ORD 94-07 ENVIRONMENTALLY SENSITIVE AREASORDINANCE NO. 94-07
AN ORDINANCE of the City of Bainbridge Island,
Washington, related to environmentally
sensitive areas (wetlands and streams) and
amending Section 16.20.090 and Section
16.20.020 of Ordinance #92-07 of the Bainbridge
Island Municipal Code, the Environmentally
Sensitive Areas Ordinance (ESA).
WHEREAS, when the ESA was adopted in February 1992, the City
Council committed to review the ordinance in one year; and
WHEREAS, after working with the Ordinance since its adoption,
problems have been identified concerning the interpretation of
sections related to allowed and regulated activities and other
provisions of the ordinance; and
WHEREAS, the process for reviewing development proposals on
properties that were severely constrained by ESA regulations
was extremely costly and lengthy; now, therefore
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Bainbridge Island Municipal Code Section 16.20.090
and Section 16.20.020 of Ordinance #92-07 are each amended as
follows:
16.20.020. Definitions.
Regulated Wetland 1. All category I and II wetlands 2. Category III
wetlands greater than 5,000 square feet. 3. Category IV wetlands
greater than 20,000 square feet. 4. All stream types except type 5
streams. 5. Any wetland and/or stream created, restored or
enhanced as mitigation for approved wetland and/or stream
alterations.
16.20.090. Wetlands and Streams.
A. Classifications of wetland categories and stream types shall
not be altered to recognize illegal modifications.
B. Determination of Regulated Wetland Boundary:
The exact location of the wetland boundary shall be determined
by the applicant through the performance of a field
investigation applying the wetland definition provided in this
chapter. A wetland(s) biologist approved by the City shall
perform wetland delineations using the "Federal Manual for
Identifying and Delineating Jurisdictional Wetlands (1989
version)" and evaluate impacts of the proposed project. The
applicant is required to show the location of the wetland
boundary on a scaled drawing as a part of the permit
application. The director, when requested by the applicant,
may waive the delineation of boundary requirement for the
applicant and, in lieu of delineation by the applicant,
perform the delineation. The director shall consult with
wetland biologists as needed to perform the delineation. The
applicant will be charged for the costs incurred, including
city staff time. Where the director performs a wetland
delineation at the request of the applicant, such delineation
shall be considered a final determination. Where the
applicant has provided a delineation of the wetland boundary,
the director shall verify the accuracy of, and may render
adjustments to, the boundary delineation. In the event the
adjusted boundary delineation is contested by the applicant,
the director shall, at the applicant's expense, obtain a
wetland biologist to render a final delineation.
C. Limited Density Calculation for Division of Land and Planned
Unit Developments and Conservation Easements:
1. Applicants, except as provided in subsection C.2., will not
be allowed to include the area of the wetland in density
calculation.
2. An applicant may choose to use the planned unit development
(PUD) process to accommodate innovation, creativity, and
design flexibility, and to achieve a level of environmental
protection that would not be possible by typical lot -by -lot
development. Through the PUD, some or all of the wetland
area may be included in the density calculation on a
case-by-case basis.
a. The benefit from this subsection should be applied
cautiously, with due regard for the purposes of this
ordinance as stated in Section 16.20.010 and the
following criteria:
i. The extent to which the proposed activities will result in
the conservation, alteration or impairment to the
wetland's functional characteristics and its existing
contours, vegetation, fish and wildlife resources, and
hydrological conditions;
ii. The extent to which the proposed activity will jeopardize
the continued existence of endangered, threatened, rare,
sensitive, monitor species as listed by the federal
government or the State of Washington;
Whether the proposed activity is likely to cause
measurable degradation of ground water or surface -water
quality;
iv. Whether the proposed activity complies with all state,
local and federal laws, including those related to
sediment control, pollution control, flood plain
restrictions, and on site waste water disposal;
V. The extent to which the impacts to wetlands will be
mitigated; and
vi. Whether there is likely to be any damage to nearby public
or private property or any threat to public health or
safety.
b. If a regulated wetland, required buffer and/or stream
buffer is retained in a permanent conservation easement,
density credit for the area in the conservation easement
may be used for tax credit or as part of a transfer of
development rights or purchase of development rights
program. To obtain density credit for the subject property
as part of development on the subject property, the
applicant must follow the procedures in Section
16.20.090.0.2 of this Ordinance.
