Kittitas County, WA Chapter 17A.01 GENERAL PROVISIONS

§ 17A.01.010 Purpose and intent.

The purpose of this Title is to establish regulations pertaining to development which protect designated critical areas, as defined by the Washington State Growth Management Act (GMA) (RCW 36.70A). The GMA requires the use of "best available science," also as defined in that law, in developing policies and development regulations to protect the functions and values of critical areas, in addition to, giving special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries. GMA-designated critical areas, all of which are present in Kittitas County, include: Critical aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands. The regulations of this Title are intended to:

1. Provide for no net loss of the function and values of critical areas;

2. Conserve, protect, and; where feasible, restore critical areas and their functions and values;

3. Protect unique, fragile and/or valuable elements of the environment, including ground and surface waters, anadromous fish species, and other fish and wildlife and their habitats;

4. Protect the public health, safety, and general welfare from hazards associated with critical areas;

5. Further the goals and objectives of the Kittitas County Comprehensive Plan and all of its elements;

6. Implement the goals and requirements of the Washington Growth Management Act (RCW Chapter 36.70A);

7. Allow for reasonable use of all properties in Kittitas County.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.020 Authority.

1. As provided herein, the Director or his/her designee is given the authority to interpret and apply, and the responsibility to enforce this Title to accomplish the stated purpose.

2. The County may withhold, condition, or deny permits and/or approvals for development and alterations to ensure that the proposed development is consistent with this Title.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.030 Applicability.

1. Except as provided in subsection 3 and 4 below, the provisions of this Title shall apply to any alteration or development within the unincorporated portion of Kittitas County, and outside of Shoreline jurisdiction, as determined by the Shoreline Master Program (KCC Title 17B). No development shall be constructed, located, extended, modified, converted, or altered, or land subdivided without full compliance with this Title.

2. Compliance with these regulations does not remove an applicant's obligation to comply with applicable provisions of any other federal, state, or local law or regulation.

3. Private lands where existing agricultural activities are conducted, as defined in RCW 90.58.065, within the Upper Yakima and Alkali-Squilchuck WRIAs are managed by the Kittitas County Voluntary Stewardship Program (VSP), and not regulated by this Title.

4. Any activities, alterations or development located within any Shoreline of the State within the unincorporated portion of Kittitas County are subject to the provisions of the Shoreline Master Program (KCC Title 17B) and not this Title.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.040 Regulated alterations and development.

The following development and alterations are regulated within critical areas and their riparian management zones and/or buffers, unless exempt by KCC § 17A.01.050:

1. Removing, excavating, disturbing, or dredging soil, sand, gravel, minerals, organic matter, or materials of any kind;

2. Dumping, discharging, or filling;

3. Draining, flooding, or disturbing the water level or water table;

4. Driving piling or placing obstructions, including placement of utilities;

5. Constructing, reconstructing, demolishing, or altering the size of any structure or infrastructure;

6. Altering the character and/or functions and values of a regulated area by destroying or altering vegetation through clearing, harvesting, cutting, intentional burning, shading, or planting;

7. The division of land pursuant to KCC Title 16; and

8. The creation of impervious surfaces regulated under KCC Chapter 12.06.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.050 Exemptions.

1. Exemption request and review process. The proponent of the alteration or development may submit a written request for determination of exemption eligibility to the Director that describes the alteration or development and states the exemption listed in this section that applies. The purpose of a determination of exemption eligibility is to provide, at the applicant's request, a written record documenting that a proposed alteration or development is, in fact, an exempt activity under the provisions of this chapter. The Director shall review the exemption request to verify that it complies with this chapter and approve, approve with conditions, or deny the exemption. If the exemption is approved, it shall be placed on file with KCCDS. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.

2. Exempt alterations and development and impacts to critical areas. All exempted alterations or development shall use reasonable methods to avoid potential impacts to critical areas and their buffers. To be exempt from this Title does not give permission to degrade a critical area or its buffer or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area or its buffer that is not a necessary outcome of the exempted alteration or development shall be restored, rehabilitated, or replaced at the responsible party's expense.

