HomeMy WebLinkAboutres2024-034Whatcom County COUNTY COURTHOUSE
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Bellingham, WA 98225-4038
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Agenda Bill Report
File Number: AB2024-418
File ID: AB2024-418 Version: 1 Status: Approved
File Created: 06/11/2024 Entered by: LBruner@co.whatcom.wa.us
Department: Council Office File Type: Resolution
Assigned to: Council Committee of the Whole Final Action: 07/09/2024
Agenda Date: 07/09/2024 Enactment #: RES 2024-034
Related Files:
Primary Contact Email: lbruner@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Resolution approving a Major Project Permit for the City of Bellingham
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
HISTORY OF LEGISLATIVE FILE
Date: Acting Body: Action: Sent To:
07/09/2024 Council Committee of the Whole RECOMMENDED FOR
APPROVAL
Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Galloway, Scanlon, and Stremler
Nay: 0
07/09/2024 Council APPROVED
Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Galloway, Scanlon, and Stremler
Nay: 0
Attachments: Memo, Proposed Resolution
Whatcom County Page 1 Printed on 711012024
SPONSORED BY: Consent
PROPOSED BY: PDS
INTRODUCTION DATE:
Resolution # 2024-034
A RESOLUTION APPROVING A MAJOR PROJECT PERMIT
FOR THE CITY OF BELLINGHAM
WHEREAS, the Whatcom County Council reviewed the City of
Bellingham's (COB) Umbrella Mitigation Bank Prospectus and granted a Notice
to Proceed to COB on August 2, 2022; and
WHEREAS, on February 28, 2024, Whatcom County Planning and
Development Services received an application by the City of Bellingham (COB)
for a Major Project Permit to create an umbrella mitigation bank program on
two sites in two phases within Whatcom County (the County); and
WHEREAS, on March 8, 2024, a SEPA Determination of Non -
significance was issued by the COB, acting as lead agency pursuant to WAC
197-11-926;and
WHEREAS, WCC 2.11.205 requires the hearing examiner to conduct an
open record public hearing for major project permits; and
WHEREAS, the hearing examiner held an open record public hearing
for the major project permit on June 13, 2024; and
WHEREAS, pursuant to WCC 22.05.120 the Whatcom County hearing
examiner received testimony and made a recommendation of approval to the
Whatcom County Council of the major project permit on June 18, 2024
(Exhibit 'A'); and
WHEREAS, WCC 22.05.120(6) requires any deliberation or decision of
the County Council shall be solely based upon consideration of the record
established by the hearing examiner, the recommendation of the hearing
examiner and the criteria set forth in applicable county code, the county
Comprehensive Plan, compliance with SEPA, Chapter 197-11 WAC as adopted
and modified in the county code and the county's adopted SEPA policies; and
Page 1
NOW, THEREFORE, BE IT RESOLVED by the Whatcom County
Council that the major project permit is approved, subject to conditions of
approval identified in the Whatcom County hearing examiner's
recommendation to council.
APPROVED, this 9th day of July, 2024.
F�
1 r Ov
t
/ 6
Cathy Halka,
Clerk of the Council
APPROVED as to form:
/s/ Kellen Kooistra via email/LB
Civil Deputy Prosecutor
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
B rry uchanan,
Co cil Chair
Page 2
EXHIBIT
WHATCOM COUNTY
OFFICE OF THE HEARING EXAMINER
re: The application for a Major
Project Permit
by City of Bellingham
MPP 2024-00001
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND RECOMMENDATION TO
CITY COUNCIL
SUMMARY OF APPLICATION AND
RECOMMENDATION
Application: The Applicant, City of Bellingham (COB) has applied for a Major
Project Permit to create an umbrella mitigation bank program on two
sites in two phases within Whatcom County (the County).
Such applications require a public hearing conducted by the Hearing
Examiner, and for the Hearing Examiner to make recommendations
to County Council, which is the final decision maker.
Recommendation
The requested approval of the Major Project Permit to create an
umbrella mitigation bank program on two sites in two phases within
Whatcom County should be conditionally approved subject to
conditions.
INTRODUCTION
The following Findings of Fact and Conclusions of Law are based upon
consideration of the exhibits admitted herein and evidence presented at the public
hearing, in which opportunity was afforded to interested parties to object, comment, or
bring information forward.
FINDINGS OF FACT
I. PRELIMINARY INFORMATION
Applicant / Agent for Owner: Annaliese Burns
Habitat and Restoration Manager
City of Bellingham
2221 Pacific Street
Bellingham, WA 98229
Page 1 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
Property Location / Assessor's Parcel Number(s):
1. Bear Creek Corridor: 380202209221, 38020206407,
380211165469 and 380211231475
2. McCormick Creek Headwaters: 390336042360,
390336519362,390336332340 and 390336367460
Zoning:
Comprehensive Plan:
1. Bear Creek Corridor: Rural (R5A) and Light Impact
Industrial (LII);
2. McCormick Creek Headwaters: R5A
1. Bear Creek Corridor: Rural and City of Bellingham
Urban Growth Area
2. McCormick Creek Headwaters: Rural
Shoreline Designation: N/A
SEPA Determination: Determination of Non -Significance (DNS) on March 8, 2024.
There was no appeal of the SEPA DNS.
FEMA 100 Year Floodplain: NO
Total Acreage: 158.7 Acres
Water Supply: N/A
Sewage Disposal: N/A
Public Schools: N/A
Application Date: February 28, 2024
Determination of Completeness: March 28, 2024
Notice Information:
Application Submitted
Notice of Application
Mailing:
Posting:
Hearing Notices
Mailed / emailed
Publication:
Posting:
February 28, 2024
April 10, 2024
April 11, 2024
April 11, 2024
May 22, 2024
May 30, 2024
June 6, 2024
Page 2 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
Authorizing Codes, Policies, Plans, and Programs, including but not limited to:
■ Code of Federal Regulations (CFR)
o 33 CFR 332.8, Mitigation Banks and In-Liew Fee Programs
■ Revised Code of Washington (RCW)
o RCW 36.70A, Growth Management
o RCW 36.70B, Local Project Review
o RCW 43.21 C, State Environmental Policy Act (SEPA)
■ Washington Administrative Code (WAC)
o Chapter 197-11, SEPA Rules
■ Whatcom County Code (WCC)
o WCC Title 2, Administration and Personnel
■ Chapter 2.11, Hearing Examiner
o WCC Title 12, Roads and Bridges
■ Chapter 12.08, Construction Standards
o WCC Title 16, Environment
■ Chapter 16.08, Whatcom County SEPA Administration
■ Chapter 16.16, Critical Areas
o WCC Title 20, Whatcom County Zoning Ordinance
■ Chapter 20.36, Rural Zone
■ Chapter 20.66, Light Impact Industrial
■ Chapter 20.80, Supplementary Requirements
■ Chapter 20.88, Major Project Permits
o WCC Title 22, Land Use and Development
■ Chapter 22.05, Project Permit Procedures
o WCC Title 24, Health Regulations
■ Whatcom County Comprehensive Land Use Plan.
■ Business Rules of the Whatcom County Hearing Examiner (BRWCHE), pursuant to
WCC 2.11.220, approved by Whatcom County Council on 4/23/2024 per Res. 2024-
021
Parties of Record:
Amy Keenan
Whatcom County Planning & Development Services
5280 Northwest Drive
Bellingham WA 98226
Analiese Burns
City of Bellingham Public Works
Natural Resources Division
104 W. Magnolia Street
Bellingham, WA 98225
Page 3 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
Scott Havill
City of Bellingham Public Works
Natural Resources Division
104 W. Magnolia Street
Bellingham, WA 98225
Steve Karras
2271 Smith Road
Bellingham, WA
Gatlin McConnell
Gatlin. mcconnell@gmaii.com
Erin Page
Whatcom County Public Works
322 N Commercial Street
Bellingham, WA 98225
Lisa Yeager
5001 Mission Road
Bellingham, WA
Admitted Exhibits:
1. Bellingham Habitat Restoration Technical Assessment, dated November 15
2. McCormick Creek Headwaters Deed, dated October 3, 2018
3. Mitigation Banking Instrument Checklist, dated June 19
4. City of Bellingham Umbrella Mitigation Bank Prospectus (modified), dated April 13,
2020
5. City of Bellingham Umbrella Mitigation Bank Prospectus (complete), dated April 13,
2020
6. Bear Creek Corridor Critical Areas Assessment, dated August 31, 2021
7. Wildlife Corridor Analysis, dated November 15, 2021
8. Initial Review and Notice to Proceed Memo to Council, dated July 29, 2022
9. Council Action Summary, dated August 9, 2022
10. Bear Creek Corridor Deed, dated October 1, 2022
11. Whatcom County Notice to Proceed, dated August 17, 2022
12. McCormick Creek Headwaters Critical Areas Assessment (draft), dated October 1,
2022
13. Bear Creek Corridor/McCormick Creek Mitigation Bank Boundary, dated September
11, 2023
14. SEPA Checklist, dated December 21, 2023
15. Notice of Application (SEPA) and Optional DNS Process, dated February 21, 2024
Page 4 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
16. Re -notice of Application (SEPA) and Optional DNS Process, dated February 23,
2024
17. Application, dated February 28, 2024
18. Property Information, dated February 28, 2024
19. SEPA Determination of Non -Significance, dated march 8, 2024
20. Determination of Incompleteness, dated March 13, 2024
21. LNTHOP SEPA Comment Email, dated March 28, 2024
22. Determination of Completeness, dated March 28, 2024
23. Public Comments, dated April 1, 2024
24. Notice of Application Legal Notice, dated April 10, 2024
25. Certificate of Mailing, dated April 10, 2024
26. Notice of Application (mailing), dated April 11, 2024
27. Notice of Application (posting), dated April 11, 2024
28. Notice of Application addresses, dated April 11, 2204
29. Vicinity Map, dated April 11, 2024
30. Staff Report, dated April 11, 2024
31. Certificate of mailing (HE), dated May 3, 2024
32. Payment of Legal Notice (HE), dated May 23, 2024
33. Certificate of Posting (HE), dated June 10, 2024
34. Revised Staff Report w/corrections, dated June 10, 2024
35. Revised Staff Report -clean, dated June 10, 2024
The City of Bellingham has applied for a Major Project Permit to create a "mitigation
bank" program on two sites in two phases within Whatcom County. This follows the
Whatcom County Council previously reviewing the City of Bellingham's Umbrella
Mitigation Bank Prospectus and granting the City of Bellingham notice to proceed
in applying for a Major Project Permit for the project in a vote of 7 to 0, on 8/9/22.1
A hearing was conducted on June 13, 2024. The Hearing Examiner took testimony
made under penalty of perjury, and admitted 35 exhibits into the record as being relevant.