D. Recording: If property is the subject of a subdivision or
short subdivision the designation of any open space tract,
wetlands or wetlands buffer shall be clearly marked as an
easement on the plat, and any restrictions on use of the open
space tract, wetlands, or wetlands buffer shall be noted on
the plat.
E. Creation of New Lots: New lots shall contain at least one
building site, including access, that is suitable for
development and is not within the regulated wetland or its
buffer.
F. Permitted Uses in Streams and Wetlands: The following uses
shall be allowed within a stream or wetland, provided that the
use is not prohibited by any other chapter or law and is
conducted using best management practices as established by
plans approved by the Kitsap County Conservation District and
filed with the City, and does not result in the conversion of
a regulated wetland or stream to another category or type or a
use to which it was not previously subjected. (Forest
practices and conversions shall be governed by Chapter 76.09
RCW and its rules):
1. Outdoor recreational activities, such as fishing,
birdwatching, hiking, boating, horseback riding on trails
existing prior to adoption of this ordinance, swimming, and
canoeing;
2. Agricultural activities including farming, horticulture,
aquaculture, or irrigation , and ranching and grazing
existing prior to February 20,1992 and following best
management practices plans approved by the Kitsap County
Conservation District and filed with the City;
3. Low intensity passive recreational activities such as non-
permanent wildlife watching blinds or education and
scientific activities;
4. Navigation aids and boundary markers;
5. Boat mooring buoys;
6. Site investigative work necessary for land use application
submittals such as surveys, soil logs, percolation tests and
other related activities. In every case, impacts shall be
minimized and disturbed areas shall be immediately restored;
and
7. Normal maintenance of structures existing prior to the
adoption of this ordinance, landscaping and vegetation that
will not further impact or alter regulated wetlands, buffers
or streams.
G. Regulated Activities: Administrative approval following the
administrative review procedures in BIMC Section 2.16.010
shall be obtained prior to undertaking the following
activities in a regulated wetland, stream or buffer:
1. The construction of low intensity, passive recreational uses
such as pervious trails;
2. In Class III and IV wetlands only, agricultural activities
including farming, horticulture, aquaculture, irrigation,
ranching or grazing following best management practices
established in a plan approved by the Kitsap County
Conservation District and filed with the City; and
H. Permitted Uses in a Buffer Zone: The following activities
having minimal adverse impacts on buffers and no adverse
impacts on regulated wetlands and/or streams shall be
permitted in required buffers:
1. Low intensity, passive recreational activities such as
pervious trails, nonpermanent wildlife watching blinds,
short term scientific or educational activities, and
sports fishing;
2. Navigation aids and boundary markers;
3. Boat mooring buoys;
4. Site investigative work necessary for land use
application submittal such as surveys, soil logs,
percolation tests, and other related activities. In
every case, impacts shall be minimized and disturbed
areas shall be immediately restored;
5. Normal maintenance, repair, or operation of existing
serviceable structures, facilities, or improved areas not
including the construction of a maintenance road;
6. The construction of fences or other similar barriers
necessary to protect a regulated wetland or stream; and
7. Agricultural activities including farming, horticulture,
aquaculture, or irrigation and ranching or grazing of
animals existing prior to February 20,1992 and following
best management practices plans approved by the Kitsap
County Conservation District and filed with the City.
I. Buffer Zone Widths. A buffer shall be required for all
regulated wetlands and streams in accordance with the tables
below. Any wetland and/or stream created, restored or enhanced
as compensation for approved wetland and/or stream alterations
shall also include the required buffer for the wetland
category or stream type. Wetland buffers shall be measured
from the wetland boundary as surveyed in the field. Stream
buffers shall be measured from the top of the bank. (See
Figure A.) In the case(s) of a stream in a ravine, the
setback shall be measured from the top of the ravine bank.
