ORD 98-20 CAO RIGHT TO FARM & MININGORDINANCE NO. 98-20
AN ORDINANCE OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON relating to critical areas, amending 'Sections
16.20.010, 16.20.020, 16.20.030, 16.20.040, 16.20.050, 16.20.060,
16.20.080, 16.20.090, 16.20.110, 16.20.160, 16.20.220 and 16.20.230
of the Bainbridge Island Municipal Code (BIMC) and repealing
sections 16.20 80; 16.20.190; and 16.20.200 and adding new chapters
16.26 Right to Farm and 16.28 Mining.
WHEREAS, with Ordinance No. 92-07, the City adopted an interim Environmentally
Sensitive Areas Ordinance; and
WHEREAS, the City wants to make modifications to this ordinance to clarify sections
be consistent with new state regulations, and adopt a final ordinance; and
WHEREAS, the City adopted a new Chapter 16.22 of the BIMC relating to
vegetation management thereby eliminating the need for a forest resources section in
Chapter 16.20;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DO ORDAIN as follows:
Section 1. Section 16.20.010 is amended as follows:
16.20.010 Purpose.
The city council finds that aquifer recharge areas, frequently flooded areas, geologically
hazardous areas, wetlands and streams and their protective buffers lands constitute critical areas
that are of special concern to the city. The city°s policies in regard to the natural systems and
environment of Bainbridge Island, as well as the Washington Growth Management Act (RCW
Chapter 36.70) require that critical areas of Bainbridge Island are to be protected by establishing
minimum standards for the impact of development of properties which contain or adjoin critical
areas. It is the intent of this chapter to protect the public health, safety, and welfare by: A. Avoiding the impact;
B. Minimizing or limiting the degree or magnitude of the action and its implementation, by
using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
C. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
D. Reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the action;
E. Compensating for unavoidable impacts by replacing, enhancing or providing substitute
resources or environments;
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F. Reducing the potential for personal injury, loss of life or property damage due to
flooding, erosion, landslides, seismic events, or soil subsidence;
G. Protecting against publicly financed expenditures due to the misuse of critical areas
which cause:
1. Unnecessary maintenance and replacement of public facilities;
2. Public funding of mitigation for avoidable impacts;
3. Cost for public emergency rescue and relief operations where the causes are
avoidable; or
4. Degradation of the natural environment;
H. Protecting aquatic resources;
I. Protecting unique, fragile, and valuable elements of the environment, including wildlife
and its habitat;
J. Alerting appraisers, assessors, owners, potential buyers, or lessees to the development
limitations of critical areas;
K. Providing city officials with sufficient information to adequately protect critical areas
when approving, conditioning, or denying public or private development proposals.
Section 2. Section 16.20.020 is amended as follows:
16.20.020 Definitions.
For the purposes of this chapter, the following definitions shall apply:
A. Applicant - a person, corporation or organization that files an application for a
development permit with the city and that is either the owner of the land on which that proposed
activity would be located, a contract vendee, a lessee of the land, the person who would actually
control and direct the proposed activity, or the authorized agent of such a person.
B. Aquifer recharge area - the geological formations in which an aquifer is replenished
by the downward percolation of water. Critical recharging areas have the potential to effect
potable water where an essential source of drinking water is vulnerable to contamination.
C. Base flood- a general and temporary condition of partial or complete inundation of
normally dry land areas having a one-percent chance of being equaled or exceeded in any given
year. Base flood elevation data is commonly displayed as an elevation line on flood insurance
maps. Base flood elevation lines show the location of the expected whole-foot water-surface
elevation of the base (100-year) flood.
D. Best management practices - conservation practices or systems of practices and
management measures that:
1. Control soil loss and protect water quality from degradation caused by nutrients,
animal waste, toxins, and sediment; and
2. Minimize adverse impacts to surface water and groundwater flow, and to the
chemical, physical, and biological characteristics of critical areas.
BMPs are defined by the United States Department of Agriculture, the State of
Washington Department of Agriculture, the Washington State Department of Ecology,
Washington State Department of Health, Kitsap County Conservation District, and other
professional organizations.
E. Buffer- either an area adjacent to hillsides which provides the margin of safety'
through the protection of slope stability, attenuation of surface water flows and geological
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hazards reasonably necessary to minimize risk to the public from loss of life, well-being or
property damage resulting from natural disasters; or an area adjacent to a stream or wetland that
surrounds and protects the functions and values of the stream or wetland from adverse impacts
and is an integral part of a stream or wetland ecosystem and which provides shading, input of
organic debris and coarse sediments, room for variation in stream or wetland edge, habitat for
wildlife and protection from harmful intrusion necessary to protect the public from losses suffered
when the functions and values of the wetland or stream are degraded.
F. Category I, II, Ill, IV Wetlands - see "Wetland category".
G. Channel width: a measurement over a representative section of at least 100 linear
feet with at least 10 evenly spaced measurement points along a normal stream channel but
excluding unusually wide areas of negligible gradient such as marshy or swampy areas, beaver
ponds and impoundments.
H. Class 1, 2, 3, 4, 5 water- see "Stream."
I. Critical areas - aquifer recharge areas, fish and wildlife habitats, frequently flooded
areas, geologically hazardous areas, wetlands and streams.
J. Critical habitat - a habitat identified by Washington State Department of Wildlife,
Ecology and Fishcries as habitat necessary for survival of endangered, threatened, rare, sensitive
or monitor species.
K. Director- the director of the city's planning and community development department.
L. Emergent wetland - a wetland with at least 30 percent of its surface covered by
erect, rooted, herbaceous vegetation at the uppermost level of vegetation.
M. Erosion hazard area - "Erosion hazard area" means a landform or soil type subject
to being worn away by the action of water, wind, freeze-thaw or ice. The following classes as
found in the U.S.D.A. Soil Conservation Service, U.S. Geological Survey or' Department of
Ecology Coastal Zone Atlas are considered high erosion hazard areas.
1. Class 3, class U (unstable) includes severe erosion hazards and rapid surface
runoff areas,
2. Class 4, class UOS (unstable old slides) includes areas having severe limitations
due to slope, and
3. Class 5, class URS (unstable recent slides).
N. Fish and wildlife habitat - a seasonal range or habitat element with which a given
species has a primary association, and which, if altered, may reduce the likelihood that the species
will maintain and reproduce over the long-term. These include areas of relative density or species
richness, breeding habitat, winter range, and movement corridors. These also include habitats of
limited availability or high vulnerability to alteration, such as cliffs, streams and wetlands.
O. Frequently flooded areas - lands subject to a one percent or greater chance of
flooding in any given year. These areas include, but are not limited to, floodplains adjacent to
streams, lakes, coastal areas, and wetlands. (Also see Bainbfidge Island Municipal Code 15.16.)
P. Functions - the beneficial roles served by critical areas including, but not limited to,
water quality protection and enhancement, fish and wildlife habitat, food chain support, flood
storage, conveyance and attenuation, groundwater recharge and discharge, erosion control, wave
attenuation, aesthetic value protection, and recreation. These roles are not listed in order of
priority.
