The purpose of this chapter is to:
A. 
Comply with the Washington State Growth Management Act requirement that cities adopt regulations to designate and protect resource lands and critical area functions and values, and that these regulations incorporate best available science;
B. 
Protect the public health, safety, and welfare by preventing the adverse impacts of development on resource lands and critical areas;
C. 
Preserve and protect resource lands and critical areas by regulating development within and adjacent to them while also allowing for reasonable use of private property;
D. 
Protect members of the public and public resources from injury, loss of life, or property damage due to landslides, steep slope failures, erosions, seismic events, or flooding;
E. 
Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and fish and wildlife habitat conservation areas. Any environmental degradation resulting from development activities should be the focus of cumulative impact analyses and changes to policy and permitting decisions.
(Ord. 619, 1992; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
As provided herein, the city of Langley planning director or their designee (hereinafter referred to as "the planning official") is given the authority to interpret and apply, and the responsibility to enforce, this title to accomplish the stated purpose.
B. 
The planning official may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this title.
(Ord. 1114 § 2 (Exh. A), 2024)
A. 
These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.
B. 
Any individual critical area adjoined by another type of critical area shall have a buffer or protection area and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation conflicts with this chapter, that which provides more protection to the critical areas shall apply.
C. 
These critical areas regulations shall apply concurrently with any review conducted under the State Environmental Policy Act (SEPA), as locally adopted under Chapter 16.04. Any potential impacts of a development and conditions required pursuant to this chapter shall be considered in the SEPA review process to the extent applicable.
D. 
Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (including without limitation: shoreline substantial development permits, Hydraulic Project Approval (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 permits, National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter.
E. 
All development occurring within the jurisdiction of the city of Langley shoreline master program shall be regulated by the city of Langley shoreline master program.
F. 
All development occurring outside of the jurisdiction of the city of Langley shoreline master program shall be regulated by this chapter.
(Ord. 1114 § 2 (Exh. A), 2024)
A. 
Preparation of Critical Area Reports/Biological Assessments/Habitat Management Plans. Critical area reports prepared to determine whether "no net loss" to a critical area will be achieved before alteration or mitigation to a critical area is undertaken shall rely on the "best available science" to protect the functions and values of the critical area and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat, where applicable.
B. 
Best Available Science to Be Consistent With Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state or federal natural resource agencies, a qualified scientific professional or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.
C. 
Absence of Valid Scientific Information. Where there is significant uncertainty about the risk to critical area function or permitting an alteration of or impact to the critical area that cannot be resolved because of incomplete scientific information, the planning official shall take a "precautionary or a no-risk approach" that appropriately limits development and land use activities until the uncertainty is sufficiently resolved.
D. 
Adaptive Management. The city will consider developing a monitoring and adaptive management program to establish a baseline and provide performance measures to determine whether the city is achieving no net loss through its policies and regulations.
(Formerly 16.20.015; Ord. 820, 2002; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
"Alteration"
means any human-induced change in an existing condition of a critical area or its associated buffer or protection area. Alterations include, but are not limited to, grading, filling, channelizing, dredging, clearing of vegetation, draining, construction, compaction, excavation, or any other activity that changes the character of the critical area.
"Alterations of a wetland"
means the placement or erection of any solid material or structure; the discharge or disposal of any dredge material or waste, including filling, grading, channelization, removing, dredging, draining, extraction of any materials; the discharge or disposal of any dredge material or waste, including filling or grading; or the removal or harvesting of trees or other vegetation.
"Anadromous fish"
means those species that migrate up rivers from saltwater to spawn in fresh water.
"Artificial wetlands"
means a wetland or surface water system that was intentionally created from a non-wetland site through human activity and for a specific purpose. This includes stormwater detention ponds, bioswales, irrigation canals, wastewater treatment ponds, landscape amenities, stock ponds, and similar areas. Artificial wetlands or surface water systems do not include wetlands created as compensation for development impacts or wetlands that have inadvertently become established as a result of changing environmental conditions or land use.
"Base flood"
means a flood having a one percent chance of being equaled or exceeded in any given year. It is referred to as the "100-year flood."
"Best management practices"
means conservation practices and management measures identified by the Natural Resources Conservation Service, Whidbey Island Conservation District or State Extension Offices that (1) control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxins, and sediment; and (2) minimize adverse impacts to surface water and ground water flow, circulation patterns, and to chemical, physical, and biological characteristics of wetlands and streams.
"Buffer"
means the area adjacent to the outer boundaries of a critical area, such as wetlands or geologically hazard areas, which provides an area for related ecological functions to take place and/or separates and protects critical areas from adverse impacts associated with adjacent land uses.
"Candidate species"
means any species being considered (by the Secretary of the Interior or the Secretary of Commerce) for listing as an endangered or a threatened species, but not yet the subject of a proposed rule (50 CFR 424.02) based on the information provided by the United States Fish and Wildlife Service (USFWS) or the National Oceanic and Atmospheric Administration (NOAA).
"Conservation easement"
means a legal agreement a property owner enters into to restrict uses of the land. The easement is recorded on a property deed, runs with the land, and is legally binding on all present and future owners of the property, therefore providing permanent or long-term protection.
"Creation"
(or "establishment") means the manipulation of the physical, chemical, or biological characteristics present to develop a wetland on an upland or deepwater site, where a wetland did not previously exist. Activities typically involve excavation of upland soils to elevations that will produce a wetland hydroperiod, create hydric soils, and support the growth of hydrophytic plant species. Creation results in a gain in wetland areas.
"Critical aquifer recharge areas"
means areas with a critical recharge effect on aquifers used for potable water, including sole source aquifer recharge areas designated pursuant to the federal Safe Drinking Water Act, areas where an aquifer is a source of drinking water vulnerable to contamination that would affect the potability of the water, or is susceptible to reduced recharge (WAC 265-190-303(3)).
"Critical areas"
means wetlands, critical aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas as defined in RCW 36.70A.030 and described by WAC 365-190-080.
"Critical facility"
means a facility that provides functions and services essential to a community. Critical facilities could include, but are not limited to, police stations, fire stations, critical vehicle and equipment storage facilities, and emergency operations centers, medical facilities, schools and day care centers, power generating stations and other public and private utility facilities, drinking water and wastewater treatment plants, or industrial facilities.
"Cumulative impacts"
means the combined, incremental effects of human activity on critical area functions and values. Cumulative impacts result when the effects of an action are added to or interact with the effects of other actions in a particular place and within a particular time.
"Development"
means a land use consisting of the construction or exterior alteration of structures; grading, dredging, drilling, or dumping; filling; removal of sand, gravel, or minerals; bulkheading; driving of pilings; or any project of a temporary or permanent nature that modifies structures, land, critical areas, buffers, riparian protection areas, or shorelines and that does not fall within the allowable exemptions or exceptions contained in the city of Langley municipal code.
"Enhancement"
means the manipulation of the physical, chemical, or biological characteristics of a wetland site to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, floodwater retention, or wildlife habitat. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence hydro periods, or some combination of these. Enhancements result in a change in some wetland functions and can lead to a decline in other wetland functions, but do not result in a gain in wetland acres.
"Erosion hazard areas"
means areas that are likely to become unstable, such as bluffs, steep slopes with unconsolidated soils and coastal erosion areas.
"Fish and wildlife habitat conservation areas (FWHCA)"
means areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. In the city of Langley, FWHCA also include locally important and designated habitats and species (WAC 365-190-030(6)). FWHCA do not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company.
"Flood fringe"
means that portion of the floodplain outside of the floodway which is covered by floodwaters during the base flood.
"Flood hazard areas"
means those areas subject to inundation by the "base flood" as identified in the Federal Emergency Management Agency's flood insurance rate maps ("FIRMs") prepared for the National Flood Insurance Program. This includes lands in the floodplain subject to a one percent or greater chance of flooding in any given year and those lands that provide important flood storage, conveyance, and attenuation functions, as determined in accordance with WAC 365-190-080(3). A "flood hazard area" is a type of "frequently flooded area."
"Floodplain"
means the total area subject to inundation by the base flood.
"Floodway"
means the channel of the stream and that portion of the adjoining floodplain which is necessary to contain and discharge the base flow without any measurable increase in flood heights.
"Frequently flooded areas"
means areas that are prone to flooding that may present a risk to people and property. These areas include "flood hazard areas" as well as areas impacted by stormwater, overland flooding, and other areas subject to flooding that perform important hydrologic functions. Frequently flooded areas under shoreline jurisdiction are also subject to the provisions of the city's shoreline master program, Chapter 90.58 RCW, and Chapters 15.24 and 16.24.
"Geologically hazardous areas"
means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns (WAC 365-190-120).
"Habitat"
means the specific area or environment in which a particular type of plant or animal lives and grows, which is critical to lifecycle/perpetuation of a species.
"Habitat for a protected species"
means the site where a protected species of flora or fauna lives and grows, including habitats for species subject to the International Migratory Bird Treaty and regionally rare habitats which are irreplaceable or highly sensitive to alteration. As used in this chapter, habitat is considered areas which are critical to the lifecycle and perpetuation of a protected species. This chapter shall contain a list of protected habitats which shall be revised as new habitats warranting protection are recognized.
"Hazard tree"
means any tree, or part thereof, that the city forester or a certified arborist determines is subject to a high probability of failure, due to structural defect or disease, and which poses a potential threat to people or property in the event of failure. The determination of "hazard" does not require the judgment that a tree is in danger of imminent failure.
"Hydrophytic vegetation"
means plant life growing in water or in a substrate that is at least periodically deficient in oxygen as a result of excessive water content (for one reference source see Wetland Plants of the Pacific Northwest, September 1984, U.S. Corps of Engineers). The presence of hydrophytic vegetation shall be determined following the methods described in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands.
"Landslide hazard area"
means areas that are potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors.
"Mitigation"
means sequencing of actions taken to avoid, minimize or compensate for adverse critical area impacts using the sequential order of preference included in Section 16.20.035(C).
"Monitoring"
means evaluating the impacts of the development proposal on biologic, hydrologic, and geologic systems and assessing the performance of required mitigation through the repetitive collection and analysis of data to understand and document changes in natural ecosystem functions and features. Monitoring includes gathering baseline data.
"Native wetland species"
means wetland species which are indigenous to Island County and western Washington. Such species are identified in Flora of the Pacific Northwest: An Illustrated Manual Second Edition (C. Leo Hitchcock and Arthur Cronquist, University of Washington Press, 2018).
"Nonnative wetland species"
means wetland species which have been accidentally or purposely introduced into Island County.
"Non-wetlands"
includes upland and lowland areas that are neither deep water aquatic habitats, wetlands, nor other special aquatic sites. They are seldom or never inundated, or are infrequently inundated, they have saturated soils for only brief periods during the growing season, and, if vegetated, they normally support a prevalence of vegetation typically adapted for life only in aerobic soil conditions.
"Protected species"
means species of flora and fauna recognized by the federal government or the state of Washington as endangered, threatened, or sensitive which are present in Island County and those species of flora and fauna which, while not necessarily endangered or threatened, are considered a priority in Island County and worthy of protection. This title contains a list of protected species which shall be revised as new species which warrant protection are recognized, or a species which has been listed no longer needs protection.
"Protection/maintenance (preservation)"
means removing a threat to, or preventing the decline of, wetland conditions by an action in or near a wetland deemed worthy of long-term protection. This includes the purchase of land or easements, repairing water control structures or fences, or structural protection such as protecting a barrier island. The activity shall maintain the existing wetland hydrology using baseline data prepared by a qualified professional. This term also includes activities commonly associated with the term "preservation." Preservation does not result in a gain of wetland acres, may result in a gain in functions, and will be used for compensatory mitigation only in exceptional circumstances.
"Qualified professional"
means a person with training and experience in the pertinent scientific discipline. With regards to critical areas, it means a person who is a qualified scientific expert in accordance with WAC 365-195-905. A qualified professional must be licensed and/or certified where such licensing or certification is required. When certification is not required the professional must have: (1) obtained a B.S., B.A., or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology, or related field, and (2) have at least five years of related work experience including, but not limited to, performing wetland studies, biological site assessments, and/or habitat management plans including field delineations, written reports, and mitigation plans.
A qualified professional for a geological hazard is: (1) a practicing geotechnical engineer, qualified civil engineer, or certified engineering geologist; (2) with at least four years of professional experience analyzing geologic, hydrologic, and ground water flow systems and slope stability, seismicity, faulting, and liquefaction; and (3) is licensed to practice in the state of Washington. When the proposed development or vegetation removal is in an area subject to coastal geomorphological processes, the professional shall have demonstrated experience in evaluating and providing technical recommendations related to sediment and sediment transport, and effects on property and shoreline stability.
"Reasonable use"
means the minimum use to which a property owner is entitled under applicable state and federal constitutional provisions to avoid a regulatory taking and/or violation of substantive due process.
"Repair or maintenance"
means an activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.
"Restoration"
means measures taken to restore an altered, degraded, or damaged wetland or stream that is subject to the regulations of this chapter including:
1. 
Active steps taken to restore damaged or degraded regulated wetlands, streams, protected species habitat, or their buffers to the functioning condition which existed prior to an unauthorized alteration; and
2. 
Actions performed to reestablish wetland and stream functional characteristics and processes which have been lost by alteration, past management activities, or catastrophic events within an area which no longer meets the definition of a wetland or stream.
