Article 2 Administrative Provisions

§ 16.16.200 Authority.

This chapter is adopted under the authority of Chapter 36.70 RCW, which empowers a county to enact a critical area ordinance and provide for its administration, enforcement and amendment, and Chapter 36.70A RCW and Article 11 of the Washington State Constitution.

The director shall administer and enforce the provisions of this chapter and have the responsibility for reviewing development proposals for compliance with this chapter. Additionally, s/he shall also have the:

Authority to approve, deny, or condition permits in accordance with the standards set forth herein.

Authority to convene an interdisciplinary team to assist in reviewing development proposals or to solicit review from outside experts in accordance with WCC § 16.16.220(C) (Interdisciplinary Team).

Authority to post a stop work order pursuant to WCC § 16.16.285 upon a person undertaking activity within a critical area or buffer in violation of this chapter.

Any additional responsibility and/or authority specifically provided for in this chapter.

For project permits subject to consolidated review, the director's authority shall transfer to another county decision maker when another decision maker is specified for a separate project permit. In such cases, the director shall ensure that all procedural requirements of this chapter are met and shall make a recommendation to the designated decision maker as to how the provisions of this chapter apply to the permit action, including project permits.

The Whatcom County hearing examiner authority is hereby vested with responsibility and authority to perform the following duties:

Those duties as assigned in Chapter 2.11 WCC (Hearing Examiner).

Those duties as assigned in WCC Title 22 (Land Use and Development).

To grant or deny variances to the standards of this chapter pursuant to WCC § 16.16.273 (Variances).

To grant, condition, or deny reasonable use exception permits for all developments affecting critical areas pursuant to WCC § 16.16.270 (Reasonable use exceptions).

To decide on appeals of administrative decisions issued by the director.

In granting, revising, or extending a permit, the director, or hearing examiner as applicable, may attach such conditions, modifications, or restrictions thereto regarding the location, character, and other features of the proposed development deemed necessary to ensure that the development is consistent with criteria set forth in this chapter. In cases involving unusual circumstances or uncertain effects, a condition may be imposed to allow for future review or reevaluation to ensure conformance with this chapter. The director and/or hearing examiner shall render a final decision in accordance with the timelines established in Chapter 22.05 WCC, as applicable. All decisions of the director and hearing examiner may be appealed pursuant to WCC § 22.05.160.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.205 Authorizations required.

No action shall be taken by any person that results in any alteration of a critical area or its setback or buffer without prior authorization by submitting an application on a form provided by Whatcom County and obtaining either the required permit or an approval of a notice of activity, as specified herein.

No land use project permit, construction permit, or land division approval required by county ordinance shall be granted until the county decision maker has determined that the applicant has complied with the applicable purposes, requirements, objectives, and goals of this chapter, including the mitigation standards set forth in WCC § 16.16.260.

Project permits shall comply with all provisions of this chapter, WCC Title 22 and the department's administrative manual.

The requirements of this chapter shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA) (RCW Chapter 43.21C), as locally adopted (Chapter 16.08 WCC). Any conditions required pursuant to this chapter shall be coordinated with the SEPA review and threshold determination.

Areas characterized by a particular critical area may also be subject to other regulations established by this chapter due to the overlap or multiple functions of some critical areas. When one critical area adjoins or overlaps another, the more restrictive standards shall apply.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.210 Applicability and severability.

This chapter shall be consistently applied to any alteration or development within geographical areas of unincorporated Whatcom County that meet the definition and criteria for critical areas and critical area buffers or setbacks as set forth in this chapter. No development shall be constructed, located, extended, modified, converted or altered, or land subdivided without full compliance with this chapter. Should any section or provision of this chapter be declared invalid, such decision shall not affect the validity of this chapter as a whole.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.215 Relationship to other jurisdictions.

Permit applicants are responsible for complying with all federal, state, tribal, and local regulations that may pertain to a proposed development. Compliance with the provisions of this chapter does not necessarily constitute compliance with other regulations and permit requirements.

In cases where other agencies have jurisdiction over critical areas and the director determines that the permit conditions imposed by such agencies are no less protective and satisfy the requirements of this chapter, those permit conditions may be substituted as the conditions of approval for the requirements of this chapter. Such agencies may include, but are not limited to, the Lummi Nation; the Nooksack Tribe; the United States Army Corps of Engineers; the United States Environmental Protection Agency; the United States Fish and Wildlife Service; the National Marine Fisheries Service or NOAA Fisheries; and the Washington State Departments of Ecology, Natural Resources, and Fish and Wildlife.

The county shall make detailed written findings required by Chapter 22.05 WCC and WCC § 16.16.250 when adopting conditions of another jurisdiction's permit. Such requirements shall be a condition of critical area approval and enforceable by the county. In the event that there is a conflict between permit requirements and the standards of this chapter, the more restrictive standards shall apply.

The county shall notify the applicant in writing when adopting other agencies' conditions pursuant to this section.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.220 Identification of critical areas.

Critical Area Maps. The county has identified critical areas and areas where the conditions under which critical areas typically occur and/or have the potential to occur. The approximate location and extent of critical areas within the county's jurisdiction are shown on maps; however, this information is for increasing public awareness of critical areas. These "static" maps may be too inexact for regulatory purposes. These maps shall be available at the department of planning and development services and online for public inspection.

Property owners, the director, and/or members of the public may use these maps as a general guide, but the maps do not provide a comprehensive accounting of areas subject to this chapter nor do they provide a definitive critical areas designation. Maps showing known critical areas are only for information or illustrative purposes.

Planning and development services has the authority to update critical areas maps and shall do so as new critical areas are identified and as new information becomes available.

The approximate location and extent of frequently flooded areas are shown on the county's critical area maps. These maps are to be used as a guide and do not provide a definitive critical area designation. The county shall update the maps as new hazard areas are identified and as new information becomes available. This article does not imply that land outside mapped frequently flooded areas or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of Whatcom County, any officer or employee thereof, or the Federal Insurance and Mitigation Administration (FIMA), for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.

Identification. When county critical area maps, indicators, or other sources of credible information indicate that a site may be located in, contain, or abut critical areas or their buffers or setbacks, the director shall require technical studies in accordance with the requirements for that critical area specified herein to determine the extent of critical areas on the property.

Interdisciplinary Team. The director may call upon outside expertise including an interdisciplinary team if s/he determines that additional technical assistance is required to assess a critical areas development proposal or ensure the application of best available science.

The director will coordinate this effort and seek advice from the team.

The interdisciplinary team shall include the applicant and/or their technical representative, local, state, or federal agency or tribal representatives with expertise in the field, and/or independent qualified professionals with expertise relating to the critical area issue.

The functions of the interdisciplinary team are to field check and verify critical area determinations/boundaries and assess species/habitat presence by providing written peer review of the information included with an application, identify areas of concern in the application of best available science, provide professional opinions and recommendations relevant to the provisions of this chapter, and help focus the preparation of subsequent reports and environmental documentation on the most relevant issues.

In lieu of convening an interdisciplinary team, the county may require third-party review by a qualified professional for any development proposal, mitigation plan, mitigation bank proposal, or other project for which additional technical expertise is needed. The cost of the third-party review shall be the permit applicant's responsibility.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.225 General regulations.

General regulations apply to all critical areas and critical area buffers. Specific critical area articles describe standards applied to authorized alterations.

