§ 15.24.070. Standards for permit decisions.
A.
A permit shall only be granted if the permit, as conditioned, is consistent with the provisions of this chapter. Additionally, permits shall only be granted if:
1.
A proposed action avoids adverse impacts to regulated wetlands, its functions, or their buffers or takes affirmative and appropriate measures to minimize and compensate for unavoidable impacts;
2.
The proposed activity results in no net loss of wetland area and function; or
3.
Denial of a permit would cause an extraordinary hardship on the applicant.
B.
Wetlands permits shall not be effective and no activity thereunder shall be allowed during the time provided to file a permit appeal.
C.
Wetland buffers:
1.
Standard buffer zone widths: Wetland buffer zones shall be required for all regulated activities adjacent to regulated wetlands. Any wetland created, restored, or enhanced as compensation for approved wetland alterations shall also include the standard buffer required for the category of the created, restored, or enhanced wetland. All buffers shall be measured from the wetland boundary as surveyed in the field, pursuant to the applicable definitions in 15.24.020. The width of the wetland buffer zone shall be determined according to wetland category and the intensity of the proposed land use, as follows:
a.
Category I:
High intensity 300 feet
Low intensity 200 feet
b.
Category II:
High intensity 200 feet
Low intensity 100 feet
c.
Category III:
High intensity 100 feet
Low intensity 50 feet
d.
Category IV:
High intensity 50 feet
Low intensity 25 feet
2.
Increased wetland buffers zone width: The Director of Community and Economic Development shall require increased standard buffer zone widths on a case-by-case basis when a larger buffer is necessary to protect wetlands functions and values, based on local conditions. This determination shall be supported by appropriate documentation showing that it is reasonably related to protection of the functions and values of the regulated wetland. Such determination shall be attached as a permit condition and shall demonstrate that:
a.
A larger buffer is necessary to maintain viable populations of existing species; or
b.
The wetland is used by species proposed or listed by the Federal Government or the State as endangered, threatened, rare, monitor, or sensitive, critical or outstanding potential habitat for those species, or has unusual nesting or resting sites, such as heron rookeries or raptor nesting trees; or
c.
The adjacent land is susceptible to severe erosion, and erosion control measures will not effectively prevent adverse wetland impacts; or
d.
The adjacent land has minimal vegetative cover or slopes greater than 15 percent.
3.
Reduction of standard wetland buffer zone width: The Director of Community and Economic Development may reduce the standard wetland buffer zone widths on a case-by-case basis where it can be demonstrated that:
a.
The adjacent land is extensively vegetated and has less than 15 percent slopes and that no direct or indirect, short-term or long-term, adverse impacts to regulated wetlands, as determined by the Director of Community and Economic Development, will result from a regulated activity. The Director of Community and Economic Development may require long-term monitoring of the project and subsequent corrective actions if adverse impacts to regulated wetlands are discovered; or
b.
The project includes a buffer enhancement plan using native vegetation which substantiates that an enhanced buffer will improve the functional attributes of the buffer to provide additional protection for wetlands functions and values. An enhanced buffer shall not result in greater than a 25 percent reduction in the buffer width, and the reduced buffer shall not be less than 25 feet.
4.
Standard wetland buffer width averaging: Standard wetland buffer zones may be modified by averaging buffer widths. Wetland buffer width averaging shall be allowed only where the applicant demonstrates all of the following:
a.
That averaging is necessary to avoid an extraordinary hardship to the applicant caused by circumstances peculiar to the property;
b.
That the wetland contains variations in sensitivity due to existing physical characteristics;
c.
That low intensity land uses would be located adjacent to areas where buffer width is reduced, and that such low intensity land uses are guaranteed in perpetuity by covenant, deed restriction, easement, or other legally binding mechanism;
d.
That width averaging will not adversely impact the wetland functional values; and
e.
That the total area contained within the wetland buffer after averaging is no less than that contained within the standard buffer prior to averaging. In no instance shall the buffer width be reduced by more than 50 percent of the standard buffer or be less than 25 feet.
5.
When applicable the order of sequence for buffer reductions shall be as follows:
a.
Use of buffer averaging maintaining 100 percent of the buffer area under the standard buffer requirement:
b.
Reduction of the overall buffer area by no more than 25 percent of the area required under the standard buffer requirement;
c.
Enhancement of existing degraded buffer area and replanting of the disturbed buffer area;
d.
