ORD 2005-03 CRITICAL AREAS ORDINANCE
ORDINANCE NO. 2005-03
AN ORDINANCE of the City of Bainbridge Island, Washington, relating to
critical areas management, repealing Chapter 16.20 and adopting a new
Chapter 16.20 of the Bainbridge Island Municipal Code (BIMC).
WHEREAS, the Growth Management Act (GMA) primarily codified as Chapter
36.70A. RCW required the City of Bainbridge Island to designate critical areas
(wetlands, areas with critical recharging effect on aquifers used for potable water, fish
and wildlife habitat conservation areas, frequently flooded areas, and geologically
hazardous areas) and to develop and adopt on or before September 1, 1991, development
regulations that protect critical areas (RCW 36.70A.060 and 170 and WAC 365-195-
410); and
WHEREAS. pursuant to the GMA, the City of Bainbridge Island adopted
Ordinance No. 92-07 on February 20, 1992, which amended the Bainbridge Island
Municipal Code by adopting Chapter 16.20, Environmentally Sensitive Areas
regulations; and
WHEREAS, the GMA was amended in 1995 to require all jurisdictions to
include best available science in developing policies and development regulations to
protect the functions and values of critical areas and to give special consideration to
conservation or protection measures necessary to preserve or enhance anadromous
fisheries (RCW 36. 70A.172); and
WHEREAS, in response to the 1995 GMA amendments, the State Department of
Community, Trade and Economic Development developed and adopted six new sections
to the Procedural Criteria contained in WAC 365-195-900 through 925, establishing
guidance on best available science (referred to as the Best Available Science Rule),
which became effective on August 27,2000; and
WHEREAS, the Best Available Science Rule requires local governments to
utilize best available science in their critical area regulation updates (consistent with
RCW 36. 70A.I72) and provides guidance for acquiring and evaluating scientific
information to determine whether this information constitutes the best available science;
and
WHEREAS, the GMA requires all jurisdictions to review, and if necessary,
update their critical area regulations using best available science, by December 1, 2004
(RCW 36.70.A.130); and
WHEREAS, the City developed a public outreach process that included review
of different types of critical areas by the Land Use Committee of the City Council and
presentations of the drafts to the City Council; and
WHEREAS, the City contracted with Aspect Consulting to review the best
available science for the management of Geologically Hazardous Areas; and
WHEREAS, the City held 28 workshops on the Critical Areas Ordinance update
on March 20, 2003; February 10,2004; March 23,2004; August 4,2004; December 5,
2004; January 5, 2005; March 30, 2005; April 20 and 25,2005; May 2,9, and 23,2005;
June 6, 20, 27, and 29, 2005; July 6, 11 and 18,2005; September 12, 13, 14, and 26,
2005; October 3,5, and 17,2005; November 15 and 28,2005; and
WHEREAS, the City formed four work groups on March 22, 2004 to advise the
Land Use Committee on constrained lot development, habitat management plans, buffer
widths and management, and non-regulatory incentives; and
WHEREAS, the City notified, on October 1, 2004 and on September 8, 2005, the
Department of Community, Trade and Economic Development of its intent to revise its
development regulations relating to critical areas; and
WHEREAS, the City Council held six public hearings on the ordinance on
November 17,2004; March 23,2005; November 2, and 9, 2005; and December 7 and 12,
2005; and
WHEREAS, the City Council has determined that it is necessary to amend or
replace Chapter 16.20 BIMC, the Critical Areas Ordinance, to incorporate the best
available science; now, therefore,
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DO ORDAIN, as follows:
Section 1. Chapter 16.20 BIMC is hereby repealed.
Section 2. A new Chapter 16.20 BIMC is hereby adopted, to read as follows:
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Chapter 16.20
CRITICAL AREAS
Sections:
16.20.010 Purpose and intent
16.20.020 Interpretation, procedures, and program review
16.20.030 Definitions
16.20.040 Applicability, exemptions, and prior development activity
16.20.050 AUe rnatives to prescriptive buffers
16.20.060 Habitat management plans
16.20.070 Variances
16.20.080 Reasonable use excepti ons
16.20.090 Application requirements
16.20.100 Minimizing impacts to critical areas
16.20.110 Mitigation plan requirem ents
16.20.120 Aquifer recharge areas
16.20.130 J?ish and wildlife habitat conservation areas
16.20.140 }""'requently flooded areas
16.20.150 Geologically hazardous areas
16.20.160 Wetlands
16.20.170 The Winslow Ravine
16.20.180 Pe rformance and maintenance surety
16.20.190 Notice on title
16.20.200 Co mpliance and enforcement
16.20.210 Suspens ion - Revocation
16.20.220 Assess ment relief
16.20.230 Other laws and regulations
16.20.240 Conflict
16.20.250 Severability
16.20.010 Purpose and intent.
The City Council finds that aquifer recharge areas, frequently flooded areas,
geologically hazardous areas, wetlands, and fish and wildlife habitat conservation areas
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, Chapter 36.70 RCW, require that critical areas of
Bainbridge Island be protected by establishing minimum standards for the impact of
development of properties which contain or adjoin critical areas. Cumulative impacts to
cri tical areas shall be addressed in the administration of this chapter by assuring there is
no net loss of the function and values of the critical areas. It is the intent of this chapter
to protect the public health, safety, and welfare by:
A. A voiding the impact;
B. Minimizing or limiting the degree or magnitude of the impact of an action by
using appropriate technology or by taking affirmative steps to avoid or reduce impacts;
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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;
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. Preserving aquatic resources by ensuring that development activities maintain and
protect aquatic resources, natural drainage systems, and water quality;
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; and
K. Providing City officials with sufficient information to adequately protect critical
areas when approving, conditioning, or denying public or private development proposals.
16.20.020 Interpretation, procedures, and program review.
A. 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.
B. Procedures. The Director is authorized to adopt written procedures for the
purpose of carrying out the provisions of this chapter.
C. Non-Regulatory Program Review. Annually, the City Council shall review the
status of the non-regulatory program and adopt a resolution implementing appropriate
elements that help landowners comply with the critical areas ordinance. Elements that
shall be reviewed include but are not limited to:
1. Education and Outreach Measures.
a. Develop or provide clear and understandable manuals explaining
recommended best management practices for typical land owner activities;
b. Conduct seminars and presentations for interested owners and groups;
c. Coordinate efforts with existing conservation, stewardship, or small
resource-user groups with expertise in wildlife or habitat area land management issues;
d. Expand local wildlife inventory information through baseline survey of
local habitats and species; and
e. Perform outreach to individual property owners in critical areas who wish
to develop stewardship plans to establish parameters for future activities.
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2. Tax Incentive Measures. Coordinate with Kitsap County to provide incentives
through the current use taxation program, and encourage land owners with critical areas
to enroll their property in open space tax status and/or conservation easements.
D. Regulatory Program Review. The City Council shall review, on an annual basis,
the implementation of this ordinance. The public shall be involved in the review.
Elements that shall be reviewed include, but are not limited to:
1. Administration of its provisions;
2. Impact upon critical areas protection; and
3. Collection of scientific data of local conditions.
16.20.030 Definitions.
A. For the purposes of this chapter, the following definitions shall apply:
1. "Applicant" means 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.
2. "Aquifer recharge area" means the surface area of any geological formation
sufficiently pervious to provide fresh water to an aquifer through the process of
infiltration and percolation.
3. "Base flood" means 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, showing the location of the expected whole-foot
water-surface elevation of the base (lOO-year) flood.
4. "Best available science" (BAS) means scientifically valid information derived
in accordance with WAC 365-195-905, now or as amended hereafter, that is used to
develop and implement critical areas policies or regulations.
5. "Best management practices" (BMPs) means conservation practices or systems
of practices and management measures that:
a. Control soil loss and protect water quality from degradation caused by
nutrients, animal waste, toxins, and sediment; and
b. 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 Conservation District, and other
professional organizations.
6. "Buffer" means an area adjacent to a stream or wetland that (a) surrounds and
protects the functions and values of the stream or wetland from adverse impacts, (b) is an
integral part of a stream or wetland ecosystem, and (c) 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, to protect the public from losses suffered
when the functions and values of the wetland or stream are degraded.
7. " Category 1, II, III, IV wetlands": see "Wetland category".
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8. "Critical areas" means aquifer recharge areas, fish and wildlife habitat
conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands.
9. "Critical habitat" means a habitat identified by US Fish and Wildlife Service
or the National Marine Fisheries Service as habitat necessary for survival of endangered
or threatened species.
10. "Director" means the director of the City's Planning and Community
Development Department or his/her designee.
11. "Educational or scientific activities" means controlled and/or supervised
scientific activities or educational activities that are associated with an educational
program that is approved through a conditional use permit.
12. "Engineering geologist" means a practicing engineering geologist who has at
least four years of professional employment as an engineering geologist with experience
in landslide evaluation, and a Washington State specialty license in engineering geology
as specified in Chapter 18.220 RCW.
13. "Erosion hazard area" means a landform or soil type subject to being worn
away by the action of water, wind, freeze-thaw, or ice, and which are:
a. Rated in the Soil Survey of Kitsap County Area, Washington, USDA
(1980), as having severe hazard of water erosion, including:
i. Indianola-Kitsap Complex, 45 to 70 percent slope;
ii. Kitsap Silt Loam, 15 to 30 percent slope, 30 to 45 percent slope;
iii. Ragnar Fine Sandy Loam, 15 to 30 percent slope; and
iv. Schneider very gravelly loam, 45 to 70 percent slope;
b. Classified in the Department of Ecology Coast Zone Atlas as:
i. Class 3, class U (unstable) includes severe erosion hazards and rapid
surface runoff areas;
ii. Class 4, class UOS (unstable old slides) includes areas having severe
limitations due to slope; and
iii. Class 5, class URS (unstable recent slides); and
c. Identified by the USGS Surface Geology Map of Bainbridge Island
(Haugerud, 200] ) as rilled slopes/scarps.
14. "Existing development" means a development that was lawfully constructed,
approved or established prior to the effective date of the ordinance codified in this
chapter.
15. "Fish" means species of the vertebrate taxonomic groups
Cephalospidomorphi and Osteichthyes.
16. "Fish and wildlife habitat" means 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.
17. "Fisheries biologist" means a person with experience and training in fisheries
who is able to submit substantially correct reports on fish population surveys, stream
surveys and other related data analyses of fisheries resources. "Substantially correct"
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means that technical or scientific errors, if any, are minor and do not delay or affect the
site plan review process. Qualifications of a fisheries biologist include:
a. Either:
i. Certification by the American Fisheries Society, or;
ii. Bachelor of Science degree in fisheries or the biological sciences from
an accredited institution and five years of professional fisheries experience; and
b. The prior successful completion of at least three habitat management plans;
and
c. The biologist is listed on a roster of qualified professionals prepared by the
Director.
18. "Frequently flooded areas" means lands subject to a one percent or greater
chance of flooding in any given year, as determined by the Federal Emergency
Management Agency. These areas include, but are not limited to, floodplains adjacent to
streams, lakes, coastal areas, and wetlands. (Also see Chapter 15.16 BIMC, Flood
Damage Prevention.)
19. "Functions" means 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.
20. "Geologically hazardous areas" means areas susceptible to significant
erosion, sliding, or other geological events. They pose a threat to the health and safety of
citizens when used as sites for incompatible commercial, residential or industrial
development. Geologically hazardous areas include erosion hazard areas, landslide
hazard areas, and seismic hazard areas.
21. "Geotechnical engineer" means a practicing geotechnical/civil engineer who
has a valid Washington engineering license and a valid certificate of registration in civil
engineering, at least four years of professional employment as a geotechnical engineer
with experience in landslide evaluation, and appropriate training and experience as
specified in Chapter 18.43 RCW.
22. "Habitat Management Plan" (HMP) means a report prepared by a
professional wildlife biologist or fisheries biologist which discusses and evaluates critical
fish and wildlife habitat functions and identifies and evaluates measures necessary to
enhance and improve habitat conservation on a proposed development site.
23. "Habitat of local importance" means 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 their population and reproduce over the long-
term. These might include areas of high relative density or species richness, breeding
habitat, winter range, and movement corridors. These might also include habitats that are
of limited availability or areas of high vulnerability to alteration, such as cliffs and
wetlands.
24. "Hazard tree" means a tree with structural defects likely to cause failure of all
or part of the tree, which could strike a "target." A target can be a building or a place
where people gather such as a park bench, picnic table, street, or backyard. In the case of
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steep slopes, a hazard tree can also be a tree that is a hazard to stability of the slope, as
determined by a geotechnical engineer.
25. "Hazardous substances" means any liquid, solid, gas, or sludge, including any
material, substance, product, commodity, or waste, regardless of quantity, that exhibits
any of the characteristics or criteria of hazardous waste as specified in RCW 70.105.010.
(Also see BIMC 18.06.450 through 18.06.510).
26. "Hydric soil" means soil which is saturated, flooded, or ponded long enough
during the growing season to develop anaerobic conditions in the upper part.
27. "Hydro geologist" means a practicing hydrogeologist who has at least four
years of professional employment as a hydro geologist with experience in the specific
subject area in which they are providing a report, and a Washington specialty license in
hydrogeology as specified in RCW Chapter 18.220.
28. "Hydrophyte or hydrophytic vegetation" means 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.
29. "Impact ofland use" means the relative measure of the intensity ofland use
used to determine the appropriate buffer widths for wetlands and streams which is
categorized as follows:
a. High impact land use includes commercial development, industrial
development, institutional development, residential (more than one unit per acre)
development, new agriculture (high-intensity such as dairies, nurseries, greenhouses,
raising and harvesting crops requiring annual tilling, raising and maintaining animals),
and high-intensity recreation such as golf courses and ballfields.
b. Moderate impact land use includes residential development (1 unit/acre or
less), new agriculture (moderate-intensity such as orchard and hay fields), paved trails,
and building of logging roads.
c. Low impact land use includes low-intensity open space such as passive
recreation, natural resources preservation, and unpaved trails.
30. "Invasive/exotic species" means plants and animals that are not native to the
Puget Sound lowlands and are recognized by wetland professionals or biologists 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, nonnative 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.
31. "Land divisions" means any of the following: Subdivisions (Chapter 17.04
BIMC); Short Subdivisions (Chapter 17.12 BIMC); and/or Large Lot Plats (Chapter
17.16 BIMC).
32. "Land Use Permit" means any of the following: Planned Unit Developments
(Chapter 18.120 BIMC); Conditional Use Permits (Chapter 18.108 BIMC); and/or Site
Plan Review (Chapter 18.105 BIMC).
33. "Landslide hazard areas" means areas which are potentially subject to risk of
mass movement due to a combination of factors, including historic failures, geologic,
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topographic, and hydrologic features. Some of these areas are identified in the
Department of Ecology Coastal Zone Atlas and USGS Surface Geology Map of
Bainbridge Island (Haugerud, 2001). Landslide hazard areas include the following:
a. 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);
b. Any area potentially unstable due to rapid stream incision or stream bank
erosIon;
c. Any area located on an alluvial fan, debris flow deposit, or in a debris
flowpath, presently or potentially subject to impacts or inundation by debris flows or
deposition of stream-transported sediments;
d. Any area with a slope of 40 percent or greater and with a vertical relief of
10 or more feet except areas composed of competent consolidated rock;
e. Any area designated or mapped as class U, UOS, or URS by the
Department of Ecology Coastal Zone Atlas and/or mapped as a landslide or scarp on the
USGS Surface Geology Map of Bainbridge Island (Haugerud, 2001); or
f. Any area within 50 feet of the top, toe, or sides of any of the above
landslide hazard areas, except debris flow areas or stream deposition areas. This 50 foot
area may be expanded in special cases at the discretion of the City Engineer.
34. "Liquefaction" means a process in which a water-saturated soil, upon
shaking, suddenly loses strength and behaves as a fluid.