Alteration of critical areas and/or buffers is prohibited except when any impacts are mitigated pursuant to this chapter, and:

Alteration is approved pursuant to the reasonable use or variance provisions of WCC § 16.16.270 and § 16.16.273, respectively; or

Alteration is necessary to accommodate an essential public facility or public utility where no feasible alternative location will accommodate the facility and the facility is located, designed, and constructed to minimize and, where possible, avoid critical areas disturbance to the maximum extent feasible; or

Alteration is necessary to accommodate an approved water-dependent use and associated development, use, or activity listed in WCC Title 23 when permitted in accordance with the Whatcom County Shoreline Management Program (SMP); provided, that such development is operated, located, designed and constructed to minimize and, where possible, avoid critical areas disturbance to the maximum extent feasible; or

Alteration is part of an essential element of an activity allowed by this chapter and all feasible measures to avoid and minimize impacts have been employed. Such feasible measures shall include, but not be limited to, clustering where permitted by zoning and as appropriate to protect critical areas. The purposes of clustering shall be to minimize adverse effects of development on critical area functions and values, minimize land clearing, maintain soil stability, preserve native vegetation, provide for wildlife corridors, maintain hydrology, and mitigate risk to life and property; or

Alteration is associated with an alternative mitigation plan or watershed-based management plan approved pursuant to WCC § 16.16.261 or § 16.16.262, respectively; or

Alteration is associated with a conservation farm plan pursuant to Article 8 of this chapter; or

Alteration of Type III or IV wetlands not subject to WCC Title 23 that have a habitat area score of less than six when associated with an approved commercial development within an urban growth area; or

Alteration of shoreline habitat conservation area buffers as allowed by WCC Title 23 (Shoreline Management Program).

Development proposals shall seek to maintain ecological connectivity and habitat corridors whenever possible. Restoration of ecological connectivity and habitat corridors shall be considered a priority restoration and mitigation action.

In order to preserve native plant communities within shoreline jurisdiction and/or critical areas and their buffers, mitigation sequencing shall be applied during site planning for uses and activities so that the design and location of the structure or development minimizes native vegetation removal. Development, uses, or activities that require vegetation clearing shall be designed to avoid the following, in order of preference:

Native trees;

Other native vegetation;

Nonnative trees; and

Other nonnative vegetation.

(Ord. 2005-068 § 1; Ord. 2009-013 § 2 (Exh. 2); Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.230 Activities allowed without notification.

The following activities do not require authorization from Whatcom County. However, this shall not be construed to grant authorization for any work to be done in any manner in violation of the provisions of this chapter or any other laws or ordinances of this jurisdiction. Activities within the shoreline jurisdiction (WCC § 23.20.010) may require a shoreline permit or statement of exemption.

Forest practices regulated by the Washington State Department of Natural Resources.

Maintenance of lawfully established vegetation, landscaping, and gardens within a regulated critical area or its buffer to maintain the general condition and extent of such areas; provided, that native growth protection areas, or other areas protected via conservation easements or similar restrictive covenants are not covered by this exception.

Maintenance activities necessary to implement approved mitigation plans.

Low impact activities, when the activity does not cause adverse impacts, such as hiking, canoeing, viewing, nature study, photography, hunting, fishing, education, or scientific research.

Activities undertaken to comply with a United States Environmental Protection Agency Superfund-related order, or a Washington Department of Ecology order pursuant to the Model Toxics Control Act (such as the Swift Creek sediment management action plan), or a Department of Homeland Security order that specifically preempts local regulations in the findings of the order.

Maintenance and/or repair of lawfully established single-family residences and appurtenant features; provided, that the activity does not further alter, impact, or encroach upon critical areas or buffers or further affect their functions. The maintenance activity shall not result in increased risk to life or property.

Fish, wildlife, and/or wetland restoration or enhancement activities not required as project mitigation; provided, that the project is approved by the U.S. Fish and Wildlife Service, the Washington State Department of Ecology, Washington State Department of Fish and Wildlife, or other appropriate local, state, federal, or tribal jurisdiction and/or that meet the criteria of RCW 77.55.181(1) and that are reviewed and approved according to the provisions of RCW 77.55.181.

(Ord. 2005-068 § 1; Ord. 2009-013 § 2 (Exh. 2); Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.235 Activities allowed with notification.

The activities specified in subsection B of this section are authorized within critical areas and buffers; provided, that:

The applicant provides a written notification to the director on a form provided by the department. Activities within the shoreline jurisdiction (WCC § 23.20.010) may require a shoreline permit or statement of exception.

The notification will provide a site plan (in a common scale), photos, and specific information describing the activity and the mitigation to be implemented, if required, to document that the activity will not result in increased risk to public health, safety, and welfare; that adverse impacts to critical areas are minimized; and that disturbed areas are restored as soon as possible following the activity.

Notification shall be submitted at least 10 full business days prior to initiating work.

Upon receipt of the notification, the director shall issue a decision within 10 days unless additional information is required from the applicant or other review processes necessitate additional time. Additionally, the director may provide guidance on best management practices for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and use of chemical applications to be used in the execution of the activities listed in subsection B of this section.

Unless otherwise specified, notification shall be valid for one year per activity; provided, that there is no change in the scope of the project including, but not limited to, the location and/or extent of the activity allowed under the notification process.

Activities Allowed With Notification.

Emergency construction or activity necessary for the immediate preservation of the public health, safety, and welfare as determined by the director; provided, that:

An emergency is an unanticipated and imminent threat to public health, safety, or the environment that requires immediate action within a time period too short to allow full compliance with this chapter.

Emergency construction does not include development of new permanent protective structures where none previously existed. Where the director determines that new protective structures are the appropriate means to address an emergency situation, the project proponent shall either obtain any permits that would have been required absent an emergency, pursuant to Chapter 90.58 RCW, Chapter 173-27 WAC, or this chapter, or remove the structure upon abatement of the emergency situation.

Within the jurisdiction of the Whatcom County Shoreline Management Program (WCC Title 23), all emergency construction shall be consistent with the policies and procedural requirements of WCC Title 23 and this chapter.

The applicant shall make a reasonable attempt to contact the director prior to activity; provided, that when prior notice is not feasible, notification of the action shall be submitted to the director as soon as the emergency is addressed and no later than 14 days following such action.

Maintenance or repair to existing infrastructure improvements, including dikes and drainage ditches, rights-of-way, trails, roads, fences, and utilities or utility corridors; provided, that the activity does not further alter, impact, or encroach upon critical areas or buffers or further affect their functions. The maintenance or repair activity shall not result in increased risk to life or property. Maintenance or repair shall be allowed pursuant to the provisions set forth in this chapter; provided, that:

The applicant shall submit to the director a written description of the maintenance activity with all of the following general information:

Type, timing, frequency, and sequence of maintenance activity to be conducted;

ii.

Type of equipment to be used (hand or mechanical);

iii.

Manner in which the equipment will be used; and

iv.

Best management practices to be used.

The applicant's written description shall be valid for up to five years; provided, that there is no significant change in the type or extent of maintenance activity.