Use of LID BMPs and/or infiltration of stormwater where soils permit where feasible;
e.
Retention of existing native vegetation on other portions of the site in order to offset habitat loss from buffer reduction.
6.
Except as otherwise specified, wetland buffer zones shall be retained in their undisturbed natural condition except where the buffer can be enhanced to improve its functional attributes. Buffers that are in their natural condition should not be altered and should remain in their natural condition and be enhanced whenever possible. Any buffer enhancement and/or limited view clearing activity must be reviewed and approved by the department. No refuse shall be placed in the buffer. Where buffers have been altered or disturbance has occurred during construction and ecological functions and values have been lost, restoration is required to replace lost functions and values.
7.
Permitted uses in a wetland buffer zone: In addition to those activities allowed in regulated wetlands in this section, the following activities are allowed in wetland buffers without having to meet the protection standards, or requirements for wetland studies or mitigation set forth in this section, provided that impacts to buffers are minimized and that disturbed areas are immediately restored.
a.
In association with a single-family residence only, the establishment and expansion of lawns, landscaping, orchards, gardens, and fences, provided that:
i.
Lawns, landscaping, orchards, and gardens are only allowed within the outer 25 percent of the buffer width where no other area within a property is available to accommodate these land uses. Native vegetation shall be protected within wetland buffers to the maximum extent practicable. No structure other than fences nor any impervious surface shall be included in the above. No pesticides, herbicides or fertilizers may be used in wetland buffers; and
ii.
Fences shall be designed to allow the unimpeded passage of surface water beneath them.
b.
Activities having minimal adverse impacts on buffers and no adverse impacts on regulated wetlands may be allowed. These include low intensity, passive recreational activities such as wildlife viewing and hiking.
c.
Within the buffers of Category III and IV wetlands only, vegetation-lined swales and LID BMPs designed for stormwater management or conveyance when topographic restraints determine there are no other upland alternative locations. Swales, LID BMPs, and any stormwater discharges from the swales/BMPs must also protect wetland functions in accordance with Appendix I-D of the Department of Ecology's SWMMWW (2014).
8.
Building and impervious surface setback lines: A building or impervious surface setback line of 15 feet is required from the edge of any wetland buffer. Minor structural intrusions into the area of the building setback may be allowed if the Director of Community and Economic Development determines that such intrusions will not negatively impact the wetland. The setback shall be identified on a site plan which is filed as an attachment to the notice on title required by subsection 15.24.060.C.6.
D.
Avoiding wetland impacts:
1.
Regulated activities shall not be authorized in a regulated wetland except where it can be demonstrated that the impact is both unavoidable and necessary or that all reasonable economic uses are denied.
2.
With respect to Category I wetlands, an applicant must demonstrate that denial of the permit would impose an extraordinary hardship on the part of the applicant brought about by circumstances peculiar to the subject property.
3.
With respect to Category II and III wetlands, the following provisions shall apply:
a.
For water-dependent activities, unavoidable and necessary impacts can be demonstrated where there are no practicable alternatives which would not involve a wetland or which would not have less adverse impact on a wetland, and would not have other significant adverse environmental consequences.
b.
Where nonwater-dependent activities are proposed, it shall be presumed that adverse impacts are avoidable. This presumption may be rebutted upon a demonstration that:
i.
The basic project purpose cannot reasonably be accomplished utilizing one or more other sites in the general region that would avoid, or result in less, adverse impact on a regulated wetland; and
ii.
A reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs of the project as proposed that would avoid, or result in less, adverse impact on a regulated wetland or its buffer will not accomplish the basic purpose of the project; and
iii.
In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as zoning, deficiencies of infrastructure, or parcel size, the applicant has made reasonable attempts to remove or accommodate such constraints.
4.
With respect to Category IV wetlands, unavoidable and necessary impacts can be demonstrated where the proposed activity is the only reasonable alternative which will accomplish the applicant's objectives.
E.
Reasonable use exception:
1.
If an applicant for a development proposal demonstrates to the satisfaction of the Director of Community and Economic Development that application of these standards would deny all reasonable economic use of the property, development as conditioned may be allowed if the applicant also demonstrates all of the following to the satisfaction of the Director of Community and Economic Development:
a.