"Riparian protection area"
means the designated area contiguous or adjacent to a stream that is required for the continued maintenance, function, and structural stability of the riparian habitat. Functions of the riparian protection area include shading, input of organic debris and coarse sediments, uptake of nutrients, stabilization of banks, protection from intrusion, or maintenance of wildlife habitat.
"Steep slope"
means any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of consolidated rock. A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least 10 feet of vertical relief.
"Stream"
means surface water contained within a defined bed or channel, whether permanent or intermittent. A defined channel or bed is an area that 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 does not include ditches, canals, stormwater runoff devices, or other entirely artificial watercourses unless they are used by salmonids or to convey streams naturally occurring prior to construction of such watercourses.
"Tsunami hazard area"
means coastal areas and large lake shoreline areas susceptible to flooding and inundation as a result of excessive wave action derived from seismic or other geologic events.
"Water dependent use"
means a use or a portion of a use which requires direct contact with the water and cannot exist at a non-water location due to the intrinsic nature of its operations. Examples of water dependent uses may include ship cargo terminal loading areas, ferry and passenger terminals, barge loading facilities, ship building and dry docking, marinas, aquaculture, float plane facilities, and sewer outfalls.
"Waters of the state"
means all waters defined as "surface waters of the state," all waters defined as "waters of the state" in RCW 90.48.020, and all "waters of the United States" in 40 C.F.R. 122.2 that are within the boundaries of the state of Washington. This includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean, bays, estuaries, sounds, and inlets (WAC 173-226-030(26)).
"Wetland edge"
means the upland limit of a wetland which is designated as the boundary between land with predominantly wetland vegetation cover and land without such cover.
"Wetland functions"
means the beneficial roles served by wetlands, including but not limited to water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, ground water recharge and discharge, erosion control, wave attenuation, historical and archaeological value protection, aesthetic value, and recreation.
"Wetland mitigation bank"
means a site or suite of sites where resources are restored, created, enhanced, and/or preserved, for the purpose of providing compensatory mitigation for impacts. In general, a mitigation bank sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor. The operation and use of a mitigation bank is governed by a mitigation banking instrument.
"Wetland vegetation"
means hydrophytic vegetation, as defined above.
"Wetlands"
means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from non-wetland 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. Wetlands shall include those artificial wetlands intentionally created from non-wetland areas to mitigate the conversion of wetlands. Categories of wetlands are defined in Section 16.20.085.
(Ord. 1114 § 2 (Exh. A), 2024)
A. 
Pre-Application Conference. All applicants are encouraged to meet with the city prior to submitting an application subject to the critical area provisions of this section. The purpose of this meeting shall be to discuss the requirements, process, and procedures; to review the critical areas checklist and any conceptual plans prepared by the applicant; and to identify potential impacts and mitigation measures. Such a conference shall be for the convenience of the applicant and any recommendations shall not be binding on the applicant or the city.
B. 
Critical Area Report. If the planning official determines that critical area, buffer, or riparian protection area impacts might occur as a result of the proposal, a critical area delineation and assessment report must be submitted to the city for review as part of the development application; the application will not be deemed complete without the critical area report. The report must be prepared in accordance with city permit application requirements and must incorporate the best available science as defined in Section 16.20.015. The report shall analyze the extent, type, and function of the critical area or areas and buffers or riparian protection areas on any site where regulated activities are proposed. The report will be used by the city to determine the extent of the critical area and appropriate buffer or riparian protection area requirements and to assist the city in determining appropriate mitigation if required. Approved critical area reports or mitigation plans shall be valid for a period of five years; provided, that the original intent of the proposal has not been altered or enlarged and the circumstances relevant to the review and issuance of the original proposal have not substantially changed. The critical areas report, which shall be available to the public, shall contain the following:
1. 
The name and contact information of the applicant, a description of the proposal, and identification of the requested critical area action;
2. 
A copy of the site plan for the development proposal, including a map to scale depicting topography; critical areas and their buffers or protection areas; significant trees; site features, including existing development; the proposed development; and any areas to be cleared;
3. 
A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;
4. 
Characterization of all critical areas, water bodies, and buffers or protection areas adjacent to the proposed project area;
5. 
A discussion of the performance standards applicable to the critical area and the requested critical area activity;
6. 
A description of reasonable efforts made to apply mitigation sequencing to avoid, minimize, and mitigate impacts to critical areas;
7. 
Plans for adequate mitigation as needed to offset any impacts;
8. 
The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;
9. 
A statement specifying the accuracy of the report and all assumptions made and relied upon;
10. 
Financial guarantees, as appropriate, to ensure compliance;
11. 
An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development; and
12. 
Any additional information deemed necessary by the planning official.
C. 
Mitigation Sequencing. When an impact to a critical area or critical area buffer or riparian protection area is proposed, the applicant shall demonstrate that all reasonable efforts have been taken to mitigate impacts in the following prioritized order (consistent with WAC 197-11-768):
1. 
Avoiding the impact by not taking a certain action or parts of an action.
2. 
Minimizing impacts by limiting the degree of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts.
3. 
Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
4. 
Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
5. 
Compensating for the impact by replacing, enhancing, or providing substitute resources or environments.
6. 
Monitoring the impact and taking appropriate corrective measures.
D. 
Professional Expertise. A qualified professional, as mutually agreed upon by the city and the applicant, shall prepare all reports and studies required of the applicant by the city. The city or the applicant may retain a qualified professional to perform a peer review of required reports, studies, and plans in circumstances contained within subsection (H) of this section. All reports and studies (including peer review) required of the applicant shall be prepared at the applicant's expense.
E. 
Review Process. This section is not intended to create a separate critical area permit process for development proposals. To the extent feasible, the city shall consolidate and integrate the review and processing of critical area-related aspects of proposals with other land use and environmental considerations and approvals.
F. 
Process Requirements. The required permitting process is outlined as follows:
Activity
Permitting Requirements1
Exemptions contained within Section 16.20.045 (except as identified below)
None
Hazard tree removal (significant trees) and critical areas enhancement/invasive species removal (Section 16.20.045(E))
Administrative Review
Critical area permits
Public Notice + Administrative Decision
Reasonable use exception and variances (Section 16.20.055)
Public Notice + Hearing Examiner
Alteration to erosion or landslide hazard area (Section 16.20.080(L))
Public Notice + Hearing Examiner
Direct wetland impacts
Public Notice + Hearing Examiner
Notes:
1 See current planning/land use fee schedule for applicable fees.
G. 
Conditions of Approval. The planning official shall apply conditions to any permit or approval which authorizes development in a critical area or critical area buffer or protection area and may prescribe such conditions and safeguards, including timelines and procedural requirements, necessary to implement any substantive conditions attached to a permit or approval as necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter. In those instances where development is proposed in a critical area or critical area buffer or protection area and no critical area permit is required, such conditions, timelines, and procedural requirements may be attached to any other related permits or approvals to the extent allowed by law.
H. 
Third-Party Review of Critical Area Reports.
1. 
The planning official may require, at the applicant's expense, a third-party review of a critical area report by a qualified professional under contract with or employed by the city in any of the following circumstances:
a. 
The project requires a critical area permit, or critical area reasonable use exception; or
b. 
Third-party review is specifically required by the provisions of this chapter for the critical area(s) or critical area buffer(s), or riparian protection area(s) potentially being impacted; or
c. 
When the planning official determines that such services are necessary to demonstrate compliance with the standards and guidelines of this chapter or other appropriate regulations.
2. 
The third-party peer reviewer shall evaluate the subject report for consistency with the applicable report requirements and review the validity of assumptions and conclusions. If necessary, the third-party peer reviewer shall provide written recommended revisions for the qualified professional to address or incorporate to demonstrate compliance with this chapter prior to authorization of the subject permit.
I. 
Best Management Practices. All allowed activities shall be conducted using the best management practices that result in the least amount of impact on the critical areas. Such best management practices shall include, but not be limited to, tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party's expense.
J. 
Time Limitations.
1. 
Expiration of Approval.
a. 
Approvals granted under this chapter shall be valid for the same time period as the underlying permit. If the underlying permit does not contain a specified expiration date, or there is not an associated underlying permit, then approvals granted under this chapter shall be valid for a period of two years from the date of issuance, unless a longer or shorter period is specified by the planning official.
b. 
The approval shall be considered null and void upon expiration, unless a time extension is requested and granted as set forth in subsection (J)(2) of this section.
2. 
Time Extensions.
a. 
The applicant or owner(s) may request in writing a one-year extension of the original approval based on reasonable factors.
b. 
Knowledge of the expiration date and initiation of a request for a time extension is the responsibility of the applicant or owner(s).
c. 
A written request for a time extension shall be filed with the planning official at least 60 days prior to the expiration of the approval.
d. 
Prior to the granting of a time extension, the planning official may require a new application(s), updated study(ies), and fee(s) if:
(1) 
The original intent of the approval is altered or enlarged by the renewal;
(2) 
The circumstances relevant to the review and issuance of the original approval have changed substantially; or
(3) 
The applicant failed to abide by the terms of the original approval.
e. 
The planning official has the authority to grant or deny any requests for time extensions based upon demonstration by the applicant of good cause for the delay. Time extensions shall be granted in writing and documented in the file.
f. 
If approved, the extension shall be calculated from the date of granting said approval.
K. 
Subdivisions. The subdivision and/or short subdivision of land where designated critical areas and/or associated buffers or riparian protection areas are present must adhere to the requirements of this subsection. These requirements do not apply to critical aquifer recharge areas defined in Sections 16.20.030 and 16.20.065.
1. 
Land that is located wholly within designated critical areas, buffers, or riparian protection areas shall not be subdivided unless a conservation easement extinguishing development rights encompassing the lot is established and recorded.
2. 
Land that is located partially within designated critical areas, buffers, or riparian protection areas may be subdivided subject to the following:
a. 
An adequate buildable area must be provided that is accessible, contiguous, and located outside of designated critical areas, buffers, or riparian protection areas;
b. 
The designated critical areas, buffers, or riparian protection areas must be shown on the face of the plat with a notification that states, "Future development may be subject to subsequently enacted critical areas regulations in accordance with applicable state law and city ordinances"; and
c. 
The new lots must meet the minimum lot size requirements of Title 17, Subdivisions.
(Formerly 16.20.020; Ord. 619, 1992; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Critical Areas Maps. The general locations of many critical areas in Langley are displayed on the city of Langley's critical areas maps and GIS program (MapLangley). The maps are used to alert the public of the potential location of critical areas in Langley. As new environmental information related to critical areas becomes available, the city is authorized to make changes as necessary to the critical areas maps. These maps are intended to be a reference and do not provide a final critical areas designation and may not be inclusive of critical areas that might be identified through review and information.
B. 
Actual Site Conditions. Regardless of whether a critical area is shown on the critical areas map, the actual presence or absence of the features defined in this code as critical areas will govern. Prior to acting on any development permit the city may require an applicant to submit technical information to indicate whether critical areas actually exist on or adjacent to the applicant's site based on the definitions of critical areas in this code.
C. 
Classification and Rating. To promote consistent application of the standards and requirements of this chapter, critical areas within the city will be rated or classified using best available science according to their characteristics, function and value, and/or their sensitivity to disturbance.
1. 
Classification of critical areas will be determined by the city using the following tools:
a. 
Application of the criteria contained in these regulations;
b. 
Consideration of the critical area reports submitted by qualified professionals in connection with applications subject to these regulations; and
c. 
Review of maps and other resources adopted pursuant to this chapter.
2. 
Rating categories will not change due to illegal modifications. If the development proposal site contains or is within a critical area suspected of illegal modifications within the last 10 years, the rating will be based on pre-modification conditions of the critical area. The qualified professional shall take a "precautionary or a no risk" approach when preparing the critical area report in compliance with Section 16.20.025(C). Abatement of the unauthorized modification will be required prior to authorization of the current development proposal being processed for the subject site.
(Ord. 1114 § 2 (Exh. A), 2024)
The following activities are exempt from regulation under this chapter. The burden of proving the existence of an exemption is upon the party claiming the exemption. Prior confirmation of an exemption shall be requested from the planning official. In case of any question as to whether a particular activity is exempt under the provisions of this section, the planning official's determination shall prevail. To be exempt from this chapter does not give permission to degrade a regulated habitat or ignore risks from natural hazards. Exempt activities shall comply with the intent of these standards, consider on-site alternatives that avoid or minimize potential impacts, and shall use reasonable methods (i.e., best management practices) to avoid potential impacts to riparian and critical wildlife habitat. However, provisions of this section are not exempt from the city of Langley shoreline master program when applicable.
A. 
Drainage and Flood Control Facilities. Operation, maintenance, and repair of dikes, ditches, reservoirs, settling basins, and other structures and facilities which were created or developed as part of normal drainage or flood control activities on or prior to July 1, 1990, except that this exemption does not extend to the permanent alteration of any regulated wetland;
B. 
Maintenance, operation, and repair of existing roads, streets, utilities, and associated structures undertaken pursuant to public works director approved best management practices; provided, that activities shall not increase the impervious area and that disturbed areas are restored to their preexisting condition, unless such changes are intended to improve ecological conditions or habitat, such as fish passage;
C. 
Normal maintenance and repair of residential or commercial structures; provided, that repair of any structures shall not increase the existing floor area or impervious surface area, and is subject to the requirements of Chapter 18.32, Nonconforming Uses, Structures, and Lots;
D. 
Emergency activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventive action in a timeframe too short to allow for compliance with the requirements of the critical areas regulations; provided, that:
1. 