BRWCHE §14 grants parties the right to object to evidence and to cross-examine.
In the case at hand, with full knowledge of the evidence being admitted, no objection was
made to any of the 35 exhibits that were admitted into the record.
Whatcom County Council AB2022-440; see Exhibit 9.
Page 5 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
A mitigation bank is an ecological resource area that has been restored,
established, enhanced, or preserved for the purpose of providing offset to unavoidable
environmental impacts to ecological resources elsewhere in the area. A mitigation bank
may be created when a government agency, corporation, nonprofit organization, or other
entity undertakes these activities under a formal agreement with a regulatory agency; an
Interagency Review Team (IRT)2 provides regulatory review, approval, and oversight of
the bank for a designated number of "credits" which is a measurement of area impact.
These credits can then be sold by the bank creator to other development sites in lieu of
conducting mitigation, often in places where mitigation might otherwise be impossible
under local, state, or federal regulations otherwise; the credits are not a "get out of jail free
card" as local, state, or federal regulatory bodies would still have the ultimate decision to
allow such deviations.
Whatcom County Council adopted comprehensive laws regarding approving and
regulating such mitigation banking in 2005, and modified thereafter in 2017 and 2018.3
In Whatcom County, only one mitigation currently bank exists. That bank is owned
by the Lummi Nation and established in 2012, it consists of 1,945-acres spread out over
four parcels; however, there are a limited number of credits available for non-member
development projects.4
In the case at hand, Bellingham is not expected to make a profit on such credits
generated by the creation of the mitigation banks, but be repaid for the acquisition,
restoration, and maintenance of pristine parcels of the undeveloped land under a
permanent conservation easement.5
Whatcom County sits on the IRT/MBRT that would oversee this bank.6
IV.
The City of Bellingham, as the mitigation bank developer, is proposing to create
2 In the WCC this is known as the Mitigation Bank Review Team (MBRT); WCC 16.16.263(B)(2)
3 Currently reflected in WCC 16.16.263 [(Ord. 2018-032 § 1 (Exh. C); Ord. 2017-077 § 1 (Exh. A); Ord.
2005-068 § 1 (Formerly 16.16.260(F)].
4 https://www.lummi-nsn.gov/Website. hp p?Pa elc� D®66
5 Testimony of Burns
6 Testimony of Keenan
Page 6 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
two wetland mitigation bank sites in the County on land owned by the City of Bellingham:
1. The Bear Creek Corridor (BCC) site consists of four parcels totaling 95.6 acres in
the Silver Creek Watershed. The proposal will preserve the entire acreage,
enhance approximately 17.5 acres of wetlands to improve wetland structure and
function, and enhance approximately six acres of upland area. Three of the parcels
are located between Pacific Highway and Northwest Drive but have no direct
access on either road. The fourth parcel is located east of Northwest Drive. All of
the parcels are vacant. The parcels are collectively described as one mitigation
bank site as the functions are complimentary and they are within the same riparian
corridor.
2. The McCormick Creek Headwater (MCH) site is comprised of four parcels totaling
158.7 acres in the Squalicum Creek Watershed. The proposal will again preserve
the entire acreage, enhance approximately 43 acres of wetlands, create
approximately four acres of wetlands and enhance the nearly four -acre riparian
corridor onsite. The parcels are contiguous and are located in an L-shape with
frontage on Everson Goshen and Smith Road. The parcels are vacant, but for a
well and pumphouse owned by the Wahl Road Water Association that is located in
the northeast corner of the property, but will not be impacted.
Parcel A of the BCC site and the MCH site are zoned Rural (R5A) with a Rural
Comprehensive Plan designation. Parcels B, C and D of the BCC site are zoned Light
Impact Industrial (LII) with a City of Bellingham Urban Growth Area Comprehensive Plan
designation.
The two sites are anticipated to create 43.06 credits. The credits will be available
to offset permitted wetland and aquatic resources, and buffer impacts for projects within
the bank service area.? Minor ground disturbing activities are anticipated at the mitigation
bank sites to include, but are not limited to, removal of invasive species and installation
of new plants intended to enhance environmentally sensitive critical areas as well as
uplands areas.
V.
See description of service area in Exhibit 5 at 20.
Page 7 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
BRWCHE §20 allows the Hearing Examiner to issue subpoenas and compel
attendance of witnesses— but in this case no party requested the Hearing Examiner to
compel a witness or any public comment provider to appear in person and be cross
examined by the parties.
1y/I
The Planning and Development Services Department ("PDS") made a written
specific recommendation to approve the umbrella mitigation bank program on the two,
and did also review and reference the applicable facts and laws with proposed necessary
conditions in a report entitled "Whatcom County Planning and Development Services Staff
Report," revised as of June 10, 2024 (herein "Revised Staff Report" entered into the record
as Exhibit 35).
The Applicant has indicated that the Staff Report is factually correct and agreed
with all the recommended conditions put forward by PDS.
The findings of fact as set forth in the Revised Staff Report are supported by the
record as a whole. Any factual or legal findings set forth in the Revised Staff Report, a
copy of which is attached hereto, that are not contradicted by specific findings made in
this decision are hereby adopted as findings of fact and law by the Hearing Examiner and
incorporated herein by this reference.
M
Public comments were received by the Whatcom County Planning & Development
Services during the public comment period as well as during the public hearing itself.
Those concerns were regarding potential impacts from creating wetlands adjacent to
single family residents, historic, and cultural resource concerns, public access to the
wetlands, whether there is a need for the mitigation and an inquiry into the nature of
mitigation credits.
The County has proposed conditioning the project in ways that would address the
public concern expressed, including a 100 foot buffer around each site where no new
wetland would not be created. There were also inquiries about the nature and value of
Page 8 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
mitigation credits, but they are not relevant facts under the WCC.
Vill.
Any Conclusion of Law made below which is deemed a Finding of Fact is hereby
adopted as such. Based on the foregoing Findings of Fact, now are entered the following:
CONCLUSIONS OF LAW
Pursuant to WCC 22.05, the Hearing Examiner held a duly noticed open record
public hearing where he considered the Planning and Development services department
recommendation, testimony of the applicant, public testimony, and exhibits submitted at
the public hearing. Based on applying those facts to law, the Hearing Examiner makes
the following findings in support of a recommendation to County Council. -
Zoning
Rural Zone. The purpose of the Rural District is to maintain the low density rural
residential character of the areas designated as rural and rural neighborhood on the
Comprehensive Plan map and implement the Comprehensive Plan policies that define
the rural character in Whatcom County.$ However, as a conditional use, mitigation banks
are allowed as a form of compensatory mitigation for wetland and habitat conservation
area impacts; provided, applications for mitigation banks shall be processed as a major
development projects.9
Light Impact Industrial Zone. The purpose of the Light Impact Industrial District
is to implement the Comprehensive Plan by providing for the planned development of
large land areas, in appropriate locations within urban growth areas, primarily for
industrial and subordinate uses which provide support services to the district.10 Light
8 WCC 20.36.010
9 WCC 20.36.196
10 WCC 20.66.010
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HE Recommendation — City of Bellingham — MPP2024-00001
industrial uses are primarily related to services, and distribution, manufacture and
assembly of finished products that have a relatively light impact on adjacent uses and
districts. However, as a conditional use, mitigation banks are allowed as a form of
compensatory mitigation for wetland and habitat conservation area impacts; provided,
applications for mitigation banks shall be processed as a major development projects."
Each zone allows mitigation banks as a conditional use provided application
processing as a major projects permit. Despite the direction to process these as major
project permits, that does not eliminate the requirement of the project to meet the
conditional use criteria in WCC 22.05.026(3);12 13 thus, requiring the project to meet the
conditional use criteria as well as the major permit criteria. The criteria are similar but not
identical. If the project meets both sets of criteria the project should be approved.