That the proposed project is water-dependent or requires access to the wetland as a central element of its basic function, or is not water-dependent but has no practicable alternative, pursuant to subsection 15.24.070.D.;
b.
That no reasonable use with less impact on the wetland and its buffer is possible (e.g., agriculture, aquaculture, transfer or sale of development rights or credits, sale of open space easements, etc.);
c.
That there is no feasible on-site alternative to the proposed activities, including reduction in density, phasing of project implementation, change in timing of activities, revision of road and lot layout, and/or related site planning considerations, that would allow a reasonable economic use with less adverse impacts to wetlands and wetland buffers;
d.
That the proposed activities will result in minimum feasible alteration or impairment to the wetland's functional characteristics and its existing contours, vegetation, fish and wildlife resources, and hydrological conditions;
e.
That disturbance of wetlands has been minimized by locating any necessary alteration in wetland buffers to the extent possible;
f.
That the proposed activities will not jeopardize the continued existence of endangered, threatened, rare, sensitive, or monitor species as listed by the Federal Government or the State of Washington;
g.
That the proposed activities will not cause significant degradation of groundwater or surface water quality;
h.
That the proposed activities comply with all State, local, and Federal laws, including those related to sediment control, pollution control, floodplain restrictions, and on-site wastewater disposal;
i.
That any and all alterations to wetlands and wetland buffers will be mitigated as provided in subsection 15.24.070.H.7.;
j.
That there will be no damage to nearby public or private property and no threat to the health or safety of people on or off the property; and
k.
That the inability to derive reasonable economic use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the original effective date of this chapter.
2.
If the Director of Community and Economic Development determines that alteration of a wetland and/or wetland buffer is necessary and unavoidable, the Director of Community and Economic Development shall set forth in writing in the file he maintains regarding a permit application his findings with respect to each of the items listed in this subsection.
3.
Alternatively, if the Director of Community and Economic Development determines that application of these standards would deny all reasonable economic use of the property, the City may take the property for public use with just compensation being made.
F.
Minimizing wetlands impacts:
1.
After it has been determined by the Director of Community and Economic Development pursuant to subsection 15.24.070.D. that losses of wetland are necessary and unavoidable or that all reasonable economic use has been denied, the applicant shall take deliberate measures to minimize wetland impacts.
2.
Minimizing impacts to wetlands shall include but is not limited to:
a.
Limiting the degree or magnitude of the regulated activity;
b.
Limiting the implementation of the regulated activity;
c.
Using appropriate and best available technology;
d.
Taking affirmative steps to avoid or reduce impacts;
e.
Sensitive site design and siting of facilities and construction staging areas away from regulated wetlands and their buffers;
f.
Involving resource agencies early in site planning; and
g.
Providing protective measures and best management practices, such as siltation curtains, hay bales, and other siltation prevention measures; scheduling the regulated activity to avoid interference with wildlife and fisheries rearing, resting, nesting, or spawning activities.
G.
Limited density transfer: For development proposals on lands containing wetland buffers, the Director of Community and Economic Development shall determine allowable dwelling units for residential development proposals based on the formulas below.
The following formula for density calculations is designed to provide incentives for the preservation of wetlands and wetland buffers, flexibility in design, and consistent treatment of different types of development proposals. The formula shall apply to all properties within existing residential zones on which wetlands and wetland buffers are located.
The maximum number of dwelling units (DU) for a lot or parcel which contains wetlands and wetland buffers shall be equal to: (Acres in Wetland Buffer)(DU/Acre)(Density Credit).
The density credit figure is derived from the following table:
Percentage of site
in buffers
Density Credit
1—10% 100% 11—20% 90% 21—30% 80% 31—40% 70% 41—50% 60% 51—60% 50% 61—70% 40% 71—80% 30% 81—90% 20% 91—99% 10% The density credit can only be transferred within the development proposal site. To the extent that application of the formula may result in lot sizes less than the minimum allowed by the underlying district, they are hereby authorized, provided that the resultant lot is of sufficient size for an on-site waste disposal system if no sanitary sewer system exists. Should the density credit allow average lot size to fall below the minimum standard allowed by underlying zoning, the applicant shall use planned residential development procedures for project review.
The Director of Community and Economic Development shall not allow credit for density for the portions of the site occupied by wetlands.
H.
Acting on the application:
1.
Special use permit conditions:
a.
