A. 
The purpose of critical area regulations in this chapter is to designate and classify ecologically sensitive and hazardous areas and to protect them and their functions and values, while also allowing for reasonable use of private property.
B. 
Critical area regulations in this chapter implement the goals, policies, guidelines, and requirements of the city comprehensive plan and the Growth Management Act as they relate to critical areas.
C. 
The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, groundwater recharge and discharge, erosion control, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions and values are not listed in order of priority.
(Ord. 1059 § 2 (Exh. A (12.90.010)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the provisions of best available science and this title.
B. 
Critical areas regulated by this chapter include:
1. 
Geologically sensitive areas;
2. 
Fish and wildlife habitat conservation areas;
3. 
Wetlands; and
4. 
Critical aquifer recharge areas.
C. 
All areas within the city meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of critical area regulations in this chapter.
D. 
The approximate location and extent of many of the critical areas within the city are shown on critical area maps available for public review at the city administrative offices. These maps may not include the location of all critical areas; therefore, it is the actual presence of critical areas that triggers the requirements of this chapter, whether or not the critical area is identified on the maps provided by the city.
E. 
The city also contains frequently flooded areas, which are considered critical areas and are regulated under Chapter 15.15 RMC, Floodplain Regulations.
(Ord. 1059 § 2 (Exh. A (12.90.020)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
These critical area regulations shall apply as an overlay in addition to zoning and other development regulations adopted by the city. This chapter is not intended to repeal, abrogate or impair any existing regulations. Should a regulation in this chapter conflict with other regulations, the conflict shall be resolved in favor of the provision which provides the most protection environmentally to the critical areas unless specifically provided otherwise in this chapter or such provision conflicts with federal or state laws or regulations.
B. 
Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.
C. 
These critical area regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to critical area regulations in this chapter shall be included in the environmental review and threshold determination and shall constitute compliance with SEPA with respect to critical areas.
D. 
The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of critical area regulations in this chapter.
E. 
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. The applicant is responsible for complying with these requirements, apart from the process established in this chapter.
(Ord. 1059 § 2 (Exh. A (12.90.030)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
The following developments, activities, and associated uses may be exempted by the city from the provisions of this chapter:
A. 
Emergencies. Those 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 time frame too short to allow for compliance with the requirements of this chapter. Within seven days of the emergency, the person or agency undertaking the action shall report any impacts to the critical area to the planning official. The planning official may require submittal of a critical area report to guide restoration or mitigation for these impacts. Final approval of the report, restoration and mitigation shall be in accordance with provisions of this chapter.
B. 
The property owner is responsible for fully restoring and/or mitigating any impacts to critical areas and buffers in accordance with the submitted report and/or mitigation plan.
C. 
Operation, maintenance, repair, modification, addition to, or replacement of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, if the activity does not further alter or increase the impact to, or encroach further within, a critical area or buffer and there is no increased risk to life or property as a result of the action. Operation and maintenance includes vegetation management performed in accordance with best management practices; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of a structure or utility, and do not directly impact species or habitat protected under RMC § 18.90.210 through 18.90.260.
D. 
Educational and research activities that do not degrade the functions and values of a critical area or buffer.
(Ord. 1059 § 2 (Exh. A (12.90.040)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
If the application of critical area regulations in this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.
B. 
Exception Request and Review Process. An application for a public agency and utility exception shall be processed as a Class 1 permit and shall include a critical area identification form; critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act.
C. 
Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions are the following:
1. 
There is no other practical alternative to the proposed development with less impact on critical areas and their buffers, including impacts on water quality, erosion, habitat, native vegetation and significant trees;
2. 
The application of this chapter would unreasonably restrict the ability to provide services to the public;
3. 
The proposal does not pose a threat to the public health, safety, or welfare on or off the development proposal site;
4. 
The proposal protects and mitigates impacts to the functions and values of the critical area to the greatest extent feasible, consistent with the best available science;
5. 
The need for a public agency and utility exception is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor; and
6. 
The proposal is consistent with other applicable regulations and standards.
D. 
The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.