35. "Mitigation" includes:
a. A voiding, minimizing or compensating for adverse impacts, in the
following order of preference:
i. A voiding the impact altogether by not taking a certain action or parts of
an action;
ii. 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;
iii. Rectifying the impacts by repairing, rehabilitating or restoring the
affected environment;
iv. Reducing or eliminating the impact over time by preservation and
maintenance operations during the life of the action;
v. Compensating for the impact by replacing, enhancing, or providing
substitute resources or environments; and
vi. Monitoring the impact and the compensation project and taking
appropriate corrective measures. Mitigation for individual actions may include a
combination of the above measures; and
b. The following specific categories:
i. Mitigation, Compensatory: replacing project-induced critical area losses
or impacts, including, but not limited to, establishment. re-establishment, rehabilitation or
enhancement.
ii. Mitigation, Establishment: Mitigation performed to intentionally
establish a critical area (e.g., wetland) at a site where it does not currently exist.
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iii. Mitigation, Re-Establishment: The manipulation of the physical,
chemical, or biological characteristics of a site with the goal of returning natural or
historic functions to a former critical area.
iv. Mitigation, Rehabilitation: The manipulation of the physical,
chemical, or biological characteristics of a site with the goal of repairing natural or
historic functions and processes to a degraded critical area.
v. Mitigation, Enhancement: The manipulation of the physical, chemical,
or biological characteristics of a biological wetland to heighten, intensify or improve
specific function(s) or to change for specific purposes such as water quality
improvement, flood water retention, or wildlife habitat.
36. "Native or equivalent vegetation" means species which are indigenous to the
Puget Sound lowlands ecoregion; or a species that is equivalent in providing the same
site-specific functional arrays as would the native species and which is selected from a
list of preferred acceptable equivalent vegetation prepared by the Planning Department.
Functional arrays may include forage, floodwater restraint, hiding habitat, or other
physical or biologic roles in the ecosystem, that singly or in combinations correspond to
those of the native species. As with natives, the role mix of an alternative species may
vary depending on the site and its surrounding ecosystem. Invasive/exotic species shall
not be considered equivalent species.
37. "Normal maintenance" means those usual acts to prevent a decline, lapse or
cessation from a lawfully established condition. Normal maintenance includes removing
debris from and cutting or manual removal of vegetation in crossing and bridge areas.
Normal maintenance does not include:
a. Use of fertilizer or pesticide application in wetlands, Fish and Wildlife
Habitat Conservation Areas, or their buffers;
b. Re-digging ditches in wetlands or their buffers to expand the depth and
width beyond the original ditch dimensions;
c. Re-digging existing drainage ditches in order to drain wetlands on lands
not classified as existing and ongoing agriculture under BIMC 16.20.040(C)
(Exemptions ).
38. "Open space" means undeveloped areas of varied size. Open space often
contains distinctive geologic, botanic, zoologic, historic, scenic or other critical area, or
natural resource land features.
39. Ordinary high water mark: See the Shoreline Master Program (Chapter 16.12
BIMC), Section II, Definitions.
40. "Ravine" means a V -shaped landform generally having little to no floodplain
and normally containing steep slopes, which is deeper than 10 vertical feet as measured
from the centerline of the ravine to the top of the slope. Ravines are typically created by
the wearing action of streams. The top of the slope is determined where there is a
significant change in the slope to generally less that a 15 percent slope.
41. "Reasonable alternative" means an activity that could feasibly attain or
approximate a proposal's objectives, but at a lower environmental cost or decreased level
of environmental degradation.
42. "Reasonable use exception (RUE)" is a means of relief that is available for a
property that is encumbered to such an extent by critical areas and/or water quality
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buffers that application of this chapter would deny all reasonable use of the subject
property, as further defined by the decision criteria ofBIMC 16.20.080.0, and reasonable
use of a property cannot be achieved through any other means.
43. "Repair" means activities that restore the character, size, or scope of a project
only to the previously authorized condition.
44. "Seismic hazard areas" means areas subject to severe risk of damage as a
result of seismic induced ground shaking, or surface faulting. While ground shaking is
the principal risk because the entire island will shake significantly, severe damage will
occur where slope failure, liquefaction, and settlement are induced by the shaking and
surface rupture is created by fault movement. The following areas are considered seismic
hazard areas:
a. Seismic Landslide Hazard Areas - Slopes which are stable in non-
earthquake periods, but fail and slide during ground shaking;
b. Liquefaction Hazard Areas - Areas of cohesionless, loose or soft, saturated
soils of low density in association with a shallow groundwater table that are subject to
settlement and/or liquefaction from ground shaking, or;
c. Fault Hazard Areas - Areas of known surface rupture or significant surface
deformation as a result of an active fault movement, including 50 feet on either side.
45. "Site" means the entire lot, series ofIots, or parcels on which a development
is located or proposed to be located, including all contiguous undeveloped lots or parcels
under common ownership.
46. "Streams" means those areas in the City of Bainbridge Island where the
surface water flows are sufficient to produce a defined channel or bed. A defined channel
or bed is an area which demonstrates clear evidence of the passage of water and includes
but is not limited to bedrock channels, gravel beds, sand and silt beds, and defined-
channel swales. The channel or bed need not contain water year-round. This definition is
not meant to include irrigation ditches, canals, storm or surface water runoff devices, or
other artificial watercourses unless they are used by fish or used to convey streams
naturally occurring prior to construction.
47. "Stream Types" means a streams classification system based on fish usage
and perennial or seasonal water regime as found in WAC 222-16-030 and meeting the
standards listed below.
a. "Type F Stream" means a stream that has suitable fish habitat. If fish
usage has not been determined, water having the following characteristics are presumed
to have fish use: Streams segments having a defined channel of 2 feet or greater within
the bankfull width and having a gradient of 16 percent or less. Determination of fish
usage shall use the methodology found in Washington Department of Natural Resource's
Forest Practice Board Manual, Section 13.
b. "Type Np" means all segments of natural waters within the bankfull width
of defined channels that are perennial nonfish habitat streams. Perennial streams are
waters that do not go dry any time of a year of normal rainfall. However, for the purpose
of water typing, Type Np Waters include the intermittent dry portions of the perennial
channel below the uppermost point of perennial flow.
c. "Type Ns" means all segments of natural waters within the bankfull width
of the defined channels that are not Type S, F, or Np Waters. These are seasonal, nonfish
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habitat streams in which surface flow is not present for at least some portion of a year of
normal rainfall and are not located downstream from any stream reach that is a Type Np
Water. Ns Waters must be physically connected by an above-ground channel system to
marine waters, Type F, or Np Waters.
48. "Urban natural open space" means an open space that (a) a priority species
either resides within, or resides adjacent to and uses the open space for breeding and/or
regular feeding; and/or (b) functions as a corridor connecting other priority habitats,
especially those that would otherwise be isolated; and/or (c) is an isolated remnant of
natural habitat larger than 10 acres and is surrounded by urban development.
49. "Variance" means relief from the provisions of the habitat buffer standards
for wetlands or fish and wildlife habitat conservation areas, or provisions of section
16.20.150(E) (2) (a) pertaining to setbacks from slopes classified as a geologically
hazardous area, where strict application of this chapter renders compliance with these
provisions an unnecessary hardship by strict application of this Chapter, as provided for
in BIMC 16.20.070.
50. "Wetland" means areas that are inundated or saturated by surface water or
groundwater 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. Wetlands
generally include swamps, estuaries, marshes, bogs, and similar areas.
51. "Wetland boundary" means 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.
52. "Wetland category" means category as defined in "Washington State Wetland
Rating System for Western Washington, Revised," Department of Ecology publication
#04-06-025, or as revised and adopted by the department.
53. "Wetland classes" means the classification system of the U.S. Fish and
Wildlife Service (Cowardin, et al. 1979).
54. Wetland Mitigation.
a. 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."
b. Off-site: To replace wetlands away from the site on which a wetland has
been impacted by a regulated activity.
c. On-site: To replace wetlands at or adjacent to the site on which a wetland
has been impacted by a regulated activity.
d. 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."
55. Wetlands, Regulated.
a. "Regulated wetlands" means:
i. All Category I and II wetlands;
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ii. All Category III and Category IV wetlands that are greater than 1,000
square feet;
b. Category I, II, III and IV wetlands include:
i. Lands defined as wetlands shall be those areas that are inundated or
saturated by surface water or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
ii. Wetlands created as mitigation and wetlands modified for approved
land use activities.
c. Regulated wetlands do not include artificial wetlands intentionally created
from nonwetland sites, including, but not limited to, irrigation and drainage ditches,
grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm
ponds, and landscape amenities, or those wetlands created after July 1, 1990 that were
unintentionally created as a result of the construction of a road, street, or highway.
56. "Wetlands specialist" means a person with experience and training in wetland
issues who is able to submit substantially correct reports on wetland delineations,
classifications, functional assessments and mitigation plans. "Substantially correct"
means that errors, if any, are minor and do not delay or affect the site plan review
process. Qualifications of a wetlands specialist include:
a. Either:
i. Certification as a Professional Wetland Scientist (PWS) or Wetland
Professional in Training (WPIT) through the Society of Wetland Scientists, or;
ii. Bachelor of science degree in the biological sciences from an
accredited institution and five years of professional field experience; and
b. The prior successful completion of at least three wetland reports; and
c. The specialist is listed on a roster of qualified professionals prepared by the
Director.
57. "Wildlife biologist" means a person with experience and training in the
principles of wildlife management and with practical knowledge in the habits,
distribution and environmental management of wildlife. Qualifications include:
a. Either:
i. Certification as a professional wildlife biologist through The Wildlife
Society, or;
ii. Bachelor of science or bachelor of arts degree in wildlife management,
wildlife biology, ecology, zoology, or a related field, from an accredited institution and
five years of professional field experience; and
b. The prior successful completion of at least three habitat managements
plans; and
c. The biologist is listed on a roster of qualified professionals prepared by the
Director.
58. "Zone of Influence" means an area, usually upslope from a geologically
hazardous area, where changes in land use and hydrology can affect the stability of the
geologically hazardous area. The zone of influence is defined as 300 feet upslope from
slopes greater than 40 percent, and 200 feet upslope from slopes greater than 15 percent
but less than 40 percent that are determined to be geologically hazardous areas.
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16.20.040 Applicability, exemptions, and prior development activity.
A. 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,
governmental body (including the City), or applicant, which results in any alteration of a
critical area except as consistent with the purposes, requirements, objectives, and goals of
this chapter.
B. 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 ofthe designations shown on the maps or inventory lists
conflict with the site-specific conditions, site-specific conditions shall control.
C. Exemptions. The following activities are exempt from the requirements of this
chapter:
1. Emergencies that threaten the public health, safety and welfare. An
"emergency" is an unanticipated and immediate threat to public health, safety, or the
environment which requires action within a time too short to allow compliance with this
chapter. Restoration or mitigation of critical areas and buffers impacted by emergency
action shall be required in a timely matter.
2. Ongoing agricultural activities using best management practices as included in
a farm management plan developed by the Kitsap Conservation District.
3. Normal and routine maintenance of structures, landscaping and vegetation that
will not further impact or alter critical areas or buffers.
4. Normal and routine maintenance and operation of pre-existing
retention/detention facilities, biofilters and other stormwater management facilities,
irrigation and drainage ditches, farm ponds, fish ponds, manure lagoons, and livestock
water ponds; provided, that such activities shall not involve conversion of any wetland
not currently being used for such activity. Any maintenance of ponds located in stream
habitat areas shall require appropriate approval from the Washington Department ofFish
and Wildlife.
5. Structural alterations to buildings that do not increase the structural footprint or
introduce new adverse impacts to an adjacent critical area.
6. Normal and routine maintenance or repair of existing utility structures within a
right-of-way or existing utility corridor or easements, including the cutting, removal
and/or mowing of vegetation.
7. Forest practices conducted pursuant to Chapter 76.09 RCW, except Class IV
(general conversions) and Conversion Option Harvest Plans (COHP).
8. Activities within a portion of a wetland buffer or fish and wildlife habitat area
buffer located landward of an existing, substantially developed area, such as a paved area,
or permanent structure, which eliminates or greatly reduces the impact of the proposed
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activities on the wetland or fish and wildlife habitat area. The Director shall review the
proposal to determine the likelihood of associated impacts.
9. Hazard Tree Removal. Where a threat to human life, property, or slope
stability is demonstrated, the Director may allow removal of danger or hazard trees
subject to the following criteria:
a. Tree removal is the minimum necessary to balance protection of the critical
area and its buffer with protection of life and property; and
b. The critical area or its buffer shall be replanted as determined by the
Director.
The Director shall coordinate review with the Washington State Department of
Fish and Wildlife as determined necessary to assure habitat protection. The Director may
require the applicant to consult with a professional forester or a certified arborist prior to
tree removal. Hazard tree abatement can sometimes be achieved by felling the tree or
trimming the tree. Habitat needs may require leaving the fallen tree in the riparian
corridor or maintaining a high stump for wildlife habitat.
10. Aquifer recharge areas. A person, or property, shall be exempt from the
provisions of this chapter unless either of the following is true:
a. The property is located in a fish and wildlife habitat conservation area,
frequently flooded area, geologically hazardous area, and/or wetland; or
b. One of more of the uses identified in BIMC 16.20.120.B-E are proposed.
D. Standards for existing development.
1. Existing structures and related improvements. Structures and related
improvements that were legally built or vested prior to the effective date of Ordinance
No. 2005-03 that do not meet the setback or buffer requirements of this chapter may
continue to exist in their present form, and may be altered, including remodeled,
reconstructed, or expanded, if such alteration complies with the provisions of this
Section.
2. Existing structures that were legally built or vested prior to the effective date
of Ordinance No. 2005-03 may be altered if:
a. There is no change in the footprint of the building;
b. The remodel is entirely inside the existing building;
c. There is no further encroachment into the buffers required pursuant to this
chapter unless a Variance is first approved; or
d. Any expansion of the building footprint is exclusively on the sides that do
not touch the buffers.
3. Existing property improvements other than structures, including driveways,
parking areas, yards. play areas, storage areas, and similar improvements that were
legally established or vested prior to the effective date of Ordinance No. 2005-03 may be
altered if:
a. There is no change in the location of the improvement;
b. Any alteration of the improvement is entirely inside of the existing
boundaries of the improvement;
c. There is no further encroachment into the buffers unless a Variance is first
approved; or
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d. Any increase in the area of the improvement is exclusively on the sides that
do not touch the buffers.
4. Alterations permitted by this Section shall not be exempt from applicable City
review or permit requirements or other applicable City codes.
E. Conservation Agreements. The City will honor conservation agreements on
regulated wetlands that were improved as a result of collaborative enhancement,
restoration, or conservation projects. Where enhancements or restorations are made to
wetlands for purposes other than mitigation, the original wetland rating shall be
maintained, even if the changes result in a higher classification.
16.20.050 Prescriptive buffers variations.
A. Intent. The City recognizes that in some cases it may not be possible to provide a
critical area buffer that meets the dimensions prescribed by this ordinance, due to land
area or other constraints. The City further recognizes that in some cases the desired or
better critical area protection can be achieved through alternative approaches.
This section provides alternatives that can be pursued in lieu of the prescribed buffers
when warranted by site-specific conditions. In considering an application for any of
these alternatives, it shall always be the primary intent of the City to protect the functions
and values of the critical areas. It is further the intent of the City to ensure that the
application of the provisions of this chapter does not deprive an owner from reasonable
use of their property.
Any proposed use of the following alternatives shall be supported by analysis
utilizing best available science, to determine and minimize the impacts of the alternative:
B. Buffer Averaging. If characteristics of the property do not allow reasonable use
with prescribed buffers, the Director may allow wetland and/or fish and wildlife
conservation area buffer widths to be averaged. It is intended that the process for
reviewing a buffer averaging proposal be as simple as possible, while ensuring that the
following criteria are met:
1. The total area contained within the buffer after averaging shall be no less than
that contained within the standard buffer prior to averaging;
2. The applicant demonstrates that such averaging will clearly provide greater
protection of the functions and values of critical areas than would be provided by the
prescribed habitat buffers.