Utility Installation. Construction of electrical, telecommunications, cable, water, sewer, and other utility lines and equipment within existing structures, facilities, infrastructure systems, development areas and uses, utility easements, and public and private rights-of-way, provided:

There is no further intrusion into geologically hazardous areas, frequently flooded areas, wetlands, or fish and wildlife habitat conservation areas or their buffers;

Soil erosion is controlled;

Disturbed areas are promptly stabilized; and

Any adverse impacts to critical areas are mitigated in accordance with this chapter.

Vegetation Management. No vegetation shall be removed from a wetland, habitat conservation area, coastal or riverine erosion hazard area, or landslide hazard area, or their buffers, unless specifically listed in subsection (B)(4)(a) of this section and meeting the conditions of subsection (B)(4)(b) of this section:

Exceptions.

Lawn, pasture, ornamental vegetation, and similar introduced vegetation pursuant to WCC § 16.16.230(B), provided all areas of vegetation removal are revegetated.

ii.

Restoration projects.

iii.

Maintenance of legally established views so long as the criteria in subsection (B)(5) of this section are met.

iv.

The felling of hazard trees within critical areas and buffers, with an approved tree risk assessment completed by a qualified professional.

To improve overall slope or bank stability, selective vegetation limbing, clearing, and/or thinning may be allowed in landslide hazard areas and/or riverine and coastal erosion hazard areas and/or their buffers pursuant to an approved habitat management plan, which shall be prepared by a qualified professional and reviewed by a licensed geologist or geotechnical engineer.

Conditions.

Vegetation removal or pruning will be done in a manner that minimizes disturbance and prevents adverse effects on soil stability, fish or wildlife habitat, water quality, or water quantity. Shrubs shall not be pruned to a height of less than six feet.

ii.

Cut vegetation shall be left within the critical area or buffer where practicable unless removal is warranted due to the presence of an established disease infestation, noxious weeds, environmental or other hazards, or because of access or maintenance needs if the area is a utility or access right-of-way.

iii.

All limb removal, crown thinning, or pruning shall meet the American National Standards Institute (ANSI) tree pruning standards. Pruning shall retain branches that overhang the water. No tree topping shall occur. In no circumstance shall removal of more than one-fourth of the original crown be permitted within a three-year period.

iv.

Hazard Tree Mitigation.

(A)

The landowner shall replace any trees that are removed at a 3:1 ratio. When approved by the director, a landowner may choose to convert a hazard tree proposed for removal to a wildlife snag as an alternative if recommended by a certified arborist.

(B)

In addition to the requirements of WCC § 20.80.300 through § 20.80.380 (landscaping), replacement trees shall meet the following criteria:

(1)

Replacement trees shall be exclusively species native to the coastal region of the Pacific Northwest.

(2)

At a minimum, 50 percent of replacement trees shall be evergreen species. If only one replacement tree is required, it shall be an evergreen species, unless otherwise approved by the director.

View Corridors. Clearing and/or thinning for limited view corridors shall be allowed where it does not adversely impact ecological and/or aesthetic values, and/or slope stability, provided:

The proposed view corridor is not located in a landslide, riverine, or coastal erosion hazard areas or their buffers.

Clearing shall only be allowed when the applicant can demonstrate that a limited view corridor cannot be achieved through limb removal, crown thinning, or pruning.

A window or view opening is limited to the minimum necessary for view purposes and shall not exceed a cumulative total of 15 percent of buffer length. Whenever possible, view corridors shall be located in areas dominated with nonnative vegetation and invasive species.

Significant trees shall be preserved, but may be shaped, windowed/thinned or pruned.

Low-growing native vegetation shall be retained and/or planted in the view corridor to provide habitat, stabilize the area, and achieve dense growth.

Clearing shall not take place where increased risks or adverse impacts, including cumulative impacts, to critical area functions and values are likely to occur.

This provision does not apply to open space set aside in a subdivision or other approval to which specific conditions are attached that prohibit clearing of vegetation without a written approval or permit.

View areas established under this section shall be considered lawfully established and may be maintained as provided for in subsection (B)(4) of this section.

Navigation Aids. The installation of navigation aids and boundary markers in accordance with applicable state and federal laws or the installation of mooring buoys in accordance with the Department of Fish and Wildlife design guidelines and the Whatcom County Shoreline Management Program (WCC Title 23).

Site Investigation. Routine site investigation work in wetlands, landslide hazard areas, and riverine and coastal erosion hazard areas. This includes geotechnical soil borings, groundwater monitoring wells, percolation tests, sediment sampling, and similar or related activities required for land use application submittals or permit compliance. Land survey and shallow soil test pits dug in conjunction with wetland delineation studies do not require notification.

Household Garden Products. Fertilizers or herbicides to address noxious weed infestation may be used in critical area buffers, but not in critical areas. Either must be applied at times and rates specified on the label in accordance with Washington State Department of Agriculture and other applicable regulations.

Ditch Maintenance. On agricultural lands maintenance of ditches is allowed; provided, that all of the following are met:

The maintenance is necessary to support agricultural operations;

The maintenance activity does not expand the dimensions of the drainage channel beyond the original, lawfully established dimensions;

The agricultural activities are conducted pursuant to an approved conservation farm plan prepared pursuant to Article 8 of this chapter;

The farm operator obtains a hydraulic project approval (HPA), if required, from the Washington State Department of Fish and Wildlife (WDFW) prior to the maintenance activity; and

The farm operator provides a copy of the HPA to the director as part of the written notification.

10.

Alteration or removal of beaver-built structures two years old or less; provided, that:

There is no adverse impact to wetland or river or stream functions.

The property owner obtains an HPA from WDFW (if required) prior to the maintenance activity.

The property owner provides a copy of the HPA to the director as part of the written notification.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.240 Technical administrator and hearing examiner authority.

Repealed by Ord. 2024-047 (Exh. F).

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C))

§ 16.16.245 Interdisciplinary team.

Repealed by Ord. 2024-047 (Exh. F).

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A))

§ 16.16.250 Critical areas review process.

All applicants shall complete a prescreening meeting with the director prior to submitting an application subject to this chapter. The purpose of this meeting shall be to discuss the requirements for a complete application; the critical area standards and procedures; to review conceptual site plans prepared by the applicant; to discuss appropriate investigative techniques and methods; and to determine reporting requirements.

Review and approval of a proposed development within a critical area or its buffer may be initiated through the application for any project permit in Whatcom County on department-approved forms and containing the materials listed in the department's administrative manual.

The director shall be responsible, in a timely manner, to make one of the following determinations regarding critical areas review:

Determination of Impacts. The director shall use best available science, including but not limited to the county's critical areas maps, his/her field investigation results, his/her own knowledge of the site, information from appropriate resource agencies, or documentation from a scientific or other credible source, to determine if the project will more probably than not adversely impact a critical area or its buffer. Identified adverse impacts shall be fully mitigated in accordance with WCC § 16.16.260.

Determination of Compliance. If the applicant demonstrates to the satisfaction of the director that the project meets the provisions of this chapter and is not likely to adversely affect the functions and values of critical areas or buffers or provides mitigation to reduce the adverse impact to meet no net loss of the function and values of critical areas or buffers, the director shall make the determination that the proposal complies with this chapter.

Decision to Approve, Condition, or Deny. The director shall review all pertinent information pertaining to the proposed development and shall approve, approve with conditions, or deny the permit based on their review, and shall provide a detailed written decision. This determination shall be included in the project review record for the project permit in accordance with Chapter 22.05 WCC.

