HomeMy WebLinkAboutord1994-078WMTCOM COUNTY COUNCIL AGENDA BILL
NO. 94-548B
CLEARANCES
Initial
Date
Date Received in Council Office:
Agenda date
Assigned to:
Originator.
12/13/94
bivision Head:
Dept. Head:
Prosecutor.
Purchasing/Budget:
Executive:
SUBJECT.-Emergency Ordinance adopting the Whatcom County Critical Area ins to comply with the
Washington State Growth Management Act.
ATTACHMENTS:
SU!IIMARY STATEMENT Please complete sections of box as appropriate & explain the item below.
Related County contract #:
Should Clerk schedule a hearing? NO YES Requested date:
Amount budgeted for this item ro'ect:
Is it or will it be within budget? YES NO Please explain below
Budget line item number(s):
ORIGINATOR'S RECOMMENDED ACTION
COMMITTEE AC770N TAKEN
COUNCIL ACTION TAKEN
12/13/94: Ordinance adopted
Related File Numbers: Ordinmcce or Resolution Number (this item only): 0 rd. 94 -078
File N24- 94erg.ord: 12/13/94 SPONSORED BY: Consent
PROPOSED BY: Planning_
INTRODUCTION DATE:
1 ORDINANCE NO. 94 -018
2 AN EMERGENCY ORDINANCE ADOPTING CRITICAL AREAS
3 REGULATIONS FOR SIXTY DAYS
4 WHEREAS, the Washington State Legislature passed the Growth Management Act in
5 1990, and amended it in 1991, requiring counties and cities to define, identify, and manage
6 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 Areas
9 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 ballot
12 as Referendum 92 -3, and on November 2, 1993, a majority voted to support the referendum
13 version of the CAO; and
14 WHEREAS, the referendum process was appealed to the Growth Hearings Board; and
15 WHEREAS, on June 30, the Growth Hearings Board ruled that SEPA must be applied
16 to the amended CAO and further ruled that the referendum process did not comply with the
17 expanded public participation required by GMA and remanded the CAO back to the county for
18 compliance; and
19 WHEREAS, the County Council passed a resolution on June 28, 1994, directing the
20 Planning and Development Services Department to prepare a modified CAO; and
21 WHEREAS, pursuant to RCW 36.70.590, legal notice was published in the Bellingham
22 Herald on Saturday, October 15, 1994; and
23 WHEREAS, a Mitigated Determination of Non - Significance was issued on October 26,
24 1994, that required four measures to be addressed as a condition for approval of the proposal
25 as indicated in Exhibit A to this emergency ordinance; and
26 WHEREAS, the County Council and the Planning Commission held a joint public
Page 1
1 hearing on the proposal on October 26, 1994, and considered all testimony; and
2 WHEREAS, the Planning Commission held a work session on November 9, 1994, to
3 review the proposal and recommend a revised CAO based on the referendum version; and
4 WHEREAS, on December 8, 1994, the Washington State Supreme Court ruled the
5 referendum to be invalid and therefore, the original CAO is legally in effect; and
6 WHEREAS, Council wishes to adopt a temporary CAO as an interim measure until a
7 final package of regulations and incentives can be developed; and
8 WHEREAS, there is a need for continuity of administration while additional work is
9 completed on these regulations; and "
10 WHEREAS, the Council at a public meeting on December 13, 1994, reviewed the
11 Planning Commission recommendation and found the proposed amendments to be necessary for
12 the immediate preservation of the public health, safety, and welfare; and
13 VaMREAS, the Council has adopted the following Findings and Conclusions:
14 FINDINGS
15 1. Whatcom County has a number of areas subject to natural hazards or which, in their
16 natural state, carry, hold or purify water and /or support unique or fragile natural
17 resources. These areas are identified as Critical Areas.
18 2. Whatcom County is mandated by the Growth Management Act to protect these areas as
19 well as to protect the community from hazards associated with these areas.
20 3. As determined by SEPA review, the four measures in the Mitigated
21 Determination of Non - significance (MDNS) address major environmental
22 concerns with - the referendum version of the CAO. Compliance with these
23 conditions will help provide adequate protection for wetlands, streams, and
24 wildlife not protected under other programs.
25 4. Additional modifications based upon staff suggestions and public input have refined the
26 administrative provisions of the referendum version of the CAO.
27 5. This ordinance represents the third attempt by Whatcom County to strike a balance
28 between environmental management and the rights of individuals.
29 6. A comprehensive management package of environmental controls and incentives is being
30 developed.
Page 2
1 7. The Washington State Supreme Court has ruled the referendum version of the CAO to
2 be invalid, requiring the need to administer some other regulations.
3 8. Whatcom County is in compliance with the Growth Management Act under the original
4 CAO.
5 9. It is recognized that changes to the original ordinance are desirable.
6 10. In addition to the Supreme Court ruling, additional information on regulatory reform will
7 be available in the immediate future and could be incorporated.
8 CONCLUSION
9 This emergency ordinance will allow the county to immediately administer a replacement to the
10 referendum while allowing additional time to incorporate changes which will create regulations
11 that balance environmental control with property rights until the final comprehensive package
12 of environmental controls and incentives can be completed.
13 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
14 Section 1. Whatcom County hereby adopts the Whatcom County Critical Areas Regulations,
15 Exhibit "A," for sixty days or until a final version of the regulations are in place, whichever
16 occurs first.