The emergency action shall have the least reasonably possible impact to the critical area and its buffer or protection area as judged in real time while still adequately addressing the emergency situation;
2. 
The person, agency, or authorized representative undertaking such action shall notify the city prior to commencement of the emergency alteration or development. Within 30 days of the date of commencement, the planning official shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the planning official determines that the action taken, or any part of the action, was beyond the scope of an allowed emergency action, then the enforcement provisions of Section 16.20.090 shall apply; and
3. 
After the emergency, the person or authorized representative of the agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers or protection area resulting from the emergency action in accordance with an approved critical areas report and mitigation plan. The person or authorized representative of the agency undertaking the action shall apply for review, and the alteration, critical areas report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained herein. Restoration and/or mitigation activities shall be initiated within the next planting season and completed within the timing outlined in the mitigation plan unless otherwise approved by the planning official.
E. 
Enhancement of a critical area through the removal of non-native, invasive plant species; provided, that the following is met:
1. 
Removal shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological treatments or mechanical methods;
2. 
All removed plant material shall be taken away from the site and disposed of properly;
3. 
Plants that are on the Washington State Noxious Weed Control Board list of noxious weeds should be handled and disposed of according to a noxious weed control plan appropriate to that species;
4. 
Soil compaction shall be avoided;
5. 
The proposed removal activity shall not result in adverse impacts to critical areas; and
6. 
The area is revegetated with appropriate native species to achieve natural densities.
F. 
Removal of hazardous trees that are not considered significant trees where occupied structures are in immediate danger of damage, where such activities are determined by the city to have minimal impact to habitat and/or riparian ecosystem functions. Tree removal within a riparian habitat area shall involve avoidance and/or minimization of damage to the remaining trees and vegetation. The city may require verification by a licensed arborist of hazard qualification for trees prior to removal. The creation of snags is encouraged, wherever feasible. If a hazard tree meets the criteria above, the subject tree removed from critical areas must be replaced with an appropriate native tree at a ratio of 1:1 or other appropriate native species at a higher ratio, as approved by the planning official. Hazard trees that are defined as significant trees shall adhere to the requirements of LMC 18.22.020;
G. 
Construction of new utility facilities or improvements to existing utility facilities that take place within existing improved right-of-way or existing impervious surface that does not increase the amount of impervious surface, or the use of trenchless technology such as boring or tunneling, that would not disturb the habitat, unless such changes are intended to improve ecological conditions or habitat, such as fish passage;
H. 
Site investigative work and studies necessary for preparing land use applications, including soils tests, water quality studies, and similar tests and investigations; provided, that any disturbance of the habitat shall be the minimum necessary to carry out the work or studies and that the disturbed area shall be restored in accordance with an approved habitat report and mitigation plan. Restoration and/or mitigation activities shall be initiated within the next planting season and completed within the timing outlined in the mitigation plan unless otherwise approved by the planning official; and
I. 
Educational activities, scientific research, and passive recreational activities, including but not limited to interpretive field trips, bird watching, and hiking, that will not have a significant effect on the habitat area, have been minimized to the extent feasible, and have considered the Washington Department of Fish and Wildlife (WDFW) Priority Habitat and Species (PHS) data and management recommendations.
(Ord. 1114 § 2 (Exh. A), 2024)
A. 
Performance Bonds. Mitigation required pursuant to a development proposal must be completed prior to the city's granting of final approval of the development proposal. If the applicant demonstrates that seasonal requirements or other circumstances beyond its control prevent completion of the mitigation prior to final approval, the applicant may post a performance bond or other security instrument in a form and amount deemed acceptable by the planning official, which guarantees that all required mitigation measures will be completed no later than the time established by the department in accordance with this chapter.
B. 
Maintenance/Monitoring Bonds. The city shall require the applicant whose development proposal is subject to a mitigation plan to post a maintenance/monitoring bond or other security instrument in a form and amount determined sufficient to guarantee satisfactory workmanship, materials, and performance of structures and improvements allowed or required by this chapter for a period up to three years, unless otherwise specified. The duration of maintenance/monitoring obligations shall be established by the planning official after consideration of the nature of the proposed mitigation and likelihood and expense of correcting mitigation failures.
C. 
Bonds or other security instruments shall be in the form and amount approved by the planning official and shall remain in effect until the planning official determines in writing that performance and maintenance standards have been met.
(Ord. 1114 § 2 (Exh. A), 2024)
A. 
Nothing in this chapter is intended to preclude reasonable economic use of property as set forth in this chapter. If an applicant can demonstrate that strict application of the standards contained within Section 16.20.070 or 16.20.085 will deny all reasonable use, development as conditioned will be permitted if the applicant demonstrates all the following:
1. 
There is no other reasonable economic use or feasible alternative to the proposed development with less impact on the wetlands or fish and wildlife habitat conservation area (FWHCA); and
2. 
The proposed development does not pose a threat to public health, safety, and welfare on or off the subject property; and
3. 
Any alterations permitted pursuant to the requirements of this chapter shall be the minimum necessary to allow for reasonable use of the property; and
4. 
The inability of the applicant to derive all reasonable economic use of the property is not the result of actions by the applicant in subdividing the property, adjusting a boundary line, or other action thereby creating the undevelopable condition after May 10, 1992; and
5. 
Mitigation sequencing per Section 16.20.035(C) has been applied and the proposal mitigates the impacts on the wetland to the maximum extent feasible, while still allowing reasonable economic use of the lot; and
6. 
A report shall accompany a reasonable use exception proposal which provides information on the function and value of the critical area, area proposed for alteration, impact of development on the critical area and buffer or protection area, what constitutes a reasonable economic use of the property, steps taken to minimize the impact of the alteration, and other information as deemed necessary.
B. 
For properties that were lawfully developed prior to the date of adoption of this chapter, the planning official may grant a variance to the standards of Section 16.20.070 or 16.20.085 if the person requesting the variance demonstrates that the requested variance conforms to all of the criteria set forth below:
1. 
That special conditions and circumstances exist that are peculiar to the land;
2. 
That literal interpretation of the provisions of this chapter would deprive the person seeking the variance of rights commonly enjoyed by other properties conforming to the terms of this chapter;
3. 
That the special conditions and circumstances do not result from the actions of the person seeking the variance;
4. 
That granting of the variance will not confer on the person seeking the variance any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;
5. 
That the variance requested is the minimum necessary to afford relief;
6. 
That to afford relief the requested variance will not create significant impacts to critical areas and will not be materially detrimental to public welfare or contrary to the public interest; and
7. 
That the proposed development will be constructed on existing lawfully developed impervious surface area or shall result in a net reduction of impervious surface area.
(Ord. 1114 § 2 (Exh. A), 2024)
A. 
Designation of Forest, Agriculture, and Mineral Resource Lands. The city declares that there are no forest, agricultural, or mineral resource lands of long-term commercial significance within the city limits of the city of Langley.
B. 
Regulation of Lands Adjacent to Resource Lands.
1. 
For permitted or conditional uses adjacent to lands classified agricultural or forest management by Island County or the city or a surface mining operation:
a. 
Setback standards for dwellings, structures, and buildings, approved after May 10, 1992, and adjacent to agriculturally zoned property, shall be a minimum of 50 feet unless a mutual covenant is established with adjoining landowners and recorded with the requirement that it may be modified where it is not feasible to accomplish and still allow reasonable use of the property.
b. 
A notation shall be placed on the face of any plat, short plat, PUD, conditional use permit, building permit, or similar permit within 500 feet of any resource lands and included in documents of conveyance and any recorded covenants stating that the parcel may be subject to noise, dust, smoke, and odors resulting from harvesting, planting, fertilization, and pest control and other activities associated with permitted agricultural, forest management, and surface mining practices. The notations shall further state these practices, when performed in accordance with county, state, and federal law, shall not be subject to legal action as a public nuisance.
2. 
For permitted or conditional uses adjacent to lands used for agricultural or forest management purposes or in open space agriculture or forest current use taxation, the notation set forth in subsection (B)(1)(b) of this section may be imposed when found necessary to protect the agriculture or forest management use.
(Formerly 16.20.025; Ord. 619, 1992; Ord. 861, 2005; amended during 2013 reformat; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Purpose. Through the Island County ground water management program, all of Island County has been designated a critical aquifer recharge area. The city has adopted limitations on the extent of impervious surface allowed with new development. These standards are set forth in Title 18, Zoning.
B. 
Designation Criteria. Susceptibility designations have been identified for Island County and are delineated on the Island County Critical Aquifer Recharge Area Map (as it currently exists or is hereafter amended). The map designates areas as having a low, moderate, or high susceptibility to groundwater contamination as developed using best available science and as interpreted by the Island County health officer under the advice of the Island County hydrogeologist. The map, together with all explanatory details contained thereon, is hereby made part of this chapter.
C. 
Critical Aquifer Recharge Protection Standards.
1. 
Regulated activities/facilities may be permitted in a critical aquifer recharge area only if the applicant can demonstrate that the proposed activity will not cause contaminants to enter the aquifer and that the proposed activity will not adversely affect the recharging of the aquifer.
2. 
The proposed regulated activity must comply with the water source protection requirements and recommendations of the Federal Environmental Protection Agency, State Department of Health, and the Island County health department.
3. 
Best management practices shall be required for development activities within the designated critical aquifer recharge area.
4. 
Based upon available information, including that provided by the applicant pursuant to the requirements of this section, the planning official shall have discretion to impose conditions designed to prevent degradation of groundwater quality or quantity. Such conditions may include a hydrologic site evaluation, determination of background water quality, quantity, and groundwater levels prior to approval and development of groundwater quality and/or quantity management plans. All conditions shall be based on all known, available, and reasonable methods of prevention, control, and treatment.
5. 
A mitigation plan shall be required to address groundwater impacts identified in the hydrogeologic site evaluation, if such an evaluation is required. The planning official may require that the mitigation plan include monitoring, process controls, remediation, and discussion of alternatives.
6. 
Project approval shall be based on the conditions and/or mitigation plan required by the planning official.
7. 
The following activities shall be subject to the foregoing requirements of this section and shall include a hydrologic site evaluation:
a. 
Commercial, industrial, institutional, or other facilities or activities that include, but are not limited to: chemical storage tanks (other than liquified gas), automobile washers, chemical treatment storage and disposal, injection wells, oil and gas drilling, pesticide storage and use, sawmills, wastewater application to land surface, animal feedlots, below-ground storage tanks, hazardous waste generators, junk and salvage yards, mining, recycling facilities, solid waste handling facilities, underground injection wells, and wood treatment facilities.
b. 
Petroleum transmission facilities and/or petroleum storage tanks.
c. 
Greywater or reclaimed water systems.
d. 
Those land and subsurface sewage disposal systems as outlined below:
(1) 
Residential sewage disposal systems designed to serve more than two residences on an off-site drainfield or sewage disposal systems from more than two residences on a single parcel, with a total design flow of less than 3,500 gallons per day. Adherence to Island County health department BMPs is considered adequate to prevent groundwater contamination in the low and moderate zones.
(2) 
Sewage disposal systems serving commercial and industrial projects, excluding home-based businesses or home occupations, with total design flows less than 3,500 gallons per day, at the health officer's discretion. Adherence to Island County health department BMPs is considered adequate to prevent groundwater contamination in the low and moderate zones.
(3) 
Any sewage disposal system with design flows of more than 3,500 gallons per day in any zone.
e. 
Surface mining operations requiring a permit from the State Department of Natural Resources.
f. 
Other projects or activities as determined by the planning official.
8. 
The planning official may include additional conditions of approval for activities within the delineated wellhead protection area in compliance with the City of Langley Wellhead Protection Plan (June 2008), or as amended.
(Formerly 16.20.030; Ord. 619, 1992; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Purpose. The purposes of the fish and wildlife habitat conservation areas regulations are to:
1. 
Maintain fish and wildlife populations, especially populations of anadromous fish species, by protecting and conserving valuable fish and wildlife habitat and protecting the ecological processes that sustain these resources.
2. 
Protect valuable terrestrial habitats, natural streams and their associated riparian areas, marine shorelines, and the ecosystem processes on which these areas depend.
3. 
Regulate development so that isolated populations of species are not created, and habitat degradation and fragmentation are avoided.
4. 
Maintain the natural geographic distribution, connectivity, and quality of fish and wildlife habitat.
5. 
Restore and protect riparian habitats to the extent feasible to maximize functions and values over time.
6. 
Consider the cumulative impacts of the proposed action that includes past, present, and reasonably foreseeable future actions to facilitate the goal of no net loss of critical areas. Such impacts shall include those to wildlife, habitat, and migration corridors; water quality and quantity; and other geologic or watershed processes that relate to critical area condition, process, or service.
B. 
Designation Criteria. FWHCA are those areas identified as being of critical importance to the maintenance of certain fish and wildlife species. FWHCA are typically identified either by known point locations of specific species (such as a nest or den) or by habitat areas or both. All areas within the city of Langley meeting these criteria are hereby designated critical areas and are subject to the provisions of this chapter. FWHCA shall include all of the following:
1. 
Areas with a primary association with endangered, threatened, candidate, or sensitive species.
2. 
Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered.
3. 
State-designated endangered, threatened, candidate, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington State Department of Fish and Wildlife that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State-designated endangered, threatened, candidate, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and 232-12-011 (state threatened and sensitive species).
4. 
Streams and Waters of the State. Stream types shall be classified according to WAC 222-16-030. Stream classifications shall include the following:
a. 