1. Wetland Buffers:
Wetland Category Buffer
a. Wetland Category I 150 feet
b. Wetland Category II 100 feet
c. Wetland Category III 50 feet
d. Wetland Category IV 25 feet
e. For Wetlands that have been enhanced voluntarily and
not to meet mitigation requirements, the required buffer
shall be determined by the wetland category prior to
enhancement.
2. Stream buffers:
The following streamside buffers shall be maintained:
Stream Type Buffer
a. Waters of
Puget sound 50'
b. Type 1,2,3 or Anadromous fish streams 50 feet on each
side of bank
c. Type 4 25 feet on each side of bank
d) For streams that have been voluntarily upgraded and not used to
fulfill mitigation requirements, the required buffer shall be
determined by the stream category prior to upgrading.
3. Increased or Decreased Buffer Width: The director may require
increased buffer widths, or may approve decreased buffer
widths. Any proposed reduction of a required buffer will be
based on the decision criteria listed in Section 18.111.040 of
the BIMC.
a. A decreased buffer shall not result in greater than a 25
percent reduction in the standard buffer width, and the
reduced buffer shall not be less than 25 feet.
b. The applicant shall submit written documentation
demonstrating how each of the variance criteria is met.
The resultant buffer shall protect functions and values as
identified in a report by a qualified wetlands biologist
The report shall also demonstrate that the proposed buffer
will protect regulated wetlands and streams from direct or
indirect, short-term or long-term, adverse impacts.
C. The director may require long-term monitoring of the
project and require subsequent corrective actions if
adverse impacts are discovered.
4. Buffer Width Averaging: Standard buffer zones may be
modified by averaging buffer widths. Width averaging shall be
allowed only where the applicant, through a report prepared
by a qualified professional, demonstrates all of the
following:
a. That width averaging will not adversely impact the
functions and values; and
b. That the total area contained within the buffer after
averaging is no less than that contained within the
required buffer prior to averaging. In no instance shall
the buffer width be reduced by more than 50% of the
required buffer or be less than 25 feet.
C. Buffer width averaging may not be used in conjunction with
buffer width reduction.
5. Disturbance of Required Buffers: Except as otherwise
specified, required buffers shall be retained in their
natural condition. Where buffer disturbance has occurred
during construction, revegetation with native vegetation will
be required unless the director approves a substitute
vegetation with the same or better functions than the
original buffer area.
J. Reasonable Economic Use Exception
1. Purpose.
Reasonable economic use exceptions are the mechanism by which
the City may grant relief from the provisions of this chapter
where compliance with certain provisions of this chapter
leave no reasonable economic use of the property. A
reasonable economic use exception is authorized only for
proposed alterations to required buffers, regulated wetlands
or streams. Reasonable economic use exceptions are not
authorized for changes in density requirements, building
height requirements, permitted uses, or expanding a use
otherwise prohibited.
2. Definition: For purposes of this chapter, "reasonable
economic use" is defined by the decision criteria in Section
16.20.090 I.5.a-j.
3. Applicable Procedure:
The city shall process reasonable economic use exceptions in
accordance with the following procedures:
a. Administrative reasonable economic use exceptions: An
administrative reasonable economic use exception may be
used for a development proposal on a parcel that cannot be
subdivided further after receiving a reasonable economic
use exception. Administrative reasonable economic use
exceptions shall follow the review procedures set forth in
BIMC 2.16.010.
b. Other reasonable economic use exceptions: All other
reasonable economic use exceptions shall be processed using
the procedures set forth in BIMC 2.16.050.
C. Prior to administrative review or review by the hearing
examiner, all applications for a reasonable economic use
exception shall be referred to the wetlands advisory
committee appointed by the mayor for the purpose of
reviewing reasonable economic use exceptions.