17 Section 2. Adjudication of invalidity of any of the sections, clauses, or provisions of
18 this Ordinance shall not affect or impair the validity of the Ordinance as a whole or any
19 part thereof other than the part so declared to be invalid.
20 ADOPTED this 13th day of Dec. , 1994.
21
22 ATTEST:
23 `�
24 Ramona Reeves, Council Clerk
25 APPRO ED AS TO FORM:
26
27 Karen Frakes — '
28 Civil Deputy Prosecutor
29
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
OJ�4zlll
Rob rt A. mhof, CouqCI Cha ir
( ) Approved ( ) Denied
Shirley Van Zanten, Exec
Date:
Page 3
to
* Clerk's Note: The Executive declined to sign this ordinance on 12/19/94 because she
disagrees with it, according to an informal, handwritten note initialed sz, which states, "I
decline to sign this ordinance. According to Whatcom County Home rule Charter
Section 2.30 states, in part: "If the Executive does not either sign or veto an ordinance
within ten (10) days, Saturdays, Sundays, and holidays excepted, after presentation of the
ordinance by the Council, it shall become law without the Executive's signature." This
ordinance was adopted 12/13/94; therefore it takes effect 12/23/94.
w
/ . d--P- �
Acting Council Clerk dated
Staff 12/15/94
SECTION 1 PURPOSE
SECTION 2 DEFINITIONS
EXHIBIT A
CRITICAL AREAS ORDINANCE
PAGE
4
5
SECTION 3
ADMINISTRATIVE PROVISIONS
17
3.1
Authority ........... ...............................
17
3.2
Applicability & Jurisdiction ...............................
17
3.3
Resource Information and Maps ............................
17
3.4
Permit Exemptions ..... ...............................
17
3.5
Permit Requirements ..... ...............................
18
3.6
Fees ................ ...............................
18
3.7
Variances ...........................................
19
3.8
Nonconforming Uses /Buildings .............................
20
3.9
Appeal .............. ...............................
20
3.10
Penalties and Enforcement ...............................
20
3.11
Suspension, Revocation .. ...............................
21
3.12
Severability ........... ...............................
21
SECTION 4 GEOLOGICALLY HAZARDOUS AREA: Landslide Hazards 22
4.1 Purpose ............. ............................... 22
4.2 Critical Areas: Landslide Hazard Areas ..................... 22
4.3 Exemptions ........... ............................... 22
4.4 Regulatory Requirements ................................. 23
SECTION 5 GEOLOGICALLY HAZARDOUS AREA: Seismic Hazards 24
5.1 Purpose ............. ............................... 24
5.2 Critical Areas: Seismic Hazards ............................ 24
5.3 Permit Exemptions ...... ............................... 24
5.4 Regulatory Requirements .................................. 24
SECTION 6 GEOLOGICALLY HAZARDOUS AREA: Mine Hazard 25
6.1 Purpose ............. ............................... 25
6.2 Critical Areas: Mine Hazard Areas ........................... 25
6.3 Permit Exemptions ...... ............................... 25
6.4 Regulatory Requirements .. ............................... 25
SECTION 7 ALLUVIAL FAN HAZARD AREAS 26
7.1 Purpose ............. ............................... 26
7.2 Critical Areas: Alluvial Fan Hazard Areas ..................... 26
7.3 Permit Exemptions ...... ............................... 26
7.4 Regulatory Requirements .. ............................... 26
SECTION 8 CRITICAL AQUIFER RECHARGE AREAS 27
8.1 Purpose ............. ............................... 27
8.2 Critical Areas: Critical Aquifer Recharge Areas .................. 27.
8.3 Permit Exemptions ...... ............................... 27
8.4 Administrative Authority .. ............................... 27
SECTION 9
WETLAND
29
9.1
Purpose ............ ...............................
.29
9.2
Critical Areas: Wetlands .. ...............................
30
9.3
Wetland Categories ..... ...............................
30
9.4
Determination of Wetland. Boundaries ........................
32
9.5
Permit Exemptions ...... ...............................
32
9.6
Authorization .......... ...............................
33
9.7
Relationship To Other Jurisdictional Agencies ...................
34
9.8
Regulatory Requirements .......... ................... .
34
9.9
Mitigation Requirements .. ...............................
37
9.10
Wetland Enhancement ..................................
41
9.11
Public Interest Test ..... ...............................
42
9.12
Agriculture Restrictions: Wetlands ..........................