3. Exempt alterations and development. The following alterations and developments and uses shall be exempt from the provisions of this Title:

a. Emergencies. Those alterations or developments 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:

i. The emergency action shall have the least possible impacts to the critical area and its buffer as is reasonably judged in real time while still adequately addressing the emergency situation;

ii. The person or authorized representative of the agency undertaking such action shall notify the County within one working day following commencement of the emergency alteration or development. Within 30 days, the Director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the Director 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 KCC § 17A.01.150 shall apply; and

iii. 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 resulting from the emergency action in accordance with an approved critical areas report and mitigation plan, as described in KCC § 17A.01.080. 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 County in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency alteration or development and completed in a timely manner.

b. Operation, maintenance, or repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, that do not require construction permits, if the alteration or development does not further change or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities, provided that such management actions are part of ongoing maintenance, do not expand further into the critical area or buffer, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species.

c. Passive outdoor activities. Recreation, education, and scientific research activities that do not alter or degrade the critical area or buffer, including fishing, hiking, and bird watching.

d. Forest practices. Forest practices conducted in accordance with the requirements of the Forest Practice Act (Chapter 76.09 RCW) and its rules, except for the conversion of forest land to a use other than commercial forestry (Class IV conversions). Removal or Control of Terrestrial Noxious Weeds. Removal of terrestrial weeds that are included on the state noxious weed list (WAC 16-750) or other invasive plant species as identified by Kittitas County. Control may be conducted by clipping, pulling, over-shading with native tree and shrub species, or non-mechanized removal including herbicide or other methods applicable to weed control.

e. Removal or control of aquatic noxious weeds. Removal or control of aquatic noxious weeds, as defined in RCW 17.26.020, using an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Washington State Department of Agriculture or the Washington State Department of Ecology jointly with other state agencies under RCW Chapter 43.21C.

f. Enhancement actions. Habitat enhancement actions implemented through RCW 77.55.181.

g. Maintenance of existing structures. Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements. "Normal maintenance" includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. "Normal repair" means to restore a development to a state comparable to its original condition including, but not limited to, its size, shape, configuration, location, and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to critical areas or their buffers. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including, but not limited to, its size, shape, configuration, location, and external appearance and the replacement does not cause substantial adverse effects to critical areas or their buffers.

h. Site exploration and investigation activities. Site exploration and investigation activities that are prerequisite to preparation of an application for development, when all the following conditions are met:

i. The activity will have no significant adverse impact on the environment including, but not limited to, fish; wildlife; fish or wildlife habitat; water quality; and aesthetic values; and

ii. The activity does not involve the installation of any structure, and upon completion of the activity, the vegetation and land configuration of the site are restored to conditions existing before the activity.

i. Tree removal.

i. Hazard tree removal in fish and wildlife habitat conservation areas, wetlands, frequently flooded areas and geologically hazardous areas.

(a) The removal of a hazard tree, including removal for compliance with KCC Chapter 20.10, Wildland Urban Interface Code, may be allowed when trimming or topping is not sufficient to address the hazard. If a tree in close proximity to a stream or river qualifies as a hazard tree in accordance to this Title it should be felled in a manner that creates instream habitat, when it is possible to do so while also addressing the original hazardous situation. Where the hazard is not immediately apparent to the Director, the Director may require the applicant to submit a Hazard Tree Determination Report (KCC § 17A.02.406) prepared by a qualified arborist (KCC § 17A.02.102) or forester (KCC § 17A.02.345). The removal of nonhazardous trees is not an exempt action in the critical areas listed under KCC § 17A.01.050(3)(h)(i), except when regulated under the provisions of the Forest Practice Act (Chapter 76.09 RCW).

ii. Tree removal in critical aquifer recharge areas.