Type S streams are those streams inventoried as "shorelines of the state" under the Washington State Shoreline Management Act and the city of Langley shoreline master program. Type S streams are regulated under the city of Langley shoreline master program;
b. 
Type F streams are those that are not Type S but still provide fish habitat;
c. 
Type Np streams are perennial waters that do not contain fish habitat, including the intermittent dry portions below the uppermost point of the perennial flow; and
d. 
Type Ns streams are seasonal waters that do not contain fish habitat, but are physically connected by an above-ground channel system to Type S, F, or Np waters. This includes all segments of natural waters within the width of the defined channels.
e. 
In the case that available information on stream typing is unclear, the planning official shall require that stream typing be performed by a qualified professional using a site visit, mapping, and all available information.
5. 
State natural area preserves, natural resource conservation areas, and state wildlife areas.
6. 
All areas designated by the Department of Natural Resources (DNR) through the Washington Natural Heritage Program (NHP) as high quality terrestrial ecosystems and shown on the most recent NHP maps and data.
7. 
Habitats and Species of Local Importance.
a. 
Habitats and species of local importance have the following characteristics:
(1) 
Habitats and species of local importance have recreational, cultural, and/or economic value to citizens of Langley and Island County.
(2) 
Habitats and species of local importance are not adequately protected, by other city, county, state, or federal policies, laws, regulations, or nonregulatory tools that prevent degradation of the habitat or species.
(3) 
Habitats and species of local importance represent either high quality native habitat or habitat that has a high potential to recover to a suitable condition and which is of limited availability, highly vulnerable to alteration, or provides landscape connectivity which contributes to the integrity of the surrounding landscape.
(4) 
Habitats and species of local importance, without protection, would be diminished locally over the long term.
b. 
Habitats and species of local importance may also include, but are not limited to, priority habitat and species (PHS) mapped and identified by the Washington Department of Fish and Wildlife (WDFW).
c. 
Known and regulated habitats and species of local importance referenced in subsections (F) and (G) of this section.
C. 
The following habitats and species that are listed under WAC 365-190-130 shall be regulated under the city of Langley shoreline master program (except where upland development activities outside jurisdiction would impact these habitats and species):
1. 
Areas where endangered, threatened, candidate, and sensitive marine species have a primary association;
2. 
Commercial and recreational shellfish areas;
3. 
Kelp and eelgrass beds; herring smelt and other forage fish spawning areas.
D. 
Regulations. All new development activities and uses are prohibited from FWHCA and their buffers or protection areas except in accordance with this chapter. Alterations of FWHCA or their buffers or protection areas are prohibited except as otherwise allowed by this chapter and shall only occur if the proposed alteration and any associated mitigation proposed does not degrade the functions and values of ecosystem processes.
E. 
Approvals and Best Available Science. Any approval of alterations or impacts to an FWHCA or its buffer or riparian protection area must be supported by the best available science as described in the required critical area report. In the event of a conflict between FWHCA mapping and the designation criteria outlined in this section, the designation criteria shall control.
F. 
Species. The following species are highly vulnerable to alteration and, therefore, are designated as "species of local importance" in the city of Langley:
1. 
Bald eagle.
2. 
Pileated woodpecker.
3. 
Common loon.
4. 
Great blue heron.
5. 
Trumpeter swan.
6. 
Vaux's swift.
7. 
Snow goose.
8. 
Short eared owl.
9. 
River otter.
10. 
Black crowned night heron.
11. 
Brandt.
12. 
Virginia rail.
13. 
Bittern.
14. 
Salmon.
15. 
Smelt.
16. 
Muskrat.
17. 
Beaver.
18. 
Brown creeper.
19. 
Peregrine falcon.
20. 
Northern sea lion.
21. 
Osprey.
22. 
Marbled murrelet.
23. 
Migratory waterfowl (pintail, brant, mergansers).
24. 
Great horned owl.
25. 
Cavity nesting waterfowl (goldeneyes, wood ducks, hooded merganser, harlequin duck).
26. 
Shellfish.
27. 
Herring.
28. 
Native residential fish.
29. 
Red fox.
30. 
Harbor seals.
31. 
Goshawk.
32. 
Western toad.
33. 
Pacific sand lance.
G. 
Habitat. The following habitats are considered highly vulnerable to alteration, are regionally rare, and are "habitats of local importance" in the city of Langley:
1. 
Eelgrass beds.
2. 
Peat bogs.
3. 
Mature forested wetlands.
4. 
Riparian habitat with native fish populations or significant wildlife usage.
5. 
Kelp beds.
6. 
Estuaries/mud flats/rocky shores.
7. 
Garry oak remnants.
8. 
Freshwater ponds.
9. 
Freshwater marshes.
10. 
Perennial streams.
H. 
Biological Site Assessment.
1. 
With the exception of subsection (B)(4) of this section, when a development proposal is located within 500 feet of an identified FWHCA or its buffer, a biological site assessment (BSA) shall be required.
a. 
For development proposed within 300 feet of a stream or waters of the state as defined in subsection (B)(4) of this section, a biological site assessment (BSA) shall be required.
2. 
The requirement for a BSA may be waived by the planning official for activities listed in Section 16.20.045, Exemptions, and the following activities, provided no clearing of established native shrubs or trees is required and the activity is located outside of the designated FWHCA, buffer, or riparian habitat area:
a. 
Additions to a legally established, primary residence less than 300 square feet in size without changes to the existing septic capacity; or
b. 
New residential gardening and landscaping, including construction of ancillary structures (such as a greenhouse or tool shed) not to exceed 200 square feet in size; or
c. 
Installation of accessory solar energy generation equipment for residential solar energy production;
d. 
New agricultural activities with implementation of applicable best management practices.
3. 
Biological Site Assessment Contents. A BSA shall be prepared by a qualified professional at the expense of the applicant. Unless modified by the planning official, a BSA shall include:
a. 
A site plan showing all critical areas and associated critical area buffers or protection areas on or within 500 feet of the portion of the subject property proposed for development. The site plan shall also clearly show the location and extent of all proposed clearing, earthwork, grading, excavation, filling, structures, utilities, septic system components, wells, roads, parking areas, driveways, and other development; and
b. 
Descriptions of all critical areas shown on the site plan, including, but not limited to, areas which may act as wildlife corridors, ravines, or steep slopes; and
c. 
Description of the proposed development, including, but not limited to, quantity and spatial extent (area) of any proposed development, clearing, earthwork, grading, excavation, and filling, the location and dimensions of all proposed structures, utilities, septic system components, and wells; and
d. 
Analysis of impacts to the protected species, habitats, designated FWHCA, or buffers or protection areas. A discussion of impacts to all critical areas and critical area buffers or protection areas as well as downstream/downgradient impacts must be included; and
e. 
The spatial extent of impact to critical areas and their buffers or protection areas shall be quantified; and
f. 
Regulatory summary, identifying other agencies with jurisdiction; and
g. 
Best management practices, including a discussion of ongoing maintenance practices that will assure protection of all critical areas on site after the project has been completed. If monitoring is required, this section shall include a description of proposed monitoring criteria, methods, and schedule.
h. 
The recommendations of the BSA, once approved, shall be included as conditions of approval of the underlying permit.
4. 
If impacts are determined by a qualified professional in the BSA, a habitat management plan shall be required to determine the appropriate buffer width for the proposed development based on the site-specific analysis. The preparation and submission of this report is the responsibility of the applicant and subject to approval by the city. The report shall rely on best available science and may include mitigation measures. The habitat management plan shall contain a map prepared at an easily readable scale, showing:
a. 
The location of the proposed development site;
b. 
The relationship of the site to surrounding topographic, water, and cultural features;
c. 
Proposed building locations and arrangements;
d. 
A legend that includes a complete legal description, acreage of the parcel, scale, north arrow, and date of map revision; and
e. 
Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species.
5. 
In addition to the requirements of subsection (H)(4) of this section, the habitat management plan shall also contain a report which describes:
a. 
The nature and intensity of the proposed development;
b. 
An analysis of the direct and indirect potential impacts of the proposed development, activity or land use change upon the wildlife species and habitat identified for protection, including potential impacts to water quality;
c. 
A mitigation sequencing analysis that meets the requirements of Section 16.20.035(C);
d. 
A detailed description of vegetation on and adjacent to the project area and its associated buffer or riparian protection area;
e. 
A discussion of any federal, state, or local special management recommendations, including Washington Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;
f. 
A mitigation plan shall be provided that ensures no net loss of ecological functions. Mitigation sites must be located to preserve or achieve contiguous wildlife habitat corridors to minimize the isolating effects of development on habitat areas. The mitigation of aquatic habitat shall be located within the same aquatic ecosystem as the area disturbed. The mitigation plan shall include standards for ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.
6. 
The following development activities shall be exempt from the habitat management plan and mitigation requirements of this section:
a. 
Development undertaken for the sole purpose of creating, restoring, or enhancing the natural functions of floodplains, streams, watercourses, fish and wildlife habitat, and riparian areas; provided, that:
(1) 
The project complies with all other applicable federal, state, and local permit requirements and regulations;
(2) 
The development activities do not include the placement of fill or the creation of additional impervious surface areas.
b. 
Enhancement projects sponsored by Island County, Washington Department of Fish and Wildlife, Whidbey Island Conservation District, U.S. Natural Resources Conservation Service, U.S. Fish and Wildlife Service, Washington Department of Natural Resources, or other public agency approved by the administrator which are consistent with the City Comprehensive Plan and other plans adopted by the city council.
I. 
Previously Undocumented Priority Species or Habitat Reports. If a species or habitat of local importance listed in subsection (F) or (G) of this section is observed in a location that was not previously subject to FWCHA regulations, a report may be submitted to the city documenting the new location. The planning official shall investigate all reported sightings or evidence of protected species in the vicinity of proposed development once a complete report is received prior to any land use approval.
1. 
Reports shall contain the following:
a. 
Date and time of observation;
b. 
Name of individuals submitting report;
c. 
Name of individuals who made the observation;
d. 
Location observed;
e. 
Species observed;
f. 
Observation details, which details how species was sighted or heard, nature of observation, length of observation;
g. 
Names of others present who also observed the species; and
h. 
Supporting documentation, including photographs, field notes or sound recording, if available.
2. 
The planning official or designee may visit the location to verify observations.
3. 
The planning official shall consult with the DNR Natural Heritage Program, WDFW, NOAA, USFWS, or other regulatory authorities as appropriate.
4. 
The planning official shall require a BSA consistent with the requirements of subsection (H) of this section should evidence warrant further investigation.
5. 
Should the report be verified, the location will be included in the city's FWCHA maps.
J. 
Conveyance. Conveyance of a habitat and its buffer(s) or riparian protection area(s) identified as part of project review to a land trust or state or federal agency, is encouraged when such conveyance will ensure the permanent protection of the species and/or habitat.
K. 
Standard Riparian Protection Area Widths. All streams within the city of Langley, regardless of type, are required to maintain a standard 200-foot riparian protection area on each side of the stream, unless otherwise authorized under this chapter.
1. 
A reduced standard riparian protection area width may be allowed if a critical areas report, consistent with the requirements of subsection (H) of this section, is submitted that demonstrates that the 200-year site potential tree height (SPTH200) of the predominant tree species is less than the standard. The report shall include a site-specific soil analysis completed by a licensed geologist or related licensed professional and must meet the following criteria:
a. 
The critical areas report and associated SPTH200 value must be approved by the planning official. The planning official may consult with Washington Department of Fish and Wildlife (WDFW) for confirmation; and
b. 
The riparian protection area width shall be no less than the values for the SPTH200 values for the predominant tree species based on the Natural Resources Conservation Service (NRCS) soil types listed below.
Soil Type1
Predominant Tree Species1
SPTH200 Width (ft)
Indianola loamy sand
Western Hemlock
172
Douglas Fir
191
Indianola – Uselessbay complex
Western Hemlock
172
Douglas Fir
191
Sholander, cool – Limepoint complex
Western Hemlock
169
Western Red Cedar
194
Utsalady – Uselessbay complex
Douglas Fir
194
Notes:
1The soil types and corresponding SPTH200 widths are based on the data from the WDFW SPTH200 online tool. If the type of soil or predominant tree species identified during the site-specific analysis is not listed in the table above, the qualified professional must consult with the city and WDFW staff to determine the appropriate SPTH200 width.
L. 
Measuring Riparian Protection Area Widths. Riparian protection area widths are measured from the stream's ordinary high water mark as identified in the field and surveyed or from the edge of the delineated wetland or stream. These riparian protection areas are subject to reduction only through the provisions of Section 16.20.055 or subsection (K)(1) or (O) of this section. In braided channels, the ordinary high water mark or top of bank shall include the entire stream feature.
M. 
Increasing Riparian Protection Area or Buffer Widths. The planning official may require an increased riparian protection area or buffer width when a larger protection area or buffer is necessary, based on specific site conditions and project features, to protect habitat area functions and values. This determination shall be related to protection of the functions and values of the regulated habitat area as identified in a biological site assessment or habitat management plan. A determination that a larger protection area or buffer width is needed shall be based on the following factors:
1. 
A larger protection area or buffer width is necessary to maintain viable populations of existing species or protect the existing functions of habitat areas identified in subsection (B) of this section.
2. 
The adjacent land has minimal vegetative cover. A larger protection area or buffer width may not be needed when vegetation issues can be addressed through the submittal of a planting plan that has been approved by the planning official.
3. 
The adjacent land contains poorly drained soil as defined by Natural Resources Conservation Service (NRCS) Soil Survey Drainage Class.
4. 