42
SECTION 10 RIVERS AND STREAMS 44
10.1 Purpose ............. ............................... 44
10.2 Critical Areas: Rivers and Streams .......................... 44
10.3 Permit Exemptions ...... ...:........................... 44
10.4 Authorizations ......... ............................... 45
10.5 Relationship To Other Jurisdictional Agencies ................... 45
10.6 Regulatory Requirements .. ............................... 46
10.7 Agricultural Restrictions: Rivers and Streams .................... 47
SECTION 11 FISH HABITAT CONSERVATION AREAS 48
11.1 Purpose ............. ............................... 48
11.2 Critical Areas: Fish Habitat Conservation Areas ................. 48
SECTION .12 WILDLIFE HABITAT CONSERVATION AREAS 50
12.1 Purpose ............. ............................... 50
12.2 Critical Areas: Wildlife Habitat Conservation Area ................ 50
12.3 Permit Exemptions ...... ............................... 50
12.4 Authorization .......... ............................... 51
12.5 Relationship To Other Jurisdictional Agencies ................... 52
12.6 Regulatory Requirements ... ............................... 52
LIST OF APPENDICES 53
Appendix A Aquifer Recharge Rating System .......................... 53
Appendix B Sources of Groundwater Contamination ..................... 54
Appendix C Federal and State Endangered Species List ................... 57
Appendix D Whatcom County Wetlands Rating System ................... 58
Appendix E Water Category ...................................... 67
EMERGENCY CRITICAL AREAS ORDINANCE
PREAMBLE
JANUARY 1995
PAGE 3
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 the se 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 tempo rary, 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
SECTION 1
PURPOSE
1.1 PURPOSE
JANUARY 1995
PAGE 4
.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 sensi tive 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 ma intain 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 policie s
of Whatcom County under the State Environmental Policy Act.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 5
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 main tenance, repair, or
operation of existing serviceable structures, facilities, or improved areas. Activities which
bring an area into agricultural use are not agricultural activities. (IVIDIVS requirement)
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 allo w
for any development and is in the path of flooding, boulder floods, and /or debris torrents fro m
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
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.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 6
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 separatio n 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 managemen t
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. BM Ps 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 Departmen t
of Fisheries Food Fish Classification as commercial fish. (WAC 220 -12 -010)
Compensatory Mitigation: Replacing project- induced losses or adverse impacts on critical
areas such as Wetlands, Rivers, Streams, o r 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 area s
so that the functions they provide are of a higher value and provide a greater diversit y
of functions.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 7
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;
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 suffici ent 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.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 8
Debris Flow: A moving mass of rock fragments, soil, and mud; more than half of the particle s
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 domin ant
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 lie s
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 de velopments; 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
groundwater.
Earthflow: A mass - movement landform and process characte rized by downslope translation
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 f rom 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 suppor ting
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 9
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 wood y
vegetation greater than 20 feet in height, excluding monotypic stands of red alder or
cottonwood that average eight inches diameter at breast height or less.
Functions: 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 fis h
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 experienc a 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 area s
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 10
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 Enginee r
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 whic h 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 (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 editi on, 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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 11
least periodically deficient in oxygen as a result of excessive wate r 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
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, block s
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.k.a. Mass Movement): A general term for the dislodgement and downslop e
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:
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 12
A. Mature trees comprise at Ieast'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:
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 maintenanc e
operations during the life of the action;
E. Compensating for the adverse impact by replacing, enhancing, or providing substitut e
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 ma ss consists of material
larger than sand size, the term debris flow is preferable. The water content of mudflows ma y
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 cla ssified by the Washington Department of
Wildlife as game fish under WAC 232 -12 -019.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 13
Off -site Compensation: To replace wetlands away from the site on which a wetland has bee n
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 tha t will be found
by examining the beds and banks and ascertaining w here 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 unles s
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 o r 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.
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 14
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 ago, and the Holocene since that time.
Rearing Habitat: Habitat that supports juvenile fishes.
Regulated Wetlands: Ponds and Category I, II, 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 corridor s
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 system s stabilize
stream banks, attenuate high water flows, and provide limbs and other na tural 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 pref erentially 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
B. Shorelines on lakes less than 20 acres in size and wetlands associated with such smal I
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 15
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 typicall y
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 unusu al 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. This definition includes drainage ditches, canals,
or other artificial water courses which were natural streams prior to human alteration or
replaced natural steams with the construction of the artificial watercourse. For purposes of
this Ordinance a stream shall fall into Type 1 through 5 Water pursuant to Appendix E of thi s
Ordinance. (MDNS requirement)
Sub - basin: Any hydrologic basin that is drained by a stream that is a Type 1, 2, or 3 Wa ters
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
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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 16
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 th e
following publication: 1987, and as amended, Army Corps of Engineers Wetlands Delineatio n
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,
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."
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 17
Wetland Specialist: A person who has earned a Bachelor's Degree in Biological Sciences wit h
specific course work concerning the function of wetland from an accredited college or
university.
EMERGENCY CRITICAL AREAS ORDINANCE
SECTION 3
ADMINISTRATIVE PROVISIONS
JANUARY 1995
PAGE 18
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 info rmation, the Whatcom County
Planning and Development Services Department shall immediately begin a
comprehensive inventory resulting in a product that will identify the location, size, an d
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 location s
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 thi s
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 damage s
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:
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 19
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 activit y;
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, conditione d
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 publi c
and private service entities that routinely maintain roads and other transportation
facilities, utilities, diking and drainage, en ergy 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.
3.6 FEES
.1 The following fees shall be paid upon filing any application requiring review for
compliance with this ordinance:
EMERGENCY CRITICAL AREAS ORDINANCE
A. ESTIMATED PROJECT COSTS FEE
up to $ 2,500 $ 35.00
$2,500 - $ 5,001 $ 50.00
$2,501 - $ 50,000 $100.00
$50,000 - $200,000 $200.00
for each additional $100,000 $100.00
up to $5,000.00
JANUARY 1995
PAGE 20
B. Each application for a variance shall be accompanied by a fee as stated in chapte r
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 shall be 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 followin g
elements: '
1. The variance does not constitute a grant of special privilege, can d 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, inclu ding
size, shape, topography, location or surroundings, the application of this
ordinance precludes all reasonable uses of the property otherwise allowed in
the identical zone classification under Title 20: and,
3. The granting of the variance will not be injurious to the health or safety of th e
community.