Sensitive area tracts: As a condition of any permit issued pursuant to this chapter, the permit holder may be required to create a separate sensitive area tract or tracts containing the areas determined to be wetland and/or wetland buffer in field investigations performed pursuant to subsection 15.24.040.C. Sensitive area tracts are legally created tracts containing wetlands and their buffers that shall remain undeveloped in perpetuity. Sensitive area tracts are an integral part of the lot in which they are created; are not intended for sale, lease or transfer; and shall be included in the area of the parent lot for purposes of subdivision method and minimum lot size.
b.
Protection of sensitive area tracts: The Director of Community and Economic Development shall require, as a condition of any permit issued pursuant to this chapter, that the sensitive area tract or tracts created pursuant to subsection 15.24.070.H.1. be protected by one of the following methods:
i.
The permit holder shall convey an irrevocable offer to dedicate to the City of Port Angeles or other public or non-profit entity specified by the Director of Community and Economic Development, an easement for the protection of native vegetation within a wetland and/or its buffer; or
ii.
The permit holder shall establish and record a permanent and irrevocable deed restriction on the property title of all lots containing a sensitive area tract or tracts created as a condition of this permit. Such deed restriction(s) shall prohibit in perpetuity the development, alteration, or disturbance of vegetation within the sensitive area tract except for purposes of habitat enhancement as part of an enhancement project which has received prior written approval from the City of Port Angeles, and any other agency with jurisdiction over such activity.
c.
The deed restriction shall also contain the following language:
"Before beginning and during the course of any grading, building construction, or other development activity on a lot or development site subject to this deed restriction, the common boundary between the area subject to the deed restriction and the area of development activity must be fenced or otherwise marked to the satisfaction of the City of Port Angeles."
d.
Regardless of the legal method of protection chosen by the Director of Community and Economic Development, responsibility for maintaining sensitive area tracts shall be held by a homeowners association, adjacent lot owners, the permit applicant or designee, or other appropriate entity as approved by the Director of Community and Economic Development.
e.
The following note shall appear on the face of all plats, short plats, PRDs, or other approved site plans containing separate sensitive area tracts, and shall be recorded on the title of record for all affected lots:
" NOTE: All lots adjoining separate sensitive area tracts identified as Native Vegetation Protection Easements or protected by deed restriction, are responsible for maintenance and protection of the tracts. Maintenance includes ensuring that no alterations occur within the separate tract and that all vegetation remains undisturbed for other than natural reasons, unless the express written authorization of the City of Port Angeles has been received."
f.
The common boundary between a separate sensitive area tract and the adjacent land must be permanently identified. This identification shall include permanent wooden fence and/or metal signs on treated wood or metal posts. Signs shall be worded as follows:
"Protection of this natural area is in your care. Alteration or disturbance is prohibited by law. Please call the Port Angeles Planning Department for more information."
g.
Sign locations and size specifications shall be approved by the Director of Community and Economic Development. The Director of Community and Economic Development shall require permanent fencing of the sensitive area tract or tracts. In lieu of fencing, alternative methods of wetland and buffer identification may be approved when such methods are determined by the department to provide adequate protection to the wetland buffer.
h.
Additional conditions:
i.
The location of the outer extent of the wetland buffer and the areas to be disturbed pursuant to an approved permit shall be marked in the field, and such field marking shall be approved by the Director of Community and Economic Development prior to the commencement of permitted activities. Such field markings shall be maintained throughout the duration of the permit.
ii.
The Director of Community and Economic Development may attach such additional conditions to the granting of a special use permit as deemed necessary to assure the preservation and protection of affected wetlands and to assure compliance with the purposes and requirements of this chapter.
2.
Bonding:
a.
Performance bonds: The Director of Community and Economic Development may require the applicant of a development proposal to post a cash performance bond or other security acceptable to the Director of Community and Economic Development in an amount and with surety and conditions sufficient to fulfill the requirements of subsection 15.24.070.H.6. and, in addition, to secure compliance with other conditions and limitations set forth in the permit. The amount and the conditions of the bond shall be consistent with the purposes of this chapter. In the event of a breach of any condition of any such bond, the City of Port Angeles may institute an action in a court of competent jurisdiction upon such bond and prosecute the same to judgment and execution. The Director of Community and Economic Development shall release the bond upon determining the following, provided that prior to such written release of the bond, the principal or surety cannot be terminated or canceled;
i.