Q. Geologically hazardous areas- areas susceptible to erosion, sliding or other
geological events. They pose a threat to the health and safety of citizens when used as sites for
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incompatible commercial, residential. or industrial development. Geologically hazardous areas
include erosion hazard areas, landslide hazard areas, and seismic hazard areas.
R. Hazardous substances - any liquid, solid, gas, or sludge, including any material,
substance, product, commodity, or waste, regardless of quantity, that exhibits any of the
characteristics orI criteria of hazardous waste as specified in RCW 70.105.010. (Also see
Bainbridge Island Municipal Code 18.06.450-510.)
S. High intensity - "High intensity" means land uses which are associated with moderate
or high levels of human disturbance or substantial impacts including, but not limited to, three or
more dwelling units per acre, active recreation, and commercial and industrial land uses. T. Hillsides - geological features having slopes of 15 percent and greater.
U. Hydric soil - soil which is saturated, flooded or ponded long enough during the
growing season to develop anaerobic conditions in the upper part.
V. Hydrophyte or hydrophytic vegetation - plant life growing in water or on a
substrate that is at least periodically deficient in oxygen as a result of excessive water content. The
presence of hydrophytic vegetation shall be determined following the methods described in the
"Washington State Wetlands Identification and Delineation Manual (Department of Ecology
publication #96-94)" or its most current edition.
W. Invasive/exotic species - Plants and animals that are not native to the Puget Sound
lowlands and are recognized by wetland professionals to be highly competitive with native
vegetation and animals. Invasive/exotic plant species include those listed on the noxious weed list
developed by the Washington State Noxious Weed Board, non-native blackberries and English
ivy. Invasive/exotic animal species include any species, such as rats, bullfrogs, zebra mussels and
green crabs, considered by resource professionals to be damaging to the native animal populations~
X. Landslide hazard areas- areas which are potentially subject to risk of mass
movement due to a combination of factors, including historic failures, geologic, topographic and
hydrologic features. Some of these areas are identified in the Department of Ecology Coastal
Zone Atlas. Landslide hazard areas include the following:
1. Areas characterized by slopes greater than 15 percent; having springs or
groundwater seepage and having impermeable soils (typically silt and clay) overlain or
frequently interbedded with permeable granular soils (predominantly sand and gravel);
2. Any area potentially'unstable due to rapid stream incision or stream bank
erosion;
3. Any area located on an alluvial fan presently subject to or potentially subject to
inundation by debris flows or deposition of stream-transported sediments;
4. Any area with a slope of 40 percent or greater and with a vertical relief of 10 or
more feet except areas composed of consolidated rock;
5. Any area with slope defined by the U.S. Department of Agriculture Soil
Conservation Service as having a severe limitation for building site development; or
6. Any area designated or mapped as class U, UOS or URS by the Department of
Ecology Coastal Zone Atlas.
Y. Low intensity- land uses associated with low levels of human disturbance or low
habitat impacts, including, but not limited to, passive recreation, open space, or agricultural land
uses.
Z. Mitigation - includes avoiding, minimizing or compensating for adverse impacts, in
the following order of preference:
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region.
1. Avoiding the impact altogether by not taking a certain action or parts of an
action;
2. Minimizing impacts by limiting the degree or magnitude of the action and its
implementation, by using appropriate technology, or by taking affirmative steps to avoid
or reduce impacts;
3. Rectifying the impacts by repairing, rehabilitating or restoring the affected
environment;
4. Reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the action;
5. Compensating for the impact by replacing, enhancing, or providing substitute
resources or environments; or
6. Monitoring the impact and the compensation project and taking appropriate
corrective measures. Mitigation for individual actions may include a combination of the
above measures.
AA. Native vegetation - plant species which are indigenous to the Puget Sound lowlands
BB. Open space- undeveloped areas of varied size. Open space ot~en contains
distinctive geologic, botanic, zoologic, historic, scenic or other critical area, or natural resource
land features.
CC. Ordinary high water mark- See the Shoreline Management Master Program,
Section II - Definitions.
DD. Reasonable Use Exception (RUE): defined by the decision criteria in Bainbridge
Island Municipal Code 16.20.090.I.5.a-k.
EE. Repair or maintenance - activities that restore the character, size, or scope of a
project only to the previously authorized condition.
FF. Scrub-shrub wetlands - at least 30 percent of its surface area is covered with
woody vegetation less than 20 feet in height.
GG. Seismic hazard areas - areas subject to severe risk of damage as a result of seismic
induced ground shaking, settlement, slope failure, soil liquefaction or surface faulting. Ground
shaking is a primary risk, followed by some unstable slopes causing damage below them. The
muck soils of the island pose a specific risk of settlement and soil liquefaction. These conditions
occur in areas where muck soils and other organic deposits are unsuitable for foundations,
generally underlain by cohesion-less soils or poorly consolidated sediments usually in association
with a shallow groundwater table.
HH. Site - the entire lot, series of lots or parcels on which a development is located or
proposed to be located, including all contiguous undeveloped lots or parcels under common
ownership.
II. Slope- an inclined ground surface, the inclination of which is expressed as a ratio
(percentage) of vertical distance to horizontal distance by the following formula:
vertical distance = % slope
horizontal distance x 100
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Another method of measuring the inclination of the land is by measuring the angle, expressed in
degrees, of the surface above a horizontal plane. The following chart shows the equivalents
between these two methods of measurement for several slopes:
Slope in Percent
Angle in Degrees
8.7 5.0
15.0 8.5
25.0 14.0
30.0 16.7
40.0 21.8
50.0 26.6
100.00 45.0
JJ. Stream - surface waters, which flow into or become connected with other surface
waters generally at least once per year. Streams do not include irrigation or roadside ditches,
canals, storm or surface water run-off devices or other entirely artificial watercourses, unless they
are used by salmonids or are used to convey naturally occurring streams.
1. Class 1 water: all the waters of Puget Sound, within their ordinary high-water
mark, including the saltwater around Bainbridge Island. (See the Shoreline Master
Program for regulations.)
2. Class 2 water: segments of natural waters with a well-defined channel which are
not classified as Class 1 water, have a high fish, wildlife or human use, and are important
from a water quality standpoint for:
a. Domestic water supplies;
b. Public recreation;
c. Fish spawning, rearing or migration or wildlife uses; or which are highly
significant to protect water quality.
3. Class 3 water: segments of natural waters with a well-defined channel which are
not classified as Class 1 or 2 and have a moderate to slight fish, wildlife or human use and
are moderately important from a water quality standpoint for:
a. Domestic water supplies;
b. Public recreation;
c. Fish spawning, rearing or migration or wildlife uses; or which have
moderate value to protect water quality.
4. Class 4 water: segments of natural water not classified as Class 1, 2 or 3 having
a significant influence on water quality downstream in Class 1, 2 and 3 waters. These may
be perennial or intermittent.
a. Indicators of significant influence on water quality are:
i. Streams with well-defined channels with an average width of one
foot or greater that drain directly into streams used by salmon or trout or
into category one or two wetlands.
ii. Streams with well-defined channels with a width of two feet or
greater that drain directly into saltwater and are not used by salmon or
trout or that drain directly into category three or four wetlands.