(a) The removal of any tree is an exempt action when the tree is solely within a critical aquifer recharge area and not also within a different overlapping critical area, riparian management zone, or buffer. This action does not require an exemption request or review by the director, unless it is associated with a regulated activity identified in KCC § 17A.03.030.

j. Utility line work. Public and private utility line work (new construction, maintenance, and repair) within improved surfaces (e.g., driveways, parking lots, concrete or asphalt surfaces, gravel roads and road shoulders, and hard surface-earthen rights-of-way or easements).

k. Harvesting of wild crops. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the critical area or its buffer by changing existing topography, water conditions, or water sources.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.060 Exceptions.

1. Public agency and utility. If the application of this Title would prohibit a proposed development by a public agency or public utility, the agency or utility may apply for an exception pursuant to the following:

a. Exception request and review process. An application for a public agency and utility exception shall be made to the County and shall include a critical areas report, as described in KCC § 17A.01.080, 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 (Chapter 43.21C RCW). The application shall follow the administrative project permit review process outlined in KCC Chapter 15A.03.

b. Director review. The Director shall approve, approve with conditions, or deny the request based on the proposal's ability to comply with all the reasonable use exception criteria in subsection (2)(c).

c. Public agency and utility review criteria. The criteria for review and approval of public agency and utility exceptions are as follows:

i. There is no other practical alternative to the proposed development with less impact on the critical area and its buffer;

ii. The application of this Title would unreasonably restrict the ability to provide utility and/or agency services to the public;

iii. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

iv. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

v. The proposal is consistent with other applicable regulations and standards.

d. Burden of proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision must be made on the application.

2. Reasonable use. If the application of this Title would deny all reasonable economic use of the subject property, the County shall determine if the property owner may apply for an exception pursuant to the following:

a. Exception request and review process. An application for a reasonable use exception shall be made to the County and shall include a critical areas report, as described in KCC § 17A.01.080, 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 (Chapter 43.21C RCW and rules thereunder in Chapter 197-11 WAC). The application shall follow the administrative project permit review process outlined in KCC Chapter 15A.03. In determining what is considered reasonable use of an undeveloped parcel, the Director may consider additional information such as zoning, and comparable structure sizes and land uses of the surrounding area.

b. Director review. The Director shall approve, approve with conditions, or deny the request based on the proposal's ability to comply with all the reasonable use exception criteria in subsection (2)(c).

c. Reasonable use review criteria. Criteria for review and approval of reasonable use exceptions include:

i. The application of this Title would deny all reasonable economic use of the property;

ii. No other reasonable economic use of the property has less impact on the critical area and its buffer;

iii. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;

iv. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of this Title;

v. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

vi. The proposal will result in no net loss of critical area functions and values consistent with the best available science;

vii. The proposal is consistent with other application regulations and standards.

d. Burden of proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision must be made on the application.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.070 Non-conforming structures and uses.

The following provisions apply to lots, structures and uses lawfully established prior to the effective date of this Title, or amendments thereto, which do not conform to the current regulations or standards of this Title. The following provisions do not apply to lots, structures or uses that were unlawfully established.

1. Non-conforming lots:

a. An undeveloped lot, tract, parcel, site, or division of land located landward of the ordinary high water mark which was established in accordance with local and state subdivision requirements prior to the effective date of this Title but which does not conform to the present lot size standards may be developed as permitted by the land use regulations of the local government so long as such development conforms to all other requirements of the Growth Management Act (GMA).