3. The averaging will not result in reduced buffers next to highly sensitive habitat
areas; and
4. The applicant demonstrates one or more of the following:
a. That the wetland contains variations in sensitivity due to existing physical
characteristics;
b. That only low intensity uses would be located within 200 feet of areas
where the buffer width is reduced, and that such low intensity uses restrictions are
guaranteed in perpetuity by covenant, deed restriction, easement, or other legally binding
mechanism; or
c. That buffer averaging is necessary to avoid an extraordinary hardship to the
applicant caused by circumstances peculiar to the property.
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C. Habitat Management Plan. A Habitat Management Plan may be prepared
pursuant to BIMC 16.20.060 when it can clearly be demonstrated that greater protection
of the functions and values of critical areas can be achieved through the HMP than could
be achieved through providing the prescribed habitat buffers. A Habitat Management
Plan may be used as a means to protect wetland and/or fish and wildlife habitat
conservation area buffers. Habitat Management Plans may not be used to reduce the
water quality buffers for wetlands and/or fish and wildlife habitat conservation areas.
D. Variances. Variances to reduce the prescribed habitat buffers for wetlands and/or
fish and wildlife habitat conservation areas may be pursued pursuant to BIMC 16.20.070.
Variances may not be used to reduce the prescribed water quality buffers for wetlands
and/or fish and wildlife habitat conservation areas.
E. Reasonable Use Exceptions. If the application of this chapter would deny all
reasonable use of the subject property, the property owner may apply for an exception
pursuant to BIMC 16.20.080.
F. Pilot Projects. The City Council may, by Resolution, establish a site specific pilot
project in partnership with an applicant that encourages the applicant to undertake
creative, non-standard efforts that were not envisioned during the development of this
chapter, but through which a greater conservation of critical areas will be achieved;
provided that such project will satisfy the intent of this chapter as expressed in BIMC
16.20.010, and will provide greater protection of the functions and values of affected
critical areas and their buffers. The applicant will cooperate with the City through the
permitting and SEP A review process, and the Council will develop criteria for its review
as well as a public process for the Council Resolution.
G. Public notice. Appropriate notice of, and opportunity to comment on, the
proposed use of any of the foregoing alternatives shall be given to surrounding property
owners and the general public, in a manner to be established by the Director.
16.20.060 Habitat management plan.
A. General. A Habitat Management Plan shall comply with the requirements of this
Section, and shall clearly demonstrate that greater protection of the functions and values
of critical areas can be achieved through the HMP than could be achieved through
providing the prescribed habitat buffers. The Director shall prepare performance
standards and monitoring guidelines for Habitat Management Plans, including a program
for City oversight of such plans. Once the standards and guidelines are in place, an
applicant may propose to implement an HMP as a means to protect habitat buffers
associated with wetlands and/or fish and wildlife conservation areas.
B. Intent. HMPs are primarily intended as a means to restore or improve buffers that
have been degraded by past activity, and should preserve, and not reduce, existing high
quality habitat buffers. While not primarily intended as a means to reduce buffers, the
HMP may propose a reduction of the habitat buffer width where it is shown that the HMP
will comply with the other requirements of this Section. An HMP shall not reduce the
prescribed water quality buffer width as listed in BIMC 16.20.130 and 16.20.160 under
any circumstance.
C. Effect of buffers. An HMP shall provide habitat functions and values that are
greater than would be provided by the prescribed habitat buffers. When habitat buffers
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are a component of an HMP, they shall be at least the minimum size necessary to
accomplish the objectives of the HMP. The HMP may propose, but the City shall not
require, a habitat buffer containing a greater area than is required by the prescribed
habitat buffer.
D. Impact mitigation - general. The HMP shall encompass an area large enough to
provide mitigation for buffer reduction below the standard required buffers, and shall
identify how the development impacts resulting from the proposed project will be
mitigated. The developer of the plan shall use the best available science in all facets of
the analyses. The Washington Department of Fish and Wildlife Priority Habitat and
Species Management Recommendations, dated May 1991, and/or bald eagle protection
rules outlined in WAC 232-12-292, as now or hereafter amended, may serve as guidance
for this report. For Habitat Management Plans addressing wetland buffers, Method for
Assessing Wetland Functions, Ecology Publication #99-116 shall be used for guidance in
determining function equivalency.
E. HMP review. All Habitat Management Plans shall be submitted to the
Washington State Department ofFish and Wildlife habitat biologist and to the Suquamish
Tribe for review and comment. Within that same time frame, the City's Environmental
Technical Advisory Committee shall be asked to review the HMP and provide comments.
F. Map. The Habitat Management Plan shall contain a map prepared at an easily
readable scale, showing:
1. The location of the proposed development site;
2. Property boundaries;
3. The relationship of the site to surrounding topographic, water features, and
cultural features;
4. Proposed building locations and arrangements;
5. A legend which includes a complete legal description, acreage of the parcel,
scale, north arrow, and date of map revision.
G. Report. The Habitat Management Plan shall also contain a report which contains:
1. A description of the nature and intensity of the proposed development;
2. An analysis of the effect of the proposed development, activity or land use
change upon the wildlife species and habitat identified for protection. If the Habitat
Management Plan is addressing wetland habitat, the analysis shall compare an assessment
of wildlife habitat suitability of the wetland applying standard buffers with an assessment
of habitat suitability as proposed using Methodfor Assessing Wetland Functions,
Washington State Department of Ecology (if available for the specific Hydrogeomorphic
classification); and
3. A plan which identifies how the applicant proposes to mitigate any adverse
impacts to wildlife habitats created by the proposed development. For wetland or other
habitats protected by this chapter, the application shall show, using the appropriate
function assessment methodology, that habitat functions and values are greater after the
development than would occur had the prescribed buffers been provided (see Mitigation
Plan requirements, Section 16.20.110).
4. All review comments received from a habitat biologist from the Washington
State Department of Fish and Wildlife (WDFW) and the Suquamish Tribe. If the HMP
recommends mitigation involving federally listed threatened or endangered species,
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migratory waterfowl or wetlands, the U.S. Fish and Wildlife Service shall receive a copy
of the draft HMP.
5. For properties subject to the provisions of the City's Shoreline Master
Program, Chapter 16.12 BIMC, a site specific analysis of the project's impact on
shoreline fish and wildlife habitat, as currently required by the SMMP, utilizing the
provisions for environmentally sensitive areas as provided in Exhibit A.
6. The HMP shall specifically address, as appropriate, the following:
a. Enhancement of existing degraded buffer area and replanting of the
disturbed buffer area with native or equivalent vegetation;
b. The use of alternative on-site wastewater systems in order to minimize site
clearing;
c. Intiltration of stormwater where soils permit;
d. Retention of existing native or equivalent vegetation on other portions of
the site in order to offset habitat loss from buffer reduction; and
e. The need for fencing and signage along the buffer edge.
H. Mitigation measures. Possible mitigation measures to be included in the report, or
required by the Director, could include, but are not limited to:
1. Establishment of buffer zones;
2. Preservation of critically important plants and trees;
3. Limitation of access to habitat areas;
4. Seasonal restriction of construction activities;
5. Establishing phased development requirements; and
6. Monitoring plan for a period necessary to establish that performance standards
have been meet. Generally this will be for a period of seven to ten years.
1. HMP adequacy. The HMP shall demonstrate to the satisfaction of the Director that
the habitat functions and values are improved by implementation of the HMP. If there is
a disagreement between the Director and the applicant as to the adequacy of the HMP,
the issue of plan adequacy shall be resolved by consulting with the Washington
Department ofFish and Wildlife for HMPs relating to streams or the Washington
Department of Ecology for HMPs relating to wetlands. If the State agencies are not
available in a timely manner, the applicant may choose to have the City refer the HMPs
to a third party consultant at the expense of the applicant. After consultation with such
State departments or third party consultant, the Director shall make a final decision on the
adequacy of the HMP.
J. Timing. An HMP must be developed and approved either prior to preliminary plat
approval or issuance of the building permit, as applicable, and must be implemented
before the City grants either final plat approval or an occupancy permit, as applicable.
K. Performance Surety. The Director may require that the applicant provide a
performance surety to ensure confornlance with mitigation requirements of the habitat
management plan pursuant to BIMC 16.20.180.
16.20.070 Variances
A. Applicability. An applicant may seek a variance from habitat buffer standards for
wetlands or fish and wildlife habitat conservation areas, or provisions of section
16.20.150(E)(2)(a) pertaining to setbacks from slopes classified as a geologically
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hazardous area, where application of the standards renders compliance with these
provisions an unnecessary hardship. A variance is authorized primarily for relief from
wetland and stream habitat buffer standards that result in greater reduction than can be
achieved through the buffer averaging in Subsection 16.20.050(B) above. A variance
will not be allowed for reduction of the water quality buffers. Alterations specific to
wetlands and streams and their water quality buffers are processed pursuant to a
reasonable use exception, BIMC 16.20.080.
B. A variance may be granted by the Director when it can be shown that the
application meets all of the following criteria:
1. Special circumstances applicable to the subject property, including size, shape,
or topography, and the strict application ofthis chapter is found to deprive the subject
property of rights and privileges enjoyed by other properties in the vicinity; provided,
however, the fact that those surrounding properties have been developed under
regulations in force prior to the adoption of Ordinance No. 2005-03 shall not be the sole
basis for the granting of a variance; and
2. The special circumstances referred to in Subsection (a) above are not the result
of the actions of the current or previous owner; and
3. The granting of the variance will not result in substantial detrimental impact to
the critical area, public welfare or injurious to the property or improvements in the
vicinity and area in which the property is situated; and
4. The granting of the variance is the minimum necessary to accommodate the
permitted use; and
5. No other practicable or reasonable alternative exists; and
6. A mitigation plan has been submitted and is approved for the proposed use of
the critical area; and
7. If structures are the approved use for which the variance is applied, the
structures shall be no greater than the minimum size necessary to accommodate the
permitted use; and
8. Retention of existing native or equivalent vegetation in other portions of the
site is provided in order to offset habitat loss from buffer reduction; and
9. A Habitat Management Plan has been prepared pursuant to BIMC 16.20.060,
unless it is determined through the applicable review process that such a plan is
unnecessary.
C. Requests for variances shall include the application requirements of BIMC
16.20.060,16.20.090,16.20.110, or 16.20.150, whichever is applicable, and payment of
an appropriate application fee.
D. The Director shall administratively review variances based on the criteria and
standards referenced in this Section.
E. The Director may grant a variance from the substantive or procedural
requirements of this chapter for the development of public utilities when:
1. The application of the requirements of this chapter would be inconsistent with
the Comprehensive Plan or the utility's public service obligations; and,
2. The proposed utility activity does not pose an unreasonable threat to the public
health, safety or welfare on or off the development proposal site; and,
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3. Any alterations to critical areas and buffers are the minimum necessary to
reasonably accommodate the proposed utility activity and any impacts are mitigated.
16.20.080 Reasonable use exceptions
A. Applicability and Intent. A reasonable use exception (RUE) is intended to ensure
reasonable use of a property when reasonable use of that property cannot be achieved
through any other means. An applicant may request an RUE pursuant to this Section if
the applicant demonstrates that:
1. The subject property is encumbered to such an extent by critical areas and/or
water quality butters that application of this chapter would deny all reasonable use of the
subject property; and
2. Reasonable use of the subject property cannot be achieved through Buffer
Averaging (BIMC 16.20.050.B), a Habitat Management Plan (BIMC 16.20.060), or a
Variance (BIMC 16.20.070).
B. Exception Request and Review Process. An application for an RUE shall be made
to the City and shall include a critical area report, including mitigation plan, if necessary;
and any other relevant information and reports that are necessary, in the opinion of the
Director, to process and prepare the recommendation on the application, such as permit
applications to other agencies, special studies, and environmental documents prepared
pursuant to the State Environmental Policy Act, Chapter 43.21C RCW (SEPA
documents).
C. After receiving the application, the Director shall determine whether the property
qualifies for inclusion in any program established by the City that would eliminate the
need for an RUE including, but not limited to, programs regarding transfer of
development rights, mitigation banking, and open space acquisition. If the property
qualifies for inclusion in one or more of such programs, the Director shall notify the
applicant in writing of such qualification and of the applicable rules and regulations, and
shall send an application form for inclusion in such program(s). If the property is
included in one or more of such programs, the application shall be further processed as
amended or withdrawn, as appropriate.
D. After receiving the application, the City may, at its sole discretion, offer to
purchase the development rights rather than grant an RUE, and the applicant, at his/her
sole discretion, may agree to accept the offer to purchase said development rights rather
than pursue an RUE.
E. The Director shall prepare a recommendation to the Hearing Examiner based on
review of the submitted information and reports, a site inspection, and the proposal's
compliance with the criteria in Subsection (G), below.
F. Hearing Examiner Review. The hearing examiner shall review the RUE
application and conduct a public hearing pursuant to the provisions of the BIMC
2.16.100. The Hearing Examiner shall approve, approve with conditions, or deny the
request based on the proposal's compliance with all of the RUE review criteria in
Subsection (G), below.
G. Reasonable Use Review Criteria. Criteria for review and approval of reasonable
use exceptions are as follows:
1. The application of this chapter would deny all reasonable use of the property;
21
2. There is no reasonable alternative to the proposal;
3. The proposed impact to the critical area is the minimum necessary to allow
reasonable use of the property;
4. The inability of the applicant to derive reasonable use of the property is not the
result of actions by the applicant, or of the applicant's predecessor, that occurred after
February 20, 1992;
5. The proposed total lot coverage does not exceed 1,200 square feet;
6. The proposal does not pose an unreasonable threat to the public health, safety,
or welfare on or off the property;
7. Any net loss of critical area functions and values, as determined by a qualified
consultant through the application of best available science, will be mitigated on-site to
the extent feasible if off-site options are not available. If off-site options, such as a fee-
in-lieu or mitigation banking program, are available, the mix of on-site and off-site
mitigation should be based on recommendations of the consultant; and
8. A Habitat Management Plan has been prepared pursuant to BIMC 16.20.060,
unless it is determined through the applicable review process that such a plan is
unnecessary; and
9. The proposal is consistent with other applicable regulations and standards.
H. Burden of Proof. The burden of proof shall be on the applicant to bring forth
evidence in support of the application and to provide sufficient information on which any
decision has to be made on the application. The standard for the burden of proof shall be
clear and convincing evidence.
16.20.090 Application requirements.
A. Submittal Requirements. Applications for land use or development proposals
within critical areas or their buffers shall be filed with the information requested on the
application forms available from the Department of Planning and Community
Development. The applicant shall not be granted any approval or permission to conduct
development or land use in a critical area and/or its buffer prior to fulfilling the
requirements of this chapter.
B. Support Information Requirements. When support information is required by the
Director it shall contain the following and be prepared by one or more of the experts
listed in Subsection BA of this section:
1. A description of the critical areas on or adjoining 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 impacts and a description of how these
methods may impact adjacent properties;
3. Any additional information determined as relevant by the Director;
4. Such studies shall be prepared by experts in the area of concern, who shall be
selected from a list of approved consultants prepared by the Director, as follows:
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a. Aquifer recharge study: Hydrogeologist;
b. Flood hazard area study: Professional civil engineer; hydro-geologist;
c. Geologically hazardous area study: Engineering geologist; geotechnical
engineer, provided that:
i. An engineering geologist may provide a study, including interpretation,
evaluation, analysis, and application of geological information and data and may predict
potential or likely changes in types and rates of surficial geologic processes due to
proposed changes to a location, provided it does not contain recommended methods for
mitigating identified impacts, other than avoidance, structural impacts to, or suitability of
civil works; and
ii.Engineering geologists may not provide engineering recommendations
or design recommendations, but may contribute to a complete geotechnical report that is
co-sealed by a geotechnical engineer.
d. Stream, riparian area, drainage corridor study: Biologist with stream
ecology expertise; fish or wildlife biologist; a civil engineer may provide studies for
drainage, surface and subsurface hydrology, and water quality;
e. Wetland study: Wetlands specialist.
f. Habitat Management Plans: Wildlife biologist and/or fisheries biologist.