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iii. Streams, regardless of channel width, that drain greater than
25% of the area of a drainage basin above the junction with a stream used
by salmon or trout.
5. Class 5 water: perennial or intermittent streams with a well-defined channel that
are not included in Class 1-4 waters.
KK. Wetland - Areas that are inundated or saturated by surface water or ground water
at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for
life in saturated soil conditions, as defined in Department Of Ecology publication ~96-94,
Washington State Wetlands Identification and Delineation Manual or the current Washington
State Department of Ecology methodology.
LL. Wetland Advisory Committee - an advisory group consisting of not less than three
or more than five Bainbridge Island residents with at least one representative of expertise in each
of the following disciplines: environmental management or water quality, wetland science or
wildlife management, or construction.
MM. Wetland boundary - the boundary or edge of a wetland as delineated using the
methodology found in Department of Ecology Publication #96-94, Washington State Wetlands
Identification and Delineation Manual or Washington State Department of Ecology current
methodology.
NN. Wetland category - category as defined in "Washington State Wetland Rating
System, Western Washington, Second Edition," Department of Ecology publication #93-74, or
as revised.
OO. Wetland classes- classification system of the U.S. Fish and Wildlife Service
(Cowardin, et al. 1978).
PP. Wetland compensation
1. In-kind: to replace wetlands with substitute wetlands whose characteristics
closely approximate those destroyed or degraded by a regulated activity. It does not mean
replacement "in-category."
2. Off-site: to replace wetlands away from the site on which a wetland has been
impacted by a regulated activity.
3. On-site: to replace wetlands at or adjacent to the site on which a wetland has
been impacted by a regulated activity.
4. Out-of-kind: to replace wetlands with substitute wetlands whose characteristics
do not closely approximate those destroyed or degraded by a regulated activity. It does
not refer to replacement "out-of-category."
QQ. Wetlands, Regulated.
1. "Regulated wetlands" means:
a. All Category I and II wetlands.
b. All Category III wetlands that are greater than 5000 square feet.
c. All Category IV wetlands greater than 14,500 square feet.
2. Category I, II, III and IV wetlands include:
a~ Lands defined as wetlands under the federal Clean Water Act, 33 USC
Sec. 1251 et seq., and rules promulgated pursuant thereto and shall be those areas
that are inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.
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b. Wetlands created as mitigation and wetlands modified for approved land
use activities.
3. Regulated wetlands do not include artificial wetlands intentionally created from
nonwetland sites, such as irrigation and drainage ditches, grass-lined swales, canals,
detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities.
Section 3. Section 16.20.030 is amended as follows:
16.20.030 General provisions.
A. Greater Restrictions. When any provision of any other chapter of the BIMC conflicts
with this chapter (or any existing regulations, easements, covenants, or deed restrictions), that
which provides more protection to critical areas shall apply.
B. Interpretation. The provisions of this chapter shall be held to be minimum requirements
in their interpretation and application and shall be liberally construed to serve the purposes of this
chapter.
C. Applicability. This chapter establishes regulations for the protection of sites which
contain critical areas or are adjacent to sites which contain critical areas. Development and land
use activities proposed on critical area sites shall comply with the provisions of this chapter. No
action shall be taken by any person, company, agency, or applicant, which results in any alteration
of a critical area except as consistent with the purposes, requirements, objectives, and goals of
this chapter. An area is a critical area if it is an aquifer recharge area, fish and wildlife habitat,
frequently flooded area, geologically hazardous area or regulated wetland and/or stream.
D. Procedures. The director is authorized to adopt written procedures for the purpose of
carrying out the provisions of this chapter.
E. Inventory of Critical Areas. This chapter shall apply to all critical areas located within
the jurisdiction of the city. The approximate location and extent of these areas on Bainbridge
Island is displayed on various inventory maps available at the city's department of planning and
community development. Maps and inventory lists are guides to the general location and extent of
Critical areas. Critical areas not shown are presumed to exist on Bainbridge Island and are
protected under all the provisions of this chapter. In the event that any of the designations shown
on the maps or inventory lists conflict with the site specific conditions, site specific conditions
shall control.
Section 4. Section 16.20.040 is amended as follows:
16.20.040 Application requirements.
A. Submittal Requirements. Applications for land uses or developments proposed within
areas identified as critical areas shall be filed with all the information requested on the application
form available from the department of planning and community development. Prior to fulfilling
the requirements of this chapter, the applicant shall not be granted any approval or permission to
conduct development or land use in a critical area and/or its buffer.
B. Supporting Information Requirements. When supporting information is required by the
director it shall contain the following and be prepared by one or more of the experts listed in
paragraph 4 of this subsection:
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1. A description of the critical areas on the site and how the proposed development
will or will not impact critical areas, their buffers and adjoining properties, including:
a. Drainage, surface and subsurface hydrology, and water quality;
b. Existing vegetation as it relates to wetlands, steep slopes, soil stability,
and fish and wildlife habitat value; and
c. Other critical area characteristics and functions.
2. Recommended methods for mitigating identified impacts and a description of
how these mitigating methods may impact adjacent properties.
3. Any additional information determined to be relevant by the director.
4. Such studies shall be prepared by experts in the area of concern. Expertise shall,
at a minimum, include the following:
a. Engineers must be registered professional engineers in the state of
Washington in a field specific to the expertise required. A geotechnical engineer
must be a practicing geotechnical/civil engineer, who has at least four years of
professional employment as a geotechnical engineer with experience in landslide
evaluation;
b. Aquifer recharge: hydrogeologist; geotechnical engineer;
c. Flood hazard areas: professional civil engineer; hydrologist;
d. Geologically hazardous areas: geologist; geotechnical engineer; soil
scientist;
e. Streams, fiparian areas, drainage corridors: biologist with stream
ecology expertise; fish or wildlife biologist;
f. Wetlands, lakes: biologist with wetlands ecology expertise;
5. The director may in some cases retain .experts at the applicant's expense to assist
in the review of studies; and
6. Such studies shall be prepared in accordance with procedures established by the
director.
Section 5. Section 16.20.050 is amended as follows:
16.20.050 Aquifer recharge areas.
A. Classification. Bainbridge Island is the recharge area for the island aquifers. Bainbridge
Island is dependent upon its aquifers as the sole and essential source for drinking water.
1. The island aquifers are vulnerable to pollution that has the potential to create a
significant public health hazard. High vulnerability is indicative of land uses which produce
contaminants that may degrade groundwater and low vulnerability is indicative of land
uses which will not.
2. Susceptibility to pollution is a function of depth of groundwater, permeability of
soils, soil types, presence of potential source of contamination and any other relevant
factors.
3. Soil types that transfer water to the aquifer are rated in terms of infiltration rate.
Soil types with high infiltration rates are associated with areas of high aquifer recharge.
The rates and soil types are defined by the U.S. Department of Agriculture, Soil
Conservation Service, in the Soil Survey of Kitsap County. Additionally, high recharge
potential areas are illustrated on the Kitsap County Groundwater Management Plan April,
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1991, Grant No. 1 Background Data Collection and Management Issues, Vol. I & II maps
and Kitsap-Bremerton health department maps.