(Ord. 1059 § 2 (Exh. A (12.90.060)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
Submittal. Prior to the city's consideration of any proposed activity not found to be exempt under RMC § 18.90.040, the applicant shall submit to the planning official a complete critical area identification form on forms provided by the city.
B. 
Review Process. The planning official shall review the critical area identification form and conduct a site inspection and review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal. Critical area determinations shall be made through a Class 1 permit review.
If the planning official finds that no critical areas are present on or adjacent to the project area or that the proposal will not impact a critical area in a manner contrary to the purpose, intent and requirements of critical area regulations in this chapter, the planning official shall rule that the critical area review is complete and note on the identification form that no further review is required.
If the planning official finds that a critical area may be affected by the proposal, the planning official shall notify the applicant that a critical area report must be submitted prior to further review of the project, and indicate each of the critical area types to be addressed in the report. A determination regarding the absence of one or more critical areas by the planning official is not an expert certification regarding the presence of critical areas and is subject to possible reconsideration and reopening if new information is received.
C. 
Critical Area Report. Detailed requirements for critical area reports are identified in the articles for specific types of critical areas. Preparation of critical area reports and their review by the city, which may include referral to independent qualified professionals, shall be at the applicant's expense.
(Ord. 1059 § 2 (Exh. A (12.90.070)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
Applicants shall demonstrate to the satisfaction of the city that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential order of preference, at the applicant's expense; provided, that proposed mitigation may include a combination of measures:
A. 
Avoiding the impact altogether by not taking a certain action or parts of an action;
B. 
Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;
C. 
Rectifying the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;
D. 
Minimizing or eliminating a hazard by restoring or stabilizing the hazard area through engineered or other methods;
E. 
Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;
F. 
Compensating for the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and
G. 
Monitoring the hazard or other required mitigation and taking remedial action when necessary, as determined by the planning official.
(Ord. 1059 § 2 (Exh. A (12.90.090)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical area report. Preparation of the mitigation plan and its review by the city, which may include referral to independent qualified professionals, shall be at the applicant's expense. The mitigation plan shall include:
A. 
A written report identifying environmental goals and objectives of the compensation proposed, including:
1. 
A description of the existing critical area(s) and/or buffer(s) and their current conditions, functions, and values to serve as a baseline for measuring mitigation success;
2. 
A description of the anticipated impacts to the critical areas and the mitigating actions proposed, including the site selection criteria; mitigation goals and objectives, in relation to the functions and values of the impacted critical area; and dates for beginning and completion of mitigation activities;
3. 
A review of the best available science supporting the proposed mitigation and a description of the report author's experience to date in restoring or creating the type of critical area proposed; and
4. 
An analysis of the likelihood of success of the compensation project.
B. 
Measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of critical area regulations in this chapter have been met.
C. 
Details of the mitigation proposed, such as:
1. 
The proposed construction method, sequence, timing, and duration;
2. 
Grading and excavation details;
3. 
Erosion and sediment control features;
4. 
A planting plan specifying plant species, quantities, locations, size, spacing, and density; and
5. 
Measures to protect and maintain plants until established.
These written specifications shall be accompanied by detailed site diagrams, scaled cross-section drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.
D. 
A program for monitoring construction of the mitigation project and for assessing the completed project against its goals and objectives. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, seven and 10 after site construction), and how monitoring data will be evaluated to determine if performance standards are being met. A monitoring report shall be submitted to document milestones, successes, problems, and contingency actions of the compensation project. The mitigation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years in the case of mitigation for buffer alterations and for not less than 10 years for mitigation of wetland alterations. If performance standards are being met after these minimum periods, requirements for additional monitoring may be waived, if the planning official determines they are unnecessary.
E. 
Identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.
F. 
Financial guarantees to ensure that the mitigation plan is fully implemented and meeting performance standards. Guarantees shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city. Guarantees shall remain in effect for a minimum of five years until the city determines, in writing, that the standards bonded for have been met, to ensure that the required mitigation has been fully implemented and demonstrated to function. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.
(Ord. 1059 § 2 (Exh. A (12.90.100)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
Upon review of a critical area report, if the planning official determines that a proposed activity complies with the provisions of this chapter, the planning official shall prepare a written notice of determination and identify any required conditions of approval, which shall be attached to the underlying permit or approval. This determination shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved. Critical areas determinations shall be processed as Class 1 reviews, consistent with Chapter 18.30 RMC.