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 or City Engineer as specified.
16.20.100 Minimizing impacts to critical areas.
A. If the Director determines that negative impacts to critical areas are necessary and
unavoidable, the applicant shall take measures to minimize the impacts.
B. Such measures shall include but are not limited to:
1. Limiting the degree or magnitude of the regulated activity;
2. Limiting the implementation of the regulated activity;
3. Using appropriate and best available technology;
4. Taking affirmative steps to avoid or reduce impacts;
5. Sensitive site design and siting of facilities and construction staging areas
away from critical areas and their buffers;
6. Involving resource agencies early in site planning; and
7. Providing protective measures such as siltation curtains, hay bales and other
siltation prevention measures, scheduling the regulated activity to avoid interference with
wildlife and fisheries rearing, resting, nesting or spawning activities.
16.20.110 Mitigation plan requirements.
A. 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 allowed activities
23
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 planes) 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
planes) 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 planes).
a. Baseline Information.
i. Wetland delineation and existing wetland acreage;
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
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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 ofthe 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 water 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 C.2 of this Section.
e. Monitoring Program. A program outlining the approach for monitoring
construction of the compensation project and for assessing a completed project shall be
provided. Monitoring may include, but is not limited to:
i. Establishing vegetation plots to track changes in plant species
composition and density over time;
ii. Using photo stations to evaluate vegetation community response;
iii. Sampling surface and subsurface waters to determine pollutant
loading, and changes from the natural variability of background conditions (pH, nutrients,
heavy metals);
iv. Measuring base flow rates and storm water runoff to model and
evaluate water quality predictions, if appropriate;
v. Measuring sedimentation rates, if applicable; and
vi. Sampling fish and wildlife populations to determine habitat utilization,
species abundance and diversity.
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,
25
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 seven 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 Surety 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, a surety
ensuring fulfillment of the compensation project, monitoring program, and any
contingency measure shall be posted pursuant to BIMC 16.20.180.
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.
16.20.120 Aquifer recharge areas.
A. Classification. The entirety of Bainbridge Island is the recharge area for the island
aquifers. Certain uses must be carefully evaluated before being approved, and others
must be prohibited, in order to protect the city's aquifers, due to the following:
1. Bainbridge Island is dependent upon its aquifers as the sole and essential
source for drinking water. Critical recharge areas have the potential to affect potable
water where an essential source of drinking water is vulnerable to contamination.
2. 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.
3. Susceptibility to pollution is a function of depth of groundwater, permeability
of soils, soil types, presence of potential sources of contamination and any other relevant
factors.
4. Soil types that transfer water to the aquifer are rated in terms of infiltration
rate. Soil types with the 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.
5. The island aquifers are vulnerable to a reduction in recharge from activities
that reduce the infiltration rate on a site.
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B. Hydrogeologic Assessment. The following proposed activities will require the
preparation of a hydrogeologic assessment:
1. The use of hazardous substances, other than household chemicals used
according to the directions specified on the packaging for domestic applications;
2. The use of injection wells, including on-site septic systems, except those
domestic septic systems releasing less than 14,500 gallons of effluent per day; or
3. Any other activity determined by the Director likely to have an adverse impact
on ground water quality or quantity or on the recharge of the aquifer.
C. Hydrogeologic Assessment Requirements. A hydrogeologic assessment shall
include, at a minimum, the following site and proposal-related information:
1. Available information regarding geologic and hydrogeologic characteristics of
the site including the surface location of all critical aquifer recharge areas located on site or
immediately adjacent to the site, and permeability of the unsaturated zone;
2. Ground water depth, flow direction, and gradient based on available
information;
3. Currently available data on wells and springs within 1,300 feet of the project
area;
4. Location of other critical areas, including surface waters, within 1,300 feet of the
project area;
5. Available historic water quality data for the area to be affected by the proposed
acti vi ty ;
6. Best management practices proposed to be utilized to protect groundwater
quality; and
7. Low impact development practices designed to maintain infiltration rates to the
underlying aquifers.
D. Performance Standards - Specific Uses.
1. Storage Tanks. All storage tanks proposed in a critical aquifer recharge area
must comply with local building code requirements and must conform to the following
requirements:
a. Underground Tanks. All new underground storage facilities proposed for
the storage of hazardous substances or hazardous wastes shall be designed and
constructed so as to:
i. Prevent releases due to corrosion or structural failure for the operational
life of the tank;
ii. Be protected against corrosion, constructed of noncorrosive material,
steel clad with a noncorrosive material, or designed to include a secondary containment
system to prevent the release or threatened release of any stored substances; and
iii. Use material in the construction or lining of the tank that is compatible
with the substance to be stored.
b. Aboveground Tanks. All new aboveground storage facilities proposed for
the storage of hazardous substances or hazardous wastes shall be designed and
constructed so as to:
i. Not allow the release of a hazardous substance to the ground, ground
waters, or surface waters;
27
ii. Have a primary containment area enclosing or underlying the tank or
part thereof; and
iii. A secondary containment system either built into the tank structure or
a dike system built outside the tank for all tanks.
2. Vehicle Repair and Servicing
a. Vehicle repair and servicing must be conducted over impermeable pads
and within a covered structure capable of withstanding normally expected weather
conditions. Chemicals used in the process of vehicle repair and servicing must be stored
in a manner that protects them from weather and provides containment should leaks
occur .
b. No dry wells shall be allowed on sites used for vehicle repair and
servlcmg. Dry wells existing on the site prior to facility establishment must be
abandoned using techniques approved by the state Department of Ecology prior to
commencement ofthe proposed activity.
3. Residential Use of Pesticides and Nutrients. Application of household
pesticides, herbicides, and fertilizers shall not exceed times and rates specified on the
packaging.
4. Use of Reclaimed Water for Surface Percolation or Direct Recharge. Water
reuse projects for reclaimed water must be in accordance with the adopted water or sewer
comprehensive plans that have been approved by the state departments of Ecology and
Health.
a. Use of reclaimed water for surface percolation must meet the ground water
recharge criteria given in Chapter 90.46.080(1) and Chapter 90.46.010(10) RCW. The
state Department of Ecology may establish additional discharge limits in accordance with
Chapter 90.46.080(2) RCW.
b. Direct injection must be in accordance with the standards developed by
authority of Chapter 90.46.042 RCW.
5. State and Federal Regulations. The uses listed below shall be conditioned as
necessary to protect critical aquifer recharge areas in accordance with the applicable state
and federal regulations.
Table 1: Statutes, Regulations, and Guidance Pertaining to
Ground Water Impacting Activities
Activity Statute - Regulation - Guidance
Above Ground Storage Chapter 173-303-640 WAC
Tanks
Animal Feedlots Chapter 173-216 WAC, Chapter
173-220 WAC
Automobile Washers Chapter 173-216 WAC, Best
Management Practices for Vehicle
and Equipment Discharges
(Washington Department of
Ecology WQ-R-95-56)
Below Ground Storage Tanks Chapter 173-360 WAC
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Activity Statute - Regulation - Guidance
Chemical Treatment Storage Chapter 173-303-182 WAC
and Disposal Facilities
Hazardous Waste Generator Chapter 173-303 WAC
(Boat Repair Shops,
Biological Research Facility,
Dry Cleaners, Furniture
Stripping, Motor Vehicle
Service Garages,
Photographic Processing,
Printing and Publishing
Shops, etc.)
Injection Wells Federal 40 CFR Parts 144 and 146,
Chapter 173-218 WAC
Junk Yards and Salvage Chapter 173-304 WAC, Best
Yards Management Practices to Prevent
Stormwater Pollution at Vehicles
Recycler Facilities (Washington
State Department of Ecology 94-
146)
Oil and Gas Drilling Chapter 332-12-450 WAC,
Chapter 173-218 WAC
On-Site Sewage Systems Chapter 173-240 WAC
(Large Scale)
On-Site Sewage Systems (< Chapter 246-272 WAC, Local
14,500 gal/day) Health Ordinances
Pesticide Storage and Use Chapter 15.54 RCW, Chapter
17.21 RCW
Sawmills Chapter 173-303 WAC, Chapter
173-304 WAC, Best Management
Practices to Prevent Storm water
Pollution at Log Yards
(Washington State Department of
Ecology, 95-53)
Solid Waste Handling and Chapter 173-304 WAC
Recycling Facilities
Surface Mining Chapter 332-18-015 WAC
Wastewater Application to Chapter 173-216 WAC, Chapter
Land Surface 173-200 WAC, Washington State
Department of Ecology Land
Application Guidelines, Best
Management Practices for
Irrigated Agriculture
29
E. Prohibited Uses. Uses Prohibited In Aquifer Recharge Areas. The following
activities and uses are prohibited in Aquifer Recharge Areas:
1. Landfills. Landfills, including hazardous or dangerous waste, municipal solid
waste, special waste, wood waste, and inert and demolition waste landfills;
2. Underground Injection Wells. Class I, III, and IV wells and subclasses 5F01,
5D03, 5F04, 5W09, 5W10, 5W11, 5W31, 5X13, 5X14, 5X15, 5W20, 5X28, and 5N24 of
Class V wells;
3. Wood Treatment Facilities. Wood treatment facilities that allow any portion
of the treatment process to occur over permeable surfaces (both natural and manmade);
4. Storage, Processing, or Disposal of Radioactive Substances. Facilities that
store (other than minor sources such as medicinal uses or industrial testing devices)
process, or dispose of radioactive substances; and
5. Other Prohibited Uses or Activities:
a. Activities that would significantly reduce the recharge to aquifers currently
or potentially used as a potable water source; and
b. Activities that would significantly reduce the recharge to aquifers that are a
source of significant baseflow to a regulated stream.
16.20.130 Fish and wildlife habitat conservation areas.
A. Purpose. This section applies to all Fish and Wildlife Habitat Conservation
Areas, as categorized in Section 16.20.130(B) below. The intent of this Section is to:
1. Preserve natural flood control, stormwater storage, and drainage or stream
flow patterns;
2. Control siltation, protect nutrient reserves, and maintain stream flows and
stream quality for fish and marine shellfish;
3. Prevent turbidity and pollution of streams and fish or shellfish bearing waters;
4. Preserve and protect habitat adequate to support viable populations of native
wildlife and fish on Bainbridge Island; and,
5. Encourage non-regulatory methods of habitat retention whenever practical,
through education and the Open Space Tax Program.
B. Fish and Wildlife Habitat Conservation Areas Categories.
1. Classification. The following categories shall be used in classifying Fish and
Wildlife Habitat Conservation Areas:
a. Marine Critical Areas. Commercial and recreational shellfish areas; kelp
and eelgrass beds; marine and estuarine waters of the state and herring, sand lance and
smelt spawning areas.
b. Streams: All streams which meet the criteria for Type F, Np and Ns waters
as set forth in WAC 222-16-030 of the Department of Natural Resources Water Typing
System and as further modified by the definitions in this chapter. Once a stream has been
classified, the City must document the reasons for changes in the classification.
c. Fish and Wildlife Conservation Areas:
i. Class I Fish and Wildlife Conservation Areas: Habitats recognized by
federal or state agencies for federal and/or state listed endangered, threatened, and
sensitive species documented in maps or data bases available to the City of Bainbridge
30
Island and which, if altered, may reduce the likelihood that the species will maintain and
reproduce over the long term.
ii. Class II Fish and Wildlife Conservation Areas. Habitats for State listed
candidate, monitor, or priority species documented in maps or data bases available to
City of Bainbridge Island and its citizens, and which, if altered, may reduce the
likelihood that the species will maintain and reproduce over the long term.
d. Habitats and Species of Local Importance. This section provides for the
designation and protection of habitats and species of local importance.
i. Designation of species of habitat of local importance can be based on
any of the following circumstances:
(a) Local populations of native species are in danger of extirpation
based on existing trends.
(b) Local populations of native species are likely to become
threatened or endangered under state of federal law.
(c) Local populations of native species are vulnerable or declining.
(d) The species or habitat has recreation, commercial, game, tribal, or
other special value.
(e) Long-term persistence of a species is dependent on the protection,
maintenance, and/or restoration of the nominated habitat.
(f) Protection by other county, state, or federal policies, laws,
regulations, or non-regulatory tools is not adequate to prevent degradation of the species
or habitat in the city.
(g) Without protection, there is likelihood that the species or habitat
will be diminished over the long term.
ii. Nomination.
(a) Any person may nominate habitats and species for designation.
(b) The nomination should indicate whether specific habitat features
are to be protected (for example, nest sites, breeding areas, and nurseries), or whether the
habitat or ecosystem is being nominated in its entirety.
(c) Where the nomination is a specific habitat site, the nomination
shall include the name and address of all property owners of record of all assessor parcels
within the area potentially affected by the management recommendations. The list shall
at a minimum include all properties within 300 feet from the edge of all property
identified for special designation.
(d) The nomination shall include recommended management
strategies for the species or habitats. Management strategies must be supported by the
best available science, and where restoration of habitat is proposed, a specific plan for
restoration must be provided prior to nomination.
iii. Nomination processing and approval. The decision whether to
designate a nominated species or habitat as one of local importance shall be made by the
City Council. If approved, the City Council shall pass an ordinance establishing the
designation.
iv. Establishment of specific rules for protection. Within 120 days of the
effective date of an ordinance designating a species or habitat of local importance, the
31
Director shall develop an administrative rule addressing protection in compliance with
this section.
C. Development Standards. Regulated uses in designated Fish and Wildlife Habitat
Conservation Areas and/or buffers shall comply with the performance standards outlined
in this Section.
1. Development standards for Marine Critical Areas are defined in the City's
Shoreline Master Program, Chapter 16.12 BIMC. The shoreline studies that are currently
required from all applicants under the Shoreline Master Program, Chapter 16.12 BIMC,
are summarized in Exhibit A. Marine Critical Areas are not subject to Development
Standards 2-16 of this Subsection C.
2. Development standards - streams:
a. Water quality buffers - An applicant shall provide the prescribed water
quality buffers in Table 2 unless a Reasonable Use Exception is granted pursuant to
BIMC 16.20.080.
b. Habitat buffers - An applicant shall provide either:
i. The prescribed habitat buffers in Table 2; or
ii. An approved Habitat Management Plan, pursuant to BIMC 16.20.060,
that clearly provides greater habitat functions and values in perpetuity than the prescribed
habitat buffers in Table 2.
c. Buffer distances shall be measured from the ordinary high water mark
(OHM) or from the top of the bank where the OHM cannot be identified. Buffers shall
be retained in their natural condition. It is acceptable, however, to enhance the buffer by
planting native or equivalent vegetation as approved by the Director.
d. Alteration of habitat buffer areas may be allowed for water dependent and
water related activities and for development authorized by BIMC 16.20.040.C
(Exemptions), or BIMC 16.20.040.D (Standards for Existing Development), or BIMC
16.20.050.B (Buffer Averaging), or BIMC 16.20.070 (Variances), or BIMC 16.20.080
(Reasonable Use Exception).
e. The buffer width shall be increased to include streamside wetlands which
provide overflow storage for stormwater, feed water back to the stream during low flow,
or provide shelter and food for fish. In braided channels, the ordinary high water mark or
top of bank shall be defined so as to include the entire stream feature.
f. Refuse and landscaping debris shall not be placed in buffers.
g. Streams in Ravines - Buffers. For streams in ravines outside the Mixed Use
Town Center with ravine sides 10 feet or greater in height, the buffer width shall be the
greater of:
i. The buffer width required for the stream type; or
ii. A buffer width which extends 25 feet beyond the top of the ravine.
h. Building Setback Line. A building surface setback line of 15 feet is
required from the edge of any fish and wildlife habitat conservation area buffer except as
provided for in BIMC 16.20.170. Minor structures such as decks or impervious surfaces
such as driveways may be permitted if the Director determines that such intrusions will
not adversely impact the fish and wildlife habitat conservation area. The setback shall be
identified on the site plan and filed as an attachment to the notice on title as required by
BIMC 16.20.190.