B. Standards. Standards for development shall be in accordance with the provisions below
and the requirements of the underlying zone.
1. High Aquifer Recharge Areas.
a. A hydrogeologist report will be required on sites that have been
identified as having soil types with high infiltration rates, or having high aquifer
recharge or infiltration potential. The report will address the impact the proposed
land use will have on both the quality and quantity of the water transmitted to the
aquifer. The report will recommend mitigation for impacts that have the potential
to decrease quantity or quality of water transmitted to the aquifer. The report shall
also address the types of pesticides, herbicides, and fertilizers that can safely be
used for the care of the landscaping proposed by the applicant.
b. If a hydrogeologist report recommends or Kitsap-Bremerton health
district official requires a more advanced technology or design where on-site
sewage treatment is proposed, the applicant shall include that technology in the
design.
c. Applications for land uses with underground storage of petroleum
products and hazardous substances shall be prohibited in areas of high aquifer
recharge.
2. Medium and Low Aquifer Recharge Areas.
a. On-site sewage treatment shall be designed according to best available
technology as required by local health department standards.
b. Applications for land uses with underground storage of petroleum
products in low and medium recharge areas will be processed using the conditional
use permit process as specified in Title 18 of the Bainbridge Island Municipal
Code.
Section 6. Section 16.20.060 is amended as follows:
16.20.060 Fish and wildlife habitat conservation.
A. Classification. Fish and wildlife habitat areas include:
1. Lands and waters containing habitats and species, which include plant and
animal species, listed on state of Washington and federal threatened, endangered, or
monitor species lists;
2. Lands and waters containing habitats and species, which include plant and
animal species of local significance, as listed in separate resolution of the city council;
3. All public and private tidelands or bedlands suitable for shellfish harvest
'designated using the Washington Department of Health's classification system; 4. Areas with kelp and eelgrass beds;
5. Herring and smelt spawning, as mapped by the Habitat Management Division of
the Washington State Department of Fish and Wildlife;
6. Naturally occurring ponds under 20 acres and their submerged aquatic beds that
provide fish or wildlife habitat;
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7. In classifying waters of the state as fish and wildlife habitats the following
criteria applies:
a. Species present which are endangered, threatened, sensitive or monitor
species;
b. Species present which are sensitive to habitat manipulation;
c. Presence and size of riparian zone;
d. Existing water rights;
8. Lakes, ponds, and streams planted with game fish including those planted under
the auspices of a federal, state, local or tribal program and waters which support priority
fish species as identified by the Department of Wildlife.
B. Standards. Alteration of these habitat areas may reduce the likelihood that the species
will survive or reproduce. Activities allowed in fish and wildlife habitat areas shall be consistent
with the Department of Wildlife primary and secondary priority habitat and species (PHS)
management recommendations, for species located there and all applicable state, federal and local
regulations regarding the species.
Section 7. Section 16.20.080 is amended as follows:
16.20.080 Geologically hazardous areas.
A. General. Geologically hazardous areas include erosion hazard areas, landslide hazard
areas and seismic hazard areas.
B. Classification. Geologically hazardous areas shall be classified based upon landslide
history and the presence of unstable soils, steepness of slopes, erosion potential, and seismic
hazards. Areas in this category are a potential threat to public health, safety and welfare when
construction of geotechnically incompatible uses are allowed. Some potential risk due to
construction in geologically hazardous areas can be reduced through structural engineering
design. Construction in geologically hazardous areas should be avoided when the potential risk to
public health and safety cannot be reduced to a level comparable to the risk if the site were stable.
Classification and rating shall be based upon the risk to the environment and to development in
geologically hazardous areas.
C. Standards.
1. Seismic Hazard Areas. Development in seismic hazard areas shall be in
accordance with the standards for earthquake design and seismic motion of the Uniform
Building Code (UBC), as adopted by the city.
2. Development on other geologically hazardous areas shall comply with the
following requirements regarding erosion control, buffers, development location,
development design, and landscaping.
a. Erosion Control. An erosion control plan shall be submitted to the
director for approval prior to any clearing, grading, construction or other
development. In addition, clearing, grading or filling of geologically hazardous
areas shall be limited to the period between April 1st and October 1st, unless the
applicant provides an erosion control plan that specifically identifies methods of
erosion control for wet-weather conditions.
b. Disturbance and Alterations.
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i. All authorized clearing for roads, utilities, etc. shall be limited to
the minimum necessary to accomplish the engineering design. Alterations
shall meet the following requirements:
(A) All proposed clearing shall be marked in the field for
inspection and approval prior to alteration of the site; and
(B) The face of cut and fill on the slopes shall be prepared
and maintained to control against erosion and instability;
ii. The development proposal shall not increase the rate of surface
water runoff or sedimentation and shall not increase the geological hazard
for adjacent properties; and
iii. The applicant shall provide a geotechnical analysis containing
information specified by .the City Engineer which concludes that the
development proposal is safe and the risk to adjacent properties from the
geological hazard is not increased as a result of the development proposal.:
c. Buffers. A buffer of 50 feet shall be piovided from the edge of all slopes
that are geologically hazardous areas. The edge of a slope is defined as the top, toe
and sides of the slope. The buffer may be extended beyond these limits to mitigate
hazards. The buffer may be reduced if the applicant provides expert verification by
a geotechnical engineer, as specified by the City Engineer, that demonstrates that
the proposal will not adversely impact the geologically hazardous area.
d. Development Location.
i. Development must be located to minimize slope disturbance, and
to minimize removal of vegetation, and retain open space;
ii. Structures must be clustered where possible to reduce slope
disturbance and maintain natural topographic character; and
iii. Structures should conform to natural contour of slope and
foundations should be tiered where possible to conform to existing
topography of site.
e. Development Design.
i. All development proposals shall be designed to minimize the
footprint of building and other disturbed areas. Common access drives and
utility corridors are required where feasible;
ii. All development shall be designed to minimize impervious lot
coverage and where feasible should incorporate under-structure parking
and multi-level structures;
iii. Roads, walkways and parking areas should be designed to
parallel the natural contours; and
iv. Access shall be in the least sensitive area of the site.
f. Landscaping. The disturbed area of a development site shall be
landscaped to provide erosion control. Landscape plantings should include trees
and shrubs with a mix of shade, flowering, and coniferous and broad-leaf
evergreens that are either native to the Puget Sound region or are valuable to
western Washington birds as listed by the Department of Fish and Wildlife.
g. An indemnification or hold harmless agreement shall be required for all
projects in geologically hazardous areas. The form of the agreement shall be
Critical Areas Ordinance #98-20
12
approved by the City Attorney and executed prior to beginning any construction
activities on the site.
h. If no other public notice is required for a proposal in geologically
hazardous areas then notice of intent to construct on a geologically hazardous
area shall be given in accordance with the provisions of BIMC 2.16.085.C.2.