Maior Project Criteria
The applicant is applying for a Major Project Permit under WCC 20.88, as a Major
Project Permit is required for all proposed mitigation banks.14 Major Project Permits are
Type IV project permits requiring public notification, an open record public hearing with
the Hearing Examiner, and a recommendation from the Hearing Examiner to Council for
final decision.15 The Hearing Examiner may recommend or the Council may impose any
reasonable conditions precedent to the establishment of the major development as may
be required to mitigate impacts of the proposal on the natural environment of the county,
and to protect the health, safety and general welfare of the people of the county
consistent with the policies for environmental protection set forth in the Comprehensive
Plan.16
Prior to applying for a Major Project Permit, or coming before the Hearing
Examiner to make a recommendation to the Council, the Council must have determined
11 WCC 20.66.196
12 WCC 20.88.130(2)
13 A suggested place for potential code clarification is to emphasize the required adherence to both CUP
and MPP criteria in 20.36.196 and 20.66.196
14 WCC 20.88.120; WCC 16,16.263
15 WCC 22.05.020 and .120
16 WCC 20.88.140
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HE Recommendation — City of Bellingham — MPP2024-00001
in an initial review of a submitted mitigation bank prospectus that the proposal is
complete, technically accurate, and consistent with the purpose and intent of WCC
Chapter 16.17 If the Council decides it is a valid prospectus, they issue notice to the
presupposed applicant that they may apply for the Major Project Permit.18 The Council
did so in a vote of 7 to 0, on 8/9/22, clearing the way for this permit to proceed.19
Pursuant to WCC 20.88.130 and 22.05.120, the Hearing Examiner shall
recommend to the County Council project approval, approval with conditions, or denial,
based upon written findings and conclusions supported by the evidence of record. The
Hearing Examiner's recommendation and County Council's decision shall determine the
adequacy of a major project permit application based on the following seven criteria:
1. Will comply with the development standards and performance
standards of the zone in which the proposed major development will
be located; provided where a proposed major development has
obtained a variance from the development and performance
standards, standards as varied shall be applied to that project for the
purposes of this act.
2. Where the project is conditionally permitted in the zone in which it is
located, the project must satisfy the standards for the issuance of a
conditional use permit for the zone in which the project is located.
3. Prior to commencement of any site preparation or construction
activities, will obtain, if required, a state aquatic lands lease, and all
other necessary permit consultations and authorizations, including
federal determinations that the project will not interfere with treaty
fishing rights of tribal nations, the limits set forth in the "Magnuson
Amendment" under 33 U.S.C. § 476(b) (2004), Section 10 of the
Rivers and Harbors Act (for structures in or over navigable waters of
the U.S.), the Coastal Zone Management Act (including any state
Department of Ecology shoreline conditional use or variance
approval), the Clean Air Act, and/or under the Clean Water Act,
including but not limited to a federal Section 404 authorization (for fill
into waters of the U.S.) and a state Section 401 water quality
certification.
4. Will not substantially interfere with the operation of existing uses.
5. Will be served by, or will be provided with essential utilities, facilities
and services necessary to its operation, such as roads, drainage
facilities, electricity, water supply, sewage disposal facilities, and
17 WCC 16.16.263(B)(3) and (4)
18 WCC 16.16.263(B)(4)
19 Whatcom County Council AB2022-440; see Exhibit 9.
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police and fire protection. Standards for such utilities, facilities and
services shall be those currently accepted by the state of
Washington, Whatcom County, or the appropriate agency or division
thereof.
6. Will not impose uncompensated requirements for public
expenditures for additional utilities, facilities and services, and will
not impose uncompensated costs on other property owned.
7. Will be appropriately responsive to any EIS prepared for the project.20
Additionally, the Hearing Examiner may recommend, or the Council may impose, any
reasonable conditions precedent to the establishment of the major development as may
be required to mitigate impacts of the proposal on the natural environment of the county,
and to protect the health, safety, and general welfare of the people of the county
consistent with the policies for environmental protection set forth in the Comprehensive
Plan.21
The proposed permit can be approved if consistent with the Major Permit Criteria
and the Hearing Examiner makes the following specific findings:
1. The proposed mitigation bank is allowed as a conditional use, processed as a
major project permit, in both the Rural and Light Industrial zones. No variance for
development or performance standards are necessary. The proposed mitigation
bank is consistent with the Rural zone, the Light Industrial zone, and the standards
in WCC 16.16.
2. Consistency with the conditional use permit criteria is found in §IV for this
Recommendation.
3. As conditioned, the proposal is required to obtain all necessary state and federal
permits and authorizations appropriate for a mitigation bank.
4. The parcels are generally vacant with no pre-existing uses, but will not interfere
with the single pre-existing use of the Wahl Road Water Association, nor with
neighboring uses through the use of buffering.
5. Once the sites are established as a mitigation bank, no essential utilities, facilities
20 WCC 20.88.130
21 WCC 20.88.140
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or services will be necessary.
6. There are no additional public expenditures for utilities, facilities or services
associated with the implementation of the mitigation bank.
7. An EIS was not required for the proposed mitigation bank.
As the project meets the criteria for a Major Project as conditioned in this
recommendation, the permit should be granted.
IV.
Conditional Use Criteria
The proposed permit can be approved if consistent with the Conditional Use
Criteria of WCC 22.05.026 (3) (§a through i):
a. Will be harmonious and in accordance with the general and specific
objectives of Whatcom County's Comprehensive Plan, zoning
regulations, and any other applicable regulations.
b. Will be designed, constructed, operated, and maintained so as to be
harmonious and appropriate in appearance with the existing or
intended character of the general vicinity, and that such use will not
change the essential character of the same area.
c. If located in a rural area (as designated in the Comprehensive Plan),
will be consistent with rural land use policies as designated in the
rural lands element of the Comprehensive Plan.
d. Will not be hazardous or disturbing to existing or future neighboring
uses.
e. Will be serviced adequately by necessary public facilities such as
highways, streets, police and fire protection, drainage structures,
refuse disposal, water, sewers, and schools; or that the persons or
agencies responsible for the establishment of the proposed use shall
be able to provide adequately any such services.
f. Will not create excessive additional requirements at public cost for
public facilities and services, and will not be detrimental to the
economic welfare of the community.
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g. Will not involve uses, activities, processes, materials, equipment,
and conditions of operation that will be detrimental to any persons,
property, or the general welfare by reasons of excessive production
of traffic, noise, smoke, fumes, glare or odors.
h. Will have vehicular approaches to the property which shall be so
designed as not to create an interference with traffic on surrounding
public streets.
Will not result in the destruction, loss or damage of any natural,
scenic, or historic feature of major importance.
The criteria for a conditional use permit are similar enough to major permit criteria
that much of the analysis for MPP is applicable, which supports the additional analysis
in the Staff Report specific for conditional use criteria as well as more than enough
evidence in the record to support the conclusion that subject to the Conditions of
Approval attached to the recommendation to grant this permit, the proposal is consistent
with the Conditional Use Criteria.
1FA
Concurrence
No conditional use permit shall be approved unless it is found that:
1. All providers of water, sewage disposal, schools, and fire protection
serving the development have issued a letter that adequate capacity
exists or arrangements have been made to provide adequate
services for the existing development; and
2. No county facilities will be reduced below applicable levels of service
as a result of the existing development.22
In this case, the proposed mitigation bank will not utilize permanent water or sewage
disposal. There will be no need for schools or fire protection more than exists in the
current status of site development. As conditioned, no county facilities will be reduced
below applicable levels of service as a result of the proposal.
22 WCC 20.80.212
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VI.
Any Conclusion of Law deemed to be a Conclusion of Fact is hereby adopted as
such. Based on the foregoing Findings of Fact and Conclusions of Law, now is entered
the following:
RECOMMENDATION
It is the Hearing Examiner's recommendation to the Council that the application be
granted, subject to the following conditions:
Public Works — Engineering Services
1. The project shall comply with the Whatcom County Development Standards
(WCDS).
2. The project shall comply with WCC 20.80.630 and applicable portions of DOE
2019 Stormwater Management Manual for Western Washington (2019
SWMMWW). Stormwater erosion and sedimentation control plans shall be
submitted with land fill and grade permits.
3. Encroachment permits and trail permits shall be obtained.
4. All appropriate permits must be obtained prior to construction.
Critical Areas — Wetlands
5. A mitigation banking instrument shall be submitted to Whatcom County for review
as part of the IRT. The instrument shall contain all items outlined in the Submittal
Information: Mitigation Banking Instrument for Federal and State Wetland
Mitigation Banks in Washington State, as amended, required by the United States
Army Corps of Engineers and the Washington State Department of Ecology.
Planning and Zoninq
6. Inadvertent Discovery of Archaeological Resources: Should archaeological
resources (e.g. shell midden, animal remains, stone tools) be observed during
project activities, all work in the immediate vicinity should stop, and the area should
be secured. The Washington State Department of Archaeology and Historic
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Preservation (Stephanie Jolivette, Local Government Archaeologist 360-628-
2755) and the Lummi Nation Tribal Historic Preservation Office (Lena Tso, THPO
360-961-7752; Tamela Smart, Deputy THPO 360-927- 2944) should be contacted
immediately in order to help assess the situation and to determine how to preserve
the resource(s). Compliance with all applicable laws pertaining to archaeological
resources is required.
7. Tribal Land in the State of Washington (RCWs 68.50.645, 27.44.055, and
68.60.055): If ground disturbing activities encounter human skeletal remains
during the course of construction, then all activity will cease that may cause further
disturbance to those remains. The area of the find must be secured and protected
from further disturbance until the State provides notice to proceed. The finding of
human skeletal remains must be reported to the county medical examiner/coroner
and local law enforcement in the most expeditious manner possible. The remains
must not be touched, moved, or further disturbed. The county medical
examiner/coroner will assume jurisdiction over the human skeletal remains and
make a determination of whether those remains are forensic or non -forensic. If the
county medical examiner/coroner determines the remains are non -forensic, then
they will report that finding to the Department of Archaeology and Historic
Preservation (DAHP) who will then take jurisdiction over the remains. The DAHP
will notify any appropriate cemeteries and all affected tribes of the find. The State
Physical Anthropologist will make a determination of whether the remains are
Indian or Non -Indian and report that finding to any appropriate cemeteries and the
affected tribes. The DAHP will then handle all consultation with the affected parties
as to the future preservation, excavation, and disposition of the remains (DAHP).