The director may waive the requirement for critical areas review under this chapter when s/he determines that all of the following conditions are met:

The proposed development activity is located on a parcel that received approval of a previous critical areas review within the prior five years, site conditions have not changed, and the applicable regulations have not substantively changed;

All critical areas within 300 feet of the new proposed development, use, or activity have been identified and delineated and the effects of the proposed development activity have been thoroughly considered in accordance with the most current regulations and best available science;

The activity is in compliance with all permit conditions including mitigating measures, as applicable, that were imposed as part of the prior review and there are no outstanding violations of conditions that were imposed as part of the previous review;

The development activity involves a use that is equally or less intensive than the development activity that was subject to the prior permit. Land use intensity shall be based on factors including development density, critical areas impacts, impervious surface, noise, glare, dust, hours of operation, and traffic.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.255 Critical areas assessment reports.

When the director determines a need for a critical area assessment pursuant to WCC § 16.16.250, s/he shall have the authority to require a critical areas assessment report, to be prepared by a qualified professional and be consistent with best available science. The analysis shall be commensurate with the value or sensitivity of a particular critical area and relative to the scale and potential impacts of the proposed activity. A critical area assessment shall have all of the following elements, unless determined by the director not to be needed:

The requirements found in subsections C and I of this section;

Geological hazard assessment;

Critical aquifer recharge assessment;

Frequently flooded area assessment;

Wetland assessment;

Fish and wildlife habitat conservation area assessment;

A mitigation plan addressing all mitigation requirements of this title;

Habitat management plan, when required by this chapter or WCC Title 23.

Elements of a critical area assessment are encouraged to be submitted together for timely review. However, at the request of the applicant, the director may allow the various components to be submitted independently at different phases of a project if s/he determines piecemeal review is reasonable and will benefit the review process.

The critical areas assessment report shall:

Demonstrate that the submitted proposal is consistent with the purposes and specific standards of this chapter;

Describe all relevant aspects of the development proposal and critical areas adversely affected by the proposal, including any geological hazards and risks associated with the proposal, and assess impacts on the critical area from activities and uses proposed; and

Identify impacts of the proposed use/development on habitat corridors, ecological connectivity, and habitat for salmon and forage fish as identified in WCC § 16.16.710.

Where impacts are unavoidable, demonstrate through an alternatives analysis that no other feasible alternative exists. Such an analysis shall explore alternatives that might pose fewer impacts or better protect ecological functions, and address such issues as project design, location on the property, and type and location of mitigation, as applicable to the proposed development.

Identify and evaluate the cumulative impacts of individual development proposals to ensure that no net loss standards are achieved. Such impacts shall include those to wildlife, habitat, and migration corridors; water quality and quantity; and other watershed processes that relate to critical area condition, process, and/or service.

Identify proposed mitigation and protective measures as required by this chapter.

The director shall review the critical areas assessment report for completeness and accuracy and shall consider the recommendations and conclusions of the critical areas assessment report to assist in making administrative decisions concerning approval, conditional approval, or denial of the subject project and to resolve issues concerning critical areas jurisdiction and appropriate mitigation and protective measures.

The director shall reject or request revision of the field and literature findings and conclusions reached in a critical areas assessment report when s/he can demonstrate that the assessment is inaccurate, incomplete, or does not fully address the critical areas impacts involved.

Critical areas assessment reports shall generally be valid for a period of five years from the date the assessment is approved by the director. Future land use applications may require preparation of new or supplemental critical area assessment reports unless it can be demonstrated to the satisfaction of the director that the previously prepared report is adequate for current analysis. The director may also require the preparation of a new critical area assessment report or a supplemental report when new information is found demonstrating that the initial assessment is in error. If the director requires more information in the report, s/he shall make the request in writing to the applicant stating what additional information is needed and why.

To avoid duplication, the reporting requirements of this chapter shall be coordinated if more than one critical area assessment report is required for a site or development proposal. Similarly, where other agencies' assessments or reports are required pursuant to other state or federal laws, the applicant is encouraged to submit one report that satisfies all such agencies' requirements.

In addition to a hard copy, applicants shall provide reports and maps to the county in an electronic format that allows site data to be incorporated into the county critical areas database; however, the county may waive the electronic format requirement for single-family building permits. Applicants shall follow Whatcom County electronic submittal guidelines. This requirement shall not be construed as a requirement to use specific computer software, though it must be in a format usable by the county.

The intent of these provisions is to require a reasonable level of technical study and alternatives analysis pursuant to WCC § 16.16.250 sufficient to assess potential project impacts and to protect critical areas. At a minimum, a critical areas assessment report shall include the following information:

A site plan showing the proposed development footprint and clearing limits, all relevant critical areas and buffers within and abutting the site, a written description of the project, an examination of project on-site design alternatives, and an explanation of why the proposed activity requires a location on, or access across, a critical area and why alternatives are not feasible;

A written description of the critical areas and buffers on or in the vicinity of the site, including their size, type, classification or rating, condition, disturbance history, and functions and values. Projects in frequently flooded areas must comply with the reporting requirements of WCC Title 17. Projects on or adjacent to geologically hazardous areas shall identify the type of hazard and assess the associated risks posed by the development or that the development may be subject to;

An analysis of potential adverse critical area impacts associated with the proposed activity including, but not limited to, effects related to clearing, grading, noise, light/glare, drilling, damming, draining, creating impervious surface, managing stormwater, releasing hazardous materials, and other alterations, and including an explanation of critical area processes and functions that may be affected;

An analysis of how critical area impacts or risks will be avoided and/or minimized, and/or an analysis of the proposed measures to prevent or minimize hazards. When impacts cannot be avoided, the report shall include a plan describing mitigation that will be provided to replace critical area functions and values altered as a result of the proposal. The mitigation plan shall be consistent with the provisions of WCC § 16.16.260 and provide written documentation showing what the applicant considered for each step in the mitigation sequencing and the other applicable articles of this chapter;

The dates, names, signatures, and qualifications of the persons preparing the report and documentation of analysis methods including any fieldwork performed on the site; and

Additional reasonable information requested by the director for the assessment of critical areas impacts or otherwise required by the subsequent articles of this chapter.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.260 General mitigation requirements.

Development that adversely impacts or alters a critical area or buffer shall include mitigation sufficient to minimize risks associated with geologic hazards and/or replace or improve critical areas functions and values. Any proposed development that cannot adequately mitigate critical area impacts as determined by the director shall be denied.

In determining the extent and type of mitigation required, the director may consider all of the following:

The ecological processes that affect and influence critical area structure and function within the watershed or sub-basin;

The individual and cumulative effects of the action upon the functions of the critical area and associated watershed;

Observed or predicted trends regarding the gains or losses of specific habitats or species in the watershed, in light of natural and human processes;

The likely success of the proposed mitigation measures;

Effects of the mitigation actions on neighboring properties; and

Opportunities to implement restoration actions formally identified by an adopted shoreline restoration plan, watershed planning document prepared and adopted pursuant to Chapter 90.82 RCW, a salmonid recovery plan or project that has been identified on the Watershed Management Board habitat project list or by the Washington State Department of Fish and Wildlife as essential for fish and wildlife habitat enhancement.