The adjacent land contains a high intensity land use or a use that may contribute excess nitrogen.
N. 
Alterations to Streams and Associated Riparian Protection Areas. Unless otherwise authorized by this chapter, riparian protection areas shall remain in a natural state except for projects which propose to enhance a riparian protection area or are associated with an approved stream alteration. Activities may be permitted within a riparian protection area when the activity complies with the provisions in this subsection and all other applicable local, state, or federal permits.
1. 
General.
a. 
All work shall comply with the Washington Department of Fish and Wildlife in-water work window and hydraulic project approval conditions for the affected species, where applicable;
b. 
The proposal will not significantly degrade the functions or values of the fish habitat or other critical areas.
2. 
Alteration of Natural Watercourses. Alteration of natural watercourses shall be avoided. If unavoidable, the following provisions shall apply to the alteration:
a. 
Watercourse alteration projects shall not result in blockage of side channels.
b. 
The applicant shall maintain the altered or relocated portion of the watercourse to ensure that the flood-carrying capacity is not diminished.
c. 
Unavoidable impacts shall be mitigated consistent with mitigation requirements of this section.
3. 
Erosion control measures within stream channels must also demonstrate that:
a. 
Natural stream processes will be maintained;
b. 
Adequate mitigation measures ensure that there is no net loss of the functions or values of riparian habitat as a result of the proposed stream erosion control measures;
c. 
The proposed stream erosion control measures do not result in significant negative impacts to channel migration corridors;
d. 
Impacts to the functions or values of the habitat conservation area shall require appropriate mitigation measures of this section;
e. 
Streambank stabilization to protect structures from future channel migration is achieved through bioengineering, soft armoring, or recommended techniques in accordance with an approved critical area assessment and the guidelines of the Washington State Integrated Streambank Protection Guidelines (2003, or as amended).
4. 
In-Stream Structures. For the placement of in-stream structures, the following provisions shall apply:
a. 
No structures that prevent the migration of salmonids will be allowed in the portion of water bodies currently used by anadromous fish.
b. 
In-stream structures, such as, but not limited to, high flow bypasses, sediment ponds, in-stream ponds, and retention and detention facilities, are prohibited from riparian protection areas unless they are necessary for the successful development or maintenance of a habitat improvement project.
5. 
Stormwater Management Facilities. Stormwater management and treatment facilities may be allowed within the outer 25 percent of the riparian protection area or may encroach further into the riparian protection area at discretion of the planning official; provided, that:
a. 
No other location is feasible; and
b. 
The location of such facilities will not degrade the functions or values of the watercourse or associated riparian protection area.
6. 
On-Site Sewage Systems and Wells.
a. 
New on-site sewage systems and individual wells are prohibited within a riparian protection area unless:
(1) 
It has been demonstrated that no other location is feasible on site;
(2) 
A BSA has been prepared in accordance with subsection (H) of this section; and
(3) 
If the on-site sewage system or well is accessory to a proposed or approved residential structure which is not feasible to connect to a public sanitary sewer system or public water system.
b. 
Repairs to failing on-site sewage systems associated with an existing structure shall be accomplished by utilizing one of the following methods that result in the least impact:
(1) 
Connection to an available public sanitary sewer system;
(2) 
Replacement with a new on-site sewage system located as far landward as possible and as approved by the Island County health department; or
(3) 
Repair to the existing on-site septic system.
O. 
Riparian Protection Area Width Reductions. Any use permitted in the underlying zone shall preserve the undisturbed riparian protection area unless the planning official determines that the proposed use would not adversely affect the functions and values of the riparian habitat and would be consistent with the land use standards of this chapter and the purposes of this chapter. Reductions of riparian protection area widths may be permitted subject to the following:
1. 
Outside steep slopes and erosion and landslide hazard areas, the planning official may allow riparian protection area width reductions up to a maximum of 25 percent of the standard width subject to the approval of an enhancement plan or one or more of the other actions identified below:
a. 
Riparian Protection Area Enhancement. Riparian protection area enhancement includes measures to enhance the riparian protection area, including but not limited to planting of native trees or shrubs, increasing the diversity of plant cover types, replacing exotic or invasive species with native species, and reestablishing riparian area adjacent to a stream where one does not exist. The enhancement plan shall be completed by a qualified professional at the applicant's cost. The enhancement plan shall be similar to a mitigation plan and shall include provisions for mitigation monitoring and contingency plans consistent with the requirements of Section 16.20.035.
b. 
Stream Enhancement. The provisions below must be incorporated on site except when demonstrated that on-site is not feasible. Stream enhancement that meets the actions below may be authorized off site if it is along the same stream channel within the city of Langley limits in compliance with subsection (R) of this section. The following actions may be considered eligible for up to 25 percent reduction of the standard riparian protection area width:
(1) 
Fish barrier removal to restore accessibility to resident or anadromous fish;
(2) 
Fish habitat enhancement using log structures incorporated as part of a fish habitat enhancement plan;
(3) 
Stream and/or retention/detention pond improvements:
(A) 
Creation of a surface channel where a stream was previously culverted or piped; or
(B) 
Removal or modification of existing stream culverts (such as at road crossings) to improve fish passage and flow capabilities; or
(C) 
Upgrade of retention/detention facilities or other drainage facilities beyond required levels.
2. 
Where a legally established and constructed public roadway transects a riparian protection area, the standard riparian protection area may be reduced, provided:
a. 
The isolated part of the riparian protection area provides insignificant biological, geological, and hydrological functions relating to the riparian area; and
b. 
The resulting riparian protection area width shall be no less than 50 percent of the standard riparian protection area width or up to the edge of the roadway, whichever is greater.
P. 
The expansion of impervious surfaces within riparian areas is prohibited, except as provided as follows:
1. 
A one-time expansion of impervious surface area up to 500 square feet within the riparian protection area may be permitted when the following conditions are met, including:
a. 
All new impervious surfaces, which include structures, will be sited at a distance that is greater than or equal to the primary structure setback from the stream's ordinary high water mark or from the edge of the delineated wetland or stream, whichever is greater;
b. 
The expansion would occur at least 100 feet from the edge of the stream's ordinary high water mark or from the edge of the delineated wetland or stream, whichever is greater;
c. 
The area proposed for the expansion was lawfully developed prior to the date of adoption of this chapter;
d. 
If the riparian protection area located between the water body and the primary structure has been degraded on the site, the degraded area, or a portion of the degraded area equal to the size of the expansion, whichever is less, will be restored with native trees and vegetation. The degraded area chosen for restoration must be located nearest the most sensitive habitat as determined by the approval authority;
e. 
The expansion, coupled with any proposed mitigation, would be at least as effective in protecting all of the riparian protection area functions as exist under current conditions;
f. 
The applicant shall provide a performance surety consistent with Section 16.20.035(B), Critical Area Report, to ensure survival or replacement of plants used in the restoration;
g. 
Prior to final inspection, the applicant shall record a covenant or other restriction with the subject property's title indicating that no further expansion of the structure's footprint or impervious surface is allowed within the riparian protection area on the site.
Q. 
Expansion of Conforming Portions of a Legally Established Nonconforming Structure. If only a portion of the structure is nonconforming (e.g., lies within a riparian protection area) expansion of the conforming portion of the structure is permitted, provided the expansion does not extend into the critical area or associated buffer or riparian protection area in compliance with Chapter 18.32.
R. 
Off-Site Mitigation. Off-site mitigation shall only be permitted when the applicant has clearly demonstrated that on-site mitigation or off-site mitigation in the city of Langley limits or its surrounding watersheds is not feasible, in the referenced order of priority, or where it is demonstrated that off-site mitigation would provide greater benefit to the affected species.
(Formerly 16.20.035; Ord. 619, 1992; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Designation. Frequently flooded areas are areas that are subject to periodic inundation due to high groundwater or areas subject to tidal flooding that are subject to at least a one percent or greater chance of flooding in any given year. These areas include, but are not limited to, streams, lakes, wetlands, frequently flooded areas, closed depressions, floodways, and contiguous floodplain areas landward 200 feet from such floodways, and all wetlands and river deltas associated with streams, lakes, and tidal waters. Areas of the city subject to tidal inundation by the base flood elevation are identified in the Federal Emergency Management Agency's flood insurance rate maps ("FIRMs") prepared for the National Flood Insurance Program. Copies of the city of Langley FIRMs may be reviewed at City Hall or on the FEMA Flood Map Service. Frequently flooded areas under shoreline jurisdiction are also subject to the provisions of the city's shoreline master program (Ord. 1080, dated October 18, 2021), Chapter 90.58 RCW (Shoreline Management Act), and Chapters 15.24 and 16.24.
B. 
Protected and Permitted Alterations.
1. 
Development proposals on sites containing a flood hazard area shall conform to the conditions of this section and Chapter 15.24. In addition, requirements for buffers or riparian protection areas, critical area tracts, building setback lines, permitted alterations, mitigation, and maintenance for a development proposal site on or adjacent to a flood hazard area shall be established in this chapter for the wetlands, streams, or other areas which form the constituent elements of the floodplain.
2. 
Development proposals shall not reduce the effective flood storage volume of the floodplain. Grading or other activity which would reduce the effective storage volume must be mitigated by creating compensatory storage on site or off site.
3. 
No development proposal, including permitted new construction or reconstruction, shall cause any increase in the base flood elevation.
4. 
Construction or placement of new residential or nonresidential structures in the floodway is prohibited.
5. 
Substantial improvements (value of improvement is 50 percent or greater than existing structure) of an existing structure located in a floodway must meet the requirements set out in WAC 173-158-070 as amended.
6. 
All elevated construction must be designed and certified by a professional structural engineer registered in the state of Washington and must be approved by the city prior to construction.
7. 
New residential and nonresidential construction and substantial improvement in the flood fringe outside the floodway shall be elevated to the flood protection level. Portions below the lowest floor area shall provide for openings for floodwaters. Floodproofing of a nonresidential structure (new or substantial improvement) to the flood protection elevation is allowed; provided, that floodproofing is certified by a professional civil or structural engineer licensed in the state of Washington.
8. 
Construction of new and substantially reconstructed residential and nonresidential structures shall use materials and methods which are resistant to and minimize flood damage and shall floodproof or elevate above the flood protection elevation all electrical, heating, ventilation, plumbing, air conditioning equipment and other utility and service facilities.
9. 
Utilities.
a. 
All new and replacement utilities shall be floodproofed to or elevated above the flood protection elevation.
b. 
Critical facilities shall only be allowed within the flood fringe of the floodplain when no feasible alternative is available. Critical facilities are those necessary to protect the public health, safety, and welfare, including but not limited to schools, hospitals, and police and fire stations.
(Formerly 16.20.040; Ord. 619, 1992; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Designation of Geologically Hazardous Areas. Geologically hazardous areas susceptible to erosion, sliding, earthquake, or other geological events pose a threat to the health and safety of citizens when incompatible development is sited in areas of significant hazard. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous area:
1. 
Erosion hazard;
2. 
Landslide hazard;
3. 
Seismic hazard;
4. 
Other geological events including mass wasting, debris flow, rock falls, and differential settlement.
B. 
Designation of Specific Hazard Areas.
1. 
Erosion Hazard Areas. Erosion hazard areas include areas likely to become unstable, such as:
a. 
Coastal erosion areas, such as beaches or marine bluffs;
b. 
Steep slopes with unconsolidated soils;
c. 
Areas susceptible to rapid stream incision and stream bank erosion;
d. 
Areas located within one-quarter mile of an active fault as indicated on investigative maps or described in studies by the United States Geologic Survey, Washington Geological Survey of the Washington Department of Natural Resources, or other documents authorized by government agencies, or identified during site inspection.
This information can be found in the Washington State Coastal Zone Atlas available from the Department of Ecology. Counties and cities may consult with the United States Department of Agriculture Natural Resources Conservation Service for data to help identify erosion hazard areas.
2. 
Landslide Hazard Areas. Landslide hazard areas are areas potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors.
Example of these may include, but are not limited to, the following:
a. 
Areas of historic failures, such as:
(1) 
Those areas delineated by the U.S. Department of Agriculture's Natural Resources Conservation Service as having a significant limitation for building site development;
(2) 
Those areas mapped by the Department of Ecology Coastal Zone Atlas or the Department of Natural Resources slope stability mapping as unstable ("U" or class 3), unstable old slides ("UOS" or class 4), or unstable recent slides ("URS" or class 5); or
(3) 
Areas designated as quaternary slumps, earth flows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or Department of Natural Resources;
b. 
Areas with all three of the following characteristics:
(1) 
Areas that encompass slopes steeper than 15 percent;
(2) 
Impermeable soils (typically silt and clay) frequently interbedded with granular soils (predominantly sand and gravel); and
(3) 
Springs or ground water seepage;
c. 
Areas that have shown movement during the Holocene epoch (from 10,000 years ago to the present) or that are underlain or covered by mass wastage debris of that epoch;
d. 
Slopes that are parallel or sub-parallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;
e. 
Slopes having gradients steeper than 80 percent subject to rock fall during seismic shaking;
f. 
Areas potentially unstable because of rapid stream incision, stream bank erosion, and undercutting by wave action; or
g. 
Areas located in a canyon or an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding.
3. 
Seismic Hazard Areas. Seismic hazard areas are areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, surface faulting, or tsunami inundation. One indicator of potential for future earthquake damage is a record of earthquake damage in the past. Ground shaking is the primary cause of earthquake damage in Washington. The strength of ground shaking is primarily affected by:
a. 