32
Table 2: Stream Buffers
Stream Category Water Quality Habitat Total Buffer
Buffer Buffer
Fish Bearing (F) 100ft 50 ft 150 ft
Non-Fish Perennial (Np) 40 ft 10 ft 50 ft
Non-Fish Seasonal (Ns) 40 ft 10ft 50 ft
3. Class I Fish and Wildlife Conservation Areas Development Standards. All
development as described within this chapter or within 200 feet of designated Class I
Wildlife Conservation Areas, except Marine Critical Areas, shall adhere to the following
standards:
a. The applicant shall submit a Habitat Management Plan as specified in
BIMC 16.20.060 for approval by the Director. If a wildlife conservation area designation
is based on the presence of bald eagles, a Bald Eagle Management Plan, approved by the
Washington State Department of Fish and Wildlife and meeting the requirements and
guidelines of the bald eagle protection rules, WAC 232-12-292, as now or hereafter
amended, shall satisfy the requirements for a Habitat Management Plan (HMP).
b. All new development within ranges and habitat elements with which Class
I Fish and Wildlife have a significant relationship may require the submittal of a Habitat
Management Plan (HMP) as specified in BIMC 16.20.060. The requirement for an HMP
shall be determined during the SEP A/Critical Areas review on the project.
c. An HMP required pursuant to this section shall consider measures to retain
and protect the wildlife habitat and shall consider effects of land use intensity, buffers,
setbacks, impervious surfaces, erosion control and retention of native or equivalent
vegetation.
d. Increased Buffer Provisions. The Director may increase buffer widths, up
to 50% greater than the applicable buffer set in this chapter for critical areas with known
locations of endangered, threatened, or state monitor or priority species for which a
habitat management plan indicates a larger buffer is necessary to protect habitat values
for such species. Such determination shall be based on site-specific and project-related
conditions.
4. Class II Fish and Wildlife Conservation Area Development Standards. All
development within designated Class II Wildlife Conservation Areas shall adhere to the
following standards:
a. An HMP may be required for any proposed development within designated
Class II Fish and Wildlife Conservation Areas. The HMP shall consider measures to
retain and protect the wildlife habitat and shall consider effects of land use intensity,
buffers, setbacks, impervious surfaces, erosion control and retention of native or
equivalent vegetation. The requirement for an HMP shall be determined during the
SEP A/Critical Areas review on the project.
b. Increased Buffer Provisions. The Director may increase buffer widths, up
to 50% greater than the applicable buffer set in this chapter for critical areas with known
locations of endangered, threatened, or state monitor or priority species for which a
33
habitat management plan indicates a larger buffer is necessary to protect habitat values
for such species. Such determination shall be based on site-specific and project-related
conditions.
5. Stream Crossings. Any private or public road expansion or construction which
is allowed and must cross streams classified within this chapter, shall comply with the
following minimum development standards:
a. Bridges or bottomless culverts shall be required for all streams which have
Salmonid breeding habitat. Other alternatives may be allowed upon submittal of a Habitat
Management Plan which demonstrates that other alternatives would not result in
significant impacts to the Fish and Wildlife Conservation Area, as determined appropriate
through the Washington State Department of Fish and Wildlife, Hydraulics Project
Approval process. The plan must demonstrate that salmon habitat will be replaced on a
1: 1 ratio.
b. Crossings shall not occur in Salmonid spawning areas unless no other
feasible crossing site exists. For new development proposals, if existing crossings are
determined to adversely impact salmon spawning or passage areas, new or upgraded
crossings shall be located as determined necessary through coordination with the
Washington State Department ofFish and Wildlife;
c. Bridge piers or abutments shall not be placed in either the floodway or
between the ordinary, high water marks unless no other feasible alternative placement
exists;
d. Crossings shall not diminish flood carrying capacity;
e. Crossings shall serve multiple properties whenever possible;
f. Where there is no reasonable alternative to providing a conventional
culvert, the culvert shall be the minimum length necessary to accommodate the permitted
acti vi ty .
6. Stream Relocations. Stream relocations for the purpose of flood protection
and/or iisheries restoration shall only be permitted when adhering to the following
minimum performance standards and when consistent with Washington State Department
of Fish and Wildlife Hydraulic Project Approval:
a. The channel, bank, and buffer areas should be replanted with native or
equivalent vegetation that replicates a natural, undisturbed riparian condition;
b. For those shorelands and waters designated as Frequently Flooded Areas
pursuant to BIMC 16.20.140, a professional engineer licensed in the State of Washington
shall provide information demonstrating that the equivalent base flood storage volume
and function will be maintained; and
c. Relocated stream channels shall be designed to meet or exceed the
functions and values of the stream to be relocated.
7. Pesticides, Fertilizers and Herbicides. No pesticides, herbicides or fertilizers
may he used in Fish and Wildlife Conservation Areas or their buffers, except those
approved by the EPA and approved under a DOE Water Quality Modification Permit for
use in Fish and Wildlife Habitat Conservation Area environments. Where approved,
herbicides must be applied by a licensed applicator in accordance with the safeaapplication practices on the label.
34
b. Construction of utilities may be permitted in Fish and Wildlife Habitat
Conservation Areas or their buffers, only when no practicable or reasonable alternative
location is available and the utility corridor meets the requirements for installation,
replacement of vegetation and maintenance outlined below, and as required pursuant to
BIMC 16.20.160(G) (Special Use Review), which may be required by this Chapter.
c. Sewer or on-site Sewage Utility. Construction of sewer lines or on-site
sewage systems may be permitted in Fish and Wildlife Habitat Conservation Areas or
their buffers when the applicant demonstrates it is necessary to meet State and/or local
health code requirements; there are no other practicable alternatives available; and
construction meets the requirement of this section. Joint use of the sewer utility corridor
by other utilities may be allowed.
d. New utility corridors shall not be allowed in Fish and Wildlife Habitat
Conservation Areas with known locations of federal or state listed endangered, threatened
or sensitive species, heron rookeries or nesting sites of raptors which are listed as state
candidates except in those circumstances where an approved Habitat Management Plan
indicates that the utility corridor will not significantly impact the conservation area;
e. New Utility Corridor Construction. Utility corridor construction and
maintenance shall protect the environment of Fish and Wildlife Habitat Conservation
Areas and their buffers.
i. New utility corridors shall be aligned whenever possible to avoid
cutting or root damage to trees greater than 12 inches in diameter at breast height (four
and one-half feet) measured on the uphill side.
ii. New utility corridors shall be revegetated with appropriate native or
equivalent vegetation at not less than pre-construction vegetation densities or greater,
immediately upon completion of construction or as soon thereafter as possible due to
seasonal growing constraints. The utility shall ensure that such vegetation survives.
iii. Any additional corridor access for maintenance shall be provided
wherever possible at specific points rather than by parallel roads. If parallel roads are
necessary, they shall be of a minimum width but no greater than 15 feet; and shall be
contiguous to the location of the utility corridor on the side away from the conservation
area.
f. Utility corridor maintenance shall include the following measures to protect
the environment of regulated Fish and Wildlife Habitat Conservation Areas.
i. Utility towers should be painted with brush, pad or roller and should not
be sandblasted or spray-painted, nor should lead base paints be used.
ii. Pesticides, fertilizers and herbicides: No pesticides or fertilizers may
be used in Fish and Wildlife Conservation Areas or their buffers, except those herbicides
applied by a licensed applicator in accordance with the safe application practices on the
label.
12. Bank Stabilization.
a. A stream channel and bank may be stabilized when naturally occurring
earth movement threatens existing structures (defined as requiring a Building Permit
pursuant to the applicable building code), public improvements, unique natural resources,
public health, safety or welfare, or the only feasible access to property, and, in the case of
36
streams, when such stabilization results in maintenance of Fish and Wildlife Habitat
,
flood control, and improved water quality.
b. Where bank stabilization is determined to be necessary, bioengineering or
other non-structural methods should be the first option for protection. Bulkheads and
retaining walls may only be utilized as an engineering solution where it can be
demonstrated that an existing residential structure cannot be safely maintained without
such measures, and that the resulting retaining wall is the minimum length necessary to
provide a stable building area for the structure. The Director may require that bank
stabilization be designed by a professional engineer licensed in the State of Washington
with demonstrated expertise in hydraulic actions of shorelines. Bank stabilization
projects may also require a City of Bainbridge Island clearing or grading permit and
Hydraulic Project Approval from the Washington Department ofFish and Wildlife.
c. Nonstructural streambank protective techniques are preferred to bulkheads
or other types of streambank armoring. Nonstructural techniques include but are not
limited to vegetation plantings and bioengineering.
13. Fencing and Signs. Prior to approval or issuance of permits for land divisions
or other new development, the Director may require that the common boundary between
a required buffer and the adjacent lands be identified using fencing or permanent signs. In
lieu of fencing or signs, alternative methods of buffer identification may be approved
when such methods are determined by the Director to provide adequate protection to the
buffer.
14. Forest Practice, Class IV General and Conversion Option Harvest Plans
(COHPs). All timber harvesting and associated development activity, such as
construction of roads, shall comply with the provisions of this chapter, and the
Stormwater Management standards in Chapters 15.20 and 15.21 BIMC, including the
maintenance of buffers, where required.
15. Road/Street Repair & Construction. Any private or public road or street
expansion or construction which may be allowed in a Fish and Wildlife Habitat
Conservation Area or its buffer shall comply with the following minimum development
standards:
a. No other reasonable or practicable alternative exists and the road or street
crossing serves multiple properties whenever possible;
b. Expansion or construction of any private or public road shall only be
allowed when adverse impacts cannot be avoided;
c. Public and private roads should provide for other purposes, such as utility
crossings, pedestrian or bicycle easements, viewing points, etc.; and
d. The road or street construction is the minimum necessary, as required by
the Department of Public Works, and shall comply with the Department of Public Works'
guidelines to provide public safety and mitigated stormwater impacts.
e. Construction time limits shall be determined in consultation with the
Washington State Department of Fish and Wildlife in order to ensure habitat protection.
16. Other allowed Uses in Fish and Wildlife Conservation Areas. Other activities
may be allowed using the standard for a category II wetland buffer in BIMC
16.20.160(E), Table 4.
37
16.20.140 Frequently flooded areas.
A. Classification. Classification for frequently flooded areas shall be consistent with
the 100-year floodplain designation of the Federal Emergency Management Agency and
the National Flood Insurance Program. In addition the following criteria shall be
considered when designating and classifying these areas:
1. Flooding impact to human health, safety, and welfare and to public facilities
and services;
2. Available documentation including federal, state, and local laws, regulations
and programs, local maps, and federally subsidized flood insurance programs;
3. The future floodplain defined as a channel of the stream and that portion of the
adjoining floodplain which is necessary to contain and discharge the base flood flow at
build-out without any measurable increase in flood heights; and
4. The effect of high tides with strong winds, and greater surface runoff caused
by increasing impervious surfaces.
B. Standards.
1. Development shall not reduce the effective base flood storage volume.
Effective storage capacity shall be maintained.
2. Grading or other regulated activities which would reduce the flood water
storage volume shall be mitigated by creating compensatory storage on- or off-site.
Applicants must provide mitigation plans pursuant to this chapter.
3. Base flood data and flood hazard notes shall be on the face of any recorded
plat or site plan including, but not limited to, base flood elevations, flood protection
elevation, boundary of floodplain, and zero rise floodway.
4. Applicants for development in low lying shoreline areas and other areas where
flood elevation is controlled by tide level shall be provided with information on sea level
rIse.
16.20.150 Geologically hazardous areas.
A. General. Geologically hazardous areas include erosion hazard areas, landslide
hazard areas, and seismic hazard areas. Zone of influence areas are not considered
geologically hazardous areas.
B. Purpose. The intent of this section is to prevent the potential for personal injury or
loss of life or property due to flooding, erosion, landslides, seismic events, or soil
subsidence. Development must not increase slope instability, and must avoid on-site and
off-site impacts, as well as potential risk to structures. Preserving the existing vegetation
may be an important part of minimizing those risks.
C. 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 is allowed. While some potential risk due to construction
can be reduced through structural engineering design, construction in these areas should
be avoided when the potential risk cannot be reduced to a level comparable to the risk if
the site were initially stable prior to construction. Classification and rating shall be based
upon the risk to the environment and to development in geologically hazardous areas.
D. Minimum Submittal Requirements.
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1. All geologically hazardous areas and buffers.
a. lndemnification. An indemnification or hold harmless agreement shall be
required for all projects in geologically hazardous areas and buffers except erosion hazard
areas and tsunami hazard areas. The form of the agreement shall be approved by the City
and executed prior to the commencement of construction or site alteration.
b. Notice. If no other public notice is required for a proposed development
located in a landslide hazard areas, a notice of intent to construct on a landslide hazard
area shall be given pursuant to BIMC 2.16.085.C.2.
c. All reports or analyses required or prepared pursuant to this Section shall
be prepared pursuant to BIMC 16.20.090, 16.20.150, and/or any other applicable
provisions of this chapter, and shall meet the satisfaction of, and be approved by, the City
Engineer prior to the commencement of any development activity.
d. Mitigation plans. The City Engineer may determine that a mitigation plan
is necessary. The mitigation plan shall propose, and the City Engineer may approve,
appropriate mitigation measures, which may include, among others, removal of
groundwater, vegetation management, and/or construction of bulkheads or retaining
walls. No mitigation plan shall be approved that increases the risk of landslide or erosion
on-site or off-site. Bulkheads and retaining walls may only be utilized as engineering
solutions where it can be demonstrated that a structure will be more safely protected than
without the use of such measures, and that the resulting retaining wall is the minimum
size necessary to protect the structure, and that no other reasonable project alternative
exists. The mitigation plan shall be prepared by qualified professionals, which may
include geotechnical engineer, hydrogeologist, arborist, and/or fisheries biologist,
depending on specific circumstances and as deemed appropriate by the City Engineer.
2. Erosion Hazard Areas. An erosion control plan prepared by a duly licensed
civil engineer shall be submitted to the City prior to the issuance of a clearing or grading
permit.
3. Landslide Hazard Areas.
a. Erosion Control. An erosion control plan prepared by a civil engineer shall
be submitted to the City prior to the issuance of a clearing or grading permit.
b. The applicant shall provide a geotechnical analysis containing information
specified by the City Engineer, which concludes that the development proposal meets the
standards of this section.
4. Seismic Hazards Areas.
a. Fault Hazard. The applicant shall provide a geologic/geotechnical analysis
containing information specified by the City Engineer that documents the presence or
absence of any surface deformation on the site in areas mapped by the City. If
deformation is located, the applicant shall provide a geotechnical analysis containing
information specified by the City Engineer, which concludes that the development
proposal as mitigated meets the standards of this section.
b. Liquefaction Hazard. The applicant shall provide a geotechnical analysis
containing information specified by the City Engineer that meets the standards of this
section (as mitigated).
c. Seismic Landslide Hazard. The applicant shall provide the same analysis
and plan as required for landslide hazard areas, pursuant to BIMC 16.20.150(0)(3).
39
5. Tsunami Hazards. The City shall provide applicants for development in low
lying shoreline areas and other areas where flood elevation is controlled by tide level with
information on tsunami hazards.
6. Zone of Influence Areas. The applicant shall provide a geotechnical analysis
containing information specified by the City Engineer which analyzes the potential
impacts to the geological hazard from the proposed development in the zone of influence
and meets the standards of this section. The report shall contain recommendations to
avoid adverse impacts to the geologically hazardous area. Concentrated discharge of
stormwater shall only be allowed where specially recommended in the report and
authorized by the City Engineer.