8. The use and location on the site as approved by this Major Project Permit, as
shown in concept on the site plan, shall be consistent with the concepts of the site
plan. Minor changes shall be reviewed administratively consistent with WCC
20.80.215. Major changes shall be subject to review from Staff and further
approval of the Council and as consistent with WCC 20.88.215.
9. The Applicant shall obtain a Land Fill and Grade Permit for site development work
as required by Whatcom County regulations. A final inspection will be required for
the permit to document completion of the project improvements.
10. Pursuant to WCC 20.80.620, no development shall exceed the maximum
environmental noise level established by WAC 173-60.
11. The COB shall complete the mitigation banking instrument with appropriate
signatures within 24 (twenty-four) months of the date of the issuance of this
decision pursuant to WCC 22.05.140(1). Failure to submit the completed and
executed mitigation banking instrument shall result in the expiration of this permit.
The decision maker may extend this period up to one year from the date of original
expiration upon written request by the applicant prior to the initial expiration. The
applicant shall apply for the associated Land Fill and Grade Permit within two years
Page 16 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
of the mitigation banking instrument signature consistent with WCC 22.05.060(4).
12. For the McCormick Creek Headwaters site, the applicant shall vacate the Wahl
Road right-of-way prior to any wetland creation in the right-of-way. Road vacation
shall occur consistent with road vacation process with the Whatcom County
Council.
13.A SEPA Checklist will be required at the time of Land Fill and Grade Permit
submittal for work done at either the BCC or MCH site at the time of site -specific
work is being proposed.
14. Wetland creation actions that extend the off -site buffers beyond the existing
regulatory buffers at the time of permit approval are prohibited.
Health and Community Services
15. At the time of construction, the applicant shall ensure sanitary facilities, such as
portable toilets, are available when workers are onsite.
CHALLENGES APPEALS AND JUDICIAL REVIEW
This is not a final decision, and not appealable.
The final decision will be made by the Whatcom County Council.
The applicant, any party of record, or any county department may appeal any final
decision of the County Council to Superior Court or other body as specified by WCC
22.05.020. The appellant shall file a written notice of appeal within 21 calendar days of the
final decision of the County Council, as provided in RCW 36.70C.040.
More detailed information about appeal procedures is contained in the Whatcom
County Code Title 22 and Title 23.60 and which is available at
http://www.codepublishinq.com/WA/WhatcomCounty.
DATED this 1V day or June, 2024
Rajeev D. Majumdar, Hearing Examiner
Page 17 of 17
HE Recommendation — City of Bellingham — MPP2024-00001
WHATCOM COUNTY
Planning & Development Services
5280 Northwest Drive
Bellingham, WA 98226-9097
360-778-5900, TTY 800-833-6384
360-778-5901 Fax
Mark Personius, AICP
Director
WHATCOM COUNTY PLANNING AND
DEVELOPMENT SERVICES STAFF REPORT
Issue Date: June 4, 2024
Revised: June 10, 2024*
Hearing Date: June 13, 2024
I. Summary of Application and Recommendations
Application
The City of Bellingham (COB) applied for a Major Project Permit to create an umbrella
mitigation bank program on two sites in two phases within Whatcom County (the County).
Project Numbers
MPP2024-00001
Summary
COB, as the umbrella mitigation bank sponsor, is proposing to create two wetland mitigation
bank sites in the County. The Bear Creels Corridor (BCC) site will preserve and enhance 98.95
acres of forested wetland, riparian, and upland habitat. The McCormick Creek Headwater
(MCH) site will preserve, enhance and create wetlands on 158.7 acres of land. The two sites
are anticipated to create 43.06 credits. The credits will be available to offset permitted wetland
and aquatic resource, and buffer impacts for projects within the bank service area. Minor
ground disturbing activities are anticipated at the mitigation bank sites to include, but are not
limited to, removal of invasive species and installation of new plants intended to enhance
environmentally sensitive critical areas as well as uplands areas.
Recommendation
The Technical Review Committee recommends that the Whatcom County Hearing Examiner
(the Hearing Examiner) recommend approval to the Whatcom County Council (the County
Council), subject to the requested conditions located in Section VII of this report.
* Staff report was revised to address factual errors.
MPP 2024-00001 COB Mitigation Bank
Staff Report
II. Preliminary Information
Applicant/Owner: Annaliese Burns
Habitat and Restoration Manager
City of Bellingham
2221 Pacific Street
Bellingham, WA 98229
Site Location/Address: Bear Creek Corridor: 380202209221,
38020206407, 380211165469 and 380211231475
McCormick Creek Headwaters: 390336042360,
390336S19362, 390336332340 and
390336367460
Zoning: Bear Creek Corridor: Rural (RSA) and Light Impact
Industrial (LII)
McCormick Creek Headwaters: RSA
Comprehensive Plan: Bear Creek Corridor: Rural and City of Bellingham
Urban Growth Area
McCormick Creek Headwaters: Rural
Shoreline Designation:
FEMA 100 Year Floodplain
Total Acreage:
Water Supply:
Sewage Disposal:
Public Schools:
Application Date:
Determination of Completeness
N/A
No
158.7 acres
N/A
N/A
N/A
February 28, 2024
March 28, 2024
Authorizing Codes, Policies, Plans and Programs:
Revised Code of Washington (RCW) Chapter 36.70A
Whatcom County Comprehensive Plan
Whatcom County Code Chapter 12.08, Development Standards
State Environmental Policy Act (SEPA); Washington Administrative Code Chapter 197-11,
Whatcom County Environmental Policy Administration Chapter 16.08
Whatcom County Code, Chapter 16.16, Critical Areas
Whatcom County Code, Title 20, Official Whatcom County Zoning Ordinance
Whatcom County Code, Title 22, Land Use and Development Procedures
Whatcom County Code, Title 24, Health Regulations
Mitigation Bank Process and Background
Umbrella mitigation banks are approved through an established process with several steps of
review. The majority of the mitigation bank approval progression occurs outside of the
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MPP 2024-00001 COB Mitigation Bank
Staff Report
Whatcom County permitting process. Mitigation proposals are reviewed through the
Interagency Review Team (IRT or MRBT in Whatcom County Code) with co-chair
representatives from US Army Corps of Engineers (USACE) and the Washington State
Department of Ecology (Ecology), and additional members from other federal, state, tribal and
local regulatory and resource agency representatives. The IRT for the COB mitigation bank
includes the County and both the Lummi Nation and the Nooksack Indian Tribe.
As delineated in Chapter 173-700 Washington Administrative Code (WAC), the major steps in
establishing a mitigation bank include:
• Submittal of a prospectus to the IRT,
• IRT review and public comment opportunity,
• Initial evaluation approval,
• Submittal of the draft mitigation banking instrument to IRT,
• Submittal of a final instrument to IRT,
• Certification of the wetland mitigation bank when the final instrument has been signed
by Ecology, the COB, and the County.
The mitigation bank process utilizes several terms not common in land use and zoning
discussions. The following definitions are useful for understanding the mitigation bank
process. It should be noted the County definitions may differ slightly from the USACE /Ecology
definitions, however the meaning of the term is similar.
"Mitigation bank" means a site where wetlands or similar habitats are restored, created,
enhanced, or in exceptional circumstances, preserved, expressly for the purpose of
providing compensatory mitigation in advance of authorized impacts to aquatic resources.
"Mitigation bank instrument" means the documentation of agency and bank sponsor
concurrence on the objectives and administration of the bank. The "bank instrument"
describes in detail the physical and legal characteristics of the bank, including the service
area, and how the bank will be established and operated.
"Mitigation bank review team" or "MBRT" means an interagency group of federal, state,
tribal and local regulatory and resource agency representatives that are invited to
participate in negotiations with the bank sponsor on the terms and conditions of the bank
instrument. [also known as the IRT]
"Mitigation bank review team process" or "MBRT process" means a process in which the
county and other agencies strive to reach consensus with the MBRT members on the terms,
conditions, and procedural elements of the bank instrument.
"Mitigation bank sponsor" means any public or private entity responsible for establishing
and, in most circumstances, operating a bank.
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MPP 2024-00001 COB Mitigation Bank
Staff Report
The following table outlines the process and timelines specific to the COB Mitigation Bank and
the County:
Action
Body
Timeline
Prospectus Submittal to Ecology and USACE
IRT
4
2 2018
Prospectus Determination of Completeness '
. ; IRT
4
16 2020
Pros ectus Public
Comment
IRT
5
7 2020
Initial Evaluation A ' roval
IRT
8
19 2020
Notice to Proceed
Whatcom County
8
9 2022
Preparing Mitigation Banking Instrument
IRT
2020- resent
SEPA Determination
COB
3
8 2024
Major Project PermivAp plication',.I
Whatcom County
2
28 2024
As stated in WCC 20.88.100, mitigation bank approval requires a Major Project Permit (MPP).
An MPP is a Type IV project permit requiring public notification, an open record public hearing
with the Hearing Examiner, and a recommendation from the Hearing Examiner to County
Council for final decision.
Application Proposal
COB is requesting approval from the County for an umbrella mitigation bank to allow
mitigation of permitted wetland and aquatic resources and buffer impacts within the bank
service area. The service area is primarily the City of Bellingham jurisdiction with minor
extensions to the north or south excluding the Lake Whatcom Watershed. Umbrella
mitigation banks are recognized as a viable option for mitigation in the Federal Rule on
Compensatory Mitigation for the Losses of Aquatic Resources (33 CFR 332.8(8)(h)).