Or,
B. The applicant proves all of the following elements:
1. The variance does not constitute a grant of special privilege, an d 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,
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 21
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 Whatco m
.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 adoptio n
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 twely e
months or more, then any future use of said building, land or premises shall be consisten t
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 tha t, such appeal shall be filed
in writing within twenty (20) working days of the date the written dec ision 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
Conservation District; provided that, such appeal shall be filed in writing within twent y
(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, requireme nt, 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 rende r 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
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 22
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,
shall be guilty of a civil offense and shall be fin ed a sum not to exceed one thousand
dollars ($ 1,000.00) for each offense. E ach 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 appropriat e
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 mit igation of such penalty. Upon
receipt of the application, the county may remit or mitigate the penalty upon whateve r
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 part y
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
injunctive, declaratory or other actions as deemed necessary to ensure t hat violations
are prevented, ceased, or abated.
5 If work activity has occurred on a site in violation of Section 3.13.1, prompt
restoration of the site will be required.
.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 sh all 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 separat e
offense.
3.11 SUSPENSION, REVOCATION
The county may suspend or revoke a permit if the applicant violates the conditions or
limitations set forth in the permit or exceeds the scope of the work set forth in the permit .
3.12 SEVERABILITY
Should any Section or provision of this or dinance be declared invalid, such decision shall
not affect the validity of this ordinance as a whole.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 23
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 a t 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 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.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 24
3 Agricultural 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 9995
PAGE 25
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 ar a 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.
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
SECTION 6
GEOLOGICALLY HAZARDOUS AREAS
Mine Hazard Areas
6.1 PURPOSE
JANUARY 1995
PAGE 26
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 chu tes (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 working s
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
SECTION 7
ALLUVIAL FAN HAZARD AREAS
7.1 PURPOSE
..1 It is the purpose of this Section to pursue the following goals:
JANUARY 1995
PAGE 27
A. To protect public and.private property as well as the healt h 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 f looding 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, bu t 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 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
SECTION 8
CRITICAL AQUIFER RECHARGE AREAS
8.1 PURPOSE
.1 It is the purpose of this Section to pursue the following goals:
JANUARY 1995
PAGE 28
A. To preserve, protect, and conserve Whatcom County's groundwater resources fo or
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 t o
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 Nooksac k
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 unobstruct ed 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.
2 Use 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 Aquife r
Recharge Area. The Aquifer Recharge Rating System consists of the general criteria
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 29
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 Mitigate d
Declaration of Non - Significance, or any other relevant environmental analysis.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 30
SECTION 9
WETLANDS
9.1 PURPOSE
The County Council hereby declares that wetlands are among the county's most valuable an d
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 flo w
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 th e
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;
7. Adversely affecting groundwater recharge or summer low flows in streams;
8. Destroying sites needed for education and scientific research as outdoor
EMERGENCY CRITICAL AREAS ORDINANCE
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:
JANUARY 1995
PAGE 31
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: all
B. Category II Wetlands: all
C. Category III Wetlands: .5 acre or greater (MDNS requirement)
.4 Non - regulated Wetlands:
Non - regulated Wetlands include:
A. Category IV Wetlands;
B. Intentionally created artificial wetlands from a non - wetland site that were not
required to be constructed as mitigation for adverse wetland impacts. These ma y
include, but are not limited to, irrigation and drainage di tches, grass -lined swales,
canals, detention facilities, wastewater treatment ponds, farm ponds not
contiguous, as defined in this ordinance., and landsca pe amenities. The applicant
shall bear the burden of proving that the wetland was intentionally created. In th e
case where enhancements or restorations are made to non - regulated, or Categor y
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.
9.3 WETLAND CATEGORIES
.1 Whatcom County shall utilize the wetland category system for purposes of
determining wetland functions and the valu a 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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 32
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 th at
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 designati on
includes, but is not limited to, rarity, groundwater recharge areas, significant
habitats, unique educational sites or other specific functional values within a
watershed.
a. Wetlands of exceptional local significance may only be designated by the
Whatcom County Council. Such designation shall occur only after a publi c
hearing in which notice has been given to all property owners within .5
miles of the proposed wetland of exceptional local significance.
B. Category II 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,
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 33
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 .5 acres that are contiguous with a stream, river, pond, lake o r
marine water;
3. Isolated wetlands that are five acres or larger;
4. Wetlands (isolated or contiguous) over .5 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 -nativ e
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.
9.4 DETERMINATION OF WETLAND BOUNDARIES
.1 Determination of wetland boundaries shall be done in accordance with the delineatio n
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 we tland or its buffer area are exempt from the
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 34
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 har vesting 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 Washingto n
State Department of Agriculture.
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 facilitie s
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 II
or III Wetlands under the following conditions:
1. Category II wetlands: the total surface area of the b uffer 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;
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 35
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.
9.6 AUTHORIZATIONS
.1 The following uses are allowed within a regulated wetland and its buffer area;
F
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 serviceable stru ctures,
facilities, utilities or improved areas.
B. Minor modification of lawfully located existing serviceable structures, facilities,
utilities or improved areas.
C. 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, th e
vegetation is not disturbed beyond that necessary to gain reasonable access to th e
water body, and further; provided that, the water body does not support
anadromous fish.
E. Pesticide or fertilizer application except for those applications applied by
applicators licensed by the Washington State Department of Agriculture and
exempted in sub - section 10.5.
F. Construction of structures not subject to development permit requiremen is 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
II Wetland there is no adverse impact pursuant to 10.8.2.
9.7 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).