D. Exemptions. The following activities are permitted in geologically hazardous areas,
provided that applicable standards in subsection D can be met, or where the applicant has
demonstrated through a report prepared by a geotechnical engineer in accordance with the
specifications of the City Engineer that no adverse impact will result from the proposal and where
approved surface water drainage will result in minimum slope and vegetation disturbance:
1. The construction of approved public or private trails provided they are constructed
of material, for example cable lit~ access, which will not contribute to surface water runoff;
2. The construction of public or private utility corridors provided it has been
demonstrated that such alterations will not increase landslide or erosion risks; and
3. Trimming and limbing of vegetation for the creation and maintenance of view
corridors in accordance to the pruning standards of the International Society of
Arboriculture, provided that the soils are not disturbed and activity will not increase the
risk of landslide or erosion.
Section 8. Section 16.20.090 is amended as follows:
16.20.090 Wetlands and streams.
A. Classifications of wetland categories and stream classes 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 Department of Ecology publication #96-94,
Washington State Wetlands Identification and Delineation Manual, or the current Department of
Ecology methodology 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.
Critical Areas Ordinance #98-20
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C. Limited Density Calculation:.
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),
subdivision, or short subdivision processes 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 subdivision, short subdivision or
PUD provisions, some or all of the wetland area may be included in the density calculation
on a case-by-case basis, but may not allow the maximum density to be achieved.
a. The benefit from this subsection should be applied cautiously, with due
regard for the purposes of this chapter as stated in BIMC 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;
iii. 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 BIMC 16.20.090.C.2.
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 included in the Open Space Management Plan and 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 and does not result in the conversion of a regulated
wetland or stream to another category or class or a use to which it was not previously subjected.
(Forest practices shall be governed by chapter 76.09 RCW and its rules):
Critical Areas Ordinance #98-20
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1. Outdoor recreational activities, such as fishing, birdwatching, hiking, boating,
horseback riding on trails existing prior to adoption of this chapter, swimming, and
canoeing;
2. Agricultural activities including farming, horticulture, , or irrigation that have
been in continuous operation since February 20, 1992 and following best management
practices. Ranching, livestock grazing and the keeping of chickens or ratites (i.e.,
ostriches, emus) are permitted if set back 25 feet from any regulated stream;
3. Low intensity, passive recreational activities such as pervious trails,
nonpermanent wildlife watching blinds, short-term scientific or educational activities, and
sports fishing;
4. 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
5. Normal maintenance of structures existing prior to February 20, 1992,
landscaping and vegetation that will not further impact or alter regulated wetlands, buffers
or streams.
6. The removal of invasive/exotic species as defined in this chapter using manual
methods or hand-held power equipment such as chain saws or line trimmers. Other
methods of control may be approved by the Director based on recommendations or
guidelines from the Washington State Weed Board, Kitsap Conservation District, Natural
Resources Conservation District, Washington State Cooperative Extension or other
recognized expert sources.
G. Permitted Activities and Uses in a Buffer Zone. The following activities and uses
having minimal adverse impacts on buffers and no adverse impacts on regulated wetlands and/or
streams shall be permitted in required buffers:
1. Open space and outdoor recreational activities, such as fishing, birdwatching,
hiking, boating, horseback riding on trails existing prior to adoption of this chapter,
swimming, and canoeing;
2. Low intensity, passive recreational activities such as pervious trails,
nonpermanent wildlife watching blinds, short-term scientific or educational activities, and
sports fishing;
3. 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;
4. Normal maintenance, repair, or operation of existing serviceable structures,
facilities, or improved areas not including the construction of a maintenance road;
5. The construction of fences or other similar barriers necessary to protect a
regulated wetland or stream; and
6. Agricultural activities including farming, horticulture or irrigation that have been
in continuous operation since February 20, 1992 and following best management
practices. Ranching, livestock grazing and the keeping of chickens or ratites (i.e.,
ostriches, emus) are permitted if set back 25 feet from any regulated stream
7. Within native vegetation zones required by the Shoreline Master Program,
storm drainage outfall facilities incorporating bioswales whenever feasible. These facilities
may also be permitted on the beach where necessary to mitigate beach and shoreline
Critical Areas Ordinance #98-20
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erosion. A drainage plan must be approved by the city engineer and appropriate erosion
control measures must be in place.' In every case, impacts shall be minimized and
disturbed areas shall be immediately restored with appropriate vegetation as shown in a
revegetation plan approved by the department of planning and community development.
8. The removal of invasive/exotic species as defined in this Chapter using manual
methods or hand-held power equipment such as chain saws or line trimmers. Other
methods of control may be approved by the Director based on recommendations or
guidelines from the Washington State Weed Board, Kitsap Conservation District, Natural
Resources Conservation District, Washington State Cooperative Extension or other
recognized expert sources.
H. 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 class. 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 buffer shall be measured from the top of the
ravine bank.
Wetland
Category
I
II
III
IV
Voluntarily
enhanced
WETLAND BUFFER REQUIREMENTS
.......
Buffer Minimum
Width Building Setback
150 feet 15 feet beyond buffer
100 feet 15 feet beyond buffer
50 feet 15 feet beyond buffer
25 feet 15 feet beyond buffer
as determined by the category 15 feet beyond buffer
prior to enhancement
a. Wetland Buffers. 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.
Stream
Class
I
II
III
IV
V
Voluntarily
enhanced
2. Stream Buffers. The following streamside buffers shall be maintained:
STREAM BUFFER REQUIREMENTS
Buffer
Width
50 feet on each side of bank
50 feet on each side of bank
50 feet on each side of bank
25 feet on each side of bank
top of bank
as determined by the category
prior to enhancement
Minimum
Building Setback
15 feet beyond buffer
15 feet beyond buffer
15 feet beyond buffer
15 feet beyond buffer
15 feet beyond buffer
15 feet beyond buffer
Critical Areas Ordinance #98-20
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a. 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 BIMC 18.111.040.
a. A decreased buffer shall not result in greater than a 50 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. Long-term
monitoring is usually conducted by use of a third-party consultant with the cost
paid by the developer, although volunteer monitoring may reduce the expense for a
voluntary project.
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 wetland biologist, demonstrates all of the following:
a. The proposed width averaging will not adversely impact the functions
and values; and
b. The total area contained within the buffer at~er 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 percent 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.
I. Reasonable use exception (RUE).
1. Purpose. Reasonable 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 use of the property. A reasonable use exception is authorized only for
proposed alterations to required buffers, regulated wetlands or streams. Reasonable use
exceptions are not authorized for changes in density requirements, building height requirements,
permitted uses, or expanding a use otherwise prohibited and may not be used to achieve the
maximum density allowed without critical areas.
2. Applicable Procedure. The city shall process reasonable use exceptions in accordance
with the following procedures:
Critical Areas Ordinance #98-20
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a. Administrative Reasonable Use Exceptions. An administrative reasonable
use exception may be used for a development proposal on a parcel that cannot be
subdivided further after receiving a reasonable use exception. Administrative
reasonable use exceptions shall follow the review procedures set forth in BIMC
2.16.095.
b. Other Reasonable Use Exceptions. All other reasonable use exceptions
shall be processed using the procedures set forth in B IMC 2.16.100.
c. Prior to administrative review or review by the heating examiner, all
applications for a reasonable use exception shall be referred by the director to the
wetlands advisory committee appointed by the mayor for the purpose of reviewing
reasonable use exceptions. If the wetlands advisory committee is unable to
complete its review in a timely manner, the director may elect to employ a qualified
consultant, paid for by the applicant, to complete the review. The committee or
consultant will conduct a site visit for each review, and a written report will be
issued within 10 days of the completion of their review. The written report of the
wetlands advisory committee or consultant shall be considered by the decision-
maker. If the decision-maker does not follow the recommendations of the
wetlands advisory committee or consultant, the reasons shall be set forth in the
decision.