For all development, when a developer has unavoidable impacts to wetlands and/or aquatic
resources (or Habitat Conservation Areas (HCA's) pursuant to Article 7 of the Whatcom
County Critical Areas Ordinance) they must fully mitigate for the resulting ecological and
habitat losses that will result whether within the County or the COB. Currently, the most
common type of mitigation in Whatcom County is called permittee-responsible where a
developer will be required to prepare a mitigation proposal, find and create a mitigation site
if the mitigation cannot be done onsite, monitor the site for up to ten years and provide a bond,
assignment of savings, or similar financial instrument to ensure success. A less common but
allowed type of mitigation is for the developer to prepare a mitigation proposal to purchase
credits from an approved mitigation bank. A bank allows the sponsor to create larger wetland
and HCA mitigation projects with higher rates of success for ecological functions and long-term
viability. The umbrella mitigation bank format allows the sponsor to have more than one
mitigation site. Although the COB initially proposed four sites, only two were choses to move
forward for approval.
The COB has proposed a prospectus to comply with local, state and federal requirements
regarding mitigation bank proposals. The prospectus outlines the process the COB has been
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MPP 2024-00001 COB Mitigation Bank
Staff Report
working on to establish a programmatic approach to wetland mitigation for development
proposals. In the most basic form, the COB will preserve, enhance and create wetlands and
HCA's on approximately 254 acres in the County in advance, to allow future compensatory
impacts in the bank service area to wetland and HCA's.
BCC Site
The BCC site consists of four parcels totaling 95.6 acres in the Silver Creek Watershed. The
proposal will preserve the entire acreage, enhance approximately 17.5 acres of wetlands to
improve wetland structure and function, and enhance approximately six acres of upland area.
Three of the parcels are located between Pacific Highway and Northwest Drive but have no
direct access on either road. The fourth parcel is located east of Northwest Drive. All of the
parcels are vacant. The parcels are collectively described as one mitigation bank site as the
functions are complimentary and they are within the same riparian corridor. The credit
generation proposal on this site will include preservation with riparian and wetland
enhancement where possible with additional upland enhancement.
Access to Parcel A will be from the existing COB owned parcels to the north of Northwest Drive.
Access to Parcel's B, C and D also be from existing COB owned parcels to the north or south of
the proposed parcels and from Thomas Road. The Horton Road right-of-way was vacated
along the northern portion of Parcel B by order of vacation by the County Council on June 22,
2022.
Page 35 of the COB Mitigation Bank Prospectus
The BCC site in total includes several wetlands and the West Fork Bear Creek as well as the
mainstem of Bear Creek. In total, the area is mostly forested with areas of non-native plants.
Very detailed site descriptions of the BCC site can be found in the Prospectus as well as the
Critical Areas Assessment and the Bellingham Habitat Restoration Technical Assessment
(included as exhibits).
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MPP 2024-00001 COB Mitigation Bank
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MCH Site
The MCH site is comprised of four parcels totaling 158.7 acres in the Squalicum Creek
Watershed. The proposal will again preserve the entire acreage, enhance approximately 43
acres of wetlands, create approximately four acres of wetlands and enhance the nearly four -
acre riparian corridor onsite. The parcels are contiguous and are located in an L-shape with
frontage on Everson Goshen and Smith Road. The parcels are vacant; however, some
development was historically located in the northeast corner of the project area which has
been removed. A well and pumphouse owned by the Wahl Road Water Association is located
in the northeast corner of the property. The well and pumphouse will not be impacted.
Access to the site will occur from Wahl Road, Smith Road and/or Everson Goshen Road as
approved by Public Works.
Page 42 of the COB Mitigation Bank Prospectus
The MCH site also includes over 70 acres of wetlands and the headwaters of McCormick
Creek. The area has been logged in the past and currently includes forested areas as well as
disturbed and degraded areas as a result of the logging. Additional, detailed site descriptions
of the MCH site can be found in the draft Critical Areas Assessment, also included as an
exhibit.
Timing
The BCC site is further along in the mitigation bank progression and more substantial
technical analysis has been done. The completion date of the mitigation banking instrument
is expected in 2025. The onsite enhancement will occur on the BCC site after the instrument
is signed as outlined within the mitigation banking instrument. Credits will then be available
for projects that will fill or impact wetlands and HCA's within the bank service area.
MPP 2024-00001 COB Mitigation Bank
Staff Report
The MCH site is proposed to be further out in timing and additional process with regard to
studies and analysis as well as the mitigation banking instrument will likely occur over the
next five years.
Noted Submitted Plans/Map Data/Reports (see exhibit list for all items)
City of Bellingham Mitigation Bank Prospectus (BCH and MCH sites) * 4/13/2020
City of Bellingham Mitigation Bank Prospectus (Complete) 4/13/2020
Bear Creek Corridor Critical Areas Report 8/31/2024
McCormick Creek Headwaters Critical Areas Report - Draft 12/8/2021
Bellingham Habitat Restoration Technical Assessment 11/2015
City of Bellingham Wildlife Study 11/15/2021
[ * It should be noted the original City of Bellingham Mitigation Bank Prospectus included four potential
migration bank sites. The proposal has been amended to include only the BCC and MCH sites.]
III. Public Notice and Comment
Requirements for public notice are contained in Chapter WCC 22.05.080.
Notice of Application
The Notice of Application for this proposal was published on April 11, 2024 in the Bellingham
Herald and on the County website. A Notice of Application was also sent to owners of property
within 1,000 feet of the BCC site and the MCH site. Both sites were posted on April 11, 2024.
The comment period ended April 25, 2024.
Public Comment
During the public comment period for the Notice of Application, Whatcom County Planning &
Development Services Department (PDS) received comments from members of the general
public. A summary of these comments and a brief response to those comments are listed
below:
Comment 1: Concerns regarding potential impacts from creating wetlands adjacent to single
family residential parcels.
Response: There was public comment received regarding potential impacts to offsite properties
from the creation of wetlands on adjoining parcels, particularly related to the MCH site. Although
there are existing wetlands, HCA's and buffers on the MCH site, the comments were specific to
creating wetlands onsite that would then establish buffer impacts on neighboring properties.
The COB has already proposed a 100 foot buffer around both BCC and MCH sites, and has
acknowledged that the existing conditions and the conceptual design figures showing the
wetland creation area at the McCormick Creek Headwaters are based on a reconnaissance -level
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MPP 2024-00001 COB Mitigation Bank
Staff Report
investigation. Additional fieldwork is required to confirm the exact location and hydrologic
conditions (depth/duration) of the wetland creation area. To ensure neighboring properties are
not impacted by the proposal, the County will not permit any wetland creation actions that
extend the off -site buffers beyond the existing regulatory buffers at the time of permit approval.
Enhancement may occur within that area, but no creation will allow buffers to extend beyond the
existing regulatory buffer.
Comment 2: Historic and Cultural Resource Concerns.
Response: Although the COB was the SEPA lead agency, Whatcom County is aware of comments
received through the SEPA comment period. A representative form the Lummi Nation Tribal
Historic Preservation Office recommended that the Washington State Department of
Archaeology and Historic Preservation (DAHP) be consulted regarding potential historic
properties and that the Inadvertent Discover Plan (IDP) language be required and followed
should archeological resources or human remains be encountered.
The IDP language regarding discovery of archeological resources and discover of human skeletal
remains have been included as conditions of approval.
IV. State Environmental Policy Act
The State Environmental Policy Act (SEPA) requires applicants to disclose potential impacts
to the environment unless the proposal is categorically exempt from SEPA threshold review.
The total square footage of land disturbance exceeds the categorical exemption threshold for
in WCC 16.08.070(A)(5) and thus SEPA review is required.
The COB acted as lead agency pursuant to WAC 197-11-926 and issued a Determination of
Non -Significance (DNS) on March 8, 2024. There was no appeal of the SEPA DNS.
V. Consistency with Regulations and Findings of Fact
A. Roads and Bridges (WCC 12.08)
WCC Chapter 12.08 adopts and gives authorization for development standards for
development within the County. The County shall establish uniform, comprehensive and
distinct requirements which shall be applied to all developments. These requirements shall be
established as "Whatcom County development standards" and shall exist to provide clear
development guidelines for all construction activity within the county. These standards shall
establish administrative and technical requirements for the implementation of land use
regulations and shall provide the basis by which developments are evaluated to ensure
compliance with county regulations.
The Whatcom County Public Works Department Division of Engineering reviewed the
proposal and issued a memo dated May 14, 2024 with the following discussion:
19,
MPP 2024-00001 COB Mitigation Bank
Staff Report
Public Works Engineering Services (PWES) staff has reviewed the application for the proposed
Bellingham Mitigation Bank consisting of two sites: Bear Creels Corridor (BCC) and McCormick
Creek Headwaters (MCH).
The proposal is conceptual at this time. When the development plans associated with access
points to the two sites have been determined, additional PWES review may be required. PWES
may also have additional review requirements regarding compliance with the Washington
State Department of Ecology Stormwater Management Manual. Recommended conditions for
the proposed project are noted in the conditions section of this report.
Finding: The Technical Review Committee has determined that, as conditioned, the project meets
the requirements of WCC Title 12.08.
B. Whatcom County Critical Areas Ordinance (Title 16)
Wetlands and Habitat Conservation Areas (Chapter 16.16.600 and .700)
Chapter 16.16 of the County Code contains standards, guidelines, criteria and requirements
intended to identify, analyze, preserve and mitigate potential impacts to the County's critical
areas and to enhance and restore degraded resources such as wetlands, riparian stream
corridors or habitat, where possible. The review applied the entirety of Chapter 16.16 WCC to
the proposal as applicable. This analysis reviews specific provisions, which summarize the
standards, guidelines, criteria, and requirements of Chapter 16.16 WCC.