2. Non-conforming structures:

a. Nonconforming structures may be maintained, repaired, renovated, and remodeled, provided such activity does not enlarge or expand the structure beyond the allowances in this section.

b. Nonconforming structures may be enlarged or expanded one time, provided:

i. The enlargement does not extend closer to the critical area than the existing primary structure or farther into the minimum side yard setback;

ii. The enlargement does not expand the footprint of the existing structure by more than 200 square feet in a lateral direction;

iii. The enlargement does not cause new direct wetland or stream impact; and

iv. Mitigation of impacts to disturbed critical areas or buffers is provided in accordance with this Title. The County may consult with agencies of expertise to ensure plan adequacy.

c. Nonconforming single-family residences may increase their height within the existing structural footprint up to maximum of 35 feet.

d. A nonconforming structure which is moved any distance must be brought into conformance with this Title and the Act.

e. Damaged nonconforming structures outside frequently flooded areas may be reconstructed to those configurations existing immediately prior to the time the development was damaged. Reconstruction of nonconforming development located in frequently flooded areas shall comply with reconstruction regulations contained within the Kittitas County Flood Prevention Ordinance (KCC Chapter 14.08-December 2014).

3. Nonconforming uses:

a. Nonconforming uses may be continued consistent with their lawfully established scale and range of uses.

b. A structure which is being or has been used for a nonconforming use may be used for a different nonconforming use only upon written approval by the Director and may be approved only upon a finding that:

i. No reasonable alternative conforming use is practical because of the configuration of the structure and/or the property;

ii. The proposed use will be at least as consistent with the policies and provisions of the Act and this Title and as compatible with the uses in the area as the pre-existing use;

iii. The use or development is enlarged, intensified, increased or altered only to the minimum amount necessary to achieve the intended functional purpose;

iv. The structure(s) associated with the nonconforming use shall not be expanded in a manner that increases the extent of the nonconformity, including encroachment into areas such as setbacks, and any critical areas and/or associated buffers where new structures, use, or development would not be allowed;

v. The buffer and/or Riparian Management Zone standards of this Title are met;

vi. The change in use, remodel, or expansion will not create adverse impacts to critical areas or their associated buffers and riparian management zones;

vii. Uses which are specifically prohibited or which would thwart the intent of the Act or this Title shall not be authorized; and

viii. Conditions necessary to assure that the use will not become a nuisance or a hazard have been attached to the development permit and preliminary site analysis.

Redevelopment of nonconforming rights-of-way and associated transportation structures, such as railroad trestles, may be permitted for purposes of facilitating the development of public trails; provided, that such redevelopment shall be otherwise consistent with the provisions of this Title.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.080 Critical areas reports.

1. When required. An applicant shall submit a critical areas report when required by § 17A.01.110(2) and the reporting section of the applicable critical area chapter of this Title. Critical areas reports are valid for five years from the date of completion, or date of the corresponding delineation documentation, if applicable.

2. Preparation by qualified professional. The critical areas report shall be prepared by a qualified professional as defined in KCC § 17A.02.620.

3. Incorporation of best available science. The critical areas report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance to evaluate the proposed development and all probable impacts to critical areas in accordance with the provisions of this Title. The report shall reference the source(s) of science used.

4. Minimum report contents. At a minimum, the report shall contain the following:

a. The name and contact information of the applicant and a description of the proposal;

b. The site plan for the proposed development, including a map drawn to scale depicting critical areas, buffers and/or setbacks, the proposed development, and any areas to be cleared or altered;

c. The names and qualifications of the persons preparing the report;

d. Documentation of any fieldwork performed on the site;

e. Documentation that consultation, when deemed appropriate, was initiated with agencies of expertise;

f. Field identification and characterization of all critical areas and buffers on and adjacent to the proposed development;

g. A statement specifying the accuracy of the report, and all assumptions made and relied upon;

h. A discussion of the performance standards applicable to the critical area and proposed development;

i. A mitigation plan in accordance with KCC § 17A.01.100 if mitigation is required; and

j. Any additional report information required for the critical area as specified in KCC § 17A.01.80 through KCC § 17A.01.100.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.090 General protective measures.