All activities, including any required compensatory mitigation, have been completed in compliance with the terms and conditions of the permit and the requirements of this chapter;
ii.
The posting by the applicant of a maintenance bond has occurred.
b.
Maintenance bonds: The Director of Community and Economic Development shall require the holder of a development permit issued pursuant to this chapter to post a cash performance bond or other security acceptable to the Director of Community and Economic Development in an amount and with surety and conditions sufficient to guarantee that structures, improvements, and mitigation required by the permit or by this chapter perform satisfactorily for a minimum of two years after they have been completed. The Director of Community and Economic Development shall release the maintenance bond upon determining that performance standards established for evaluating the effectiveness and success of the structures, improvements, and/or compensatory mitigation have been satisfactorily met for the required period. For compensation projects, the performance standards shall be those contained in the mitigation plan developed and approved during the permit review process, pursuant to subsection 15.24.070.H.7. The maintenance bond applicable to a compensation project shall not be released until the Director of Community and Economic Development determines that performance standards established for evaluating the effect and success of the project have been met.
3.
Other laws and regulations: No permit granted pursuant to this chapter shall remove an applicant's obligation to comply in all respects with the applicable provisions of any other federal, state, or local law or regulation, including but not limited to the acquisition of any other required permit or approval.
4.
Suspension or revocation: In addition to other penalties provided for elsewhere, the Director of Community and Economic Development may suspend or revoke a permit if he/she finds that the applicant or permittee has not complied with any or all of the conditions or limitations set forth in the permit; has exceeded the scope of work set forth in the permit; or has failed to undertake the project in the manner set forth in the approved application.
5.
Publication of notice: The Director of Community and Economic Development shall cause notice of his/her denial, issuance, conditional issuance, revocation, or suspension of a permit to be published in a daily newspaper having a broad circulation in the area wherein the wetland lies. Such notice shall be published within five working days of the decision or order and shall include at least the following:
a.
A brief description of the project, including location;
b.
The decision or order of the City with respect to the project;
c.
Notification that the permit file is open for public inspection during regular business hours, and the address where such file may be inspected; and
d.
A statement of the procedures regarding appeal or judicial review of the decision, if applicable.
6.
Compensating for wetlands impacts: As a condition of any permit allowing alteration of wetlands and/or wetland buffers, or as an enforcement action pursuant to subsection 15.24.080.C., the Director of Community and Economic Development shall require that the applicant engage in the restoration, creation, or enhancement of wetlands and their buffers in order to offset the impacts resulting from the applicant's or violator's actions. The applicant shall develop a plan which provides for land acquisition, construction, maintenance, and monitoring of replacement wetlands that recreate as nearly as possible the original wetlands in terms of acreage, function, geographic location and setting, and that are larger than the original wetlands. The overall goal of any compensatory project shall be no net loss of wetlands function and acreage and to strive for a new resource gain in wetlands over present conditions. Compensation shall be completed prior to wetland destruction, where possible.
Compensatory mitigation shall follow an approved mitigation plan pursuant to subsection 15.24.070.H.7. and shall meet the following minimum performance standards:
a.
Given the uncertainties in scientific knowledge and the need for expertise and monitoring, wetland compensatory projects may be permitted only when the Director of Community and Economic Development finds that the compensation project is associated with an activity or development otherwise permitted and that the restored, created, or enhanced wetland will be as persistent as the wetland it replaces. Additionally, applicants shall:
i.
Demonstrate sufficient scientific expertise, supervisory capability, and financial resources to carry out the project;
ii.
Demonstrate the capability for monitoring the site and to make corrections during this period if the project fails to meet projected goals; and
iii.
Protect and manage or provide for the protection and management of the compensation area to avoid further development or degradation and to provide for long-term persistence of the compensation area.
b.
Wetlands restoration and creation:
i.
Any person who alters regulated wetlands shall restore or create equivalent areas or greater areas of wetlands than those altered in order to compensate for wetland losses.
ii.
Where feasible, restored or created wetlands shall be a higher category than the altered wetland.
iii.
Compensation areas shall be determined according to function, acreage, type, location, time factors, ability to be self-sustaining, and projected success. Wetland functions and values shall be calculated using the best professional judgment of a qualified wetland ecologist using the best available techniques. Multiple compensation projects may be proposed for one project in order to best achieve the goal of no net loss.
iv.