Though in general on-site mitigation is preferred, the county shall not risk mitigation success or bypass opportunities for improving ecological processes in a watershed by precluding other mitigation options when it is more effective and sustainable. In order to provide the greatest ecological benefit, a combination of mitigation options may be used to achieve no net loss of ecological functions. In some cases, it may be necessary to mitigate at multiple sites or on site and out-of-kind. In determining the extent and type of mitigation required for impacts to critical areas, the director may consider all of the following when applicable:

On Site and In Kind. Unless otherwise approved by the director, all critical areas impacts shall be compensated by creation or restoration of replacement areas that are in kind, on site, and of similar critical area category.

Off Site and In Kind. The director may consider and approve off-site mitigation when the applicant demonstrates that greater biological and/or hydrological functions and values will be achieved. The mitigation may include restoration, creation, or enhancement of critical areas and/or their buffers. The process to determine the ratios of on-site mitigation shall apply to off-site ratios as well.

On Site and Out of Kind. The director may consider and approve out-of-kind mitigation when the applicant demonstrates an ecological uplift of biological and/or hydrological functions and values will be achieved. The mitigation may include restoration, creation, or enhancement of other types of critical areas and/or their buffers. The process to determine the ratios of out-of-kind mitigation shall be based on a habitat management plan with a functional replacement assessment.

Alternative mitigation plans pursuant to WCC § 16.16.261 (Alternative mitigation plans).

Use of mitigation bank credits, pursuant to WCC § 16.16.263 (Mitigation banks).

Where feasible, mitigation projects shall be completed prior to activities that will disturb critical areas or their buffers. In all other cases, mitigation shall be completed concurrently with development and prior to use or occupancy of the activity or development.

Construction of mitigation projects shall be timed to reduce impacts; provided, that the director may adjust the timing requirements to allow grading, planting, and other activities to occur during the appropriate season(s).

Mitigation Sequence.

When an alteration or impact to a critical area or buffer is proposed, the applicant shall conduct an alternatives/mitigation sequencing analysis and demonstrate that all reasonable efforts have been taken to mitigate adverse impacts in the following prioritized order:

Avoiding the adverse impact altogether by not taking a certain action or parts of an action, or moving the action.

Minimizing adverse impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology and engineering, or by taking affirmative steps to avoid or reduce adverse impacts.

Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment.

Reducing or eliminating the adverse impact over time by preservation and maintenance operations during the life of the action.

Compensating for the adverse impact by replacing, enhancing, or providing similar substitute resources or environments and monitoring the adverse impact and the mitigation project and taking appropriate corrective measures.

Mitigation shall be provided for all unavoidable adverse alterations of a critical area or buffer. Mitigation for individual projects may include a sequenced combination of the above measures as needed to achieve the most effective protection, compensation for buffer functions and values, or mitigation for critical area functions and values.

Mitigation Plan.

A mitigation plan shall be developed in accordance with an approved critical areas assessment report and be consistent with best available science. Where appropriate, the mitigation plan should be compatible with watershed and recovery planning goals for Whatcom County. The intent of these provisions is to require a level of technical study and analysis sufficient to protect critical areas and/or protect developments and occupants from critical areas involving hazards. The analysis shall be commensurate with the value or sensitivity of a particular critical area and relative to the scale and potential impacts of the proposed activity.

The mitigation plan shall provide for construction, maintenance, monitoring, and contingencies as required by conditions of approval and consistent with the requirements of this chapter.

The mitigation plan shall demonstrate that all reasonable efforts have been taken to provide sufficient mitigation such that the activity does not have significant adverse impacts and results in no net loss of shoreline and critical area ecological functions.

The mitigation plan shall be prepared by a qualified professional; provided, that the director may waive the requirement to hire a qualified professional to prepare a mitigation plan when the required mitigation involves standard planting or enhancement practices. The waiver shall not be granted for mitigation practices involving wetland creation, rehabilitation, and/or restoration.

The mitigation plan shall contain the following information:

A description and scaled drawings of the activities proposed to reduce risks associated with geologic hazards and/or flooding, and/or to mitigate for impacts to critical area functions and values. This shall include all clearing, grading/ excavation, drainage alterations, planting, invasive weed management, installation of habitat structures, construction sequencing, best management practices, site protection, irrigation, and other site treatments associated with the development activities.

Specific information on construction or the proposed mitigation activity including timing, sequence, equipment needs, best management practices, and responsible parties.

A description of the functions and values that the proposed mitigation area(s) shall provide, and/or a description of the level of hazard mitigation provided.

The goals, objectives, and performance standards that the proposed mitigation action(s) shall achieve or demonstrate consistency with.

A description of how the mitigation area(s) will be evaluated and monitored to determine if the performance standards are being met.

A program and schedule for construction and post-construction performance monitoring of the mitigation project.

An evaluation of potential adverse impacts on adjacent property owners resulting from the proposed mitigation and measures to address such impacts. Mitigation projects shall not result in adverse impacts to adjacent property owners.

Identification of potential courses of action or contingencies, and any corrective measures to be taken if monitoring or evaluation indicates that project performance standards are not being met.

Plan sheets with scale identified, showing the edge of the critical area and buffer area. The affected critical area and buffer shall be clearly staked, flagged, and/or fenced prior to and during any site clearing and construction to ensure protection for the critical area and buffer during construction.

A description of other permits and approvals being sought, including the need for permits from state and/or federal agencies.

Additional information as required by the subsequent articles of this chapter.

Mitigation Monitoring and Maintenance.

All mitigation areas shall be maintained and managed to prevent degradation and ensure protection of critical area functions and values subject to field verification by the director.

The director shall have the authority to require that mitigation projects be monitored annually for at least five years to establish that performance standards have been met. Required monitoring reports shall be submitted to the county annually during the monitoring period to document milestones, successes, problems, and contingency actions of the compensatory mitigation.

At year three, if the mitigation is meeting year five performance standards, the director may reduce the monitoring timeframe to three years for minor mitigation projects involving critical area or buffer revegetation or vegetation enhancement, but not for projects involving wetland creation, wetland restoration, stream restoration or other activities that require manipulation of soils or water.

The director shall have the authority to extend the monitoring period, require corrective measures, and/or require additional monitoring reports beyond the initial monitoring period for any project that does not meet the performance standards identified in the mitigation plan, or does not provide adequate replacement for the functions and values of the impacted critical area.

Permanent protection shall be achieved through deed restriction or other protective covenant in accordance with WCC § 16.16.265.

Mitigation Assurance.

The applicant and his/her representatives shall demonstrate sufficient scientific expertise and capability to implement the mitigation, monitor the site, and make corrections if the project fails to meet projected goals. The director may require the following to ensure that the mitigation is fully functional:

The applicant shall post a mitigation surety in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater. The surety 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.

The surety shall be in the form of an assignment of funds or other means approved by the director.

Surety authorized by this section shall remain in effect until the director determines, in writing, that the standards bonded for have been met. Surety shall generally be held by the county for a period of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary. Surety for construction may be reduced after initial completion in an amount not to exceed the cost of monitoring plus not less than 25 percent of the construction cost.

Depletion, failure, or collection of surety funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, or monitoring.

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, or monitoring.

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 subject to the provisions of WCC § 16.16.285, and the county may demand payment of any financial guarantees or require other action authorized by the county code or any other law.

Any funds recovered pursuant to this section shall be used to complete the required mitigation or equivalent.