1. Land divisions. All the following shall apply to the creation of new lots or parcels:

a. All critical areas and their buffers and/or riparian management zones and any associated setbacks shall be mapped prior to the approval of a land division.

b. All new lots or parcels shall contain sufficient area outside of the wetland and/or wetland buffer, fish and wildlife habitat conservation area and/or fish and wildlife habitat conservation area riparian management zones and buffers, floodway, channel migration zone, or landslide hazard area and/or landslide hazard area buffer to accommodate the use or development.

c. Open space or conservation area lots may be established without a site that is suitable for development provided there is a note on the face of the plat or other recorded document which indicates the purpose of the lot.

2. Native growth protection areas.

a. Native growth protection areas shall be used in development proposals for land division to delineate and protect those contiguous critical areas and buffers listed below:

i. All landslide hazard areas and buffers;

ii. All wetlands and buffers;

iii. All floodplains, floodways, and channel migration zones;

iv. All fish and wildlife habitat conservation areas and associated riparian management zones and buffers; and

v. All other lands to be protected from alterations as conditioned by project approval.

b. Native growth protection areas shall be recorded on all documents of title of record for all affected lots.

c. Native growth protection areas shall be designated on the face of the plat or recorded drawing in a format approved by the County Assessor. The designation shall include the following restrictions:

i. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

ii. The right of the County to enforce the terms of the restriction.

3. Temporary or permanent field identification. Prior to a regulated alteration or development taking place within or adjacent to a critical area, the County may require temporary or permanent field markers delineating the critical area boundary and associated buffer. The type of field markers to be used will be determined by the Director depending on site conditions and inspection requirements. Field markers shall be spaced at a minimum of every 50 feet, unless alternative placement or spacing is authorized by the Director. The location of field markers must be shown on all site plans and final plats associated with the proposed development. Field markers shall remain in place until any required final inspections are completed and approved. Field markers may be waived by the Director if an alternative to field marking achieves the same objective, or if the development and construction activity(ies) is located at a sufficient distance so that impacts to the critical area and its buffer are unlikely to occur. The Director may require permanent, wildlife-passable fencing and/or signage if necessary to protect a critical area and its buffer from adjacent land uses.

4. Building setbacks. Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers, RMZs, or from the edges of all critical areas, except CARAs, if no buffers are required. The following are allowed in the building setback area:

a. Landscaping;

b. Uncovered decks;

c. Building overhangs, if such overhangs do not extend more than 18 inches into the setback area; and

d. Impervious ground surfaces, such as driveways and patios.

5. Notice on title. Any property on which a development proposal requiring a critical areas report is submitted shall have filed with the Kittitas County Auditor:

a. A notice on title of the presence and location of the critical area and/or buffer;

b. A statement as to the applicability of this Title to the property; and

c. A statement describing possible limitations on action in or affecting critical areas or buffer as approved by the Director. The applicant shall record such documents and will provide a copy of the recorded notice to the County. Development proposals which are defined as normal repair and maintenance of existing structures or developments, including, but not limited to, roof repair, interior remodeling, wood stove permits, and on-site sewage disposal systems repairs, are exempt from this requirement.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.100 Critical areas mitigation.

1. Mitigation sequence. Adverse impacts caused by new alterations and developments shall be mitigated using the following actions in order of priority:

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 by repairing, rehabilitating, or restoring the affected environment;

d. Reducing or eliminating the impact over time by preservation and maintenance operations;

e. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and

f. Monitoring the impact and the compensation project and taking appropriate corrective measures.

2. Mitigation plans. When mitigation is required, the applicant shall submit a mitigation plan. The mitigation plan shall include all the following:

a. Mitigation sequencing. A description of reasonable efforts made to apply mitigation sequencing pursuant to KCC § 17A.01.100(1) to avoid, minimize, and mitigate impacts to critical areas and buffers;

b. Mitigation details.

i. Documentation of consultation/coordination with appropriate agencies of expertise, as applicable,

ii. A description of the anticipated impacts to the critical area and buffer, including impacts to critical area functions and values,

iii. The mitigating actions proposed, including: type of mitigation proposed (e.g., on-site or off-site); site selection criteria; identification of compensation goals; and identification of critical area functions,

iv. The environmental goals and objectives of the mitigation, together with specific measurable criteria and performance standards for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained,

v. An analysis of the likelihood of success of the mitigation project based on best available science.