3. Submittal Requirements. A reasonable 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 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 ownership's as set forth in the legal
description;
iii. Existing structures and improvements;
iv. Topography at appropriate contour intervals;
v. Existing vegetation, including all significant trees as defined in
BIMC 18.85.010, in areas that will be disturbed~' watercourses; wetlands
delineation and classification; and other natural features and critical areas;
vi. Proposed improvements, if any;
vii. Utilities and/or septic designs and circulation plans, if
appropriate; and
viii. All adjacent streets and fights-of-way;
d. The terms, conditions, covenants, and agreements under which the
subject property is bound, if any;
tree inventory may be required.
Critical Areas Ordinance #98-20
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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.
4. Decision Criteria. A reasonable use exception may be approved or approved with
modifications if without the reasonable use exception the applicant would be deprived of
any reasonable 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 use of the property. In
all cases, disturbance of a regulated wetland or stream shall only occur if no
reasonable 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 ground water 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 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 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. For a non-residentially zoned site, the reasonable use exception should
consider alternative uses that minimize impacts to wetlands, streams, and buffers,
as well as the applicant's proposed use;
j. The reasonable use exception is the minimum necessary to provide
reasonable use of the property;
k. The reasonable use exception is consistent with all other provisions of
this code and is in accord with the comprehensive plan.
5. Time Limits. A reasonable use exception automatically expires and is void if the
Critical Areas Ordinance #98-20
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applicant fails to file for a building permit or other necessary development permit within three
years of the effective date of the reasonable use exception unless:
a. The applicant has received an extension; or
b. The reasonable use exception provides for a greater time period.
6. Extension. The director may grant one extension to the reasonable 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 thirty days prior to the expiration of the
permit.
7. Revocation of Approval. The administrative reasonable use exception may be revoked
by the director and other reasonable use exceptions may be revoked by the hearing examiner in
accordance with the provisions of Chapter 2.16 BIMC 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, class, location,
time factors, ability to be self sustaining and projected success. Functions and values shall be
calculated using the best professional judgment 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, voluntary restoration, creation or
enhancement projects or compensatory projects may be permitted only when the director finds
that the proposed project is associated with an 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
Critical Areas Ordinance #98-20
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c. Provide for the long-term protection and management of the
compensation area to avoid further development or degradation.
5. 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.
Category I 6:1
Category II or III
Forested 3:1
Scrub-shrub 2:1
Emergent 1.50:1
Category IV 1.25: 1
b. Replacement ratios for buffers shall be 1:1.
c. 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 invasive/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 (e.g.,
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;
Critical Areas Ordinance #98-20
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b. On-site compensation is not scientifically feasible due to problems with
hydrology, soils 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 invasive/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 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
v. Demonstrate that long term management can and will be
provided.
Section 9. Section 16.20.110 is amended as follows:
Critical Areas Ordinance #98-20
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16.20.110 Mitigation plan requirements.
A. When Required. All critical area restoration, creation and/or enhancement projects
required pursuant to this chapter either as a permit condition or as a result of an enforcement
action shall follow a mitigation plan prepared by an expert approved by the director. The applicant
or violator shall receive written approval of the mitigation plan by the director prior to
commencement. Compensatory mitigation is not required for:
1. Allowed activities which utilize best management practices to protect the
functions and values of regulated critical areas.
B. Purpose of Mitigation Plan. The mitigation plan shall provide information on land
acquisition, construction, maintenance and monitoring of the replaced critical area. The mitigation
plan shall recreate as nearly as possible the original critical area in terms of its acreage, function,
geographic location and setting.
C. Mitigation Plan Submittal Requirements. A complete mitigation plan shall consist of
plot plans, a written report, and performance bonds, as required below. The plot plans and written
report shall be prepared by qualified professionals approved by the director.
1. Plot Plan Requirements. The following information shall be submitted on one or
more plot plans (as determined by the director):
a. A legal description and a survey (boundary, and topography) prepared
by a licensed surveyor of the proposed development site, compensation site, and
location of existing critical area(s) on each. This shall include wetland delineation
and existing wetland acreage.
b. Scaled plot plan(s) indicating:
i. Proposed construction;
ii. Zoning setback and critical area buffer requirements;
iii. Construction phasing and sequence of construction;
iv. Site cross-sections, percent slope, existing and finished grade
elevations;
v. Soil and substrate conditions;
vi. Grading and excavation plan, including erosion and sediment
control plans needed for construction and long-term survival; substrate
stockpiling locations and techniques, and source controls needed for
critical area construction and maintenance;
vii. Landscape plans indicating species, types, quantities, locations,
size, spacing or density of planting; planting season or timing; planting
instructions, watering schedule and nutrient requirements; source of plant
materials or seeds; and, where appropriate, measures to protect plants from
destruction or predation; and
viii. Water control structures and water-level maintenance practices
needed to achieve the necessary hydrocycle/hydroperiod characteristics,
etc.
2. Written Report Requirements. A written report shall accompany the plot plan(s)
and shall provide the additional information required below. In addition, the report should
be used as needed to clarify or explain elements of the plot plan(s).
a. Baseline Information.
i. Wetland delineation and existing wetland acreage;
Critical Areas Ordinance #98-20
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ii. Vegetative, faunal and hydrologic characteristics;
iii. Soil and substrate conditions;
iv. Relationship within watershed and to existing streams, wetlands,
ponds, or saltwater;
v. Existing and proposed adjacent site conditions; and
vi. Existing and proposed ownership.
b. Environmental Goals and Objectives. The report shall contain a
description of the environmental goals and objectives to be met by the
compensation plan. The goals and objectives shall be related to the functions and
values of the original critical area or, if out-of-kind wetland mitigation, the type of
wetland to be emulated. This analysis shall include, but is not limited to the
following:
i. Site selection criteria;
ii. Identification of compensation goals;
iii. Identification of functions and values;
iv. Dates for beginning and completion of the project and
compensation plan;
v. A complete description of the relationship between and among
structures and functions sought;
vi. Review of available literature and/or known like-projects to date
in restoring or creating the type of critical area proposed;
vii. Likelihood of success of the proposed compensation project at
duplicating the original critical area. This shall be based on experiences of
comparable projects identified in the literature review or existing projects,
if any; and
viii. Likelihood of the ability of the created or restored critical area
to provide the functions and values of the original critical area. This shall
be based on such factors as surface and groundwater supply and flow
patterns; dynamics of the 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 are met 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 Specifications. Written specifications and descriptions of
compensation techniques shall be provided. These shall include, but not be limited ·
to items in subsection C2 of this section above.
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
Critical Areas Ordinance #98-20
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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.
f. 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.
g. 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.