The magnitude of the earthquake;
b. 
The distance from the source of an earthquake;
c. 
The type or thickness of geologic materials at the surface; and
d. 
The type of subsurface geologic structure.
Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft saturated soils of low density, typically in association with a shallow ground water table.
4. 
Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the planning official to be susceptible to other geological events including mass wasting, debris flows, rock falls, and differential settlement.
C. 
Development Standards. All development activities and uses are prohibited in geologically hazardous areas and their buffers, except as provided for in this chapter, and only when it is demonstrated that the activity will not create undue risk to life, health, and safety.
D. 
Minor Activities.
1. 
Minor alterations or structures, including but not limited to benches and informational signs, may be allowed in the required buffer for erosion or landslide hazard areas, and can be considered exempt from subsection (L) of this section, Alterations, based on the city review and acceptance of a geotechnical report prepared by a qualified professional that demonstrates no adverse impact will result from the activity and mitigation is provided, as appropriate.
2. 
The city may allow the limited trimming and limbing of vegetation on steep slopes or erosion or landslide hazard areas for creation/maintenance of views without the submittal of a geotechnical report; provided, that the soils are not disturbed, and all material is removed from the site.
3. 
All other applicable codes, including compliance with the shoreline master program, must be adhered to.
E. 
Report Requirements.
1. 
General Geotechnical Report. In the case of land-disturbing activities proposed on a steep slope or for development of a structure within 50 feet of the top or the toe of a steep slope, not in a geological hazardous area, the planning official may require a general geotechnical report prepared by a qualified professional. A general geotechnical report shall include:
a. 
A description of the geology of the site including data regarding the nature, distribution, and strength of existing soils;
b. 
An evaluation of the intended use of sites to be developed by the proposed grading, as affected by geotechnical factors, including stability of slopes and potential impacts;
c. 
Conclusions and recommendations for grading procedures including cuts and placement of structural fills, when necessary; and
d. 
Recommended mitigation measures, which may include required building setbacks.
e. 
The planning official may require the information outlined in the geotechnical engineering report (subsection (E)(2) of this section) and/or mitigation plans (subsection (F) of this section) if site conditions and/or proposed land disturbance are determined to warrant a detailed site evaluation.
f. 
The following alteration activities shall be evaluated by the qualified professional and approved by the planning official:
(1) 
Surface Water Management. Steep slopes may be used for approved surface water conveyance. Installation techniques shall minimize disturbance to the slope and vegetation.
(2) 
Trails. Construction of public and private trails may be allowed on steep slopes provided they receive site specific approval by the city, but in no case shall trails be constructed of concrete, asphalt, or other impervious surface materials which would contribute to surface water runoff unless such construction is necessary for soil stabilization or soil erosion prevention.
(3) 
Utilities. Construction of public and private utility corridors may be allowed on steep slopes; provided, that a special study indicates that such alteration will not subject the area to risk of landslide or erosion.
g. 
All alterations, except those activities listed in subsection (D) or (E)(1)(f) of this section, to regulated steep slopes shall be evaluated by the qualified professional and processed as a variance application. Applications for a variance require notice of application in accordance with Section 18.36.020 and review and approval from a hearing examiner following a public hearing. A variance request may only be granted when all the findings of LMC 18.30.020 have been made, in addition to demonstration of compliance with the requirements of this section.
2. 
Geotechnical Engineering Report for Geologically Hazardous Areas. In the case of land disturbing activities proposed to be within 100 feet of an established geologically hazardous area, a geotechnical engineering report prepared and sealed by a geotechnical engineer shall be submitted. The scope of a geotechnical report shall include the following where applicable:
a. 
An assessment of the geologic and hydrogeologic conditions in the vicinity of the site. Description of types and engineering properties of the soils, sediments, and/or rock of the subject property and potentially affected adjacent properties must be included;
b. 
For development adjacent to a coastal bluff, the report shall also contain erosion projections for 75 years based in part on sea level rise;
c. 
Description of existing site topography including determination of height of slope, slope gradient, and preparation of a generalized cross section;
d. 
Description of any areas mapped as unstable, landslides, erosion activity, or other areas of unstable soils identified visually at the site;
e. 
Description of any watercourses, including drainage channels, ditches, springs, and intermittent streams;
f. 
An estimate of slope stability and the effect construction and placement of structures will have on the stability of slopes. The minimum setbacks described above shall be used. The geotechnical engineer must concur with this setback or may establish an alternative setback based on the geology, bluff retreat rates, seismic activity, and other considerations;
g. 
A description of the extent and type of vegetative cover;
h. 
A detailed description of the project including any structural development, its relationship to geologic hazard(s) and its potential impact upon the hazard area, the subject property, and affected adjacent properties;
i. 
A description of type of construction including any unusual load intensities, public and private sewage disposal systems, fills, and excavations including proposed angles of cuts and fills;
j. 
Specific recommendations and/or mitigation actions must be provided regarding proposed vegetation removal and replacement, erosion control, and locations and methods of surface and subsurface drainage.
k. 
The drainage recommendations shall be site specific to mitigate impacts and prevent erosion. Surface drainage shall not be directed across the face of geologically hazardous areas. If drainage must be discharged from the area into adjacent waters, it shall be collected above the hazard, secured, and directed to the water by tightline drain and provided with an energy dissipating device at the point of discharge. Installations within shoreline jurisdiction must be authorized by the city shoreline administrator and must be consistent with the Shoreline Management Act (SMA). If the drainage recommendations in the geotechnical engineering report are determined by the planning official to not be sufficient, a specific drainage plan prepared by a licensed engineer may be required (see Mitigation Plans, subsection (F) of this section).
l. 
The planning official may require the geotechnical engineer of record or their representative to perform special inspections to confirm that conditions encountered during construction are consistent with the assumptions of the geotechnical engineering report and construction conforms with the design and mitigation plans.
F. 
Mitigation Plans. If the planning official determines that the site conditions and/or proposed development require additional mitigation details not provided in the geotechnical engineering report or general geotechnical report, mitigation plans or other submittals, including but not limited to any of the following, may be required:
1. 
Mitigation proposals that shall include:
a. 
Subsurface exploration and logs prepared under the supervision of the geotechnical engineer. Subsurface exploration may be required for proposed development within 25 feet of the top or base of a slope greater than 10 feet in height; for proposed infiltration of stormwater; unusual load intensities as determined by the geotechnical engineer; stormwater anchor blocks; or other design considerations that the planning official determines represent a risk from the geohazard;
b. 
A vegetation management and/or restoration plan and/or other means for maintaining long-term stability of slopes;
c. 
A temporary erosion and sedimentation control plan (TESC) prepared by a qualified professional; and
d. 
A drainage plan prepared by a licensed civil engineer showing the collection, transport, treatment, discharge, and/or recycle of water.
e. 
All infiltration systems, such as stormwater detention and retention facilities, and curtain or french drains are prohibited in geologically hazardous areas and their buffers unless a geotechnical report indicates such facilities or systems will not adversely affect slope stability and the systems are designed by a licensed civil engineer. Such systems will require subsurface exploration to confirm the suitability of subsurface conditions. Special inspection may be required during construction.
2. 
The mitigation plan must be approved by the planning official and be implemented as a condition of project approval.
3. 
Projects found to be in noncompliance with the mitigation conditions issued as part of the development approval are subject to enforcement actions necessary to bring the development into compliance with this chapter.
4. 
Mitigation plans which do not fulfill the performance required based on the site assessment/geotechnical report findings or otherwise fail to meet the intent of this chapter shall be revised and the subject development brought into compliance with the revised mitigation plan.
5. 
The planning official may require project specific professional inspections to confirm that conditions encountered during construction are consistent with the design assumptions and construction conforms to the design and mitigation plans.
6. 
Performance and/or maintenance and monitoring bonds in accordance with the provisions of Section 16.20.050.
G. 
Critical Facilities Prohibited. Critical facilities shall not be sited within geologically hazardous areas unless there is no other feasible alternative.
H. 
International Building Code. All development must conform to the provisions of the currently adopted International Building Code as amended by the city of Langley.
I. 
Buffers.
1. 
A minimum buffer shall be established at a horizontal distance of 50 feet from the top or toe (as applicable) and along all sides of the designated erosion or landslide hazard area; provided, that this requirement shall not apply to the north side of First Street in the downtown commercial area.
2. 
The buffer may be increased by the planning official based on the critical area report prepared by a qualified professional that indicates a greater buffer is necessary to protect the proposed development and/or adjacent properties.
3. 
The planning official may reduce the standard buffer up to 25 percent in areas other than along the marine shoreline, when a critical area report prepared by a qualified professional demonstrates that all of the following criteria are met:
a. 
No feasible alternative to the buffer reduction exists after completing mitigation sequencing described in Section 16.20.035(C).
b. 
Modified or reduced buffers will provide equal protection to the proposed development and adjacent properties as the standard buffer.
c. 
The development will not increase surface water discharge beyond pre-development conditions.
d. 
The development will not decrease slope stability or adversely impact other critical areas.
e. 
The report must make recommendations regarding mitigation measures to minimize impacts and resist erosion, including planting of vegetation or other measures.
f. 
The planning official may require at the applicant's expense a third-party peer review of the critical area report by a qualified professional under contract with or employed by the city in compliance with Section 16.20.035(H).
g. 
Prior to permit issuance, the property owner must sign and record a notice on title, at the owner's sole expense, a covenant in a form prepared by the city, which:
(1) 
Acknowledges and accepts the risks of development in the geologically hazardous area;
(2) 
Waives any rights to claims against the city;
(3) 
Indemnifies and holds harmless the city against claims, losses, and damages; and
(4) 
Informs subsequent owners of the property of the risks and the covenant.
h. 
Buffer reductions may also be considered in cases where such reduction may result in avoidance of significant tree removal, provided all other criteria of this section are met.
4. 
The required buffer shall be temporarily marked on the site during construction and grading activities.
5. 
The installation of appropriate slope protection measures. Unless otherwise provided as a part of an approved alteration, existing native vegetation within the buffer area shall be retained, or as otherwise necessary to protect the public health, safety, and welfare.
J. 
Critical Area Tracts. Any continuous slope area and its buffers one acre or greater in size shall be placed in separate critical area tracts in development proposals.
K. 
Building Setback Lines. A building setback line will be established at a distance of 15 feet from the edge of the buffer. Development allowed in the building setback line is limited to those activities listed in subsection (D) of this section, landscaping (native plants), and uncovered decks, as long as the decks do not extend more than 10 feet into the building setback area and extend no more than 18 inches above existing grade, unless the planning official determines that topography or unusual site conditions warrant a variation.
L. 
Alterations. Except for those activities listed in subsection (D) of this section, alterations to erosion or landslide hazard areas or reduction in setbacks beyond 25 percent shall be processed as a variance application. Applications for a variance require notice of application in accordance with Section 18.36.020 and review and approval from a hearing examiner following a public hearing. A variance request shall only be granted when all the findings of Section 18.30.020 have been made, in addition to demonstration of compliance with the requirements of this section. The activity shall be allowed only as follows:
1. 
Any alterations proposed within shoreline jurisdiction shall meet the requirements of the city of Langley shoreline master program, in addition to the requirements of this section.
2. 
Alterations of an erosion or landslide hazard area and/or buffers may only occur for activities for which a geotechnical engineering report which meets the requirements of subsection (E)(2) of this section is submitted which determines that:
a. 
The activity will not increase surface water discharge or sedimentation to adjacent properties beyond pre-development conditions;
b. 
The activity will not decrease slope stability on adjacent properties;
c. 
Such alteration will not adversely impact other critical areas or pose a potential threat risk to life, health, and safety.
3. 
Alterations must be designed to meet the following basic requirements:
a. 
The proposed alteration must not decrease the slope stability;
b. 
Structures and improvements must be clustered to avoid geologically hazardous areas and other critical areas;
c. 
Structures and improvements must minimize alterations to the natural contour of the slope, and foundations must be tiered where feasible to conform to existing topography;
d. 
Structures and improvements must be located to preserve the most critical portion of the site and its natural landforms and vegetation;
e. 
The proposed development must not result in greater risk or a need for increased buffers on neighboring properties;
f. 
Development must be designed to minimize impervious lot coverage;
g. 
The planning official may accept an alternative design that deviates from one or more of these standards if a report by a qualified professional demonstrates that greater long-term slope stability can be achieved while meeting all other provisions of this title. The requirement for long-term slope stability must exclude designs that require regular and periodic maintenance to maintain their level of function.
4. 
Additional Requirements for Alteration of Erosion or Landslide Hazard Areas and Buffers. Prior to permit issuance, the property owner must sign and record a notice on title, at the owner's sole expense, a covenant in a form acceptable to the city, which:
a. 
Acknowledges and accepts the risks of development in the geologically hazardous area;
b. 
Waives any rights to claims against the city;
c. 
Indemnifies and holds harmless the city against claims, losses, and damages; and
d. 
Informs subsequent owners of the property of the risks and the covenant.
5. 
Alteration of a site containing an erosion or landslide hazard area, in addition to meeting requirements stated in subsections (L)(1) through (L)(4) of this section, shall meet the following requirements:
a. 
Except for the following, clearing on erosion or landslide hazard areas is allowed only from May 1st to October 1st:
(1) 
Up to 5,000 square feet may be cleared on any lot, subject to any other requirement for vegetation retention.
(2) 
Timber harvest pursuant to a DNR-approved forest practice permit or pursuant to a clearing and grading permit issued by the city may be allowed.