c. Construction details. The mitigation plan shall include written specifications, descriptions, and drawings of the mitigation proposed, including:

i. Construction sequence, timing, and duration,

ii. Grading and excavation details,

iii. Erosion and sediment control features, and

iv. Planting plan specifying plant species, quantities, locations, size, spacing, density, and measures to protect and maintain plants until established. All plant species must be native to the region.

d. Monitoring details.

i. A program for monitoring construction and assessing the outcome of the mitigation project, including the schedule for site monitoring (for example, describe how monitoring may occur in years 1, 2, 3, 5, 7 and 10 after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. Monitoring reports shall be submitted to the County 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 10 years. Mitigation monitoring shall be the responsibility of the applicant, and monitoring reports will be reviewed by County staff to ensure that performance standards are being met.

ii. A contingency plan with courses of action and corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met, including a possible extension of the monitoring period until it can be shown that performance standards are being met.

iii. The mitigation plan shall include financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures in accordance with KCC § 17A.01.100(3).

iv. The mitigation plan shall address any additional mitigation requirements relevant to the specific critical area as specified in the following chapters.

3. Financial guarantees.

a. When mitigation is required for a proposed development but is not completed prior to the County's final permit approval, such as final plat approval or final building inspection, the applicant shall post a financial guarantee to ensure work will be completed and meet the stated environmental objectives. Where financial guarantees are required by other state or federal agencies for specific mitigation features, additional financial guarantees for those features are not required under this provision.

b. The financial guarantee shall be in the amount of 125% of the estimated cost of the uncompleted actions and/or the estimated cost of restoring the functions and values of the critical area(s) that is at risk. The guarantee amount shall be based on an itemized cost estimate of the mitigation activity including clearing and grading, plant materials, plant installation, irrigation, weed management, monitoring, and other costs.

c. The financial guarantee may be in the form of a surety bond, performance bond, assignment of savings account, an irrevocable letter of credit guaranteed by an acceptable financial institution, or other form acceptable to the Director, with terms and conditions acceptable to the Kittitas County attorney.

d. The financial guarantee shall remain in effect until the Director determines, in writing, that the standards bonded for have been met. Financial guarantees for wetland or stream compensatory mitigation shall be held for a minimum of five years after completion of the work to ensure that the required mitigation has been fully implemented and demonstrated to function and may be held for longer periods when necessary.

e. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

f. Any failure to satisfy critical area requirements established by law or condition, including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan, shall constitute a default, and the Director may demand payment of any financial guarantees or require other action authorized by Kittitas County Code or any other law.

g. Any funds recovered pursuant to this section shall be used to complete the required mitigation. Such funds shall not be deposited in the County General Fund, but rather provided with a separate account. The County will use such funds to arrange for completion of the project or mitigation, and follow-up corrective actions.

h. Depletion, failure, or collection of financial guarantees shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

4. Mitigation banking and in-lieu fee mitigation. The County may approve mitigation banking and/or in-lieu fee mitigation as a form of compensatory mitigation for wetland and fish and wildlife habitat conservation area impacts when the provisions of this Title require mitigation and when the use of a mitigation bank/in-lieu fee program will provide equivalent or greater replacement of critical area functions and values when compared to conventional permittee-responsible mitigation. Mitigation banks and in-lieu fee program shall only be used when it can be demonstrated that they provide significant ecological benefits including long-term conservation of critical areas, important species, habitats and/or habitat linkages, and when they are documented to provide a viable alternative to the piecemeal mitigation for individual project impacts to achieve ecosystem-based conservation goals. Mitigation banks and in-lieu fee programs shall not be used unless they are certified in accordance with applicable federal and state mitigation rules and expressly authorized through County legislative action.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.110 Review process.