D. Performance and Maintenance Bonds and Demonstration of Competence. A
demonstration of financial resources, administrative, supervisory, and technical
competence and scientific expertise 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. Performance or maintenance bonds are required in the amount of
120 percent of the cost of the project and a maintenance bond is required in the amount of
120 percent of the cost of the project. The percent of the bonds may be increased by the
director and the bonds may be waived only by the director. See Section 16.20.140 for
additional bonding requirements.
E. City Consultation. The city may consult with and solicit comments from 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 critical areas 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.
F. Permit Conditions. Any compensation project prepared pursuant to this section
and approved by the director shall become part of the application for the permit.
Section 10. Section 16.20.1260 is amended as follows:
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16.20.160 Suspension- Revocation.
In addition to other penalties provided for elsewhere, the director may suspend or revoke
a permit if it is found that the applicant or permittee has not complied with any or all of the
conditions or limitations set forth in accordance with this chapter, 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.
Section 11. Section 16.20.220 is amended as follows:
16.20.220 Assessment relief.
The City of Bainbridge Island, in imposing special assessments, shall take into account the
easements or perpetual conservation restrictions in critical areas.
Section 12. Section 16.20.230 is amended as follows:
16.20.230 Conflict with Critical Areas Ordinance
In case of conflict between the provisions of this chapter and the provisions of the
Shoreline Master Program (Chapter 16.12 BIMC), the provisions of the Shoreline Master
Program (Chapter 16.12 BIMC) shall prevail.
Section 13. All references in the Bainbridge Island Municipal Code to Environmentally Sensitive
Areas shall be changed to and shall mean Critical Areas. The code sections containing references
to Environmentally Sensitive Areas are listed in Exhibit A attached to this ordinance. The City's
code revisor is requested to make changes as shown in Exhibit A to the Municipal Code.
Section 14. A new chapter 16.26 Right to Farm is added as follows:
Chapter 16.26
Right to Farm
16.26.010 Purpose.
The conservation and protection of agricultural lands on Bainbridge Island are considered
economically and nutritionally beneficial. Protection of these lands will enhance the cultural and
economic diversity and retain the Island character of the island.
16.26.020 Definitions:
A. Agricultural land- !and primarily devoted to agricultural operations.
B. Agricultural operation - Any facility or activity for the production or intent of
production for commercial or family use purposes of dairy, apiary, livestock, camelids, ratites,
vegetable or animal products, and crop products including, but not limited to ornamental crops.
Incidental vegetable gardening, landscaping and keeping common pets are not defined as
agriculture.
C. Best management practices- conservation practices or systems of practices and
management measures that:
1. Control soil loss and protect water quality from degradation caused by nutrients,
animal waste, toxins, and sediment; and
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2. Minimize adverse impacts to surface water and groundwater flow, and to the
chemical, physical, and biological characteristics of critical areas.
BMPs are defined by the state of Washington Department of Agriculture, Washington
State Department of Ecology, Washington State Department of Health, Kitsap
Conservation District, and other professional organizations.
D. Registered agricultural lands - Lands that are either taxed as Open Space-Agricultural
land, lands for which a farm plan is on file with the City or lands for which the operator has filed a
letter with City that states that the operation will be conducted in compliance with best
management practice.
16.26.020 Right to Farm
A. The city declares that an agricultural operation in conformance with agricultural best
management practices is not a public or private nuisance.
B. No agricultural operation or any of its appurtenances will be considered by the city to
be or become a nuisance, private or public, by any changes in or on the surrounding land;
provided that the provisions of this subsection shall not apply whenever a nuisance results from
the unlawful operation. of any such agricultural operation or its appurtenances.
16.26.030 Standards.
· A. All plats, development permits, and building permits issued for development activities
on, or within 300 feet of, lands registered as agricultural lands and open space will contain a
notice that the Subject property is within or near agricultural lands on which a variety of
commercial activities may occur that may are not be compatible with residential development.
B. All subdivisions, plats, and PUDs shall provide an adequate buffer and/or cluster
development from agricultural operations.
Section 15. A new chapter 16.28 Mining is added as follows:
Chapter 16.28
Mining
16.28.010 Purpose.
The purpose of this section is to establish management policies which rigidly control the
operation of the excavation of sand and other minerals, as well as gravel pits and to identify and
classify, in accordance with the Growth Management Act, mineral resource lands from which the
extraction of minerals can be anticipated.
16.28.020 Applicability.
Mining is the removal and primary processing of naturally occurring materials from the
earth for economic use. For purposes of this definition, "processing" includes screening, crushing
and stockpiling, all of which utilize materials removed from the site where the processing activity
is located. Mining activities also include in-water dredging activities related to mineral extraction.
Processing does not include general manufacturing, such as the manufacture of molded or cast
concrete or asphalt products, asphalt mixing operations, or concrete batching operations.
16.28.030 General Regulations.
Critical Areas Ordinance #98-20 ·
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A. Excavation of sand, gravel, and other minerals shall be done in strict conformance to
the Washington State Surface Mining Reclamation Act (Chapter 78.44 RCW) and applicable
provisions of this code and other regulations.
B. Mining operations shall comply with all local, state and federal water quality standards
and pollution control laws. Operations shall utilize effective techniques to prevent or minimize
surface water runoff, erosion and sedimentation; prevent reduction .of natural flows; protect all
areas from acidic or toxic materials; and maintain the natural drainage courses of all streams.
Surface water runoff shall be impounded as necessary to prevent accelerated runoff and erosion.
C. Overburden, mining debris and tailings shall not be placed in water bodies or floodways
and shall be stored and protected in such a manner so as to prevent or minimize erosion or
seepage to surface and ground waters.
D. If substantial evidence indicates that mining operations are causing, or continuation of
operation would cause, significant adverse impacts to water quality or to the geo-hydraulic
functioning of a stream, the city may terminate the mining permit or impose further conditions on
the mining operation.
E. In no case shall mining operations impair lateral support and thereby result in earth
movements extending beyond the boundaries of the site.
F. Precautions shall be taken to insure that the stagnant or standing water, especially that
of a toxic or noxious nature, does not develop, and that flooding and evaporation will not.lead to
the stranding of fish in open pits.
16.28.030 Regulations- Setbacks and Buffers.
A. Mining activities shall be set back a sufficient distance from water bodies and wetlands
to minimize erosion, protect water quality from all possible sources of pollution, and preserve the
natural vegetation and aesthetics of the environment.
B. Mining equipment, works, and structures shall be sited and stored as far landward as
feasible from the ordinary high water mark. Any facilities located within the 100-year floodplain
must be able to withstand a 100-year flood without becoming hazardous.
16.28.040 Reclamation.
A. Reclamation plans are required to be submitted with each permit application and shall
provide for reclamation of the site into a use which is permitted by the city and shall also indicate
when reclamation shall occur.
B. Suitable drainage systems approved by the city engineer shall be installed and
maintained if natural, gradual drainage is not possible. Such systems should collect, treat and
release surface runoff so as to prevent erosion and sedimentation.
C. To the extent possible, topography of the site shall be restored to the contours existing
prior to mining activity. Contours of the reclaimed site shall be compatible with the surrounding
land and/or shoreline area.