Permanent Protection. All mitigation areas shall be protected and managed to prevent degradation and ensure protection of critical area functions and values in perpetuity. Permanent protection shall be achieved through deed restriction or other protective covenant in accordance with WCC § 16.16.265. If additional development is proposed that impacts a mitigation area and those impacts are accounted for under a new, approved mitigation plan, such protection may be removed so long as the final plan meets the requirements of this chapter for all cumulative impacts.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.261 Alternative mitigation plans.

The county shall consider and may approve alternative mitigation plans for major developments (as defined in Article 9 of this chapter), planned unit developments (pursuant to Chapter 20.85 WCC), and/or development agreements (pursuant to RCW 36.70B.170 through 36.70B.210).

If approved, said plan shall be used to satisfy the requirements of this chapter and provide relief and/or deviation as appropriate from the specific standards and requirements thereof; provided, that the standards of impact avoidance and minimization shall remain as guiding principles in the application of these provisions and when it is demonstrated that all of the following circumstances exist:

The proponent(s) demonstrate the organizational and fiscal capability to carry out the purpose and intent of the plan;

The proponent(s) demonstrate that long-term management, maintenance, and monitoring will be adequately funded and effectively implemented;

There is a clear likelihood for success of the proposed plan based on supporting scientific information or demonstrated experience in implementing similar plans;

In terms of functional value, the proposed mitigation plan results in equal or greater protection and conservation of critical areas functions, services, and values than would be achieved using parcel-by-parcel regulations and/or traditional mitigation approaches;

The plan is consistent with the general purpose and intent of this chapter, the Shoreline Management Program (WCC Title 23), and the comprehensive plan;

The plan shall contain relevant management strategies considered effective and within the scope of this chapter and shall document when, where, and how such strategies substitute for compliance with the specific standards herein; and

The plan shall contain clear and measurable standards for achieving compliance with the purposes of this chapter, a description of how such standards will be monitored and measured over the life of the plan, and a fully funded contingency plan if any element of the plan does not meet standards for compliance.

Alternative mitigation plans shall be reviewed concurrently with the underlying land use permit(s) and decisions to approve or deny such plans shall be made in accordance with the underlying permit process. The plan shall be reviewed by the director to ensure compliance with the general purpose and intent of this chapter and to ensure accuracy of the data and effectiveness of proposed management strategies. In making this determination the director shall consult with the State Departments of Fish and Wildlife, Ecology, Natural Resources, and/or other local, state, federal, and/or tribal agencies or experts. If the director finds the plan to be complete, accurate, and consistent with the purposes and intent of this chapter, the designated decision maker shall solicit comment pursuant to the public notice provisions of Chapter 22.05 WCC prior to final approval/denial of permission of the plan to substitute for the requirements and standards of this chapter.

(Formerly 16.16.260(E); Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.262 Watershed-based management plans.

The county may consider watershed-based management plans sponsored by watershed improvement districts, other special purpose districts, or other government agencies.

The proponent(s) demonstrate the organizational and fiscal capability to carry out the purpose and intent of the plan;

The proponent(s) demonstrate that long-term management, maintenance, and monitoring of the watershed will be adequately funded and effectively implemented;

There is a clear likelihood for success of the proposed plan based on supporting scientific information or demonstrated experience in implementing similar plans;

In terms of functional value, the proposed mitigation plan results in equal or greater restoration, protection, and conservation of the impacted critical areas than would be achieved using parcel-by-parcel regulations and/or traditional mitigation approaches;

The plan is consistent with the general purpose and intent of this chapter, the comprehensive plan, and an approved watershed plan prepared pursuant to Chapter 90.82 RCW (the State Watershed Planning Act) or the plan is prepared under other local or state authority that is consistent with the goals and policies of an applicable and approved watershed plan prepared pursuant to Chapter 90.82 RCW;

Watershed-based management plans shall be approved by the county council by ordinance and appended to this chapter. The process for approval shall be as follows:

The plan shall be reviewed by the director to ensure compliance with the purposes of this chapter, the Whatcom County Shoreline Management Program (WCC Title 23), and with the comprehensive plan, and to ensure accuracy of the data and effectiveness of proposed management strategies. In making this determination the director shall consult with the State Departments of Fish and Wildlife, Ecology, Natural Resources, and/or other local, state, federal, and/or tribal agencies or experts.

If the director finds the plan to be complete, accurate, and consistent with the purposes and intent of this chapter, the designated decision maker shall solicit comments pursuant to the public notice provisions of Chapter 22.05 WCC prior to final approval/denial of permission of the plan to substitute for the requirements and standards of this chapter.

The designated decision maker shall not approve watershed-based management plans that conflict with Chapter 90.82 RCW.

(Formerly 16.16.260(E); Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.263 Mitigation banks.

Mitigation Bank Credits. The county may approve the use of mitigation bank credits as a form of compensatory mitigation for wetland and habitat conservation area impacts when the provisions of this chapter require mitigation and when it is clearly demonstrated that the use of a bank will provide equivalent or greater replacement of critical area functions and values when compared to on-site mitigation; provided, that all of the following criteria are met:

Banks shall only be used when they provide significant ecological benefits, including long-term conservation of critical areas, important species, habitats and/or habitat linkages, and when they are consistent with the county comprehensive plan and create a viable alternative to the piecemeal mitigation for individual project impacts to achieve ecosystem-based conservation goals.

The bank shall be established in accordance with the Washington State Draft Mitigation Banking Rule, Chapter 173-700 WAC or as revised, and Chapter 90.84 RCW and the federal mitigation banking guidelines as outlined in the Federal Register, Volume 60, No. 228, November 28, 1995. These guidelines establish the procedural and technical criteria that banks must meet to obtain state and federal certification.

Preference shall be given to mitigation banks that implement restoration actions that have been identified formally by an adopted shoreline restoration plan, watershed planning document prepared and adopted pursuant to Chapter 90.82 RCW, a salmonid recovery plan or project that has been identified on the Watershed Management Board habitat project list or by the Washington State Department of Fish and Wildlife as essential for fish and wildlife habitat enhancement.

Establishing a Mitigation Bank. Establishing a mitigation bank shall require a major project permit in accordance with Chapter 20.88 WCC and shall be subject to a formal review process including public review as follows:

The bank sponsor shall submit a bank prospectus for county review. The prospectus shall identify the conceptual plan for the mitigation bank, including:

The ecological goals and objectives of the bank;

The rationale for site selection, including a site map and legal description of the prospective bank site;

A narrative demonstrating compliance with the Whatcom County comprehensive plan, associated development standards and this chapter, shoreline restoration plan, watershed planning documents prepared and adopted pursuant to Chapter 90.82 RCW, and/or the salmonid recovery plan;

A description of the existing site conditions and expected changes in site conditions as a result of the banking activity, including changes on neighboring lands;

A conceptual site design;

A description of the proposed protective mechanism such as a conservation easement; and

Demonstration of adequate financial resources to plan, implement, maintain, and administer the project.

The director shall review the bank prospectus either by participating in the state's Mitigation Bank Review Team (MBRT) process and/or by hiring independent, third-party expertise to assist in the review.

If the director determines that the bank prospectus is complete, technically accurate, and consistent with the purpose and intent of this chapter, s/he shall forward the prospectus to the county council for initial review. If the proposed bank involves conversion of agricultural land to nonagricultural uses, the county council shall seek a recommendation from the agricultural advisory committee as to whether the conversion should be allowed. The committee's recommendation shall be nonbinding. The county council may require mitigation for the loss of agricultural lands.