4. submittal requirements:
A reasonable economic use exception application and a fee as
established by city council resolution shall be filed with
the department of planning and community development by the
property owner or authorized agent. Required information
shall include but shall not be limited to:
a. The legal description of the property, tax lot number and
vicinity map;
b. A complete and detailed written statement of the intended
use of the land and reason(s) for requesting the
reasonable economic use exception including the sequence
and timing of the proposed development;
C. A graphic scale drawing of the property indicating:
i. North point;
ii. Boundaries, easements, and ownerships as set forth in
the legal description;
iii. Existing structures and improvements;
iv. Topography at appropriate contour intervals;
V. Existing vegetation, including all trees over ten
inches in diameter in areas that will be disturbed;
watercourses; wetlands delineation and classification;
and other natural features and environmentally
sensitive areas;
vi. Proposed improvements, if any;
vii. Utilities and/or septic designs and circulation plans,
if appropriate; and
viii. All adjacent streets and rights -of -ways.
d. The terms, conditions, covenants, and agreements under
which the subject property is bound, if any;
e. An environmental checklist when required by the State
Environmental Policy Act;
f. Other plans and drawings deemed necessary by the
director for evaluation of the merits of the
proposal;
g. An application shall not be considered complete until all
submittal requirements, the fee and any other supporting
materials required by the director are submitted to the
Department of Planning and Community Development; and
h. The director or designee may waive specific submittal
requirements determined to be unnecessary for review of an
application.
5. Decision criteria: A reasonable economic use exception may
be approved or approved with modifications if without the
reasonable economic use exception the applicant would be
deprived of any reasonable economic use of the property and:
a. The proposed activities will result in the minimum
intrusion, alteration or impairment of the wetlands, stream
or required buffer including impacts to their functional
characteristics, while permitting some reasonable economic
use of the property. In all cases, disturbance of a
regulated wetland or stream shall only occur if no
reasonable economic use can be achieved by disturbance of
the buffer only;
b. The proposed activities are located to minimize impacts to
the continued existence of endangered, threatened, rare,
sensitive, or monitor species as listed by the federal
government or the State of Washington;
C. The proposed activities include mitigation as appropriate
to avoid measurable degradation to groundwater or
surface -water quality;
d. The proposed activities comply with all relevant state,
local and federal laws, including those related to sediment
control, pollution control, floodplain restrictions, and
on-site wastewater disposal;
e. Alterations to wetland, streams and buffers will be
mitigated to the extent feasible considering the extent of
the disturbance, the size of the site and the necessity for
the proposed activities;
f. 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;
g. 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 effective date of this
chapter;
h. The reasonable economic use exception will not allow a use
or activity that is inconsistent with the uses and
activities and limitations of other properties in the
vicinity and zone in which the property is located;
i. The reasonable economic use exception is the minimum
necessary to provide reasonable economic use of the
property;
j. The reasonable economic use exception is consistent with
all other provisions of this code and is in accord with the
comprehensive plan.
6. Time limits:
A reasonable economic use exception automatically expires and
is void if the applicant fails to file for a building permit
or other necessary development permit within three years of
the effective date of the reasonable economic use exception
unless:
a. The applicant has received an extension, or
b. The reasonable economic use exception provides for a
greater time period.
7. Extension:
The director may grant one extension to the reasonable
economic use exception for a period not to exceed one year
if:
a. Unforeseen circumstances or conditions necessitate the
extension; and
b. Termination would result in unreasonable hardship to the
applicant, and the applicant is not responsible for the
delay; and
C. The extension will not cause substantial detriment to
existing uses in the immediate vicinity of the subject
property; and
d. The extension request is received by the Department of
Planning and Community Development no later than 30 days
prior to the expiration of the permit.
S. Revocation of approval: The administrative reasonable
economic use exception may be revoked by the director and
other reasonable economic use exceptions may be revoked by
the hearing examiner in accordance with the provisions of
Chapter 2.16 upon the finding of any one or more of the
following:
a. That the approval was obtained by deception, fraud or
other intentional or misleading representation; or
b. That the approval was or is being exercised contrary to
the terms or conditions of the approval; or
C. That the approval was or is being exercised in a manner
that is detrimental to the public health or safety.
K. Wetlands and Streams Restoration, Creation or enhancement.
1. Any person who alters regulated wetlands or streams shall
restore, create or enhance equivalent areas or greater
areas than those altered in order to compensate for
losses. In the alternative, conservation easements or
mitigation banking may be considered as appropriate
mitigation provided areas equivalent to those altered are
achieved.