(3) 
The city of Langley may extend or shorten the dry season on a case-by-case basis depending on actual weather conditions.
b. 
Only clearing necessary to install temporary sedimentation and erosion control measures shall occur prior to clearing roadways or utilities.
c. 
Clearing limits for roads, sewer, water and stormwater utilities, and temporary erosion control facilities shall be marked in the field and approved by the city engineer prior to any alteration of existing native vegetation.
d. 
Clearing for roads and utilities shall remain within construction limits which must be marked in the field prior to commencement of the site work.
e. 
The authorized clearing for roads and utilities shall be the minimum necessary to accomplish project specific engineering designs and shall remain within approved rights-of-way.
f. 
Clearing of trees may occur in conjunction with clearing roadways and utilities.
g. 
All trees and understory shall be retained on lots or parcels during clearing for roadways and utilities.
h. 
Damage to vegetation retained during initial clearing activities shall be minimized by directional felling of trees to avoid critical areas and vegetation to be retained, and preparation and approval of a skidding plan aimed at minimizing damage to soil and understory vegetation.
i. 
Retained trees, understory, and stumps may subsequently be cleared only if such clearing is a specific element of residential, multifamily, or commercial structure site plan approval.
j. 
Erosion control methods as required in temporary erosion control plans shall be required.
k. 
All development proposals shall submit a temporary erosion and sediment control plan (TESC) consistent with this section and other adopted requirements prior to receiving approval.
(Formerly 16.20.045; Ord. 619, 1992; Ord. 733, 1997; Ord. 788, 2000; Ord. 820, 2002; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Wetlands have been initially identified in the city of Langley through site-specific analyses conducted by private property owners, a wetlands inventory conducted through funding from Washington State Department of Ecology (1991), and by the city of Langley. This combined information serves to notify both the city and the property owner of the potential existence of a wetland depending on the kind and extent of information available, sufficient to identify and clarify a wetland. Otherwise, the process of identifying and classifying wetlands is fulfilled through a routine wetland determination or by analysis conducted by a qualified professional.
B. 
The planning official shall make a preliminary determination of the presence of wetlands based on readily available information such as critical areas maps or the soil survey or through a site visit. This determination is final for ordinance implementation or enforcement. If it is determined that regulatory wetlands are present on the subject property, the property owner may submit documentation prepared by a qualified professional at the owner's expense with sufficient evidence to support that the preliminary determination does not apply.
C. 
In making any determination regarding a wetland, the text of this chapter is always controlling. Wetland delineations shall be determined by using the Washington State Wetland Rating System for Western Washington – 2014 Update (Ecology Publication No. 14-06-029, October 2014, or as amended hereafter).
D. 
Wetlands and their buffers shall be regulated in the city of Langley pursuant to the regulations contained in this chapter. An applicant should be aware that Sections 401, 402, and/or 404 of the federal Clean Water Act and other federal and state statutes may also apply.
E. 
Purpose. The primary purpose of these regulations is to preserve wetlands and their buffers in a natural condition to the maximum extent feasible to protect all of the functions performed by the wetlands and riparian corridors, including for fish and wildlife habitat, protection of habitat connectivity, protection of property from flooding and erosion, carbon sequestration, climate amelioration, and the provision of recreational opportunities and aesthetic value. It is also the goal that, in the short term, there be no net loss of the acreage or functional values of wetlands in the city and that, in the long term, there is improvement to the quality and functional values of wetland systems.
F. 
Wetland Designation Criteria. Wetlands shall be designated according to the criteria in this subsection. Wetlands shall be classified as Category I, II, III, or IV using the Washington State Department of Ecology's Wetland Rating System for Western Washington, 2014, Ecology Publication No. 14-06-029, or as revised hereafter. As used in this section, the term "regulated wetlands" shall refer to Category I, II, III, and IV wetlands, generally described as follows:
1. 
Category I. Highest quality wetlands; wetlands in coastal lagoons.
2. 
Category II. Wetlands with significant wetland functions including, but not limited to, water quality enhancement, wildlife habitat, and ground water recharge.
3. 
Category III. Wetlands with a moderate level of functions.
4. 
Category IV. Wetlands with the lowest levels of functions and that are often heavily disturbed.
G. 
Developments permitted pursuant to this chapter that adversely impact or alter a critical area or its buffer shall include mitigation sufficient to maintain or replace critical areas functions and values. Mitigation shall ensure no loss of critical area functions or values. Any proposed development that cannot mitigate critical area impacts to ensure no net loss of ecological function as determined by the planning official shall be denied.
H. 
Mitigation Sequencing. When an impact to a critical area or critical area buffer is proposed, the applicant shall demonstrate that all reasonable efforts have been taken to mitigate impacts in compliance with Section 16.20.035(C).
I. 
Avoidance of Indirect Wetland Impacts. All proposed land uses adjacent to wetlands and their buffers shall comply with the following measures to avoid or reduce indirect wetland impacts unless measures that provide equivalent protection are approved by the planning official:
1. 
Direct lights away from the wetland.
2. 
Locate activities that generate noise away from the wetland.
3. 
For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10-foot heavily vegetated buffer strip immediately adjacent to the outer buffer.
4. 
Route all new, untreated runoff away from the wetland while ensuring that the wetland is not dewatered.
5. 
Limit the use of pesticides within 150 feet of the wetland and applying integrated pest management to the balance of the site, limiting pesticide use to treatment of noxious weeds or insect infestations only after documented use of alternative nontoxic measures has failed.
6. 
Limit the use of nitrogen fertilizers.
7. 
Apply integrated pest management.
8. 
Retrofit stormwater detention and treatment for roads and existing adjacent development.
9. 
Prevent channelized flow or sheet flow from lawns that directly enter the buffer.
10. 
Use low intensity development (LID) techniques.
11. 
Infiltrate or treat, detain, and disperse new runoff from impervious surfaces and new lawns.
12. 
Plant dense, native vegetation to delineate the buffer edge and to discourage disturbance, using vegetation appropriate for the region.
13. 
Place wetlands and their buffers in a separate tract or protect with a conservation easement.
14. 
Use best management practices to control dust.
J. 
General Provisions. The following general provisions shall apply to wetland buffers:
1. 
The buffer width shall be measured perpendicular to the edge of the delineated wetland boundary;
2. 
In the case of existing lots which encroach into the required buffer, clearing, grading, and placement of structures shall comply with the buffer requirements unless demonstrated that there is no feasible option to alteration of the buffer;
3. 
The wetland edge within the boundaries of the applicant's property shall be shown on all plats, short plats, site plans, or PUDs, together with any conservation easement(s) and appropriate covenants in compliance with the provisions of Section 16.20.035(K)(2)(b). The applicant shall be responsible for such delineation. Such delineation may be based on findings by the planning official or if the applicant disagrees with such findings, on the results of a study by a qualified professional;
4. 
Development within the buffer shall be limited to the activities listed in subsection (P) of this section, including passive recreation such as trails, scientific uses, and fences or other barriers necessary to protect habitat and designed to minimize impediments to wildlife movement;
5. 
Conveyance of wetlands identified as part of project review, to a land trust or governmental agency is encouraged when such conveyance will ensure the permanent protection of the wetlands;
6. 
Wetlands and their buffers may be eligible to apply for designation as open space and subject to current use taxation, thereby providing a tax incentive to the landowners to ensure the long-term protection of the aquatic system.
K. 
Wetland Buffer Width Requirements. The following undisturbed buffers shall be established adjacent to all wetlands. These buffers are subject to increase or reduction only through the provisions of Section 16.20.055 or subsection (L), (M) or (N) of this section, where applicable. In instances when the land use is increased to a higher intensity defined in Table 2, the greater buffer width requirement of Table 1 shall be applied. In such instances, appropriate documentation shall be submitted with the accompanying land use application including, but not limited to, compensatory restoration and mitigation plans and bonding in compliance with the requirements of this section.
1. 
Wetland Buffer Requirements.
Table 1. Wetland Buffer Requirements
Category of Wetland
Land Use with Low Impact1
Land Use with Moderate Impact1
Land Use with High Impact1
I
150
225
300
II
150
225
300
III
75
110
150
IV
25
40
50
Notes:
1See Table 2 below for types of land uses that can result in low, moderate, and high levels of impacts to wetlands.
Table 2. Levels of Impacts from Proposed Land Use Types
Level of Impact from Proposed Land Use
Types of Land Use
High
•
Commercial
•
Urban
•
Industrial
•
Institutional
•
Mixed-use developments
•
Residential (more than one unit/acre)
•
Roads: federal and state highways, including on-ramps and exits, state routes, and other roads associated with high-impact land uses
•
Agriculture with high-intensity activities (dairies, nurseries, greenhouses, growing and harvesting crops requiring annual tilling, raising, and maintaining animals, etc.)
•
Open/recreational space with high-intensity uses (golf courses, ball fields, etc.)
•
Solar farms (utility scale)
•
Home occupations
Moderate
•
Residential (one unit/acre or less)
•
Roads: Roads associated with moderate impact land uses
•
Open/recreational space with moderate-intensity uses (parks with paved trails or playgrounds, biking, jogging, etc.)
•
Agriculture with moderate-intensity uses (orchards, hay fields, light or rotational grazing, etc.)
•
Utility corridor or right-of-way used by one or more utilities and including access/maintenance road
•
Wind farm
Low
•
Natural resource lands (forestry/silviculture – cutting of trees only, not land clearing and removing stumps)
•
Open/recreational space with low intensity uses (unpaved trails, hiking, birdwatching, etc.)
•
Utility corridor without a maintenance road and little or no vegetation management
•
Cell tower
L. 
Increased Buffer Width. The width of the wetland buffer may be increased over the required minimum upon a determination by the planning official that the wetland is especially sensitive to disturbance or when development poses unusual impacts, and the increased buffer is necessary to protect environmentally sensitive areas described below. Circumstances which may require wider buffers include but are not limited to:
1. 
When the wetland (or adjacent riparian corridor) is a critical habitat for threatened, endangered, or sensitive species; serves a critical fish habitat; or is used for spawning or rearing of fish;
2. 
When a larger buffer is deemed necessary to maintain viable populations of existing species;
3. 
When the adjacent land is susceptible to severe erosion, and erosion controls will not effectively prevent adverse impacts;
4. 
When the adjacent land has slopes greater than 40 percent; and
5. 
When the buffer has minimal vegetation or is not vegetated with plants appropriate for the region.
M. 
Wetland Buffer Width Averaging. Any use permitted in the underlying zone shall preserve the undisturbed buffer unless the planning official determines that the proposed use would not adversely affect the valuable functions of the wetland or its buffer and would be consistent with the land use standards and the purposes of this chapter. The planning official may permit buffer width averaging to allow for reasonable use of a parcel, provided the following is met:
1. 
The planning official may require buffer width averaging to provide protection to a particular portion of a wetland that is especially sensitive, or to incorporate existing significant vegetation or habitat areas into the buffer. Buffer width averaging shall not adversely impact the functions and values of the wetland.
2. 
Buffer width averaging shall be allowed only where the applicant demonstrates through a report relying on best available science and prepared by a qualified specialist, that:
a. 
Averaging is necessary to avoid a hardship caused by circumstances to the property;
b. 
There is not a feasible alternative to the site design that could be accomplished without buffer averaging, in accordance with the mitigation sequencing requirements described in Section 16.20.035(C);
c. 
The buffer area contains variations in sensitivity due to existing physical characteristics or the buffer area varies in characteristics such as slope, soils, or vegetation; and it would benefit from a wider area in places and would not be adversely impacted by a narrower area in other places;
d. 
Lower intensity land uses would be located adjacent to areas where the width of the buffer area is reduced;
e. 
Buffer width averaging will not adversely impact functions of the riparian habitat;
f. 
The buffer width at its narrowest point is not reduced to less than either 75 percent of the standard width or 75 feet for Category I and II, 50 feet for Category III, and 25 feet for Category IV, whichever results in the greatest buffer width;
g. 
The total area contained within the buffer area after averaging is no less than the required buffer prior to averaging;
h. 
The buffer will be enhanced consistent with the requirements of subsection (C)(1)(a) of this section, to improve its overall quality; and
i. 
The buffer area shall be protected through a notice on title. The applicant shall record a copy of the approved mitigation plan, along with the notice to title referencing the subject plan. The recorded notice shall describe the type of critical areas found on the property and any restrictions or conditions imposed by the planning official.
N. 
Buffer Width Reductions. Any use permitted in the underlying zone shall preserve the undisturbed buffer unless the planning official determines that the proposed use would not adversely affect the valuable functions of the wetland or their buffer and would be consistent with the land use standards of this chapter and the purposes of this chapter. Buffer reductions may be permitted to allow reasonable use of the parcel subject to the following:
1. 
Outside steep slope areas, the planning official may allow wetland buffer width reductions up to a maximum of 25 percent of the required buffer subject to the approval of a buffer enhancement plan or one or more of the other actions identified below:
a. 
Buffer Enhancement. Buffer enhancement includes measures to enhance the buffer, including but not limited to planting of native trees or shrubs, increasing the diversity of plant cover types, replacing exotic species with native species. The enhancement plan shall be completed by a qualified professional. The study shall be prepared at the applicant's cost. The enhancement plan shall be similar to a mitigation plan and shall include provisions for mitigation monitoring and contingency plans similar to the requirements of subsection (S) of this section.
2. 
Where a legally established and constructed public roadway transects a wetland buffer, the standard wetland buffer width may be reduced provided:
a. 