2 In cases where other agencies exert jurisdictional control over rivers and steams;
including, but not limited to, 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; and it is determined
by the county that the permit conditions satisfy the requirements of this ordinance,
the county may allow requirements imposed by these jurisdictions to substitute for th e
requirements of this ordinance. The county's decision shall be in writing and mailed
to the applicant.
9.8 REGULATORY REQUIREMENTS
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 36
.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, o r 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 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 fo r
public access or utilities; or those necessary for public educational or research
purposes; or those necessary to enhance or repair the wetland. Permit applicatio n
for the above activities shall not be approved unless the applicant can demonstrat e
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.
B. Category II 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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 37
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. Category III Wetlands: Activities may be permitted within a Category III W etland;
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 widt h
is reduced, and that such low intensity land uses are guaranteed in pe rpetuity
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,
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
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 38
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 usin g 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 stor mwater 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, contr ol, and
treatment as mandated in the State Water Quality Standards, Chapter
173 -201 A 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 a re 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 wetl ands
may be located in category III 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 and
common pasture grasses, hardtack, soft rush, and alder less than 25
years of age.
EMERGENCY CRITICAL AREAS ORDINANCE
9.9 MITIGATION REQUIREMENTS
JANUARY 1995
PAGE 39
Wetlands serve numerous functional attributes, many that provide irreplaceable ecological
functions which cannot be replicated. Mitigation of wetlands may take place when it ca n
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 t he 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 shal I
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 ava ilable and upon request.
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;
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 40
E. Observed or predicted trends regarding the gains or losses of this type of wetlan d
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 Compensatory Mitigation: General Requirements
Compensatory mitigation .shall be required for projects in Category I and 11 Wetlands
when alteration of the wetland result in a loss to the wetland, or results in an advers e
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, Whatcom
County may 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 appr oved 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 speci fically
timed to the needs of the target species. This may require the construction of th e
compensation area over several seasons (late summer through spring).
F. Compensatory mitigation shall be con ducted 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 correction s
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
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 41
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 possibl e
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 wetland s
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 intensi ty
land use areas if on -site compensation is not scientifically feasible due to
hydrology, soils, waves, or other factors; or on -site compen sation is not practical
due to potentially adverse impact from surrounding land uses; or proposed
functions at the site of the proposed restoration are significantl y greater than lost
wetland functions; or 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 within an area where the most significant
improvement to the water resource wi II take place with the greatest likelihood of
success.
C. Off -site compensation shall occur within the watershed sub -basin which is
adversely impacted. This provision may be waived only under one of the
following conditions:
1. The existing sub -basin is so degraded that another basin location would be
more ecologically beneficial.
.5 Compensatory 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 proje ct 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 are a
can and will be provided;
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 42
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 shal
describe at a minimum:
1. The location of the proposed project site; ownership;
2. The size and type of existing wetland; complete ecologica I 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;
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
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 43
the capability for monitoring the site and making corrections if the
project fails 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.
9.10 WETLAND ENHANCEMENT
.1 Whatcom County may waive the requirements of this ordinance when a proposal is
intended exclusively for the enhancement of an existing regulate d 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.
9.11 PUBLIC INTEREST TEST
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 si gnificantly
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 beneficia I and /or adverse impacts that the
proposed regulated activity may have on the public and private us es to which
the area is suited;
3. The quality of the functions of the affected wetland /st ream and the extent of
wetland /stream disturbance;
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 44
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 resu Its
of the balancing process used to evaluate each proposed activity.
9.12 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,
B. Conformance with the Soil Conservation minimum standards and specifications.
.2 The Whatcom County Conservation District shall approve all C onservation 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 t he 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 Pla n
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 m ust 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 45
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 c hannel 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 th a passage of water and includes, but is
not limited to, bedrock channels, gravel beds, sand and silt beds, and defined - channe I
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, hydrolog y
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 har vesting 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;
F. Navigation aids and boundary markers;
EMERGENCY CRITICAL AREAS ORDINANCE
G. Boat mooring buoys;
JANUARY 1995
PAGE 46
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.
: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.
10.4 AUTHORIZATIONS
.1 The following uses are allowed within a river or stream and its buffer area; provided
that, adverse impacts are minimized, hydrology is not altered, and disturbed areas ar e
immediately restored:
A. Normal maintenance and repair of lawfully located existing serviceable stru ctures,
roads, railroads, utilities, improved areas or facilities;
B. Minor modification of lawfully located existing serviceable structures, facilities,
utilities, or improved areas.
C. Removal or destruction of noxious weeds, as listed in chapter 16 -750 WAC.
D. The cleaning and maintenance of rivers or streams within r ights -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.
E. Pesticide or fertilizer application.
F. Construction of structures not subject to development permit requiremen is which
is designed solely for the personal use of the property owner.
10.5 RELATIONSHIP TO OTHER JURISDICTIONAL AGENCIES
1 In cases where other agencies exert jurisdictional control over rivers and steams;
including, but not limited to, 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; and it is determined
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 47
by the county that the permit conditions satisfy the requirements of this ordinance,
the county may allow requirements imposed by these jurisdictions to substitute for th e
requirements of this ordinance. The county's decision shall be in writing and mailed
to the applicant.
.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.
10.6 REGULATORY REQUIREMENTS
.1 There shall be no activity allowed within. a river, stream, or its buffer without
authorization unless specifically exempted or otherwise allowed by this ordinance.
.2 Buffer requirements: All rivers and streams shall be protected on both sides by a
buffer as follows:
A. Buffer Widths:
1.
Type 1 Water:
200 ft.