1. Administrative procedures and rules. The administrative procedures followed during the critical area review process shall conform to the standards and requirements of all development and alterations. This shall include, but not be limited to, timing, appeals, and fees associated with applications covered by this Title.

2. General requirements.

a. Submittal. Prior to the County's consideration of any proposed alteration or development not found to be exempt under KCC § 17A.01.050, the applicant shall submit to the County complete information regarding the critical area on the application for the underlying development, on forms provided by the County.

b. As part of critical areas review, the County shall:

i. Verify the information submitted by the applicant;

ii. Evaluate the project area and vicinity for critical areas and buffers;

iii. Determine whether the applicant is required to seek additional critical area consultation with qualified professionals and/or agencies, which may include a joint site visit with County staff, agency staff, and/or qualified professionals; (1) This additional consultation may be required for, but is not limited to, areas which contain unmapped critical areas and/or difficult mitigation circumstances.

iv. Determine whether the proposed development is likely to impact the functions or values of critical areas; and

v. Determine if the proposed development avoids impacts or adequately addresses the impacts to the critical area and buffer associated with the alteration or development.

c. Make a review determination:

i. No critical areas present. If after a site visit the director's analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed alteration or development is unlikely to degrade the functions or values of a critical area, then the Director shall rule that the critical area review is complete and note on the underlying application the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

ii. Critical areas present, but no impact - Waiver. If the Director determines there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed alteration or development is unlikely to degrade the functions or values of the critical area(s) or buffer(s), the Director may waive the requirement for a critical areas report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

(a) There will be no alteration of the critical area or associated riparian management zone or buffer;

(b) The development proposal will not negatively impact a critical area or buffer.

iii. Critical areas may be affected by proposal. If the Director determines that a critical area or areas or buffer(s) may be affected by the proposal, then the Director shall notify the applicant that a critical areas report must be submitted prior to further review of the project, as described in KCC § 17A.01.080. The Director may use the following indicators to assist in determining the need for a critical areas report:

(a) Indication of a critical area on the county critical areas maps that may be impacted by the proposed alteration or development;

(b) Information and scientific opinions from appropriate agencies, including, but not limited to, the Washington State Departments of Fish and Wildlife and Ecology;

(c) Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

(d) A finding by a qualified professional, or a reasonable belief by the Director, that a critical area may exist on or adjacent to the site of the proposed alteration or development.

d. Effect of director's determination. A determination regarding the apparent absence of one or more critical areas by the Director is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received. If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances.

3. Request for technical assistance. The Director may engage technical consultants or agencies with expertise to provide third party review and interpret critical area data and findings submitted by or on behalf of the applicant in instances where County staff lack the resources or expertise to review these materials. An applicant may be required to pay for or reimburse the County for the review costs incurred.

4. Pre-qualification of consultants. The Director may prepare and maintain a list of qualified technical consultants and firms that meet the qualified professional standards detailed in KCC § 17A.01.610. Any proposed consultant whose name is not on the list may submit a statement of qualifications including information on experience in the preparation of critical area studies, years of experience, and sample work. Upon approval of the submitted qualifications, the Director shall add the name to the list of qualified consultants. The Director may reject data and findings from non-pre-qualified consultants or require a third-party review per KCC § 17A.01.610(3).

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.120 Relationships to other regulations.

1. This Title shall apply as an overlay and in addition to zoning and other regulations adopted by the County.

2. 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 existing regulations, easement, covenant, or deed restriction conflicts with this Title that which provides more protection to the critical area shall apply.

3. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted.

4. Compliance with the provisions of this Title does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, 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 Title.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.130 Best available science.

Critical areas reports and decisions to alter critical areas shall be based on the most current best available science to protect the functions and values of critical areas in Kittitas County, consistent with RCW 36.701.172.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.150 Critical areas report review and determination.