E. Development Standards.
1. The City Engineer shall establish administrative procedures to implement
BIMC 16.20.150. The City Engineer shall determine professionally acceptable levels of
risk for all activities within geologically hazardous areas. The applicant shall meet the
following standards for all activities:
a. The proposed activity shall not create a net increase in geological
instability, either on- or off-site, which is defined as follows:
i. The subject parcel shall not be less stable after the planned development
than before; and
ii. The adjacent parcels shall not be less stable after the planned
development than before.
b. The proposed activity shall not increase the risk of life safety due to
geological hazards above professionally acceptable levels.
c. The proposed activity shall not increase the risk due to geological hazards
above professionally acceptable levels for:
i. Property loss of any habitable structures or their necessary supporting
infrastructure on-site or;
ii. Risk to any off-site structures or property of any kind; and
d. Proposed buildings shall be constructed using appropriate engineering
methods that respond to the geologic characteristics specific to the site in order to achieve
the highest standard of safety feasible.
2. Development Design and Location.
a. There shall be no clearing, grading, or new construction within 50 feet of
the edge of all slopes that are classified as geologically hazardous areas. This 50 foot
area may be reduced, as outlined in 16.20.070 (Variances), only if the applicant provides
expert verification by a geotechnical engineer, as specified by the City Engineer, that
demonstrates that the proposal will not increase slope instability, and that no other
reasonable project alternative exists;
b. All development proposals shall be designed to avoid impacts to the
geologically hazardous areas. The development shall be designed to minimize the
footprint of building in other disturbed areas, minimize removal of vegetation, minimize
topographic change, and retain open space to the maximum extent practicable;
c. Development design shall utilize clustering, under-structure parking, multi-
level construction, and tiered foundations to the extent feasible to minimize impervious
lot coverage, slope disturbance, and changes to the natural topography;
40
d. Access shall be in the least sensitive part of the site, and common access
drives and utility corridors are required to the extent feasible;
e. Roads, walkways and parking areas shall be designed to parallel the natural
contours to the extent feasible;
f. All proposed clearing and tree removal shall be marked in the field for
inspection and approval prior to alteration of the site;
g. Cut and fill slopes shall be prepared and maintained to control against
erosion and instability; and
h. Drainage and stormwater designs in zones of influence shall incorporate
elements of low impact design, to the extent feasible, and shall be designed in such a
manner that stormwater outlet discharges do not create additional impacts.
F. Exemptions. The following activities are permitted in geologically hazardous
areas; provided, that applicable standards in Subsection (C) 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 lift 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;
3. The removal of hazard trees; and
4. The trimming and limbing of vegetation and the removal of trees for the
creation and maintenance of view corridors in accordance with 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. The thinning of limbs on
individual trees is preferred to removal of trees for view corridors. All vegetation
removal must be based on a plan developed by a certified arborist and reviewed by a
geotechnical engineer to determine if it will impact slope stability.
16.20.160 Wetlands.
A. Purpose. This section applies to all regulated uses within or adjacent to areas
designated as wetlands, as categorized in BIMC 16.20.160(B) below. The intent of this
Section is listed in no specific priority, as follows:
1. Preserve, protect, restore, and improve wetland functions and values. Achieve
no net loss and increase the quality of wetland acreage, functions, and values within the
city. Mitigation measures, as conditions of permits, must have a reasonable expectation
of success. Under the conditions of this Section, the Director may deny development
proposals that would irreparably impact regulated wetlands; and
2. Protect the public's health, safety, and welfare, while preventing public
expenditures that could arise from improper wetland uses and activities; and
3. Plan wetland uses and activities in a manner that protects and enhances the
natural systems and environmental quality of Bainbridge Island and allows property
41
holders to benefit from wetland property ownership wherever allowable under the
conditions of this chapter; and
4. Preserve ecological functions and values of wetlands which provide water
quality protection, natural flood control, stormwater storage, contributes to groundwater
and stream flow, shoreline stabilization, and wildlife and fish habitat; and
5. Prevent turbidity and pollution of wetlands and fish or shellfish bearing waters,
and maintain healthy wildlife habitat; and
6. Encourage land use development patterns that maintain, enhance, or restore
natural wetland systems and protect disturbance-sensitive and wetland-dependent
wildlife, fish resources, and open space; and
7. Protect and preserve wetlands values as natural areas providing aesthetic,
recreational, and educational opportunities that need to be preserved for future
generations; and
8. Enhance the connectivity between wetland landscapes.
B. Wetland Categories. For regulatory purposes, wetland delineations shall be
determined by using the Washington State Wetlands Identification and Delineation
Manual, March 1997, or as amended hereafter.
The City uses the Department of Ecology's (DOE's) Washington State Wetland
Rating System for Western Washington, 2004, or as amended hereafter and adopted by
the Director to categorize wetlands for the purposes of establishing wetland buffer
widths, wetland uses and replacement ratios for wetlands. Once a wetland has been
classified using the current DOE rating system, the City shall not reclassify the wetland
without clearly documenting the reason for the change. If the wetland has a rating in the
City GIS system, this rating can be used for regulatory purposes. This system consists of
four wetland categories generally described as follows:
1. Category I wetlands are those that:
a. Represent unique or rare wetland type; or
b. Are more sensitive to disturbance than most wetlands; or
c. Are relatively undisturbed and contain ecological attributes that are
impossible to replace within a human lifetime; or
d. Provide a high level of function.
Category I wetlands include estuarine wetlands larger than one acre, bogs,
mature and old-growth wetlands over one acre, wetlands in coastal lagoons, and wetlands
that perform many functions very well as demonstrated by a score of over 70 points using
the DOE rating system.
2. Category II wetlands are difficult, though not impossible, to replace, and
provide a high level of function. Category II wetlands include estuarine wetlands smaller
than one acre or disturbed and larger than one acre and wetlands that perform functions
well as demonstrated by a score of 51-69 using the DOE rating system.
3. Category III wetlands are wetlands with a moderate level of function as
demonstrated by a score of 30-50 points using the DOE rating system.
4. Category IV wetlands have the lowest level of function as demonstrated by a
score less than 30 points using the DOE rating system and are often heavily disturbed.
C. Regulated and Non-Regulated Wetlands Classification.
1. Regulated Wetlands:
42
a. All natural wetlands that meet the criteria in the Washington State Wetland
Identification and Delineation manual and are greater than 1000 square feet.
b. Unintentionally created wetlands that meet the criteria in the Washington
State Wetland Identification and Delineation manual except as listed in subsection
(C)(2)(b) of this section.
c. Wetlands intentionally created from non-wetland areas to mitigate
conversion of other wetlands.
d. Wetlands less than or equal to 1000 square feet if the wetland is associated
with a riparian corridor or is part of a wetland mosaic, or contains habitat identified as
essential for local populations of priority species identified by the Washington State
Department of Fish and Wildlife.
2. Non-Regulated Wetlands:
a. Wetlands less than or equal to 1000 square feet if the wetland is not
associated with a riparian corridor or is not part of a wetland mosaic, or does not contain
habitat identified as essential for local populations of priority species identified by the
Washington State Department ofFish and Wildlife.
b. Created Wetlands. Wetlands created intentionally from a non-wetland site
that was not required to be constructed as mitigation for adverse wetland impacts. These
may include, but are not limited to, irrigation and drainage ditches, grass-lined swales,
canals, detention facilities, wastewater treatment ponds, farm ponds not contiguous, as
defined in this chapter, and landscape amenities. The applicant shall bear the burden of
proving that the wetland was intentionally created from a non-wetland site. Where
enhancements or restorations are made to wetlands for purposes other than mitigation, the
original rating shall be maintained even if the changes would otherwise result in a higher
classification.
b. Recent, Road Construction Related Wetlands. Wetlands created after July
1, 1990, that were unintentionally created as a result of the construction of a road, street,
or highway. The applicant shall bear the burden of proving that the wetland meets these
criteria.
D. Development Standards.
1. Water quality buffers - An applicant shall provide the prescribed water quality
buffers in this section (Tables 3-6) unless a Reasonable Use Exception is granted
pursuant to BIMC 16.20.080.
2. Habitat buffers - An applicant shall provide either:
a. The prescribed habitat buffers specified in this section (Tables 3, 4,5, and
6); or
b. An approved Habitat Management Plan, pursuant to BIMC 16.20.060, that
clearly provides greater habitat functions and values in perpetuity than the prescribed
habitat buffers in this section (Tables 3, 4, 5, and 6).
3. Buffers. Buffers shall remain undisturbed natural vegetation areas except
where the buffer can be enhanced to improve its functional attributes. Any buffer
enhancement and/or limited view clearing activity must be reviewed and approved by the
Director. No refuse shall be placed in the buffer. Alteration of habitat buffer areas may
be allowed for water dependent and water related activities and for development
authorized by BIMC 16.20.040.C (Exemptions), or BIMC 16.20.040.0 (Standards for
43
Existing Development), or BIMC 16.20.050.B (Buffer Averaging), or BIMC 16.20.070
(Variances), or BIMC 16.20.080 (Reasonable Use Exception).
4. If a wetland meets more than one of the criteria listed in each table, the buffer
needed to protect the wetland is the widest one.
Table 3: Category I Wetlands - Buffers
Wetland Impact of Water Habitat Total Other Protection
Characteristics Land Use Quality Buffer Buffer
Buffer
Natural Low 50 ft 75 ft 125 ft No additional discharge of
Heritage Moderate 75 ft 115ft 190 ft surface water.
Wetlands High 100 ft 150 ft 250 ft No septic systems within
300 ft.
Restore degraded parts of
the buffer
Bogs Low 50 ft 75 ft 125 ft No additional surface
Moderate 75 ft 115ft 190 ft discharges.
High 100 ft 150 ft 250 ft Restore degraded parts of
the buffer.
Forested Low 50 ft 75 ft 125 ft If forested wetland scores
Moderate 75 ft 115ft 190 ft high for habitat, maintain
High 100 ft 150 ft 250 ft connectivity to other
natural areas.
Estuarine Low 50 ft 50 ft 1 00 ft N/A
Moderate 75 ft 75 ft 150 ft
High 100 ft 100 ft 200 ft
Wetlands in Low 50 ft 50 ft 100 ft N/A
Coastal Moderate 75 ft 75 ft 150 ft
Lagoon High 100 ft 100 ft 200 ft
High level of Low 50 ft 1 00 ft 150 ft Maintain connectivity to
function for Moderate 75 ft 150 ft 225 ft other natural areas.
habitat (score High 100 ft 200 ft 300 ft Restore degraded parts of
for habitat is the buffer.
29-36 pts.)
Moderate Low 50 ft 25 ft 75 ft N/A
level of Moderate 75 ft 35 ft 110ft
function for High 100 ft 50 ft 150 ft
habitat (score
for habitat is
20-28 pts.)
High level of Low 50 ft Oft 50 ft No additional discharges of
function for Moderate 75 ft Oft 75 ft untreated runoff.
water quality High 100 ft Oft 100 ft
improvement
44
Wetland Impact of Water Habitat Total Other Protection
Characteristics Land Use Quality Buffer Buffer
Buffer
and low for
habitat (score
for water
quality 24-32
pts.; habitat
less than 20
pts.)
Not meeting Low 50 ft Oft 50 ft N/A
any of the Moderate 75 ft Oft 75 ft
above criteria. High 100 ft Oft 1 00 ft
Table 4: Category II Wetlands - Buffers
Wetland Impact of Water Habitat Total Other Protection
Characteristics Land Use Quality Buffer Buffer
Buffer
High level of Low 50 ft 100 ft 150 ft Maintain connectivity to
function for Moderate 75 ft 150 ft 225 ft other natural areas.
habitat (score High 100 ft 200 ft 300 ft
for habitat is
29-36 pts.)
Moderate Low 50 ft 25 ft 75 ft N/A
level of Moderate 75 ft 35 ft 110ft
function for High 1 00 ft 50 ft 150 ft
habitat (score
for habitat is
20-28 pts.)
Estuarine Low 50 ft 25 ft 75 ft N/A
Moderate 75 ft 35 ft 110ft
High 100 ft 15 ft 115ft
Not meeting Low 50 ft Oft 50 ft N/A
any of the Moderate 75 ft Oft 75 ft
above criteria High 100 ft Oft 1 00 ft
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Table 5: Category III Wetlands - Buffers
Wetland Impact of Water Habitat Total Other Protection
Characteristics Land Use Quality Buffer Buffer
Buffer
Moderate Low 40 ft 35 ft 75 ft N/A
level of Moderate 60 ft 50 ft 110ft
function for High 80 ft 70 ft 150 ft
habitat (score
for habitat is
20-28 pts.)
Not meeting Low 40 ft Oft 40 ft N/A
above Moderate 60 ft Oft 60 ft
criterion High 80 ft Oft 80 ft
Table 6: Category IV Wetlands - Buffers
Wetland Impact of Water Habitat Total Other Protection
Characteristics Land Use Quality Buffer Buffer
Buffer
Larger than Low 25 ft Oft 25 ft N/A
10,000 square Moderate 40 ft Oft 40 ft
feet High 50 ft Oft 50 ft
Smaller than Low 25 ft Oft 25 ft N/A
10,000 square Moderate 25 ft Oft 25 ft
feet High 25 ft Oft 25 ft
a. For Category II or III wetlands smaller than 10,000 square feet with a
habitat score of less than 20 points, the buffer may be reduced by 50 percent.
b. For the purpose of determining the impact of land use, unless the Director
determines a lesser level of impact is appropriate based on information provided by the
applicant, the intensity of impact of the adjacent land use is determined based on the
"impact of land use" definition.
5. If an applicant elects to propose an HMP, and that HMP proposes habitat
buffer widths less than those prescribed in Tables 3 - 6, the HMP shall be prepared
pursuant to BIMC 16.20.060 and fulfill all requirements specified therein.
6. Table 7 provides examples of measures that might be provided in an HMP or
when prescribed buffers are otherwise altered with by Buffer Averaging (BIMC
16.20.050.B), Variance (BIMC 16.20.070), or Reasonable Use Exception (BIMC
16.20.080), to minimize impacts of certain activities. Other measures may also be
effective in minimizing impacts depending on site-specific circumstances and the nature
of proposed activity.
46
Table 7: Examples of measures to minimize impacts to wetlands from different types of
activities.
Examples of Examples of Measures to Activities that Cause the Disturbance
Disturbance Minimize Impacts
Lights Direct lights away from Parking lots, warehouses,
wetland. manufacturing, residential
Noise Locate activity that generates Manufacturing, residential
noise away from wetland.
Toxic runoff* Route all new runoff away Parking lots, roads, manufacturing,
from wetland. residential areas, application of
Establish covenants limiting agricultural pesticides, landscaping
use of pesticides within 150
ft of wetland.
Apply integrated pest
management.
Change in Infiltrate or treat, detain, and Impermeable surfaces, lawns, tilling
water regime disperse new runoff into
buffer.
Pets Plant dense vegetation Residential areas
around buffer, such as rose,
hawthorn, etc.
Human Plant buffer with Residential areas
disturbance impenetrable natural
vegetation appropriate for
regIOn.
Dust Utilize best management Tilled fields
practices to control dust.
* These examples are not necessarily adequate to meet the rules for minimizing toxic
runoff if threatened or endangered species are present at the site.
7. Small wetlands
a. Wetlands of less than 1,000 square feet are exempt from regulation of this
section where the applicant has shown that they are not associated with a riparian
corridor, are not part of a wetland mosaic, and do not contain habitat identified as
essential for local populations of priority species identified by the Washington State
Department of Fish and Wildlife.
b. All wetlands between 1,000 and 4,000 square feet shall be evaluated using
Department of Ecology's Wetland Rating System for Western Washington (2004) to
establish category and evaluate functions. Using the following criteria, the Director shall
determine whether to exempt wetlands between 1,000 and 4,000 square feet from the
requirement to avoid impacts:
i. The wetland is not associated with a riparian corridor; and
ii. The wetland is not part of a wetland mosaic; and
47
iii. The wetland does not score 20 points or more for habitat in the
Wetland Rating System; and
iv. The wetland does not contain habitat identified as essential for local
populations of priority species identified by Washington Department of Fish and
Wildlife; and
v. The wetland is substantially covered by invasive species or otherwise
severely disturbed.