D. All banks, slopes and excavation areas containing unconsolidated materials shall be
sloped to no steeper than two and one-half feet horizontal to one-foot vertical. All slopes shall be
sodded or surfaced with appropriate soil to at least the depth of the surrounding, undisturbed soil
and subsequently revegetated.
E. Revegetation shall consist of compatible, native self-sustaining trees, shrubs, legumes
or grasses.
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F. All toxic and acid-forming mining refuse and materials shall be either treated so as to be
nonpolluting prior to on-site disposal, or removed and disposed of away from shoreline areas.
G. The amount of land and/or shoreline area being excavated or lying disturbed and
unreclaimed at any time without simultaneous reclamation being undertaken shall not exceed 10
acres.
Section 16. "Environmentally sensitive areas" in the Bainbridge Island Municipal Code shall
mean and refer to "critical areas." (See Exhibit A attached to this ordinance.)
Section 17. If any section, sentence or phrase of this ordinance is held to be invalid or
unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall
not affect the validity or constitutionality of any other section, sentence or phrase of this chapter.
Section 18. 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 2nd. day of July, 1998.
APPROVED by the Mayor this 2"a. day of July, 1998.
ATTEST/AUTHENTICATE:
Susan P. Kasper, City ;lerk
APPROVED AS TO FORM:
Sutton, Mayor
Rod P. Kaseguma, City Attorney
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
POSTED:
EFFECTIVE DATE:
ORDINANCE NUMBER:
March 26, 1998
July 2, 1998
July 8, 1998
July 8, 1998
July 13, 1998
98-20
Critical Areas Ordinance #98-20
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FIGURE A.
Top of Bank for Building Setback
t/
Top of bank
Top of bank
Top of bank
N~~/"~Top of bank
Setback
~[IBIT A
Chapter 16.04
ENVIRONMENTAL POLICY
Sections:
16.04.190 Environmentally sensitive areas.
Part I. Authority
16.04.180 Adoption by reference.
The city adopts by reference the following rules for categorical exemptions, as
supplemented in this chapter, including Section 16.04.070 (Flexible thresholds), Section
16.04.080 (Use of exemptions), and Section 16.04.190 (Environmentally sensitive areas):
16.04.185 Purpose of this part and adoption by reference.
This part contains rules for agency compliance with SEPA, including rules for charging
fees under the SEPA process, designating environmentally sensitive areas, listing agencies
with environmental expertise, selecting the lead agency, and applying these rules to current
agency activities.
16.04.190 Environmentally sensitive areas.
A. The responsible official shall designate environmentally sensitive areas under the
standards of WAC 197-11-908 and shall file maps designating such areas, together with
the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with
the city clerk and the Department of Ecology, Headquarters Office, Olympia, Washington.
The environmentally sensitive area designations shall have full force and effect of law as
of the date of filing.
B. The city shall treat proposals located wholly or partially within an environmentally
sensitive area as other nonexempt proposals under this chapter, making a threshold
determination for all such proposals. The city shall not automatically require an EIS for a
proposal merely because it is proposed for location in an environmentally sensitive area.
Chapter 17.04
SUBDIVISIONS
Sections:
17.04.120 Special requirements for environmentally sensitive areas.
17.04.030 "Environmentally sensitive areas" or "ESAs "
protective buffers as described by Chapter 16.20 B[MC.
mean critical areas and their
17.04.040 Definitions.
"Environmentally sensitive areas" or "ESAs" mean critical areas and their protective
buffers as described by Chapter 16.20 BhMC.
17.04.094
A. 3. Any portion of a subdivision which contains an environmentafiy sensitive area, as
defined in Chapter 16.20 B DvlC conforms to all requirements of that ordinance;
17.04.110 Dedications.
In order to meet the health, safety and welfare needs of the public and mitigate the impacts
of the proposal, the director or city engineer may condition approval of the subdivision
upon dedications for open spaces, drainage ways, other public ways, water supplies,
sanitary waste facilities, parks, playgrounds, site protection of environmentally sensitive
areas, and other needs of the public as long as such dedication does not constitute an
unconstitutional taking of private property. (See also, Chapter 12.30 BIMC.) (Ord. 96-
06B § 1, 1996)
17.04.120 Special requirements for environmentally sensitive areas.
A. Any portion of a subdivision which contains an environmentally sensitive areas as
defined in Chapter 16.20 BIMC must conform to all requirements of that chapter.
Chapter 17.12
SHORT SUBDIVISIONS
Sections:
17.12.220 Special requirements for environmentally sensitive areas.
17.12.107.B. 3. Any portion of a short subdivision which contains an environmentally
sensitive area, as defined in Chapter 16.20 BIMC conforms to all requirements of that
ordinance;
17.12.220 Special requirements for environmentally sensin've areas.
A. Any portion of a short subdivision which contains an environmentally sensitive areas
as defined in Chapter 16.20 BIMC must conform to all requirements of that chapter.
Chapter 17.16
LARGE LOT SUBDIVISIONS
Sections:
17.16.240 Special requirements for environmentally sensitive areas.
17.16.120.A.4. Environmentally sensitive areas ordinance;
17.16.240 Special requirements for environmentally sensitive areas.
A. Any portion of a large lot subdivision which contains an environmentally sensitive
areas as defined in Chapter 16.20 BIMC must conform to all requirements of that chapter.
17.16.260 Dedications.
In order to meet the health, safety and welfare needs of the public, 'and mitigate the
impacts of the proposal, the director or city engineer may condition approval of the large
lot subdivision upon dedications for open spaces, drainage ways, other public ways, water
supplies, sanitary waste system, parks, playgrounds, sites protection of environmentally
sensitive areas, and other needs of the public. (Ord. 96-06B § 3, 1996)
Title 17, appendix B: 12. Any reports, studies or assessments that are required by
Ordinance 907, environmentally sensitive areas, codi~ed in Chapter 16.20 BEVIC;
Title 17, appendix B(3) 9. The appropriate location of any environmentally sensitive areas
and their associated buffers located on, or within 200 feet of the subject property.
18.06.100 Buffer.
"Buffer" means space, either landscaped or existing or natural vegetation, intended to
reduce the impact of undesirable sights, sounds, odors; provided that an area that was
logged or clear cut within five years of submittal may not be acceptable as a buffer.
Buffers protecting environmentally sensitive areas shall be as defined in Chapter 16.20.
18.06.780 Open space.
"Open space" means land ancL/or water area that is predominantly undeveloped, and is set
aside to serve the purposes of providing park and recreation opportunities, conserving
environmentally sensitive areas and character. Open space excludes tidelands, shorelands,
yards required by this title, areas occupied by dwellings, impervious surfaces not incidental
to open space purposes, individual lots or land regulated under provisions of Chapter
16.20, and areas that were clear cut or extensively logged within five years of submittal. (
18.105.050.A. 5. e. Existing vegetation including all trees over six inches in diameter,
watercourses, other natural features, and environmentally sensitive areas,
18.108.030.B.3. e. Existing vegetation including all trees over six inches in diameter,
watercourses, other natural features, and environmentally sensitive areas,
18.111.030.B.3. e. Existing vegetation including all trees over six inches in diameter,
watercourses, other natural features, and environmentally sensitive areas,