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)
C. 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.
D. All buffers shall be measured horizontally from the ordinary high water mark;
provided that, on erosional or otherwise geologically unstable banks exceeding to n
feet in height and sloping at more than 40% gradient, such buffers shall be
measured from the bank rim or crest of such slope.
E. Increased Standard River and Stream Buffer Width
1. Require increased buffer widths as a permit condition when a larger buffer is
necessary to protect river /stream 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.
F. Reduced Standard River and Stream Buffer Width
1. Reduce the standard river or stream buffer widths where:
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 48
a. The adjacent land is on a stable high bank above the river or stream or its
floodplain; and it can be clearly determined that no adverse impact will
result from the activity, or,
b. The project includes a buffer enhancement plan using native vegetation.
The applicant must clearly prove that an enhanced buffer will provide
additional protection for the river or stream.
.3 No activity shall be permitted within a river /stream except those that meet all of the
following conditions:
A. The project will result in minimum adverse impacts to the river or stream, including
its topography, vegetation, and fish and wildlife resources;
B. The project will not cause significant degradation of groundwater or surface wate r
quality.
10.7 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 C onservation 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 t he 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 Pla n
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 m ust be reviewed and updated every five years
to insure adequate protection of critical areas.
EMERGENCY CRITICAL AREAS ORDINANCE
SECTION 11
FISH HABITAT CONSERVATION AREAS
11.1 PURPOSE
.1 It is the purpose of this Section to pursue the following goals:
JANUARY 1995
PAGE 49
A. Ensure the continued existence, and encourage enhanceme nt 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 essentia I 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 ra ces
of anadromous or resident fish whose diminished population size severely
restricts commercial or recreational fishing opportunities as determine d by the
Fish Habitat Board. This includes species o r races of anadromous or resident
fish that may be abundant elsewhere but in Whatcom County their distributio n
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:
a. Native Chinook Salmon
b. Naturally Spawning Coho
c. Native Steelhead
d. Bull Trout
e. Kokanee in Lake Whatcom and Lake Samish
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 50
f. Native Chum Salmon
g. Longfin Smelt (Hooligans)
h. White and Green Sturgeon
i. Sockeye Salmon
j. Sea -run Cutthroat
k. Lake Whatcom Cutthroat
I. 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 lif e
stage is spawning.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 51
SECTION 12
WILDLIFE HABITAT CONSERVATION AREAS
12.1 PURPOSE
.1 Many land use activities can adversely impact wildlife habitat. Where areas of critica I
wildlife habitat are subject to development pressure, all proposed activities in
proximity to the habitats should be evaluated to determine whether the proposed Ian d
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.
C. To maintain the natural geographic distribution of Critical Wildlife Habitat.
D. To maintain the components necessary for the health and maintenance of a viabl e
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, a stuaries
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
C. Critical Seasonal Use Areas: a habitat or area with which a species or groups of
species have a primary, seasonal association for staging, feeding, wintering
nesting, denning, rearing or other wild activities; or, (MDNS Requirement)
D. 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.
12.3 PERMIT EXEMPTIONS
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:
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 52
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 har vesting 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 facilitie s
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. Pesticide or fertilizer application applied by applicators licensed by the Washington
State Department of Agriculture.
12.4 AUTHORIZATIONS
1 The following uses are allowed within a Wildlife Habitat Conservation Area; provided
that, adverse impacts are minimized; hydrology is not altered; and disturbed areas ar e
immediately restored:
A. Minor modification of lawfully located existing serviceable structures, facilities,
utilities or improved areas.
B. Removal or destruction of noxious weeds, as listed in chapter 16 -750 WAC.
C. 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 that ,
the water body does not support anadromous fish.
D. Pesticide or fertilizer application.
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 53
E. Construction of structures not subject to development permit requiremen is which
are designed solely for the personal use of the property owner.
12.5 RELATIONSHIP TO OTHER JURISDICTIONAL AGENCIES
.1 In cases where other agencies exert jurisdictional control over Wildlife Habitat
Conservation Areas; including, but not limited to, 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; and it is determined by the county that the permit conditions satisfy the
requirements of this ordinance, the county may allow requirements im posed by these
jurisdictions to substitute for the requirements of this ordinance.
12.6 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 Wil dlife 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 present s
no serious risk of significant adverse impact or isolation of a Wildlife Habitat Conservation
Area.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 54
APPENDIX A
AQUIFER RECHARGE RATING SYSTEM
Critical Aquifer Recharge Areas shall be determined on the basis of hydrogeologic,soi Is 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: Sumas 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 tha n
50' below ground surface? (Refer to Planning Dept. Well Log Database. If questions arise, consult har d
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 ther e
is 6' of poorly permeable strata? (Referto Planning Dept. Well Log Database. If questionsanse, consul t
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 '/2 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.
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.