If the county council determines, based on the initial review, that the prospectus is valid, it shall issue a notice to proceed to the bank sponsor. Following receipt of the notice to proceed, the bank sponsor may submit application for a major project permit in accordance with Chapter 20.88 WCC. The notice to proceed shall not be construed as final approval of the bank proposal, but shall indicate approval to proceed with the development of the mitigation bank instrument, which details all of the legal requirements for the bank.

Upon receipt of a draft mitigation banking instrument from the bank sponsor and major project permit application, the director shall review the banking instrument and major project permit in consultation with the MBRT and/or other third-party experts. Following review of the mitigation banking instrument and major project permit, the director shall make a recommendation to certify and approve, conditionally certify and approve, or deny the bank proposal and major project permit in accordance with the provisions of Chapters 20.88 and 22.05 WCC.

Following receipt of the recommendation, the county council shall proceed with review in accordance with the provisions outlined in Chapters 20.88 and 22.05 WCC.

The bank sponsor shall be responsible for the cost of any third-party review.

Award of Bank Credits. The award of bank credits for an approved bank may be negotiated based on habitat acreage, habitat quality, and contribution to a regional conservation strategy that has been approved by the county and other appropriate regulatory agency(ies). Credit availability may vary in accordance with agreed-upon performance criteria for the development of the resource value in question. Awarded bank credits, subject to the approval of the county and regulatory agency(ies), may be made transferable. Whether out-of-kind mitigation credit will be allowed at a particular bank will require a fact-specific inquiry on a case-by-case basis for the project creating the impacts.

Use of Bank Credits.

Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:

The bank is certified under state rules;

The administrator determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.

Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.

Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.

(Formerly 16.16.260(F); Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.264 In-lieu fees.

To aid in the implementation of off-site mitigation, the county may develop an in-lieu-fee program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in-lieu-fee mitigation, and state water quality regulations. An approved in-lieu-fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu-fee program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in-lieu-fee program may be used when subsections A through F of this section apply:

The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.

The mitigation will occur on a site identified using the site selection and prioritization process in the approved in-lieu-fee program instrument.

The proposed use of credits is consistent with the terms and conditions of the approved in-lieu-fee program instrument.

Land acquisition and initial physical and biological improvements of the mitigation site must be completed within five years of the credit sale.

Projects using in-lieu-fee credits shall have debits associated with the proposed impacts calculated by the applicant's qualified wetland scientist using the method consistent with the credit assessment method specified in the approved instrument for the in-lieu-fee program.

Credits from an approved in-lieu-fee program may be used to compensate for impacts located within the service area specified in the approved in-lieu-fee instrument.

(Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.265 Critical areas protective measures.

General Measures (Applicable to All Projects).

Building Setbacks. Buildings and other structures shall be set back a minimum distance of 10 feet from the edge of geological hazard setback, a critical area buffer, or from the critical area where no buffer is required, unless otherwise determined by the director that a shorter distance will suffice. This setback is to avoid conflicts with tree branches and/or critical root zones of trees that are in the buffer or will be planted in the buffer. The following uses may be allowed in the building setback from the buffer if they do not cause damage to the critical root zone of trees in the buffer:

Landscaping;

Uncovered decks less than 30 inches in height;

Building overhangs 18 inches or less;

Impervious surfaces, including driveways, parking lots, roads, and patios; provided, that such surfaces conform to the applicable water quality standards and that construction equipment does not enter or damage the buffer or critical area;

Clearing and grading;

Utilities, including wells, septic systems, and propane tanks with fuel capacities up to 500 gallons.

Temporary protection measures to identify location of critical areas and buffers such as construction fencing, erosion and sediment control, or similar shall be required during construction of the proposed project.

Project-Specific Measures. Based on the specifics of the project, the director will determine which of the following apply:

Tree Protection. If significant trees are identified, such that their drip line extends beyond the reduced buffer edge, the following tree protection requirements must be followed:

A tree protection area shall be designed to protect each tree or tree stand during site development and construction. Tree protection areas may vary widely in shape, but must extend a minimum of five feet beyond the existing tree canopy area along the outer edge of the drip line of the tree(s), unless otherwise approved by the department.

Tree protection areas shall be added and clearly labeled on all applicable site development and construction drawings submitted to the department.

Temporary construction fencing at least 30 inches tall shall be erected around the perimeter of the tree protection areas prior to the initiation of any clearing or grading. The fencing shall be posted with signage clearly identifying the tree protection area. The fencing shall remain in place through site development and construction.

No clearing, grading, filling or other development activities shall occur within the tree protection area, except where approved in advance by the department and shown on the approved plans for the proposal.

No vehicles, construction materials, fuel, or other materials shall be placed in tree protection areas. Movement of any vehicles within tree protection areas shall be prohibited.

No nails, rope, cable, signs, or fencing shall be attached to any tree proposed for retention in the tree protection area.

The department may approve the use of alternate tree protection techniques if an equal or greater level of protection will be provided.

Deterrent Devices. The director, as a condition of permit approval, may require that the outer boundary of a wetland or habitat conservation area and its buffer, a mitigation site, a designated open space, or a conservation easement be identified with signs, markers, and/or fencing to minimize potentially harmful intrusions from adjacent land uses, to alert citizens to a potential public health or safety risk associated with a critical area, or to accomplish other objectives specifically provided for elsewhere in this chapter. The director shall provide specifications on the type, content, and size of the signs prior to permit approval. The signs shall be posted near primary access points and approximately every 200 feet along the critical area boundary.

Notice on Title. The owner of any property containing any critical area or buffer that is not altered by a proposed development shall record a document with the county auditor real estate records, on a form provided by the director, and provide a copy of the filed notice to the department of planning and development services prior to the project permit being issued. This requirement may be waived by the director for certain geologically hazardous areas if s/he finds that the risk is so low as to not warrant notification (e.g., old alluvial deposits). The notice on title shall provide notice of:

The presence of a critical area(s) or buffer(s) on the property, and that limitations on actions in or affecting the critical area or buffer exist.

That restrictions on uses within the critical area apply until the director approves a change to the restriction(s) and such approval is filed.

Such notice on title shall not be required for a development proposal by a public agency or public or private utility within a right-of-way or easement for which they do not have fee-simple title.

Tracts and Easements. Prior to final approval of any project permit, the critical areas and required buffers within the review area (as specified in the review and reporting requirements of each article of this chapter) shall be protected using the following mechanisms:

For land divisions other than short plats, placed in a separate tract or tracts owned in common by all lots or dedicated to a public or private land trust for conservation.

For all other project permit types, placed in a protective conservation easement on a form provided or approved by Whatcom County.

Mitigation areas shall be placed in a native growth protection area (NGPA) easement, on a form provided or approved by Whatcom County.

Indemnification. At the director's discretion, when a permit is granted for development or use within a geologic, flood, or other hazard area, the property owner shall sign an indemnification agreement acknowledging hazards posed to the development and absolving the county of all responsibility, to be recorded against the property prior to permit issuance.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.270 Reasonable use exceptions.