Mitigation Banking (16.16.263)
A. The county may approve mitigation banking as a form of compensatory mitigation for
wetland and habitat conservation area impacts when the provisions of this chapter require
mitigation and when it is clearly demonstrated that the use of a bank will provide equivalent
or greater replacement of critical area functions and values when compared to on -site
mitigation; provided, that all of the following criteria are met:
1. Banks shall only be used when they provide significant ecological benefits including
long-term conservation of critical areas, important species, habitats and/or habitat
linkages, and when they are consistent with the county comprehensive plan and create a
viable alternative to the piecemeal mitigation for individual project impacts to achieve
ecosystem -based conservation goals.
Finding: As identified in the COB Mitigation Bank Prospectus and the site -specific reports for the
BCC and MCH sites, the proposed bank locations will provide ecological benefits for conservation
of wetlands and HCA's when compared to individual onsite mitigation proposals.
2. The bank shall be established in accordance with the Washington State Draft Mitigation
Banking Rule, Chapter 173-700 WAC or as revised, and Chapter 90.84 RCW and the federal
mitigation banking guidelines as outlined in the Federal Register, Volume 60, No. 228,
November 28, 1995. These guidelines establish the procedural and technical criteria that
banks must meet to obtain state and federal certification.
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MPP 2024-00001 COB Mitigation Bank
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Finding: The COB has been working with the USACE and Ecology to establish the mitigation bank
consistent with state and federal requirements.
3. Preference shall be given to mitigation banks that implement restoration actions that
have been identified formally by an adopted shoreline restoration plan, watershed
planning document prepared and adopted pursuant to Chapter 90.82 RCW, a salmonid
recovery plan or project that has been identified on the watershed management board
habitat project list or by the Washington State Department of Fish and Wildlife as essential
for fish and wildlife habitat enhancement.
Finding: The BCC site has been evaluated as part of a Habitat Restoration Technical Assessment
which identified wetlands around the BCCsite as a priority for protection and enhancement. The
Wildlife Corridor Analysis also identified the BCC site as important for wildlife habitat
preservation.
The MCH site has not had the level of technical assessments performed compared to the BCC site,
but likely has the capacity for additional lift in ecological functions if the bank is approved and
the area is enhanced and preserved.
B. Mitigation banks shall require a major project permit in accordance with Chapter 20.88 WCC
and shall be subject to a formal review process including public review as follows:
1. The bank sponsor shall submit a bank prospectus for county review. The prospectus
shall identify the conceptual plan for the mitigation bank, including:
a. The ecological goals and objectives of the bank;
b. The rationale for site selection, including a site map and legal description of the
prospective bank site;
c. A narrative demonstrating compliance with the Whatcom County comprehensive
plan, associated development standards and this chapter, shoreline restoration plan,
watershed planning documents prepared and adopted pursuant to Chapter 90.82 RCW,
and/or the salmonid recovery plan;
d. A description of the existing site conditions and expected changes in site conditions
as a result of the banking activity, including changes on neighboring lands;
e. A conceptual site design;
f. A description of the proposed protective mechanism such as a conservation
easement; and
g. Demonstration of adequate financial resources to plan, implement, maintain, and
administer the project.
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MPP 2024-00001 COB Mitigation Bank
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Finding: The COB Umbrella Mitigation Bank Prospectus, revised 411312020, was reviewed by the
County and other members of the IRT. The IRT issued an Initial Evaluation Approval in 2020.
2. The technical administrator shall review the bank prospectus either by participating in
the state's Mitigation Bank Review Team (MBRT) process and/or by hiring independent,
third -party expertise to assist in the review.
Finding: The County has participated in the IRT (MBRT).
3. If the technical administrator determines that the bank prospectus is complete,
technically accurate, and consistent with the purpose and intent of this chapter, s/he shall
forward the prospectus to the county council for initial review. If the proposed bank
involves conversion of agricultural land to nonagricultural uses, the county council shall
seek a recommendation from the agricultural advisory committee as to whether the
conversion should be allowed. The committee's recommendation shall be nonbinding. The
county council may require mitigation for the loss of agricultural lands.
Finding: County staff was involved in the COB Umbrella Mitigation Bank as a participant in the
IRT. The prospectus was determined to be complete by the IRT and PDS Director. No sites are
proposed on Agricultural zoned lands and no recommendation is necessary from the Agricultural
Advisory Committee.
4. If the county council determines, based on the initial review, that the prospectus is valid,
it shall issue a notice to proceed to the bank sponsor. Following receipt of the notice to
proceed, the bank sponsor may submit application for a major project permit in
accordance with Chapter 20.88 WCC. The notice to proceed shall not be construed as final
approval of the bank proposal, but shall indicate approval to proceed with the development
of the mitigation bank instrument, which details all of the legal requirements for the bank.
Finding: The County Council reviewed the COB mitigation bank proposal at their August 9, 2022
meeting and granted a Notice to Proceed on August 17, 2022. The approval allowed submittal of
the major project permit with Whatcom County and to proceed with the development of the
mitigation banking instrument through the IRT.
S. Upon receipt of a draft mitigation banking instrument from the bank sponsor and major
project permit application, the technical administrator shall review the banking
instrument and major project permit in consultation with the MBRT and/or other third -
party expert. Following review of the mitigation banking instrument and major project
permit, the technical administrator shall make a recommendation to certify and approve,
conditionally certify and approve, or deny the bank proposal and major project permit in
accordance with the provisions of Chapters 20.88 and 22.OS WCC.
Finding: COB has been working with the IRT to establish the mitigation banking instrument,
which will describe the physical and legal obligations of the bank including the service area and
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MPP 2024-00001 COB Mitigation Bank
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how the bank will be established and operated. The IRTgave authorization for preparation of the
mitigation bank instrument in 2020 and preparation has been ongoing.
As the mitigation bank instrument is prepared, the County will continue to be part of the IRT and
will provide feedback and comments on the proposal, and as conditioned, the mitigation banking
instrument must be completed and signed by the COB, USACE and Ecology. The County will also
sign the document as a member of the IRT but has no obligations to the mitigation bank and the
banking instrument is not binding on the County.
6. Following receipt of the recommendation, the county council shall proceed with review
in accordance with the provisions outlined in Chapters 20.88 and 22.05 WCC.
Finding: After a recommendation from the Hearing Examiner, the County Council shall hold a
public meeting and make a determination on the proposal.
7. The bank sponsor shall be responsible for the cost of any third -party review.
Finding: No third -party review was required for this mitigation bank proposal.
C. The award of bank credits for an approved bank may be negotiated based on habitat acreage,
habitat quality, and contribution to a regional conservation strategy that has been approved
by the county and other appropriate regulatory agency(ies). Credit availability may vary in
accordance with agreed -upon performance criteria for the development of the resource value
in question. Awarded bank credits, subject to the approval of the county and regulatory
agency(ies), may be made transferable. Whether out -of -kind mitigation credit will be allowed
at a particular bank will require a fact -specific inquiry on a case -by -case basis for the project
creating the impacts.
Finding: The award of bank credits will be determined as outlined in the mitigation banking
instrument as reviewed and approved by the IRT.
D. Use of Bank Credits.
1. Credits from a wetland mitigation bank may be approved for use as compensation for
unavoidable impacts to wetlands when:
a. The bank is certified under state rules;
b. The administrator determines that the wetland mitigation bank provides
appropriate compensation for the authorized impacts; and
c. The proposed use of credits is consistent with the terms and conditions of the
certified bank instrument.
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MPP 2024-00001 COB Mitigation Bank
Staff Report
2. Replacement ratios for projects using bank credits shall be consistent with replacement
ratios specified in the certified bank instrument.
3. Credits from a certified wetland mitigation bank may be used to compensate for impacts
located within the service area specified in the certified bank instrument. In some cases,
the service area of the bank may include portions of more than one adjacent drainage basin
for specific wetland functions.
Finding: Use of the bank credits will be determined by the COB as outlined in the mitigation
banking instrument approved by the IRT prior to implementation of the bank.
C. Zoning Ordinance (Title 20)
Parcel A of the BCC site and the MCH site are zoned Rural (RSA) with a Rural Comprehensive
Plan designation. Parcels B, C and D of the BCC site are zoned Light Impact Industrial (LII) with
a City of Bellingham Urban Growth Area Comprehensive Plan designation.
Rural Zone (WCC 20.36)
Purpose (WCC 20.36.010)
The purpose of the Rural District is to maintain the low density rural residential character of
the areas designated as rural and rural neighborhood on the Comprehensive Plan map and
implement the Comprehensive Plan policies that define the rural character in Whatcom
County in accordance with RCW 36.70A.070(5). In addition, it is the intent of this district to
allow a variety of low intensity uses that are compatible and complementary with the
conservation of agricultural, forestry and related uses.
Conditional Uses (WCC20.36.150)
Items indicated by an "*" are not allowed outside rural communities and urban growth areas
unless the applicant can demonstrate that there is a need to locate outside those areas in order
to comply with legal requirements or standards; or that the proposed location is the most
efficient place for the proposed use with respect to providing needed services to the public.
WCC 20.36.196 Mitigation banks as a form of compensatory mitigation for wetland and habitat
conservation area impacts when permitted in accordance with the provisions of Chapter 16.16
WCC; provided, applications for mitigation banks shall be processed as a major development
project pursuant to Chapter 20.88 WCC.
Finding: Mitigation banks are allowed as a conditional use permit in the RSA zone, except that
applications for mitigation banks shall be processed as a major development permit [major
project permit]. The applicant applied for the major project permit on February 28, 2024 after
gaining a Notice to Proceed from the County Council on August 17, 2022.
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ii. Light Impact Industrial Zone (WCC 20.66)
Purpose (IIVCC 20.66.010)
The purpose of the Light Impact Industrial District is to implement the Comprehensive Plan
by providing for the planned development of large land areas, in appropriate locations within
urban growth areas, primarily for industrial and subordinate uses which provide support
services to the district. Light industrial uses are primarily related to services, and distribution,
manufacture and assembly of finished products that have a relatively light impact on adjacent
uses and districts. Furthermore, it is the purpose of this district to encourage the master
planning of the entire industrial site in ensuring compatibility between industrial operations,
as well as the existing and future character of adjacent areas. It is also a purpose of this district
to accommodate limited commercial uses that are incompatible with other commercial uses.