Acreage replacement ratio. The following ratios apply to creation or restoration which is in-kind, on-site, timed prior to or concurrent with alteration, and has a high probability of success. These ratios do not apply to remedial actions resulting from illegal alterations. The first number specifies the acreage of wetlands requiring replacement and the second specifies the acreage of wetlands altered.
Category I 6:1 Category II or III Forested 3:1 Scrub-shrub 2:1 Emergent 1.5:1 Category IV 1.25:1 (A)
Increased replacement ratio: The Director of Community and Economic Development may increase the ratios under the following circumstances:
(1)
Uncertainty as to the probable success of the proposed restoration or creation;
(2)
Significant period of time between destruction and replication of wetland functions;
(3)
Projected losses in functional value; or
(4)
Off-site compensation.
(B)
Decreased replacement ratio: The Director of Community and Economic Development may decrease these ratios based on findings of special studies coordinated with agencies with expertise which demonstrate that no net loss of wetland function or value is attained under the decreased ratio.
(C)
In all cases, a minimum acreage replacement ratio of 1:1 shall be required.
c.
Wetlands enhancement:
i.
Any applicant proposing to alter wetlands may propose to enhance existing significantly degraded wetlands in order to compensate for wetland losses. Applicants proposing to enhance wetlands shall identify how enhancement conforms to the overall goals and requirements of the local wetlands protection program and established regional goals.
ii.
A wetlands enhancement compensation project shall be determined pursuant to subsection 15.24.070.H.6., provided that enhancement for one function and value will not degrade another function or value and that acreage replacement ratios shall be doubled to recognize existing functional values and, provided further, that Category I wetlands shall not be enhanced.
d.
Wetland type:
i.
In-kind compensation shall be provided except where the applicant can demonstrate that:
(A)
The wetland system is already significantly degraded and out-of-kind replacement will result in a wetland with greater functional value;
(B)
Scientific problems, such as exotic vegetation and changes in watershed hydrology make implementation of in-kind compensation impossible; or
(C)
Out-of-kind replacement will best meet identified regional goals (e.g., replacement of historically diminished wetland types).
(D)
Where out-of-kind replacement is accepted, greater acreage replacement ratios may be required to compensate for lost functional values.
e.
Location:
i.
On-site compensation shall be provided except where the applicant can demonstrate that:
(A)
The hydrology and ecosystem of the original wetland and those who benefit from the hydrology and ecosystem will not be substantially damaged by the on-site loss; and
(B)
On-site compensation is not scientifically feasible due to problems with hydrology, soils, waves, or other factors; or
(C)
Compensation is not practical due to potentially adverse impact from surrounding land uses; or
(D)
Existing functional values at the site of the proposed restoration are significantly greater than lost wetland functional values; or
(E)
That established regional goals for flood storage, flood conveyance, habitat or other wetland functions have been established and strongly justify location of compensatory measures at another site.
ii.
Off-site compensation shall occur within the same watershed as the wetland loss occurred; provided that Category IV wetlands may be replaced outside of the watershed when there is no reasonable alternative.
iii.
In selecting compensation sites, applicants shall pursue siting in the following order of preference:
(A)
Upland sites which were formerly wetlands;
(B)
Idled upland sites generally having bare ground or vegetative cover consisting primarily of exotic introduced species, weeds, or emergent vegetation;
(C)
Other disturbed upland.
f.
Timing:
i.
Where feasible, compensation projects shall be completed prior to activities that will disturb wetlands, and immediately after activities that will temporarily disturb wetlands. In all other cases, except for Category I wetlands, compensatory projects should be completed prior to use or occupancy of the activity or development which was conditioned upon such compensation. Construction of compensation projects shall be timed to reduce impacts to existing wildlife and flora.
g.
Cooperative restoration, creation, or enhancement projects:
i.
The Director of Community and Economic Development may encourage, facilitate, and approve cooperative projects wherein a single applicant or other organization with demonstrated capability may undertake a compensation project with funding from other applicants under the following circumstances:
(A)
Restoration, creation, or enhancement at a particular site may be scientifically difficult or impossible; or
(B)
Creation of one or several larger wetlands may be preferable to many small wetlands.
ii.
Persons proposing cooperative compensation projects shall:
(A)
Submit a joint permit application;
(B)
Demonstrate compliance with all standards;
(C)
Demonstrate the organizational and fiscal capability to act cooperatively; and
(D)
Demonstrate that long-term management can and will be provided.
