least 3 standing dead trees (snags) per acre ?........
Yes =1
Are any of these standing dead trees (snags) > 10" in diameter ?.....
Yes =1
Yes =1
Are there any other perches (wires, poles or posts)? ...........
Yes =1
Are there at least 3 downed logs per acre ? ................
5g. Connection to streams (Score one answer only.)
Is the wetland connected at any time of the year via surface water:
to a perennial stream or a seasonal stream with fish; .......
Yes =S
or, to a seasonal stream without fish; ..............
Yes =3
or, is not connected to any stream ? ................
Yes = 0
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 75
5h. Buffers
STEP 2
Multiply
STEP 1
result(s) of
Estimate (to the nearest 5 %) the % of each buffer or
step 1: .
land -use type (below) that adjoins the wetland
by 1, if
boundary.
buffer
width is
Then multiply the %/s by the factor(s)
25 -50';
below and enter result in column to right:
by 2, if
buffer
width is
50 -100';
by 3, if
buffer
width is
> 100'.
Enter
results
below and
add
subscore:
roads, buildings or
parking lots: % X0 =
0
lawn, grazed pasture, vineyards or
annual crops: %_ x 1 =
x
ungrazed grassland or
orchards: % x 2 =
x
open water or
native grasslands: %_ x3 =
x_
forest or shrub: % x 4 =
x
Add Buffer
Total =
STEP 3. Score points according to table at right
Buffer total
900 - 1200...
Yes =4
600 - 899....
Yes = 3
300 - 599....
Yes =2
100 - 299....
Yes =1
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 76
5i. Connection to other habitat areas:
- Is there a riparian corridor to other wetlands within 0.25 of a mile,
or a corridor > 100' wide with good forest or shrub cover to any
Yes =5
other habitat area?
- Is there a narrow corridor < 100' wide with good cover or a wide
corridor >. 100' wide with low cover to any other habitat area?
'Yes =3
- Is there a narrow corridor < 100' wide with low cover or
a significant habitat area within 0.25 mile but no corridor?
Yes =2
- Is the wetland and buffer completely isolated. by development and or
Yes =1
cultivated agricultural land?
NOW: Add the scores circled (for Q.5a - Q.5i above) to get a Total. .
Yes:Cat.II
Is the Total greater than or equal to 35 points ?............
No:Cat.111
Total =
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 77
APPENDIX E
WATER CATEGORIES
The following types of water are used in these regulations, the system for typing the waters
is as set forth in WAC 222 -16 -030 water typing system.
3.01 "Type 1 Water" shall mean all waters, within their ordinary high -water mark, as
inventoried as "shorelines of the state" under chapter 90.58 RCW, but not including
those waters' associated wetlands.
3.02 "Type 2 Water" shall mean segments of natural waters which are not classified as
Type 1 water and have a high use and are important from a water quality standpoint.
Classification shall be applied to segments of natural waters which:
.021 Are diverted for domestic use by more than 100 residential or camping units or
by a public accommodation facility licensed to serve more than 100 persons,
where such diversion is determined by the department to be a valid
appropriation of water and the only practical water source for such users. Such
waters shall be considered to be Type 2 Water upstream from the point of such
diversion for 1,500 feet or until the drainage area is reduced by 50 percent,
whichever is less;
.022 Are within a federal, state, local, or private campground having more than 30
camping units: Provided, That the water shall not be considered to enter a
campground until it reaches the boundary of the park lands available for public
use and comes within 100 feet of a camping unit, trail, or other park
improvement;
.023 Are used by substantial numbers of anadromous or resident game fish for
spawning, rearing or migration. Waters having the following characteristics are
presumed to have highly significant fish populations:
(a) River or stream segments having a.defined channel of 20 feet or greater
in width between the ordinary high -water marks and having a gradient of
less than 4 percent.
(b) Impoundments having a surface area of 1 acre or greater at seasonal
low water.
3.03 "Type 3 Water" shall mean segments of natural waters which are not classified as
Type 1 or 2 water and have a moderate to slight use and are moderately important
from a water quality standpoint. Classifications shall be applied to segments of
natural water which:
.031 Are diverted for domestic use by more than 10 residential or camping units or
by a public accommodation facility licensed to serve more than 10 persons,
where such diversion is determined to be a valid appropriation of water and the
only practical water source for such users.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 78
(a) Such waters shall be considered to be Type 3 Water upstream from the
point of such diversion for 1,500 feet or until the drainage area is
reduced by 50 percent, whichever is less;
.032 Are used by significant numbers of anadromous fish for spawning, rearing or
migration. Waters having the following characteristics are presumed to have
significant anadromous fish use:
(a) River or stream segments having a defined channel of 5 feet or greater
in width between the ordinary high -water marks; and having a gradient
of less than 12 percent and not upstream of a falls of more than 10
vertical feet.
(b) Impoundments having a surface area of less than 1 acre at seasonal low
water and having an outlet to an anadromous fish stream or river.
.033 Are used by significant numbers of resident game fish. Waters with the
following characteristics are presumed to have significant resident game fish'use:
(a) river or stream segments having a defined channel of 10 feet or greater
in width between the ordinary high -water marks; and a summer low flow
greater than 0.3 cubic feet per second; and a gradient of less than 12
percent.
(b) Impoundments having a surface area greater than 0.5 acre at seasonal
low water.
.034 Are highly significant for protection of downstream water quality. Tributaries
which contribute greater than 20 percent of the flow to a Type 1 or 2 Water are
presumed to be significant for 1,500 feet from their confluence with the Type 1
or 2 Water or until their drainage area is less than 50 percent of their drainage
area at the point of confluence, whichever is less.
3.04 "Type 4 Water" classification shall be applied to segments of natural waters which are
not classified as Type 1, 2, or 3, and for the purpose of protecting water quality
downstream are classified as Type 4 Water upstream until the channel width
becomes less than 2 feet in width between the ordinary high -water marks. These may
be perennial or intermittent.
3.05 "Type 5 Water" classification shall be applied to all natural waters not classified as
Type 1, 2, 3, or 4; areas of perennial or intermittent seepage, ponds, natural sinks,
and drainage ways having short periods of spring or storm runoff.