Conditional Uses (WCC20.66.196)
WCC 20.66.196 Mitigation banks as a form of compensatory mitigation for wetland and habitat
conservation area impacts when permitted in accordance with the provisions of Chapter 16.16
WCC; provided, applications for mitigation banks shall be processed as a major development
project pursuant to Chapter 20.88 WCC.
Finding; Mitigation banks are allowed as a conditional use permit in the LH zone, except that
applications for mitigation banks shall be processed as a major development permit [major
project permit]. The applicant applied for the major project permit on February 28, 2024.
Drainage (WCC20.36.656 and W(,C20.66.6S3)
All development activities are subject to the stormwater management provisions of WCC
20.80.630 through 20.80.635. No project permit shall be issued prior to meeting those
requirements.
Finding: Stormwater management has been addressed through conditions of approval from
Public Works - Engineering Services.
iii. Concurrency (WCC 20.80.212)
WCC Section 20,80.212 states that no conditional use permit shall be approved without a
written finding that:
1. All providers of water, sewage disposal, schools, and fire protection serving the
development have issued a letter that adequate capacity exists or arrangements have
been made to provide adequate services for the existing development.
2. No county facilities will be reduced below applicable levels of service as a result of the
existing development.
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Finding: The proposed mitigation bank will not utilize permanent water or sewage disposal.
There will be no need for schools or f re protection more than exists in the current status of site
development. As conditioned, the Technical Review Committee finds that no county facilities will
be reduced below applicable levels of service as a result of the proposal.
iv. Major Project Permit (Chapter 20.88)
Purpose (20.88.010)
To establish standards and procedures that will provide for special review of those projects or
developments that because of their magnitude and impact will tend to affect the public at large.
Major Project permits (WCC20.88.130)
Pursuant to WCC 22.05.120 the hearing examiner shall recommend to the county council
project approval, approval with conditions, or denial, based upon written findings and
conclusions supported by the evidence of record. The hearing examiner's recommendation
and county council's decision shall determine the adequacy of a major project permit
application based on the following criteria:
(1) Will comply with the development standards and performance standards of the zone in
which the proposed major development will be located; provided where a proposed major
development has obtained a variance from the development and performance standards,
standards as varied shall be applied to that project for the purposes of this act.
Finding:
BCC: The proposed mitigation bank is allowed as a conditional use, processed as a major project
permit, in the RSA and LII zones. No variance for development or performance standards are
necessary. The proposed mitigation bank is consistent with the Rural zone, the LII zone, and the
standards in WCC 16.16.
MCH: The proposed mitigation bank is allowed as a conditional use, processed as a major project
permit in the RSA zone. No variance for development or performance standards are necessary.
The proposed mitigation bank is consistent with the Rural zone and the mitigation bank
standards set forth in WCC 16.16.
(2) Where the project is conditionally permitted in the zone in which it is located, the project
must satisfy the standards for the issuance of a conditional use permit for the zone in which
the project is located.
Finding: Consistency with the conditional use permit criteria is shown in Section V.F. of this
report.
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(3) Prior to commencement of any site preparation or construction activities, will obtain, if
required, a state aquatic lands lease, and all other necessary permit consultations and
authorizations, including federal determinations that the project will not interfere with treaty
fishing rights of tribal nations, the limits set forth in the "Magnuson Amendment" under 33
U.S.C. § 476(b) (2004), Section 10 of the Rivers and Harbors Act (for structures in or over
navigable waters of the U.S.), the Coastal Zone Management Act (including any state
Department of Ecology shoreline conditional use or variance approval), the Clean Air Act,
and/or under the Clean Water Act, including but not limited to a federal Section 404
authorization (for fill into waters of the U.S.) and a state Section 401 water quality certification.
Finding: The proposal shall obtain all necessary state and federal permits and authorizations
appropriate for a mitigation bank.
(4) Will not substantially interfere with the operation of existing uses.
Finding:
BCC: Parcels A, B, Cand D are currently vacant. Operation of the mitigation bank will not interfere
with existing uses.
MCH: The parcels are primarily vacant with the exception of a well and pumphouse owned by the
Wahl Road Water Association located in the northeast corner of the proposal. Operation of the
mitigation bank will not interfere with the use and maintenance of the well and pumphouse by
the Wahl Road Water Association. In addition, as noted in the public comments section, there will
be a 100 foot buffer surrounding the mitigation banking site parcels.
(5) Will be served by, or will be provided with essential utilities, facilities and services
necessary to its operation, such as roads, drainage facilities, electricity, water supply, sewage
disposal facilities, and police and fire protection. Standards for such utilities, facilities and
services shall be those currently accepted by the state of Washington, Whatcom County, or the
appropriate agency or division thereof.
Finding: Once the sites are established as a mitigation bank, no essential utilities, facilities or
services will be necessary.
Parcels B, C and D of the BCC site will be accessed off Northwest Drive via unopened right-of=way
(ROW). The COB shall obtain a Trail Permit or Encroachment permit, as necessary, prior to
accessing the ROW and in order to conduct planting and invasive species removal. Additional
conditions may be required at issuance of the road use permits.
Parcel A of the BCC site is accessed directly off Northwest Drive. An encroachment permit will be
necessary to establish the location of the access point and to allow work within the ROW.
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The MCH site has access off both Smith Road and Everson Goshen Road. An encroachment permit
will be required for access to the site for enhancement, invasive plant removal, and habitat
creation.
The mitigation bank sites will not use electricity, water or sewage disposal facilities. The need for
police or fire protection will not increase with implementation of the mitigation bank.
(6) Will not impose uncompensated requirements for public expenditures for additional
utilities, facilities and services, and will not impose uncompensated costs on other property
owned.
Finding: There are no additional public expenditures for utilities, facilities or services associated
with the implementation of the mitigation bank.
(7) Will be appropriately responsive to any EIS prepared for the project.
Finding: The COB issued a DNS on March 8, 2024. There was no appeal of the SEPA DNS. An EIS
was not required for the proposed mitigation bank.
WCC 20.88.140 In addition, the hearing examiner may recommend or county council may
impose any reasonable conditions precedent to the establishment of the major development
as may be required to mitigate impacts of the proposal on the natural environment of the
county, and to protect the health, safety and general welfare of the people of the county
consistent with the policies for environmental protection set forth in the Comprehensive Plan.
The county decision maker may approve a major project permit with a condition to obtain
relevant leases and complete any necessary federal and state permitting requirements, and
may restrict the major project permittee from undertaking site preparation or construction
activities until it has fulfilled that condition.
Finding: The Whatcom County Technical Review (TRC) has reviewed the mitigation bank
proposal and has included recommended conditions of approval in this report. The mitigation
bank will also have to follow the process for a mitigation bank through the USACE and Ecology.
Additional permits and steps in the process will be necessary forstate and federal mitigation bank
approvals.
D. Conditional Use Permits (WCC 22.05.026)
As required in WCC 20.88.130(2), a major project permit must also meet the conditional use
permit approval criteria.
(1) Application. Conditional use permit applications shall be processed per the provisions of
this chapter.
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Finding: In the RSA and LII zones, a mitigation bank is permitted as a conditional use permit and
is processed as a major project permit. The applicant applied for a major project permit on
February 28, 2024.
(2) Conditional use permits shall be nontransferable unless said transfer is approved by the
hearing examiner.
Finding: The mitigation bank parcels are proposed to be held in perpetuity by the COB. If the
parcels are to be transferred outside of the ownership of the COB, a transfer request shall be
submitted to PDS for approval by the Hearing Examiner.
(3) Approval Criteria. Before approving an application, the director or hearing examiner shall
ensure that any specific standards of the zoning district defining the use are fulfilled, and shall
find adequate evidence showing that the proposed use at the proposed location:
(a) Will be harmonious and in accordance with the general and specific objectives of
Whatcom County's Comprehensive Plan, zoning regulations, and any other applicable
regulations.
Finding:
Zoning Code
Rural (RSA) Zone: A mitigation bank is allowed as a conditional use permitted through a major
project permit in the RSA zone and the applicant has applied for a major project permit.
Preservation of critical areas is common throughout the County. This proposal will permanently
protect, enhance, wetlands, buffers and HCA's on the BCC and MCH sites and also include some
level of creation at the MCH site.
LII Zone: A mitigation bank is also allowed as a conditional use permitted through a major project
permit in the LII zone. Through the Washington State Growth Management Act, the County is
required to designate and maintain adequate lands zoned appropriate for industrial uses. The
approval of the mitigation bank will permanently prohibit development in the LII zone. Although
the amount of available lands for LII designated uses will decrease, the land has not been
developed historically due to the existing wetlands, buffers, and HCA's and the requirement of
adequate mitigation for impacts to those areas.
Critical Areas Code
As part of the Washington State Growth Management Act, critical areas are required to be
designated and regulations must be adopted to protect such areas. The wetlands, buffers and
HCA's on the proposed mitigation bank parcels are required to be protected, however, in the
course of development some level of impacts can occur. This proposal will permanently protect
and enhance those areas through the mitigation bank.
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Whatcom County Comprehensive Plan
Chapter 10 of the Whatcom County Comprehensive Plan outlines the goals and policies for the
Environment. The following goals and policies are applicable directly to protection of wetlands
and habitat conservation areas:
Goal 10M: Conserve and enhance regulated wetlands.