7.
Non-compensatory enhancement: Non-compensatory enhancements are those wetland enhancement projects which are conducted solely to increase the functions and values of an existing wetland and which are not required to be conducted pursuant to the requirements of section 15.24.070(H)(6). There are two types of non-compensatory enhancement:
a.
Type 1 non-compensatory enhancement. Type 1 non-compensatory enhancement projects involve the filling, draining, or excavating of a regulated wetland. All applications for Type 1 non-compensatory enhancement projects shall be accompanied by an enhancement plan prepared in accordance with subsections (i)a) - b), below, which demonstrates that the proposed activities will result in an increase in wetland functions and values.
i.
The enhancement plan must be submitted for review and approval by the Director of Community and Economic Development:
ii.
The enhancement plan must either be prepared by a qualified wetlands consultant or accepted in writing by the U.S. Fish and wildlife Service, and the Washington Department of Fish and Wildlife, or the Washington Department of Ecology.
b.
Type 2 non-compensatory enhancement. Type 2 non-compensatory enhancement projects involve wetland alterations that do not include the filling, draining, or excavation of a regulated wetland. Such projects might involve the removal of non-native plant species. All application for Type 2 non-compensatory enhancement projects shall be accompanied by an enhancement plan prepared in accordance with subsections (ii)a) - b), below, which demonstrates that the proposed activities will result in an increase in wetland functions and values.
i.
The enhancement plan shall be submitted for review and approval by the Director of Community and Economic Development;
ii.
The enhancement plan must include a detailed description of the activity including the following information:
(A)
The goal of the enhancement project;
(B)
What plants, if any, will be removed or planted;
(C)
How the activity will be conducted, including the type(s) of tools or machinery to be used; and
(D)
The qualifications of the individual who will be conducting the enhancement activity.
iii.
The enhancement plan must either be prepared by a qualified wetlands consultant or accepted in writing by the U.S. Fish and Wildlife Service, the Washington Department of Fish and Wildlife, or the Washington department of Ecology.
8.
Mitigation plans: All wetland restoration, creation, and/or enhancement projects required pursuant to this chapter, either as a permit condition or as the result of an enforcement action, shall follow a mitigation plan prepared by qualified wetland professionals approved by the Director of Community and Economic Development. The applicant or violator shall receive written approval of the mitigation plan by the Director of Community and Economic Development prior to commencement of any wetland restoration, creation, or enhancement activity. Unless the Director of Community and Economic Development, in consultation with qualified wetland professionals, determines, based on the size and nature of the development proposal, the nature of the impacted wetland, and the degree of cumulative impacts on the wetland from other development proposals, that the scope and specific requirements of the mitigation plan may be reduced from what is listed below, the mitigation plan shall contain at least the following components:
a.
Baseline information: A written assessment and accompanying maps of the:
i.
Impacted wetland including, at a minimum, wetland delineation; existing wetland acreage; vegetative, faunal, and hydrologic characteristics; soil and substrate conditions; topographic elevations; and
ii.
Compensation site, if different from the impacted wetland site, including, at a minimum, existing acreage; vegetative, faunal, and hydrologic conditions; relationship within watershed and to existing waterbodies; soil and substrate conditions; topographic elevations; existing and proposed adjacent site conditions; buffers; and ownership.
b.
Environmental goals and objectives: A written report shall be provided identifying goals and objectives and describing:
i.
The purposes of the compensation measures, including a description of site selection criteria; identification of compensation goals; identification of target evaluation species and resource functions; dates for beginning and completion; and a complete description of the structure and functional relationships sought in the new wetland. The goals and objectives shall be related to the functions and values of the original wetland, or if out-of-kind, the type of wetland to be emulated.
ii.
A review of the available literature and/or experience to date in restoring or creating the type of wetland proposed shall be provided. An analysis of the likelihood of success of the compensation project at duplicating the original wetland shall be provided based on the experiences of comparable projects, if any. An analysis of the likelihood of persistence of the created or restored wetland shall be provided based on such factors as surface and ground water supply and flow patterns; dynamics of the wetland ecosystem; sediment or pollutant influx and/or erosion, periodic flooding and drought, etc.; presence of invasive flora or fauna; potential human or animal disturbance; and previous comparable projects, if any.
c.