B. 
If the planning official determines that a proposed activity does not adequately mitigate its impacts on critical areas, the planning official shall prepare written notice of the determination that includes findings of noncompliance. No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not comply with this chapter. Following notice of noncompliance, the applicant may request consideration of a revised critical areas report. If the revision is found to be substantial and relevant to the critical area review, the planning official may reopen the review and make a new determination based on the revised report.
(Ord. 1059 § 2 (Exh. A (12.90.110)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1181 § 4, 2021; Ord. 1192 § 1 (Exh. A), 2022)
Variances from the standards of critical area regulations in this chapter may be authorized by the city in accordance with the provisions of Chapter 18.200 RMC.
A. 
Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth in Chapter 18.200 RMC and as follows:
1. 
With mitigation, if necessary, the granting of the variance will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property; and
2. 
The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance habitat for anadromous fish, species of local importance and state or federally designated endangered, threatened and sensitive species, as applicable.
B. 
Conditions May Be Required. In granting any variance, the city shall prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.
C. 
Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.
D. 
Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application.
(Ord. 1059 § 2 (Exh. A (12.90.120)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
Inspections. Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. The planning official shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.
B. 
When a critical area or its buffer has been altered in violation of this chapter, all development activities shall stop and the critical area or buffer shall be restored in accordance with plans approved by the city. The city shall have the authority to issue a stop work order to cease all ongoing development activities and order restoration, rehabilitation, or replacement measures at the owner's or other responsible party's expense to compensate for violation of provisions of this chapter. All development activities shall remain stopped until a restoration plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional using the best available science, as determined by the city, and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The planning official shall, at the violator's expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal, at their expense.
C. 
Minimum Performance Standards for Restoration.
1. 
For alterations to critical aquifer recharge areas, wetlands, and habitat conservation areas, restoration shall return the affected environment to the historic conditions or the conditions existing at the time of the initiation of the project as determined by the city. If the city determines that restoration to historic or preexisting conditions is not feasible, then plans shall be submitted for city review and approval to replace, enhance, or provide substitute resources or environments meeting the criteria for mitigation in RMC § 18.90.090 and 18.90.100.
2. 
For alterations to flood and geological hazards, the following minimum performance standards shall be met for restoration:
a. 
The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;
b. 
Any risk to public safety or other critical areas resulting from the alteration shall be eliminated or minimized; and
c. 
To the extent feasible, the hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.
D. 
Penalties. Any person convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter in accordance with the provisions of the city fee schedule.
(Ord. 1059 § 2 (Exh. A (12.90.130)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
A. 
Temporary Markers. The outer perimeter of buffers and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary "clearing limits" fencing, approved by the city, to ensure that no unauthorized intrusion will occur. The marking is subject to inspection by the planning official prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.
B. 
Permanent Signs. As a condition of any permit or authorization issued pursuant to critical area regulations in this chapter, the planning official may require signs and/or fencing designed in accordance with city standards, identifying post-project buffers and critical areas as "Critical Areas." If the buffers or critical areas have predominantly native vegetation or are so restored by the project, signs may use the term "native growth protection areas."
C. 
Fencing. If the planning official determines fencing is necessary to protect the functions and values of the critical area, the planning official shall condition any permit or authorization issued pursuant to critical area regulations in this chapter to require the applicant to install a permanent fence at the edge of the critical area or its buffer in accordance with city fence standards.
(Ord. 1059 § 2 (Exh. A (12.90.140)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)
Unless otherwise provided, buildings and other structures shall be set back a distance of 25 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. The following may be allowed in the building setback area:
A. 
Landscaping;
B. 
Uncovered decks to within five feet of the edge of required buffers, or the edge of critical areas if no buffers are required, in accordance with the provisions of RMC § 18.50.030(A)(3); and
C. 
Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality and stormwater management regulations.
(Ord. 1059 § 2 (Exh. A (12.90.150)), 2010; Ord. 1060 §§ 5, 6, 2010; Ord. 1192 § 1 (Exh. A), 2022)