8. Buffer Measurement. All buffers shall be measured on a horizontal plane from
the regulated wetland edge as marked in the field.
9. Fencing and Signs. This section applies to those wetlands and their buffers that
are within 200 feet of regulated development activities.
a. Wetland buffers shall be temporarily fenced or otherwise suitably marked,
as required by the Director, between the area where the construction activity occurs and
the buffer. Fences shall be made of a durable protective barrier and shall be highly
visible. Silt fences and plastic construction fences may be used to prevent encroachment
on wetlands or their buffers by construction. Temporary fencing shall be removed after
the site work has been completed and the site is fully stabilized per City approval.
b. The Director may require that permanent signs and/or fencing be placed on
the common boundary between a wetland buffer and the adjacent land. Such signs will
identify the wetland buffer. The Director may approve an alternate method of wetland
and buffer identification, if it provides adequate protection to the wetland and buffer.
10. Building or Impervious Surface Setback Lines. A building or impervious
surface setback line of 15 feet is required from the edge of any wetland buffer. Minor
structural or impervious surface intrusions into the areas of the setback may be permitted
if the Director determines that such intrusions will not adversely impact the wetland. The
setback shall be identified on a site plan and filed as an attachment to the notice on title as
required by Section 16.20.190 (Notice on Title).
E. Regulated Uses And Activities. New development activities on properties
containing regulated wetlands and buffers are subject to the development standards in this
section, as permitted in the underlying zoning designation. Requirements for additional
activities are specified in Table 8. The City may grant exceptions to these uses and
activities according to the intent and specifications of this chapter. All authorized uses
and activities in a regulated wetland or its buffer shall be subject to conditions established
by the Director and may be subject to mitigation as required by this chapter.
Development shall be classified as "allowed," "permitted," "special use" or
"prohibited" according to this Section. Any regulated uses not specifically listed in Table
8 shall be considered unclassified and may be allowed if granted a special use review in
accordance with this chapter. For the purpose of Table 8, "W" and "B" refer to the terms
"wetland" and "buffer."
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Table 8: Regulated Uses and Activities in Regulated Wetlands and Buffers
Category I Category II Category III Category IV
W B W B W B W B
1. Agriculture-
existing & A A A A A A A A
ongomg
2. Agriculture- X X X S S S S S
Building (Grazed
Wet Meadows)
3. A) Agriculture
Conversion
(Wetland
dependent) X S X S S S S S
B) (Non-wetland
dependent) X S X S X S X S
4. Bank X X S S S S p P
stabilization
5. Boat ramp X X S S S S S S
6. Dock/float S S S S S S p P
7. Draining
Wetlands
(associated with
no other X N/A X N/A X N/A X N/A
permitted use,
except as
allowed under
Section
120.C)
8. Educational or p p p p p p p p
Scientitic
Activities
9. Enhancement S S p p p p p P
10. Excavation
(not associated X X S S S S S S
with
enhancement)
11. Fill X X X X X X X X
(associated with
no other use)
49
Category I Category II Category III Category IV
W B W B W B W B
12. Fish X X S S S S S S
Hatchery
13. Flooding
(associated with X X S S S S S S
no other use)
14. Forest
Practice-Class IV X X X X X X X X
General or
COHP
15. Golf Course X X X X S S S S
16. Land P P P P P P P P
Division
1 7. Mineral X X S S S S S S
extraction
18. Parks
Development- S S S S S S P P
Public & Private
19. Ponds-Stock X X X S X S S P
Watering
20. Public X X X S S S S S
Facility
21. Public S S S S S S S S
Project of
Significant
Importance
22. Radio/TV X X S S S S S S
Towers
23.
Restoration/Reve S S P P P P P P
getation of Site
24. Road/Street-
Public/Private
Access
A) Expand S S S S S S P P
within existing
ROW
B) New X X S S S S S S
Facilities
50
Category I Category II Category III Category IV
W B W B W B W B
25. Signs-
(Interpretation,
Hazard, Critical P P P P P P P P
Area
Boundary,
Survey Markers)
26. Site
Investigation A A A A A A A A
(non-
mechanized)
Site Investigation P P P P P P P P
(mechanized)
27. Stormwater,
Private RID X X X S S S S S
Facility
28. Stormwater,
Regional RID X X X S S S S S
Facility
29. Trails and
Trail Related P P P P P P P P
Facilities
30. Utility X X S S S S S S
Facility
31. Utility-On-
Site Sewage X X X S X S X S
Facility
32. Utility Line- S S S S S S P P
Overhead
33. Utility Line- X S S S S S S S
Underground
Key: A = Allowed Outright P = Permitted Subject to Development Standards
and Underlying Permit S = Special Use Review Required X = Prohibited
F. Additional development standards for regulated uses. In addition to meeting the
Development Standards in section D, above, those regulated uses identified below shall
also comply with the standards of this section and other applicable state, federal and local
ordinances.
1. Docks. Construction of a dock, pier, moorage, float, or launch facility may be
permitted where no existing buffer or wetland vegetation would be significantly altered.
51
2. Forest Practice, Class IV General, and Conversion Option Harvest Plans
(COHPs). All timber harvesting and associated development activity, such as
construction of roads, shall comply with the provisions of this chapter, including the
maintenance of buffers around regulated wetlands.
3. Agricultural restrictions. In all development proposals which would permit
introduction of agricultural uses, all regulated wetlands shall be avoided. These
restrictions shall not apply to those regulated wetlands defined as grazed wet meadows,
regardless of their classification, only where grazing has occurred within the last five (5)
years. Wetlands shall be protected by installation of fencing located not closer than the
outer buffer edge.
4. Road/street repair and construction: Any private or public road or street repair,
maintenance, expansion or construction may be permitted, subject to the following
standards:
a. No other reasonable or practicable alternative exists and the road or street
crossing serves multiple properties whenever possible;
b. Publicly owned or maintained road or street crossings should provide for
other purposes, such as utility crossings, pedestrian or bicycle easements, viewing points,
etc.; and
c. The road or street repair and construction are the minimum necessary to
provide safe roads and streets.
d. Mitigation shall be performed in accordance with specific project
mitigation plan requirements.
5. Land Divisions and Land Use Permits. All land divisions and land uses
proposed on a site that include regulated wetlands, shall comply with the procedures and
standards listed below. When a parcel contains a wetland, City policy shall always be to
primarily protect the functions and values of the wetland, while recognizing the value of
the development rights provided to the property by its zoning.
a. Density Calculation.
i. The actual density that will allowed to be built upon a parcel containing
a wetland shall ultimately be determined during the site specific review of the parcel's
planned development.
ii. In determining the actual density of a parcel based on a specific site
plan, the site plan shall locate all buildings outside of the wetland buffers;
iii. The number of development rights allowed for any residentially-zoned
parcel shall be its size in square feet divided by the number of square feet per home that
is required by its zoning;
iv. If the land can be subdivided such that all setbacks, buffers, and other
zoning requirements can be observed, and no variances are requested, the density from
the wetland can be transferred within the property;
v. To the extent that the number of allowable development rights cannot
be used on-site, they may be sold, traded, or transferred by the property owner through
the transfer of development rights program pursuant to Chapter 18.37 BIMC;
vi. Property owners may voluntarily extinguish development rights that
are provided by the underlying zoning, but the City shall not extinguish any of these
rights outside the aforementioned transactions.
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b. Land division approvals shall be conditioned to require that regulated
wetlands and regulated wetland buffers be designated as an easement or covenant
encumbering the wetland and wetland buffer. Such easement or covenant shall be
recorded together with the land division and represented on the final plat or binding site
plan, and title.
c. In order to implement the goals and policies of this chapter, to
accommodate innovation, creativity, and design flexibility, and to achieve a level of
environmental protection that would not be possible by typicallot-by-Iot development,
the use of the clustered development or similar innovative site planning is strongly
encouraged for projects with regulated wetlands on the site.
6. Surface Water Management. The following stormwater management activities
may be allowed within wetland or buffer areas only if they meet the following
requirements, in addition to the development standards in this section and in conformance
with the Stormwater Management Ordinance, Chapter 15.20 BIMC:
a. Surface water discharges from stormwater facilities or structures; provided,
that the new surface water discharges to regulated wetlands from retention/detention
facilities;
b. Pre-settlement ponds or other surface water management structures;
provided, that the discharge does not significantly increase or decrease the rate of flow
and/or hydro-period, nor decrease the water quality of the wetland. Water quality
treatment best management practices will be required prior to discharge. Pre-treatment of
surface water discharge through biofiltration or other means shall be required.
7. Trails and Trail-Related Facilities: Construction of public and private trails and
trail-related facilities, such as benches and viewing platforms, may be allowed in
wetlands or wetland buffers pursuant to the following guidelines:
a. Trails and related facilities shall, to the extent feasible, be placed on
existing road grades, utility corridors, or any other previously disturbed areas.
b. Trails and related facilities shall be planned to minimize removal of trees,
soil disturbance, and existing hydrological characteristics, shrubs, snags, and important
wildlife habitat.
c. Viewing platforms and benches, and access to them, shall be designed and
located to minimize disturbance of wildlife habitat and/or critical characteristics of the
affected wetland.
d. Trails and related facilities shall generally be located outside required
buffers. Where trails are permitted within buffers they shall be located in the outer
portion of the buffer and a minimum of25 feet from the wetland edge, except where
wetland crossings or viewing areas have been approved by the Director. Trail locations
close to the wetland may be allowed if the primary purpose of the trail is wetland viewing
or enjoyment.
e. Trails shall generally be limited to pedestrian use unless other more
intensive uses, such as bike or horse trails, have been specifically allowed and mitigation
has been provided. Trail width shall not exceed five feet unless there is a demonstrated
need, subject to review and approval by the Director. Trails shall be constructed with
pervious materials unless otherwise approved by the Director.
8. Utilities in Wetlands or Wetland Buffers:
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a. The utility maintenance authorized in BIMC 16.20.040(C) shall be
allowed, subject to best management practices in wetlands and wetland buffers.
b. Construction of new utilities outside the road right-of-way or existing
utility corridors may be permitted in wetlands or wetland buffers, only when no
reasonable alternative location is available and the utility corridor meets the requirements
for installation, replacement of vegetation and maintenance outlined below, and as
required in the filing and approval of applicable permits and special reports required by
this chapter.
c. Sewer or On-site Sewage Utility. Construction of sewer lines or on-site
sewage systems may be permitted in regulated wetland buffers only when:
i. The applicant demonstrates it is necessary to meet state and/or local
health code minimum design standards (not requiring a variance for either horizontal
setback or vertical separation); and/or
ii. There are no other practicable or reasonable alternatives available and
construction meets all other applicable requirements of this section and the special use
review requirements pursuant to BIMC 16.20.160(0). Joint use of the sewer utility
corridor by other utilities may be allowed.
d. New utility corridors shall not be allowed when the regulated wetland or
buffer has known locations of federal or state listed endangered, threatened or sensitive
species, heron rookeries or nesting sites of raptors which are listed as species of concern,
except in those circumstances where an approved Habitat Management Plan indicates
that the utility corridor will not significantly impact the wetland or wetland buffer;
e. New utility corridor construction and maintenance shall protect the
regulated wetland and buffer environment by utilizing the following methods:
i. New utility corridors shall be aligned when possible to avoid cutting
trees greater than 12 inches in diameter at breast height (four and one-half feet),
measured on the uphill side.
ii. New utility corridors shall be revegetated with appropriate native or
equivalent vegetation at preconstruction densities or greater, immediately upon
completion of construction, or as soon thereafter as possible, if due to seasonal growing
constraints. The utility shall ensure that such vegetation survives.
iii. Any additional utility corridor access for maintenance shall be
provided as much as possible at specific points, rather than by parallel roads. If parallel
roads are necessary, they shall be of a minimum width but no greater than 15 feet; and
shall be contiguous to the location of the utility corridor on the side away from the
wetland. Mitigation will be required for any additional access through restoration of
vegetation in disturbed areas.
iv. The Director may require other additional mitigation measures.
f. Utility corridor maintenance shall include the following measures to protect
the regulated wetland and buffer environment:
i. Where feasible, painting of utility equipment such as power towers shall
not be sprayed or sandblasted, nor should lead-based paints be used.
ii. No pesticides, herbicides or fertilizers may be used in wetland areas or
their buffers except those approved by the EP A and Ecology. Where approved,
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herbicides must be applied by a licensed applicator in accordance with the safe
application practices on the label.
9. Parks. Development of public park and recreation facilities may be permitted;
provided, that no alteration of wetlands or wetland buffers is allowed except for uses
allowed in Table 8. For example, enhancement of wetlands and development of trails
may be allowed in wetlands and wetland buffers subject to special use requirements and
approval of a Wetland Mitigation Plan.
10. Educational or scientific activities. These activities shall only be permitted if
they are directly related to the affected wetland and related buffers, and may include the
viewing and sampling of natural systems. They may also include the installation of
physical structures, including pervious trails, benches, permanent wildlife watching
blinds, boardwalks, viewing platforms, or similar structures, or minor modifications to
wetlands and their buffers. Any physical structures or minor modifications are subject to
City approval to minimize the impacts of human intrusion on the functions and values of
critical areas and their buffers according to the following criteria:
a. Minimize the footprint of structures and the number of access points to any
particular critical area;
b. Minimize the amount of clearing and grading;
c. Elevate structures where possible;
d. A void impacting the flow of water;
e. Use appropriate building materials; and
f. Minimize the impacts of construction.
G. Special Use Review. Development identified as a Special Use Review in Table 8
of this section may be approved, with conditions, or denied according to the procedures
and criteria outlined in this subsection. Special Use Review is an administrative process
unless the underlying permit requires a public hearing.
1. The Director is authorized to take action on permits as required by this chapter.
2. The Director may approve a permit after review of the application and a
Wetland Mitigation Plan submitted in accordance with this chapter. The Director shall
determine whether the use or activity cannot be avoided because no reasonable or
practicable alternative exists, the proposed use is consistent with the spirit and intent of
this chapter and it will not cause adverse impacts to the wetland or the wetland buffer
which cannot be mitigated. In taking action to approve a Special Use Review, the
Director may attach reasonable conditions as necessary to minimize impacts, rectify
impacts or compensate for impacts to the wetland or wetland buffer.
3. The Director shall deny a Special Use Review request if the proposed use or
activity is inconsistent with this chapter and/or will cause adverse impacts to the wetland
or wetland buffer, which cannot be adequately mitigated and/or avoided.
4. Special use review requests for agricultural conversions shall include a farm
plan developed by the Kitsap Conservation District. The plan shall identify the best
management practices for the proposed agricultural activity.
5. Special Use Review determinations are appealable to the hearings examiner
pursuant to BIMC 2.16.130.
H. Wetlands and Streams Restoration, Creation, Mitigation, or Enhancement.
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1. Any person who alters regulated wetlands or streams or their standard buffers
as required by this chapter 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
that 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. 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
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 reestablish, create, rehabititate, or enhance wetlands in order to compensate
for the wetland losses.
a. Replacement Ratios for Wetlands. Table 9 provides the required replacement
ratios for the reestablishment or creation, rehabilitation, or enhancement of a wetland.
The first number specifies the replacement acreage of wetlands and the second specifies
the acreage of wetlands altered.