Policy 10M-1: Recognize natural wetlands such as swamps, bogs, saltwater marshes, and
ponds for their value in cleaning water, reducing flood damage, providing valuable habitat
for plants, fish and wildlife, and as sites forgroundwater recharge.
Policy 10M-4: Encourage land development to avoid wetland impacts. Impacts to regulated
wetlands should be contingent upon full mitigation measures that equitably compensate for
wetlands impacts, on a case -by -case basis. Approved mitigation measures shall include
resources for long-term monitoring and adaptive management of mitigation outcomes to
assure effectiveness. Strongly discourage alteration of land that results in the degradation of
type 1 and 2 wetlands.
Policy 10M-6: Recognize beneficial wetland uses, functions, and values. Support protection of
fish and wildlife habitat, water quality, plant diversity, flood attenuation and low flow
contribution, and water storage through planning, acquisition, incentive programs, and
mitigation.
As conditioned, the proposal is consistent with the general and specific objectives of Whatcom
County's Comprehensive Plan, zoning regulations, and any other applicable regulations.
(b) Will be designed, constructed, operated, and maintained so as to be harmonious and
appropriate in appearance with the existing or intended character of the general vicinity,
and that such use will not change the essential character of the same area.
Finding: The proposed mitigation bank will continue to be vegetated in a natural state and
consistent with the existing and intended character of the general vicinity for both the BCC and
MCH sites.
(c) If located in a rural area (as designated in the Comprehensive Plan), will be consistent
with rural land use policies as designated in the rural lands element of the Comprehensive
Plan.
Finding: The Critical Areas Ordinance requires preservation ofwetlands, buffers and HCA's which
is consistent with the Comprehensive Plan. The permanent preservation and enhancement of the
sites will be consistent with the rural character.
(d) Will not be hazardous or disturbing to existing or future neighboring uses.
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Finding: The proposed mitigation bank and permanent protections of critical areas will not be
hazardous or disturbing to existing or future neighboring uses.
(e) Will be serviced adequately by necessary public facilities such as highways, streets,
police and fire protection, drainage structures, refuse disposal, water, sewers, and schools;
or that the persons or agencies responsible for the establishment of the proposed use shall
be able to provide adequately any such services.
Finding: As conditioned, the use will be adequately serviced by necessary public facilities.
(f) Will not create excessive additional requirements at public cost for public facilities and
services, and will not be detrimental to the economic welfare of the community.
Finding: No additional requirements for public facilities and services is required for this proposal.
(g) Will not involve uses, activities, processes, materials, equipment, and conditions of
operation that will be detrimental to any persons, property, or the general welfare by
reasons of excessive production of traffic, noise, smoke, fumes, glare or odors.
Finding: The preservation and enhancement of existing critical areas will not be detrimental to
persons, property, or the general welfare of the public. The creation of wetlands at the MCH site
will be internal to the site and additional buffers will not impact neighboring properties.
(h) Will have vehicular approaches to the property which shall be so designed as not to
create an interference with traffic on surrounding public streets.
Finding: Public Works - Engineering Services has recommended approval of the proposed
expansion. Encroachment and/or Trail Permits will be required at the time of development of the
sites, if necessary.
(i) Will not result in the destruction, loss or damage of any natural, scenic, or historic
feature of major importance.
Finding: The proposed mitigation bank will not result in the destruction, loss or damage of any
natural, scenic or historic feature of major importance. The proposal will enhance and preserve
natural features associated with the BCC and MCH sites.
E. Health Code
The purpose of Title 24 is to provide minimum standards to safeguard public health and
welfare by regulating and controlling the activities considered in this title and any related
work.
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The Whatcom County Health Department (WCHD) has reviewed the proposed project noted
above in accordance with WCC 24.05 On Site Sewage System Regulations and WCC 24.11
Drinking Water Code.
Finding: The proposal does not require drinking water or sewage disposal utilities. At the time of
construction, the applicant shall ensure sanitary facilities, such as portable toilets, are available
when workers are onsite. The Whatcom County Health department has determined the proposal
is consistent with WCC 24.05 and 24.11.
VI. Decision Authority
Purpose (WCC 2.11)
The purpose of this chapter is to establish the authority and responsibilities of the hearing
examiner.
Recommended Decisions (WC 2.11.205)
In accordance with the provisions of Chapter 22.05 WCC, the hearing examiner shall conduct
an open record hearing and prepare a record thereof, and make recommendations to the
county council for approval or disapproval of:
A. Major project permits, including major project permit applications for mitigation banks
proposed in accordance with the provisions of Chapter 16.16 WCC.
Finding: The open record public hearing is scheduled fortune 13, 2024 and the Hearing Examiner
shall prepare the record and make recommendations to the County Council for approval or
disproval of this application.
VII. Recommendation
The Technical Review Committee recommends that the Hearing Examiner recommend
approval to the County Council for the applicant's request for a mitigation bank.
VIII. Expiration of Project Permits
Project Permit approval status shall expire two years from the date of approval except where
a different duration of approval is authorized by Whatcom County Code, or is established by a
court decision, or executed by a development agreement. The decision maker may extend this
period up to one year from the date upon written request by the applicant (WCC 22,05.140).
Finding: As conditioned, the COB must complete the mitigation banking instrument within two
years of Council approval. A one-year extension may be requested and may be approved by the
Council upon written request prior to the expiration of the major project permit.
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IX. Recommended Conditions of Approval
Public Works - Engineering Services
1. The project shall comply with the Whatcom County Development Standards (WCDS).
2. The project shall comply with WCC 20.80.630 and applicable portions of DOE 2019
Stormwater Management Manual for Western Washington (2019 SWMMWW).
Stormwater erosion and sedimentation control plans shall be submitted with land fill and
grade permits.
3. Encroachment permits and trail permits shall be obtained.
4. All appropriate permits must be obtained prior to construction.
Critical Areas - Wetlands
S. A mitigation banking instrument shall be submitted to Whatcom County for review as
part of the IRT. The instrument shall contain all items outlined in the Submittal
Information: Mitigation Banking Instrument for Federal and State Wetland Mitigation
Banks in Washington State, as amended, required by the United States Army Corps of
Engineers and the Washington State Department of Ecology.
Planning and Zoning
6. Inadvertent Discovery of Archaeological Resources: Should archaeological resources
(e.g. shell midden, animal remains, stone tools) be observed during project activities,
all work in the immediate vicinity should stop, and the area should be secured. The
Washington State Department of Archaeology and Historic Preservation (Stephanie
Jolivette, Local Government Archaeologist 360-628-2755) and the Lummi Nation
Tribal Historic Preservation Office (Lena Tso, THPO 360-961-7752; Tamela Smart,
Deputy THPO 360-927- 2944) should be contacted immediately in order to help assess
the situation and to determine how to preserve the resource(s). Compliance with all
applicable laws pertaining to archaeological resources is required.
7. Tribal Land in the State of Washington (RCWs 68.50.645, 27.44.055, and 68.60.055): If
ground disturbing activities encounter human skeletal remains during the course of
construction, then all activity will cease that may cause further disturbance to those
remains. The area of the find must be secured and protected from further disturbance
until the State provides notice to proceed. The finding of human skeletal remains must
be reported to the county medical examiner/coroner and local law enforcement in the
most expeditious manner possible. The remains must not be touched, moved, or
further disturbed. The county medical examiner/coroner will assume jurisdiction over
the human skeletal remains and make a determination of whether those remains are
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forensic or non -forensic. If the county medical examiner/coroner determines the
remains are non -forensic, then they will report that finding to the Department of
Archaeology and Historic Preservation (DAHP) who will then take jurisdiction over the
remains. The DAHP will notify any appropriate cemeteries and all affected tribes of the
find. The State Physical Anthropologist will make a determination of whether the
remains are Indian or Non -Indian and report that finding to any appropriate
cemeteries and the affected tribes. The DAHP will then handle all consultation with the
affected parties as to the future preservation, excavation, and disposition of the
remains (DAHP).
8. The use and location on the site as approved by this Major Project Permit, as shown in
concept on the site plan, shall be consistent with the concepts of the site plan. Minor
changes shall be reviewed administratively consistent with WCC 20.80.215. Major
changes shall be subject to review from Staff and further approval of the Council and as
consistent with WCC 20.88.215.
9. The Applicant shall obtain a Land Fill and Grade Permit for site development work as
required by Whatcom County regulations. A final inspection will be required for the
permit to document completion of the project improvements.
10. Pursuant to WCC 20.80.620, no development shall exceed the maximum environmental
noise level established by WAC 173-60.
11. The COB shall complete the mitigation banking instrument with appropriate signatures
within 24 (twenty-four) months of the date of the issuance of this decision pursuant to
WCC 22.05.140(1). Failure to submit the completed and executed mitigation banking
instrument shall result in the expiration of this permit. The decision maker may extend
this period up to one year from the date of original expiration upon written request by
the applicant prior to the initial expiration. The applicant shall apply for the associated
Land Fill and Grade Permit within two years of the mitigation banking instrument
signature consistent with WCC 22.05.060(4).
12. For the McCormick Creek Headwaters site, the applicant shall vacate the Wahl Road
right-of-way prior to any wetland creation in the right-of-way. Road vacation shall
occur consistent with road vacation process with the Whatcom County Council.
13. A SEPA Checklist will be required at the time of Land Fill and Grade Permit submittal
for work done at either the BCC or MCH site at the time of site -specific work is being
proposed.
14. Wetland creation actions that extend the off -site buffers beyond the existing regulatory
buffers at the time of permit approval are prohibited.
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Health and Community Services
15. At the time of construction, the applicant shall ensure sanitary facilities, such as
portable toilets, are available when workers are onsite.
Prepared for the Technical Review Committee by:
Amy Keenan, AICP, Special Projects Manager
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