Performance standards: Specific criteria shall be provided for evaluating whether or not the goals and objectives of the project and for beginning remedial action or contingency measures. Such criteria may include water quality standards, survival rates of planted vegetation, species abundance and diversity targets, habitat diversity indices, or other ecological, geological, or hydrological criteria.
d.
Detailed construction plans: Written specifications and descriptions of compensation techniques shall be provided, including the proposed construction sequence; grading and excavation details; erosion and sediment control features needed for wetland construction and long-term survival; a planting plan specifying plant species, quantities, locations, size, spacing, and density; source of plant materials, propagules, or seeds; water and nutrient requirements for planting; where appropriate, measures to protect plants from predation; specification of substrate stockpiling techniques and planting instructions; descriptions of water control structures and water-level maintenance practices needed to achieve the necessary hydrocycle/hydroperiod characteristics; etc. These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome. The plan shall provide for elevations which are appropriate for the desired habitat type(s) and which provide sufficient tidal prism and circulation data.
e.
Monitoring program: A program outlining the approach for monitoring construction of the compensation project and for assessing a completed project shall be provided. Monitoring may include, but is not limited to:
i.
Establishing vegetation plots to track changes in plant species composition and density over time;
ii.
Using photo stations to evaluate vegetation community response;
iii.
Sampling surface and subsurface waters to determine pollutant loading, and changes from the natural variability of background conditions (pH, nutrients, heavy metals);
iv.
Measuring base flow rates and storm water runoff to model and evaluate water quality predictions, if appropriate;
v.
Measuring sedimentation rates, if applicable; and
vi.
Sampling fish and wildlife populations to determine habitat utilization, species abundance, and diversity.
A protocol shall be included outlining how the monitoring data will be evaluated by agencies that are tracking the progress of the compensation project. A monitoring report shall be submitted annually, at a minimum, documenting milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.
f.
Contingency plan: Identification of potential courses of action, and any corrective measures to be taken when monitoring or evaluation indicates project performance standards are not being met.
g.
Permit conditions: Any compensation project prepared pursuant to this section and approved by the Director of Community and Economic Development shall become part of the application for the permit.
h.
Performance bonds and demonstration of competence: A demonstration of financial resources, administrative, supervisory, and technical competence and scientific expertise of sufficient standard to successfully execute the compensation project shall be provided. A compensation project manager shall be named and the qualifications of each team member involved in preparing the mitigation plan and implementing and supervising the project shall be provided, including educational background and areas of expertise, training and experience with comparable projects. In addition, bonds ensuring fulfillment of the compensation project, monitoring program, and any contingency measure shall be posted pursuant to subsection 15.24.070.H. in the amount of 120 percent of the expected cost of compensation.
i.
Regulatory authorities are encouraged to consult with and solicit comments of any Federal, State, regional, or local agency, including tribes, having any special expertise with respect to any environmental impact prior to approving a mitigation proposal which includes wetlands compensation. The compensation project proponents should provide sufficient information on plan design and implementation in order for such agencies to comment on the overall adequacy of the mitigation proposal.
j.
Compensatory mitigation is not required for regulated activities:
i.
For which a permit has been obtained that occur only in the buffer or expanded buffer and which have no adverse impacts to regulated wetlands; or
ii.
Which are allowed pursuant to subsection 15.24.050.B., provided such activities utilize best management practices to protect the functions and values of regulated wetlands.
I.
Appeals: Any decision of the Director of Community and Economic Development in the administration of this chapter may be appealed in writing to the City Council within 14 days of the issuance of notice of the decision. The time period for considering the appeal shall not exceed 90 days.
J.
Modification of wetland permits: A wetland permit holder may request and the Director of Community and Economic Development may approve modification of a previously issued wetland permit.
K.
Resubmittal of denied permit applications: A wetland permit application which has been denied may be modified and resubmitted no earlier than 180 days following action on the original application. A permit application shall be considered a resubmittal if the site proposed for development was the subject of a wetland permit application within the previous 180 days. A new fee will be required for such resubmittal.
(Ord. 3570 § 1, 12/20/2016; Ord. 3330 § 2, 4/25/2008; Ord. 3179 § 4 (part), 12/17/2004; Ord. 3007 § 3, 1/15/1999; Ord. 2928 (part), 9/13/1996; Ord. 2655 § 1 (part), 11/29/1991)