1. The Director shall make a determination as to whether the proposed alteration or development and associated mitigation, if any, is consistent with the provisions of this Title. The Director's determination shall be based on the following criteria:

a. The proposal minimizes the impact on critical areas in accordance with KCC § 17A.01.100, Critical Areas Mitigation;

b. The proposal is consistent with the general purposes of this Title;

c. Any alterations permitted to the critical area(s) are mitigated in accordance with this Title's mitigation requirement sections depending on the type of critical area(s) impacted;

d. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and

e. The proposal is consistent with other applicable regulations and standards.

2. The County may condition the proposed alteration or development as necessary to mitigate impacts to critical areas and to conform to the standards required by this Title.

3. Determination. The Director will determine if the proposed alteration or development meets the criteria in KCC § 17A.01.150(1) and complies with the applicable provisions of this Title. The Director shall prepare a written notice of determination and identify any required conditions of approval.

a. If a proposed alteration or development is approved under this Title a notice of determination and conditions of approval shall be included in the project file, be considered in the next phase of the County's review of the proposed alteration or development in accordance with any other applicable codes and regulations, and shall be attached to the underlying permit or approval.

i. Any subsequent changes to the conditions of approval shall void the previous determination pending re-review of the proposal and conditions of approval by the director.

ii. A favorable determination should not be construed as endorsement or approval of any underlying permit or approval.

b. If a proposed alteration or development is rejected due to not adequately mitigating its impacts on the critical area(s) and/or does not comply with the criteria in KCC § 17A.01.150(1), and the provisions of this Title, the Director shall prepare a written notice of the determination that includes findings of noncompliance.

i. No proposed alteration, development, or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical area(s) and/or does not comply with the provisions of this Title.

ii. Upon receiving a notice of determination that includes findings of noncompliance, the applicant may request consideration of a revised critical areas report.

iii. If the revision is found to be substantial and relevant to the critical area review, the Director may reopen the critical area review and make a new determination based on the revised report.

4. The County's determination regarding critical areas pursuant to this Title shall be concurrent with the final decision to approve, condition, or deny the development proposal or other alteration involved.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.170 Enforcement.

1. Generally. When a critical area or its buffer has been altered in violation of this Title, all ongoing development work shall stop, and the critical area and buffer shall be restored. The County shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner's or other responsible party's expense to compensate for violation of provisions of this Title.

2. Requirement for restoration plan. All development work shall remain stopped until a restoration plan is prepared and approved by the County. Such a plan shall be prepared by a qualified professional using best available science and shall describe how the actions proposed meet the minimum requirements described below. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal. The County may consult with agencies of expertise to ensure plan adequacy.

3. Minimum performance standards for restoration.

a. For alterations to critical aquifer recharge areas, frequently flooded areas, wetlands, and fish and wildlife habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area, provided that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

i. The pre-violation structural and functional values shall be restored, including water quality, hydrology and habitat functions;

ii. The historic soil types and configuration of the altered area shall be replicated;

iii. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species type and densities. The historic functions and values should be replicated at the location of the alteration; and

iv. Information demonstrating compliance with the requirements in KCC § 17A.01.100 shall be submitted to the Director.

b. For alterations to frequently flooded areas and geologically hazardous areas, the following minimum performance standards shall be met for the restoration of a critical area, provided that, if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

i. The hazard shall be reduced to a level equal to, or less than, the pre-development hazard;

ii. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

iii. The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

4. Site investigations. The Director is authorized to make site inspections and take such actions as are necessary to enforce this Title, pursuant to KCC § 18.01.060.

5. Penalties. Penalties for violating the provisions of this Title are specified in KCC Chapter 18.05.

(Ord. 2021-016, 2021; Ord. 2025-006, 7/1/2025)

§ 17A.01.190 Severability.

If any clause, sentence, paragraph, section, or part of this Title or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable.

(Ord. 2025-006, 7/1/2025; Ord. 2025-006, 7/1/2025)