Table 9: Replacement Ratios for Wetlands
Re-establishment or Rehabilitation 1 : 1 Re-
Creation establishment or
Creation (R/C) or
Enhancement (E)
Enhancement
Only
Category and
Type
II - Forested
I - Highly
functioning
II - Bog
II - Estuarine
III - Estuarine
III - Others
~
IIV
116:1
14:1
IINot possible
[ICase by Case
IICase by Case
113: I
112:1
111.5: I
1112: I
118: 1
116: 1 of a Bog
116: 1 - Estuarine
114: 1 - Estuarine
118:1
114:1
113: I
111:1 R/C 10:1 E
111:1 R/C 6:1 E
IICase by Case
IICase by Case
IICase by Case
111:1 R/C4:1 E
111:1 R/C 2:1 E
111:1 R/C 2:1 E
1124:1
1116: I
IICase by Case
IICase by Case
IICase by Case
1112:1
118:1
116: 1
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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 rehabitiation or
creation;
ii. Significant period of time between destruction and replication of
wetland functions; or
iii. Projected losses in functional value.
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;
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 impacts 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, if feasible,
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;
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ii. Idled upland sites generally having bare ground or vegetative cover
consisting primarily of invasive introduced species, weeds, or emergent vegetation; or
iii. Other disturbed upland.
8. Timing. Wherever 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.
10. Mitigation Banking.
a. The City may consider and approve replacement or enhancement of
wetlands to address unavoidable adverse impacts caused by development activities
through an approved wetland mitigation bank. Compensatory mitigation in advance of
authorized impacts must be provided through an approved mitigation bank if a bank is
used.
b. When off-site mitigation is authorized, the Director shall give priority to
locations within the same drainage basin as the development proposal site that meet the
following:
i. Mitigation banking sites and resource mitigation reserves as authorized
by this chapter;
ii. Private mitigation sites that are established in compliance with the
requirements of this chapter and approved by the Director; and
iii. Public mitigation sites that have been ranked in a process that has
been supported by ecological assessments.
c. The Director may require documentation that the mitigation site has been
permanently preserved from future development or alteration that would be inconsistent
with the functions of the mitigation. The documentation may include, but need not be
limited to, a conservation easement, transfer of clearing credits or other agreement
between the applicant and owner of the mitigation site. The City may enter into
agreements or become a party to any easement or other agreement necessary to ensure
that the site continues to exist in its mitigated condition.
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d. The Director shall maintain a list of sites available for use for off-site
mitigation projects.
e. The Director may develop a program to allow the payment of a fee in lieu
of providing mitigation on a development site. The program should address:
i. When the payment of a fee is allowed, considering the availability of a
site in geographic proximity with comparable hydrologic and biological functions and
potential for future habitat fragmentation and degradation; and
ii. The use of the fees for mitigation on public or private sites that have
been ranked according to ecological criteria through one or more programs that have
included a public process.
16.20.170 The Winslow Ravine - Special Rules in Mixed Use Town Center.
A stream commonly known as the "Winslow Ravine Stream" is located in a ravine
commonly known as, and identified on department maps as, the "Winslow Ravine".
Both the stream and the ravine are partially located in the Mixed Use Town Center
(MUTC). In order to accommodate more dense development within the MUTC, and
recognizing the significant distance from the top of the ravine to the stream and its
adjacent wetlands, in lieu of the buffer and setback rules provided for Fish and Wildlife
Conservation Areas (BIMC 16.20.130) and Wetlands (BIMC 16.20.160), the applicant
may select the prescriptive option or the mitigated option with respect to the Winslow
Ravine Stream and the Winslow Ravine within the MUTC as described below:
A. "Option A" - Prescriptive Standards.
BUFFER MINIMUM OTHER DEVELOPMENT
CATEGORIES WIDTH BUILDING STANDARDS
STANDARD SETBACK
Streams, Wetlands
and Wildlife
Conservation Areas
associated with the
Winslow Ravine or
Winslow Ravine 50 feet beyond
Stream within the the top of the 15 feet beyond the
MUTC. Winslow Ravine. buffer.
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B. "Option B" - Mitigated Standards. The applicant shall demonstrate by submittal
of necessary studies and proposed mitigation, that measures can and will be taken to
ensure that the functions and values provided by the buffers prescribed under "Option A"
are retained or improved.
BUFFER MINIMUM OTHER DEVELOPMENT
CA TEGORIES WIDTH BUILDING STANDARDS
STANDARD SETBACK
The buffer area shalI be landscaped
to facilitate filtration and
infiltration of storm water. If such
Streams, Wetlands landscaping is instalIed, the buffer
and Wildlife area may be used for recreational
Conservation Areas purposes. Fences, sitting areas
associated with the and walking paths are alIowed
Winslow Ravine or within the buffer area. There is no
Winslow Ravine 25 feet beyond requirement that the buffer be
Stream within the the top of the 10 feet beyond the dedicated as permanent open space
MUTe. Winslow Ravine. buffer. tracts or otherwise.
16.20.180 Performance and maintenance surety.
A. Performance Surety. The Director shall decide when a performance surety is
required of an applicant, and the acceptable form of such surety. The amount and the
conditions of the surety shall be consistent with the purposes of this chapter; provided,
that the minimum amount of the surety, when required, shall be 125% of the estimated
cost of performance. A performance surety shall not be required when the actual cost of
performance, as documented in a form acceptable to the Director, is less than $1,000.
The Director shall release the surety upon determining that:
1. All activities, including any required compensatory mitigation, have been
completed in compliance with the terms and conditions of the permit and the
requirements of this chapter;
2. A maintenance surety has been posted by the applicant, where deemed
appropriate by the Director.
Until such written release of the surety, the principal or surety cannot be terminated
or canceled.
B. Maintenance Surety. When a maintenance surety is required, the holder of a
development permit issued pursuant to this chapter shall post a surety for an amount and
in a form acceptable to the Director, with conditions sufficient to guarantee that
maintenance of structures, improvements, and mitigation required by the permit or by this
chapter perform satisfactorily for a minimum of two years after they have been
completed. The Director shall release the maintenance surety upon determining that
performance standards established for evaluating the effectiveness and success of the
structures, improvements, and/or compensatory mitigation have been satisfactorily met
for the required period. For compensation projects, the performance standards shall be
60
those contained in the mitigation plan developed and approved during the review process.
The maintenance surety applicable to a compensation project shall not be released until
the Director determines that performance standards established for evaluating the effect
and success of the project have been met.
e. Deposit Instruments. The deposit instrument for the performance or warranty deposit
shall be cash, a non-revocable letter of credit, an assignment of funds, bond or other readily
accessible source of funds approved by the Director. The deposit instruments shall be on a
form acceptable to the Director. Any issuer of a deposit instrument shall pay invoices
presented by the City pursuant to this chapter within 45 days. A bond will be accepted only
for amounts over $1,000.00 or when State Law requires a bond. Interest on deposited funds
will accrue to the benefit of the depositor, except that any interest earned on a cash deposit will
be retained by the City for account administration.
D. Default on deposit.
1. If the work covered by the deposit is not completed within the time specified in the
notice given under this chapter, the City shall obtain the proceeds of the deposit and do the
work covered by the deposit. The City may either have its employees or a contractor do the
work.
2. If, at any time, the Director determines that actions or inactions associated with
permit work have created an emergency situation endangering public health, safety, or
welfare, creating a potential liability for the City, or such an emergency precludes the
notification of applicants as provided in this chapter while still minimizing or avoiding the
effects of the emergency, the City may use the deposit to cover costs incurred by the City to
correct the emergency situation. The City may either have employees of the City or a
contractor do the work. If the City uses the deposit as provided by this section, the applicant
shall be notified in writing within four working days of the commencement of emergency
work. The notice must state the work that was completed and the nature or timing of the
emergency that necessitated the use of the deposit without prior notification.
3. The permittee is responsible for all costs incurred by the City in doing the work
covered by the deposit. The City shall release or refund any proceeds of a deposit remaining
after subtracting all costs incurred. The permittee shall reimburse the City for any amount
expended by the City that exceeds the deposit.
4. If the City uses any of the deposit it shall, within 30 days, provide the owner of the
permit an itemized statement of all proceeds and funds used.
16.20.190 Notice on title.
A. The owner of any property with field-verified presence of critical area or buffer
on which a development proposal is submitted shall file for record with the Kitsap
County auditor a notice approved by the Director in a form substantially as set forth in
Subsection B of this Section. Such notice shall provide notice in the public record of the
presence of a critical area and buffer, the application of this chapter to the property, and
that limitations on actions in or affecting such areas may exist. The applicant shall submit
proof that the notice has been filed for record before the City shall approve any
development proposal for such site. The notice shall run with the land and failure to
provide such notice to any purchaser prior to transferring any interest in the property shall
be in violation of this chapter.
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B. Form of Notice.
Critical Areas
and/or
Critical Areas Buffer Notice
Legal
Description:
Present owner:
NOTICE: This property contains critical areas or their buffers as defined
by the City of Bainbridge Island Ordinance No. . The property
was the subject of a development proposal for
(type of permit) application # filed on (date)
Restrictions on use or alteration of the critical areas or their buffers may
exist due to natural conditions of the property and resulting regulations.
Review of such application has provided information on the location of
critical areas or critical area buffers and restrictions on their use through
setback areas. A copy of the plan showing such setback areas and other
restrictions or required enhancements is attached hereto.
Signature of owner
STATE OF WASHINGTON)
COUNTY OF )
On this day personally appeared before me to me known to be the
individual(s) described in and who executed the within and foregoing
instrument and acknowledged that they signed the same as their free and
voluntary act and deed for the uses and purposes therein stated.
Given under my hand and official seal this _ day of
. NOTARY PUBLIC in and for the state of Washington, residing
at
16.20.200 Compliance and enforcement.
A. It is a violation of this chapter for any person to fail to comply with the
requirements of this chapter. It is further a violation of this chapter for any person to:
1. Initiate or maintain, or cause to be initiated or maintained, the use,
construction, placement, alteration, or demolition of any structure, land, or property
within the city without first obtaining permits or authorizations required by this chapter,
or in a manner that violates the terms or conditions of such permits or authorizations;
2. Misrepresent any material fact in any application, plans or other information
submitted to obtain permits or authorizations under this chapter; or
3. Remove or deface any sign, notice, complaint, or order required by or posted
in accordance with this chapter.
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B. When a critical area or its buffer has been altered in violation ofthis chapter, all
ongoing development work shall stop and the critical area shall be restored. The City
shall have the authority to issue a stop work order to cease all ongoing development
work, and order restoration, rehabilitation, or replacement measures at the owner's or
other responsible party's expense to compensate for violation of provisions ofthis
chapter.
C. Restoration plan required. All development work shall remain stopped until a
restoration plan is prepared and approved by the Director. Such a plan shall be prepared
by a qualified professional using the best available science and shall describe how the
actions proposed meet the minimum requirements described in Subsection (D) below.
The Director shall, at the violator's expense, seek expert advice in determining the
adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for
revision and resubmittal.
D. Minimum performance standard for restoration.
1. For alterations to critical aquifer recharge areas, frequently flooded areas,
wetlands, and habitat conservation areas, the following minimum performance standards
shall be met for the restoration of a critical area; provided, that if the violator can
demonstrate that greater functional and habitat values can be obtained, these standards
may be modified:
a. The historic structural and functional values shall be restored, including
water quality and habitat functions;
b. The historic soil types and configuration shall be replicated;
c. The critical area and buffers shall be replanted with native vegetation that
replicates the vegetation historically found on the site in species types, sizes, and
densities. The historic functions and values should be replicated at the location of the
alteration; and
d. Information demonstrating compliance with the requirements in Section
BIMC 16.20.110 shall be submitted to the Director.
2. For alterations to flood and geological hazard areas, the following minimum
performance standards shall be met for the restoration of a critical area; provided, that if
the violator can demonstrate that greater safety can be obtained, these standards may be
modified:
a. The hazard shall be reduced to a level equal to, or less than, the pre-
development hazard;
b. Any risk of personal injury resulting from the alteration shall be eliminated
or minimized; and
c. The hazard area and buffers shall be replanted with native vegetation
sufficient to minimize the hazard.
3. All restoration plans shall include a detailed estimate of the cost for
implementation of the restoration plan.
E. Site investigations. The Director is authorized to make site inspections and take
such actions as are necessary to enforce this chapter. The Director shall present proper
credentials and make a reasonable effort to contact any property owner before entering
onto private property.
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F. Penalties. Any development carried out contrary to the provisions of this chapter
shall constitute a public nuisance and may be enjoined as provided by the statutes of the
State of Washington. Enforcement of this chapter and the imposition of penalties for
violations of this chapter shall be as provided for in Chapter 1.26 BIMC; provided, that in
addition to the civil penalties provided for in BIMC 1.26.090, an additional penalty shall
be imposed on any person, party, firm, corporation, property owner, or other legal entity
who fails to complete a required restoration plan or who conducts any willful disturbance
(including cutting vegetation) of a critical area or its associated buffer in violation of this
chapter. For such violations, the additional penalty shall be in the amount equal to 200%
of the cost of restoration as approved under a restoration plan pursuant to Subsections (C)
and (D) above. Any person, party, firm, corporation, or other legal entity who knowingly
and willfully refuses to complete a required restoration pursuant to Subsections (C) and
(D) above shall be guilty of a misdemeanor punishable by not more than 30 days in jail
and/or not more than a $1,000 fine.
16.20.210 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.
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.
16.20.230 Other laws and regulations.
No permit granted pursuant to this chapter shall remove an applicant's obligation to
comply in all respects with the applicable provisions of any other federal, state, or local
law or regulation.
16.20.240 Conflict.
A. General. 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. Shoreline Master Program. 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 unless
the Critical Areas Ordinance provides greater protection for critical areas. However, the
classification or designation of any of the shoreline of Bainbridge Island shall not change
from what it is under the Shoreline Master Program as a result of any provisions of the
Critical Areas Ordinance.
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16.20.250 Severability.
If any clause, sentence, paragraph, section or part of this chapter or the application
thereof to any person or circumstances shall be adjudged by any court of competent
jurisdiction to be invalid, such order or judgment shall be confined in its operation to the
controversy in which it was rendered and shall not affect or invalidate the remainder of
any part thereof to any other person or circumstances and to this end the provisions of
each clause, sentence, paragraph, section or part of this law are hereby declared to be
severable.
Chapter 16.20 - Exhibit A
Table I - Shoreline Study Requirements
Use Analyses Required
All Activities below Mean Higher High Dive Survey and/or
Water Biological Evaluation or Biological
Assessmentl
Pier and Docks Dive Survey and/or
Biological Evaluation or Biological
Assessment]
Shoreline Armoring (bulkhead and Sediment analyses
revetments) Biological Evaluation or Biological
Assessment]
Development Activities Disturbing Native Re-vegetation Plan
Vegetation Zone (Single Family
Residences or Commercial)
Footnotes:
IOnly as required by Washington DepaIiment of Fish and Wildlife, US Army Corp of
Engineers, NOAA Fisheries or US Fish and Wildlife.
Additional Studies may be required by the Director as necessary to determine whether the
application meets the decision criteria for Shoreline Substantial Development Permit,
Shoreline Substantial Development Exemption, Shoreline Conditional Use Permit or
Shoreline Variance.
Section 3. Effective Date. This ordinance shall take effect on February 15, 2006.
1/ .fA ~' / -
PASSED by the City Council this kday of -:tJ/?l ttl [...t--
~.
APPROVED by the Mayor this It ~ay of k -,St/0nl2-C ~,
,2005.
,2005.
q\ (/
l!~~/ ;{:c/~!n/ ~~ ~l ,"
DARLENE KORDONOWY, MaYOr- /
65
I
-J
ATTEST/AUTHENTICATE:
I
.1\ . . ,j ;/.
~-Jt!\~:ti' J i/\~('~-'/(t~.
,
SUE P. KASPER, City Clerk
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NUMBER:
5- ;,; -3 . 2005
/) '/"i. 2005
.: .~ -'~ / . 2005
;;~ Iff ~~Ct (;:
2005-03
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