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 55
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 maybe able to offer technical expertise. In additio n, 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, Other Similar
Department of Health
Washington State Department of Ecology
Soil Conservation Service
Land Application of Animal Waste
Soil Conservation Service
Cooperative Extension
Conservation District
Washington State Department of Ecology
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 56
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
Materials Stockpiles
Department of Ecology
Local Health Department, Solid Waste
Graveyards
Open Burning
Northwest Air Pollution Authority
Department of Ecology
Fire Fighting Agencies
Department of Natural Resources
Containers
Local Health Department
Department of Ecology
Department of Emergency Services
Detonation Sites
Radioactive Disposal
Department of Ecology
Local Health Department
Above and Below ground Storage
County Buildings and Codes
Tanks
County Health Department
Washington State Department of Ecology
CATEGORY III - Sources designed to retain substances during transport or transmission
Pipelines
Materials Transport and transfer operations
Department of Emergency Services
Local Health Department, Solid Waste
Department of Ecology
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 57
CATEGORY IV - Sources discharging substances as a consequence of other planned activities
Irrigation practices
Department of Ecology (Water Rights)
Surface 'Mining
Soil Conservation Service
Cooperative Extension
Construction Excavation
Conservation District
Pesticide applications
Department of Ecology - private and
commercial pesticide applicator and
operator license, water quality standards
Department of Agriculture
Soil Conservation Service
Cooperative Extension
Conservation District
Fertilizer applications
Department of Ecology - dairy discharge
permits, complaints
Soil Conservation Service
Animal Feeding Operations
Department of Ecology - NPDES permits
Mining and mine drainage
Department of Natural Resources
Department of Ecology - water quality
impacts, complaint response
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
EMERGENCY CRITICAL AREAS ORDINANCE
Saltwater Intrusion I Department of Ecology
APPENDIX C
FEDERAL AND STATE ENDANGERED SPECIES LIST
FEDERALLY LISTED SPECIES under the Federal Endangered Species Act:
JANUARY 1995
PAGE 58
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. Fis h
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 threatene d
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 significant portion of its range within the state without
cooperative management or the removal of threats. Threatened species are legally designated i n 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:
1) it was atone 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;
EMERGENCY CRITICAL AREAS ORDINANCE
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.
APPENDIX D
WHATCOM COUNTY
WETLANDS RATING SYSTEM
INTRODUCTION
JANUARY 1995
PAGE 59
This document is a revised version of the Washington State Wetlands Rating System, developed by the Department of
cology 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
The system uses both an Wetlands Rating Office Data Form and a Wetlands Rati ng 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.
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 60
WETLANDS RATING OFFICE 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 office and /or field data forms are completed enter Category here:
ANSWER ALL QUESTIONS BELOW. If the source agency
DATA
CATEGORY
identifies the wetland as satisfying any of the questions below,
SOURCE
(the highest
circle the category in "CATEGORY" column.
qualifies)
Does the wetland contain individuals of Federal or State - listed
DNR
Yes: Category I
Threatened or Endangered plant species; or is the wetland an
(Natural
No: Next Question
historic location of a plant species thought to be possibly Extinct
Heritage)
or Extirpated from Washington?
Does the wetland contain documented habitats for State - listed or
W D
Yes: Category I
candidate Threatened or Endangered wildlife species managed
Wildlife
No: Next Question
by the Washington Department of Wildlife?
Does the wetland contain documented habitats of State or
W D
Yes: Category I
Federally listed or State or Federal candidate Threatened or
Wildlife &
No: Next Question
Endangered fish species, or races of fish, managed by the
W D
Washington Department of Wildlife or.the Washington
Fisheries
Department of Fisheries?
Is the wetland air eady on record with the Washington Natural
DNR
Yes: Category I
Heritage Program as a high quality native wetland?
(Natural
No: Next Question
Heritage)
Is the wetland documented as Category I Wetland of Local
Local
Yes: Category I
Significance?
Govt. I
No: Next Question
Does the wetland contain individuals of State - listed Sensitive
DNR
Yes: Category II
plant species?
(Natural
No: Next Question
Heritage)
Does the wetland contain documented habitat for State - listed or
W D
Yes: Category II
candidate sensitive wildlife species managed by the Washington
Wildlife
No: Next Question
Department of Wildlife?
Does the wetland contain documented habitats of State or
W D
Yes: Category II
Federally listed or candidate Sensitive fish species managed by
Wildlife &
No: Next Question
the Washington Department of Wildlife or the Washington
W D
Department of Fisheries? 11
Fisheries
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 61
Does the wetland contain documented habitat for salmonids? . W D Yes: Category II
Fisheries No: Go to
Wetlands Rating
Field Data Form.
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 1a, 1b and 1c are all NO, contact the Natural Heritage
program of DNR.
1a. Is there significant evidence of human - caused changes to topography
or hydrology of the wetland? Significant changes could include clearing,
Yes: go to Q.3.
grading, filling, logging of the wetland or its immediate buffer, or culverts,
No: go to 1 b.
ditches, dredging, diking or drainage of the wetland.
1 b. Are there populations of non - native plants which are currently present
and appear to be invading native populations?
Yes: go to Q.3.
No: go to 1c.
1 c. Is there significant evidence of human- caused disturbance of the water
quality of the system? Degradation of water quality could be evidenced by
culverts entering the system, direct road /parking lot runoff, evidence of
Yes: go to Q.3.
historic dumping of wastes, oily sheens, extreme eutrophic conditions,
No: Possible
livestock use or dead fish etc.
Category I
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 62
Q.3. Irreplaceable Ecological Functions:
Does the wetland:
- have at a least 1/2 acre of contiguous peat wetland;
- or, have a forested class greater than 3 acres;
- or, have characteristics of an estuarine system;
Yes: go to 3a.
Yes: go to 3b.
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 75%
cover
Yes: Category I
of
No: go to 3a2.
living
sphag
Yes: Category II
num?
No: go to 3a3.
3a2. Does at least 1/2 acre of the peat wetland have between 24% and
75%
Yes: Category 11
cover
No: go to Q.4.
of
living
sphag
num?