The isolated part of the buffer provides insignificant biological, geological, and hydrological buffer functions relating to the wetland area; and
b. 
The resulting buffer distance shall be no less than 50 percent of the standard wetland buffer width or up to the edge of the roadway, whichever is greater.
O. 
Buffer Maintenance. Except as otherwise specified in this chapter, wetland buffers must be retained in an undisturbed or enhanced condition. In the case of compensatory mitigation sites, removal of invasive species is required for the duration of the mitigation bond.
P. 
Permitted Uses. The following uses are permitted subject to prior review by the planning official to determine that all conditions are satisfied prior to commencement of activity:
1. 
Fences. The construction/placement of fences in a wetland or surrounding buffers, is subject to the following conditions:
a. 
Fences shall be located only in the buffer; and
b. 
No motorized equipment shall be used during construction and maintenance; and
c. 
Only minimal disruption and removal of vegetation shall occur; and
d. 
Special fence design features may be required as necessary to protect wildlife habitat or other functions of the wetland and/or surrounding buffers;
2. 
Low-Impact Uses and Activities. Low-impact uses and activities which are consistent with wetlands and their buffers may be permitted within the buffer depending on the sensitivity of the wetland. Examples of uses and activities which may be allowed include unpaved pedestrian trails, viewing platforms, utility easements and corridors without access roads and with little to no vegetation management, low intensity open space, and the installation of necessary utilities. Necessary utilities include stormwater management facilities assuming said facility does not impact mature forest vegetation, is designed according to city standards and the discharge water meets state water quality standards, and there is no other feasible location for the facility. Uses permitted within the buffer shall be located in the outer portion of the buffer as far as possible from the wetland. All altered areas shall be mitigated per subsection (S) of this section. Dead and dying trees may be removed only with approval of the planning official.
Q. 
Public Agency and Utility Exceptions.
1. 
If the application of the wetland and stream provisions of this chapter would prohibit a street, road, or utility line proposal by a public agency or utility or the installation of necessary utilities for a development proposal by a public agency or utility, the agency, utility, or private applicant may apply for an exception pursuant to this section. The public agency, utility, or private applicant shall prepare an application and report from a qualified professional justifying the requested exception. Projects affecting Category I and II wetlands or otherwise requiring review and decision by the hearing examiner shall be decided by the hearing examiner. Projects affecting Category III and Category IV wetlands shall be decided by the planning official.
2. 
Applications for a utility exception shall be reviewed based on the following criteria:
a. 
There is no other feasible and reasonable alternative to the proposed development with less impact on the wetland and the associated buffer. A description of alternatives considered must be included in the exception requests; and
b. 
The proposal minimizes the impact on the wetland in compliance with Section 16.20.035(C) and buffer and incorporates all reasonable mitigation measures as identified in subsection (S) of this section;
c. 
Construction techniques shall minimize both long- and short-term impacts to the wetland and its buffer; and
d. 
Compensatory mitigation must ensure no net loss of ecological function and values.
3. 
Except as provided above, these exceptions do not extend to dredging, to excavation (including peat mining), or to the filling of wetlands or their buffers.
R. 
Regulatory Standards. These standards shall apply to all applications for permits and other approvals which may indirectly result in an alteration of a regulated wetland or their buffer, unless modified by the planning official upon a determination that the anticipated alteration will preserve, improve, and/or protect the wildlife habitat, natural drainage, and/or other natural functions of the wetland and will be consistent with the purposes of this chapter without strict application of the standards. This determination may be made upon review of a study completed by a biologist, plant ecologist, or similarly qualified professional. The study shall be prepared at the applicant's cost. The standards shall also apply to applications for approval to alter regulated wetlands or their buffers.
1. 
Wetland buffers shall be shown on the development site plans or final plat maps along with the notation requirements of Section 16.20.035(K)(2)(b).
2. 
Water Quantity and Quality. Uses permitted adjacent to wetlands shall control stormwater runoff and protect the natural movement of water according to the following provisions:
a. 
All surface water entering wetlands shall be treated and controlled by a stormwater management system incorporating accepted best management practices or similarly effective measures approved by the Langley city engineer in order to assure water quality and control water volumes;
b. 
The velocity of stormwater runoff entering a wetland shall be limited to predevelopment levels;
c. 
Wetlands shall not be modified to function as stormwater retention/detention sites;
d. 
Septic systems adjacent to wetlands or wetland buffers must be properly sited and maintained to prevent water quality degradation.
3. 
Category I or II Wetlands. In wetlands rated Category I or II with no natural point of inflow (i.e., stream) any surface water directed towards the wetland as a result of an approved drainage plan shall filter through the water table or a drainfield to avoid erosion and excess nutrient inflow.
4. 
Human Access. The following provisions shall apply to controlling human access and encouraging appropriate use in wetlands:
a. 
No motorized vehicles shall be allowed within a wetland or its buffer, except when specifically approved by the planning official or as provided in this section and/or as the wetland may be traversed by a public or private roadway which existed before March 18, 1992;
b. 
Any trails within a wetland shall be constructed with minimum disruption to habitat.
S. 
Wetland Mitigation Standards. When a project involves wetland and/or buffer impacts, a mitigation plan prepared by a qualified wetland professional shall be required, meeting the following minimum standards:
1. 
Wetland Critical Area Report. A critical area report for wetlands shall accompany or be included in the compensatory mitigation plan and include the minimum parameters described in Section 16.20.035(B), Critical area permit process and application requirements.
2. 
The mitigation report shall include a written plan and plan sheets that contain, at a minimum, the elements listed below, in accordance with Wetland Mitigation in Washington State – Part 2: Developing Mitigation Plans (Version 1) (Ecology Publication No. 06-06-011b, or as revised).
a. 
The written report shall be prepared by a qualified wetland professional and contain, at a minimum:
(1) 
The name and contact information of the applicant; the name, qualifications, and contact information of the primary author(s) of the compensatory mitigation plan; a description of the development proposal; a summary of the impacts and proposed compensation concept; identification of all the local, state, and federal wetland-related permits required for the project; and a vicinity map for the project.
(2) 
Description of how the development project has been designed to avoid, minimize, or reduce adverse impacts to wetlands.
(3) 
Description of the existing wetland and buffer areas proposed to be altered. Include acreage or square footage, water regime, vegetation, soils, functions, landscape position, and surrounding land uses. Also describe impacts in terms of acreage by Cowardin classification, hydrogeomorphic classification, and wetland rating, based on Section 16.20.035(B), Critical area permit process and application requirements.
(4) 
Description of the compensatory mitigation site, including location and rationale for selection. Include an assessment of existing conditions, including acreage or square footage of wetlands and uplands, water regime, sources of water, vegetation, soils, functions, landscape position, and surrounding land uses. Estimate future conditions in this location if compensation actions are not undertaken.
(5) 
Surface and subsurface hydrologic conditions, including an analysis of existing and proposed hydrologic regimes for enhanced, established, or restored compensatory mitigation areas. Include illustrations of how data for existing hydrologic conditions were used to determine the estimates of future hydrologic conditions.
(6) 
A description of the proposed actions for compensation of wetland and buffer areas affected by the project. Include overall goals of the proposed mitigation, including a description of the targeted functions, hydrogeomorphic classification, and expected categories of wetlands.
(7) 
A description of the proposed mitigation construction activities and timing of activities.
(8) 
Performance standards (measurable standards for 10 years post installation) for wetland and buffer areas, a monitoring schedule, a maintenance schedule, and actions proposed by year.
(9) 
A discussion of ongoing management practices that will protect wetlands after the development project has been implemented, including proposed monitoring and maintenance programs (for remaining wetlands and compensatory mitigation wetlands) in accordance with the requirements of subsection (S)(3) of this section.
(10) 
A bond estimate for the entire compensatory mitigation project, including the following elements: site preparation, plant materials, construction materials, installation and oversight, maintenance at least twice per year for up to 10 years, annual monitoring field work and reporting, contingency actions for a maximum of the total required number of years for monitoring, and removal of all non-natural site implements (e.g., irrigation equipment, construction fencing, plant protectors, weed barrier fabric) by the end of the monitoring period.
b. 
The scaled plan sheets shall contain, at a minimum:
(1) 
Mapped, ground-verified edges of the existing wetland and buffers, proposed areas of wetland and/or buffer impacts, and location of proposed wetland and/or buffer compensation actions.
(2) 
Existing topography, ground-verified, at two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed in the compensation area(s). Also include existing cross-sections (estimated one-foot intervals) of wetland areas on the development site that are proposed to be altered and of the proposed areas of wetland and buffer compensation.
(3) 
Conditions expected from the proposed actions on site, including future hydrogeomorphic classes, vegetation community types (e.g., Cowardin class), and future hydroperiods.
(4) 
Required wetland buffers for existing wetlands and proposed compensation areas. Also identify any zones where buffers are proposed to be reduced or enlarged outside of the standards identified in this chapter.
(5) 
A planting plan for the compensation area, including all species by proposed community type and hydroperiod, size and type of plant material to be installed, spacing of plants, typical clustering patterns, total number of each species by community type, and timing of installation.
3. 
Monitoring Program and Contingency Plan. A monitoring program shall be included as part of the approved mitigation plan. The mitigation project shall be monitored for a minimum of 10 years to establish that the performance standards of the approved mitigation plan have been met. A longer monitoring period may be required by the city based on either the initial mitigation plan or a review of subsequent monitoring reports. A plan that complies with the requirements of this chapter may be required by the planning official to outline restorative measures to be taken should the mitigation fail or only partially succeed.
4. 
Bonding. A performance bond or other security in an amount to enable the city to carry out the mitigation plan should the applicant fail to do so shall be required and shall include the items outlined in subsection (S)(2)(a)(10) of this section. The performance bond shall include a right of entry for a minimum of 10 years or the length of time to achieve compliance, whichever is greater.
5. 
The project should be located or designed to avoid habitats, including wintering, breeding, rearing, feeding, and nesting habitats and migration routes.
6. 
Native vegetation shall be planted to replace lost habitat for a particular species.
7. 
Artificial resting, hiding, and breeding sites to replace losses shall be constructed.
8. 
Dredge and/or fill of a wetland or their buffer shall not be permitted unless:
a. 
Mitigation areas will be provided which have greater value as a wetland or habitat than the area lost;
b. 
The amount dredge or fill is the minimum necessary to accomplish the proposed use;
c. 
Dredging is not solely for the purpose of obtaining fill;
d. 
Leachate from polluted dredge spoils will be treated and will not enter surface waters; and
e. 
The project is timed to avoid interference with fish and wildlife migrations, rearing, spawning, or nesting.
9. 
Habitat replacement should provide an insurance factor to take into account the risk of mitigation and the loss of fish and wildlife until the mitigation site becomes productive.
10. 
Cumulative impacts of the proposed development shall be considered. Thus, development shall not be considered a precedent allowing further development.
Table 3. Wetland Mitigation Type and Ratio for Permanent Impacts
Wetland
Mitigation Type and Ratio
Category
Reestablishment or Creation
Rehabilitation1
Preservation1
Enhancement1
Category I
4:1
8:1
16:1
16:1
Category II
3:1
6:1
12:1
12:1
Category III
2:1
4:1
8:1
8:1
Category IV
1.5:1
3:1
6:1
6:1
Notes:
1Ratios for rehabilitation, preservation, and enhancement may be reduced when combined with 1:1 replacement through reestablishment or creation in compliance with Table 6B-2 in Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance –Version 2 (Ecology et al., 2021 or as revised).
11. 
Buffer Mitigation Ratios. Impacts to buffers shall be mitigated at a minimum 1:1 ratio. Compensatory buffer mitigation shall replace those buffer functions lost from development. Mitigation ratios shall be greater than 1:1 in area when necessary to compensate for temporal losses or reduction of functions and values.
12. 
Off-Site Mitigation. Off-site mitigation shall only be permitted when the applicant has clearly demonstrated that on-site mitigation or off-site mitigation in the city of Langley limits or its surrounding watersheds is not feasible, in the referenced order of priority, or where it is demonstrated that off-site mitigation would provide greater benefit to wetland functions and values.
(Formerly 16.20.050; Ord. 619, 1992; Ord. 714, 1996; Ord. 861, 2005; Ord. 1114 § 2 (Exh. A), 2024)
A. 
Penalty and Enforcement. Knowing or intentional violations of this chapter or any provision in this chapter shall be enforced in accordance with Chapter 1.14, Civil Infractions, or may be punishable by a fine of up to $1,000 of value or a jail sentence of up to 90 days. Any person, firm, corporation or association or any agent thereof who violates any of the provisions of this chapter shall be liable for all damages to public or private property arising from such violation, including the cost of restoring the affected area to an equivalent or improved condition prior to violation. The city shall stop work on any existing permits and halt the issuance of any or all future permits or approval for any activity which violates the provisions of this chapter until all penalties and restorations are made in full. Any required after-the-fact permit applications shall incur double the applicable permitting fees as a penalty for violating the provisions of this chapter.
B. 
Restorations. Restorations shall include, but not be limited to, rehabilitation or reestablishment to restore an unauthorized alteration or impact to a critical area such that the functions and values of the critical area will be replaced to the greatest extent feasible. A restoration plan shall be provided by a qualified professional to determine the conditions which were likely to exist on the lot prior to the alteration and propose adequate restoration in compliance with this chapter. Emergency erosion control measures may be required.
(Formerly 16.20.105; Ord. 619, 1992; Ord. 1114 § 2 (Exh. A), 2024)