2. Where feasible, restored or created wetlands and streams
shall be a higher category than the altered wetland or
stream.
3. Compensation areas shall be determined according to
function, acreage, type, location, time factors, ability
to be self sustaining and projected success. Functions and
values shall be calculated using the best professional
judgement of a wetlands biologist, or in the case of
streams a stream scientist, 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.
4. Given the need for expertise and monitoring, compensatory
projects may be permitted only when the director finds
that the compensation project is associated with an
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activity or development otherwise permitted.
Additionally, the applicant shall:
a. Demonstrate sufficient scientific expertise,
supervisory capability, and financial resources to
carry out the project;
b. Demonstrate the capability for monitoring the site and
to make corrections during this period if the project
fails to meet projected goals and plans; and
C. Provide for the long-term protection and management of
the compensation area to avoid further development or
degradation.
Acreage replacement ratio. Any applicant proposing to alter
wetlands may propose to create, restore or enhance wetlands
in order to compensate for the wetland losses.
a. Replacement Ratios for Wetlands: The following ratios
apply to creation, restoration or enhancement of a wetland.
The first number specifies the replacement acreage of
wetlands and the second specifies the acreage of wetlands
altered.
C.
Category I 6:1
Category II or III
Forested 3:1
Scrub -shrub 2:1
Emergent 1.50:1
Category IV 1.25:1
Replacement ratios for buffers shall be 1:1.
Increased Replacement Ratio: The director may increase the
ratios under the following circumstances:
(i) Uncertainty as to the probable success of the proposed
restoration or creation;
(ii) Significant period of time between destruction and
replication of wetland functions;
(iii) Projected losses in functional value; or
(iv) Off site compensation.
d. Decreased Replacement Ratio: The director may decrease these
ratios when there are 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.
e. In all cases, a minimum acreage replacement ratio of 1:1 shall
be required.
6. Wetland Type. 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 functions and values;
b. Scientific problems such as exotic vegetation and changes
in watershed hydrology make implementation of in-kind
compensation impossible;
C. Out -of -kind replacement will best meet identified regional
goals (eg., replacement of historically diminished wetland
types); and
d. Where out -of -kind replacement is accepted, greater acreage
replacement ratios may be required to compensate for lost
functions and values.
7. Location. 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;
b. On site compensation is not scientifically feasible due to
problems with hydrology, soils, waves, or other factors;
C. compensation is not practical due to potentially adverse
impact from surrounding land uses;
d. Existing functions and values at the site of the proposed
restoration are significantly greater than lost wetland
functional values;
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.
f. There is no feasible location for on-site mitigation;
g. 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; and
h. In selecting compensation sites, an applicant shall pursue
siting in the following order of preference:
i. Upland sites which were formerly wetlands;
ii. Idled upland sites generally having bare ground or
vegetative cover consisting primarily of exotic introduced
species, weeds, or emergent vegetation; or
iii. Other disturbed upland.
8. Timing. Where feasible, compensatory 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.
9. Cooperative Restoration, Creation or Enhancement Projects:
The director 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.
C. Persons proposing cooperative compensation projects shall:
i. Submit a joint permit application;
ii. Demonstrate compliance with all standards;
iii. Demonstrate the organizational and fiscal capability to
act cooperatively; and
iv. Demonstrate that long term management can and will be
provided.
Section 2. This ordinance shall take effect and be in force five
days from and after its passage, approval, publication and posting
as required by law.
PASSED by the City Council this ; day of , 1994.
APPROVED by the Mayor this "day of , 1994.
Janet K. Wdst, Mayor
ATTEST/AUTHENTICATE:
Sue Kasper, City Clerk
APPROVED AS TO FORM:
Rod P. Kaseguma, City Attorney
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL: 3-3-94
PUBLISHED: 3-9-94
POSTED: 3-9-94
EFFECTIVE DATE: 3-14-94
ORDINANCE NUMBER: 94- 07