3a1. Is the peat wetland at least 1/2 acre and has <25% areal cover of
any
invasi
ve /no
n-
native
plant
specie
s, and
has <
80%
areal
cover
of
Spirea
dougla
sii?
EMERGENCY CRITICAL AREAS ORDINANCE
3b. Mature Forested Wetlands.
JANUARY 1995
PAGE 63
3b1. Is at least 50% of the tree canopy coverage conifers over 80 years I Yes: Category I
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 age, and Yes: Category II
is the structural diversity high as characterized by a multi -layer community No: go to Q.S.
of trees > 50' tall and trees 20' -49' tall and shrubs and herbaceous
groundcover?
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 64
3c. Estuarine Wetlands.
3c1. Is the wetland listed as National Wildlife Refuge, National Park, Nation
Yes: Category I
al
No: go to 3c2.
Estuar
y
Reser
ve,
Yes: Category I
Natura
No: go to 3c3.
I Area
Preser
Yes: Category I
ve,
No: Category II
State
Park,
or
Educa
tional,
Enviro
nment
al or
Scienti
fic
Reser
ves
design
ated
under
WAC
332 -3
0 -151
3c2. Is the wetland > 5 acres;
3c3. Does the wetland meet at least 3 of the following 4 criteria:
- minimum existing evidence of human related disturbance such 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 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.
EMERGENCY CRIT ICAL AREAS ORDINANCE
Q.4. Category IV wetlands.
4.1. 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,
dominated (> 80% areal cover) by any combination of soft rush,
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,
dominated by (> 80% areal cover) of non - native /invasive
hardh
ack or
alder
under
20
years?
JANUARY 1995
PAGE 65
Yes: Category IV
No: go to Q.S.
Yes: Category IV
No: go to Q.S.
Q.S. Significant habitat value. Answer all questions and enter data requeste
Circle scores
d.
that qualify
5a. Total wetland area
acres
> 20.00
Yes =6
Estimate area, select from choices in the near -right column, and
10-19 ' 99
Yes =5
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
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 66
5b. Wetland classes: Circle the wetland classes below that
# of classes
qualify:
1........
Yes =1
Open Water: if the area of open water is > 1/2 acre or > 10% of
2 ........ 3
Yes =3
the total wetland area. Source:
........ 4.
Yes =5
.......5..
Yes =7
Aquatic Beds: if the area of aquatic beds > 10% of the open
......
Yes =10
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.
5c. Plant species diversit
Class
# of species
y
For all wetland classes (at
1 -2...
right) that qualify in 5b.
Aquatic bed
3...
Yes =1
above, count the number of
Aquatic bed
>3...
Yes =2
different plant species you
Aquatic bed
Yes =3
can find. You do not have to
1 -2...
name them.
Emergent
3-4...
Yes= 1
Emergent
>4...
Yes= 2
Score in column at far right:
Emergent
Yes= 3
1 -2...
e.g. If a wetland has an
Scub -Shrub
3-4...
Yes =1
aquatic bed class with 3
Scub -Shrub
>4...
Yes =2
species, an emergent class
Scub -Shrub
Yes =3
with 4 species and a scrub-
1 -2...
shrub class with 2 species
Forested
3-4...
Yes =1
you would circle 2, 2, and 1
Forested
>4...
Yes =2
in the far column.
Forested
Yes =3
5d. Structural diversity
If the wetland has a forested class, add 1 point for each of the following:
-trees > 50' tall .....................
Yes =1
-trees 20'- 49' tall ...................
Yes =1
- shrubs .............................
Yes =1
- herbaceous ground cover .............
Yes =1
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 67
5e. Decide from the diagrams below whether interspersion between wetland
High =3
classes is high, moderate, low or none?
Mod. =2
Low =1
None =O
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
Are there any other perches (wires, poles or posts)? ...........
Yes =1
Are there at least 3 downed logs per acre ? ................
Yes =1
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 =5
or, to a seasonal stream without fish; ..............
Yes =3
or, is not connected to any stream ? ................
Yes =O
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 68
5h. Buffers
STEP 2
Multiply
STEP 1
result(s) of
Estimate (to the nearest 5 %) the % of each buffer or land -use
step 1:
type (below) that adjoins the wetland boundary.
by 1, if 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: % x 0 =
0
lawn, grazed pasture, vineyards or
annual crops: % x 1 =
x =
ungrazed grassland or
orchards: % x 2 =
x =
open water or
native grasslands: % x 3 =
x =
forest or shrub: % x4=
x =
Add Buffer Total=
STEP 3. Score points according to table at right: B
u
ff
Yes =4
e
Yes =3
r
Yes =2
t
Yes =1
0
t
al
900- 1200.. .
600 - 899... .
300- 599... .
100- 299... .
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 69
5i. Connection to other habitat areas:
- Is there a riparian corridor to other wetlands within 0.25 of a mile, or a corridor >
1 00' wide with good forest or shrub cover to any other habitat area?
Yes =5.
- 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
cultivated agricultural land?
Yes =1
NOW: Add the scores circled (for Q.5a - Q.5i above) to get a Total.. .
Is the Total greater than or equal to 35 points ?............
Yes:Cat.11
No:Cat.11l
Total =
EMERGENCY CRITICAL AREAS ORDINANCE JANUARY 1995
PAGE 70
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 th e
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.
(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 pr esumed 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.
EMERGENCY CRITICAL AREAS ORDINANCE
JANUARY 1995
PAGE 71
(b) Impoundments having a surface area of less than 1 acre at seasonal low water and havin g
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 significantfor 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 conflu ence 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.