If the application of this chapter would result in denial of all reasonable and economically viable use of a property, and if such reasonable and economically viable use of the property cannot be obtained by consideration of a variance, then a landowner may seek a reasonable use exception. Reasonable use exceptions are intended as a last resort when impacts to critical areas themselves (not just their buffers) cannot be avoided while allowing the applicant a reasonable and economically viable use of his or her property.

Requests for reasonable use exceptions shall be a Type III project permit application and shall follow the permitting procedures for variances found in WCC Title 22 (Land Use and Development).

If in the shoreline jurisdiction, reasonable use exceptions shall be processed per the shoreline variance procedures of WCC § 22.07.050 (Shoreline variances);

If not in the shoreline jurisdiction, then reasonable use exceptions shall be processed per the variance procedures of WCC § 22.05.024 (Variances (nonshoreline)).

The hearing examiner shall only grant a reasonable use exception under all of the following conditions:

The proposed development is otherwise allowed under Whatcom County Code.

There is no portion of the site where the provisions of this chapter allow reasonable economic use, including agricultural use or continuation of legal nonconforming uses.

The application of this chapter would deny all reasonable and economically viable use of the property so that there is no reasonable and economically viable use with a lesser impact on the critical area than that proposed.

There is no feasible alternative to the proposed activities that will provide reasonable economic use with less adverse impact on critical areas and/or buffers. Feasible alternatives may include, but are not limited to, locating the activity on a contiguous parcel that is under the ownership or control of the applicant, change in use, reduction in size, change in timing of activity, and/or revision of project design.

Activities will be located as far as possible from critical areas and the project employs all reasonable methods to avoid adverse effects on critical area functions and values, including maintaining existing vegetation, topography, and hydrology. Where both critical areas and buffer areas are located on a parcel, buffer areas shall be disturbed in preference to the critical area.

The proposed development does not pose a threat to the public health and safety.

The proposed activities comply with all state, local and federal laws, such as special flood hazard areas restrictions and on-site wastewater disposal.

Measures shall be taken to ensure the proposed activities will not cause degradation of groundwater or surface water quality, or adversely affect drinking water supply.

Any proposed modification to a critical area will be evaluated by the hearing examiner through consideration of an approved critical area assessment report and habitat management plan and will be the minimum modification necessary to allow reasonable use of the property.

10.

The inability of the applicant to derive reasonable use of the property is not the result of actions by the current or previous owners in segregating or dividing the property and/or creating the condition of lack of use after September 30, 2005.

11.

For single-family residences, the maximum impact area shall not exceed 10 percent of the lot area or 2,500 square feet, whichever is greater; provided, that in no instance shall it exceed 4,000 square feet. This impact area shall include the proposed residential structure as well as appurtenant development that is necessarily connected to the use and enjoyment of a single-family residence. Such appurtenant development includes garages, decks, driveways, parking, and all lawn and nonnative landscaping; except that when an extended driveway is necessary to access a portion of a development site with the least impact on critical area and/or buffers, those portions of the driveway and drainfields shall be excluded from the maximum impact area provided that the access road or driveway meets the standards of WCC § 16.16.620(D) or § 16.16.720(D), as applicable.

The hearing examiner may issue conditions of approval including modifications to the size and placement of structures and facilities to minimize impacts to critical areas and associated buffers. The hearing examiner may also specify mitigation requirements that ensure that all impacts are mitigated to the maximum extent feasible using best available science.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.273 Variances.

Where strict application of and compliance with the dimensional requirements of this chapter render an undue hardship, permit applicants may seek a variance for relief.

As described in WCC § 22.05.024 (Variances (non-shoreline)) there are two types of variances pertaining to this chapter: minor and major variances.

Minor variances shall be limited to variances for a 25 percent to 50 percent reduction of critical area buffers.

Major variances include all other variances.

Variance applications shall be processed pursuant to WCC § 22.05.024 (Variances (non-shoreline)), or if in the shoreline jurisdiction WCC § 22.07.050 (Shoreline variances), and meet the criteria therein.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.275 Nonconforming uses, structures, and lots.

The following provisions shall apply to legally existing uses, structures, or lots that do not meet the specific standards of this chapter:

The lawful use of any legal nonconforming building, structure, land, or premises existing on September 30, 2005, or authorized under a permit or approval issued, or otherwise vested, prior to that date may be continued, subject to this section and the provisions for a nonconforming structure in Chapter 20.83 WCC; provided, that agricultural activities shall conform to Article 8 of this chapter (Conservation Program on Agriculture Lands (CPAL)).

If a nonagricultural nonconforming use or structure is intentionally abandoned for a period of 12 months or more, then any future use shall be consistent with the provisions of this chapter.

Expansion, alteration, and/or intensification of a nonconforming use is prohibited.

Expansion, alteration, and/or intensification of a legal nonconforming building or structure (including normal maintenance and repair) is allowed unless such use will produce impacts that degrade the critical area, including but not limited to vegetation clearing; additional impervious surfaces; generation of surface water runoff; discharge or risk of discharge of pollutants; increased noise, light or glare; or increased risk associated with geologically hazardous areas.

Nonconforming structures that are completely destroyed by fire, explosion, flood, or other casualty may be restored or replaced in kind if there is no alternative that allows for compliance with the standards of this chapter; provided, that:

Intentional demolition or removal is not a casualty;

The reconstruction process is commenced within 18 months of the date of such damage; and

The reconstruction does not expand, enlarge, or otherwise increase the nonconformity, except as provided for in subsection D of this section.

Nonconforming uses, structures, and lots in the shoreline jurisdiction shall be governed by the shoreline management provisions of WCC Title 23.

When a project permit is sought for a parcel containing a nonconforming structure that has been intentionally abandoned for a period of five years or more, the director may require removal of the nonconforming building and restoration of the critical area or buffer in accordance with this chapter as a condition of permit approval.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.280 Appeals.

Final permit decisions shall be subject to appeal in accordance with the procedures of Chapter 22.05 WCC.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. C); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.285 Penalties and enforcement.

Any person who violates any of the provisions of this chapter shall be liable for a civil offense and may be fined a sum not to exceed $1,000 for each offense. After a notice of violation has been given, each day of site work in conjunction with the notice of violation shall constitute a separate offense.

The penalty provided in subsection A of this section shall be assessed and may be imposed by a notice in writing either by certified mail with return receipt requested or by personal service to the person incurring the same. The notice shall include the amount of the penalty imposed and shall describe the violation with reasonable particularity. In appropriate cases, corrective action shall be taken within a specific and reasonable time.

Within 30 business days after the notice is received, the person incurring the penalty may apply in writing to the county for remission or mitigation of such penalty. Upon receipt of the application, the county may remit or mitigate the penalty upon whatever terms the county in its discretion deems proper. The county's final decision on mitigation or revision shall be reviewed by the hearing examiner if the aggrieved party files a written appeal therewith of said decision within 10 business days of its issuance.

If work activity has occurred on a site in violation of this chapter, prompt corrective action, restoration, or mitigation of the site will be required when appropriate. If this provision is not complied with, the county may restore or mitigate the site and charge the property owner for the full cost of such an activity. Additionally, any and all permits or approvals issued by the county may be denied for that site for a period of up to six years.

In the event any person violates any of the provisions of this chapter, the county may issue a correction notice to be delivered to the owner or operator, or to be conspicuously posted at the site. In a nonemergency situation, such notice may include notice of the intent to issue a stop work order no less than 10 business days following the receipt of the correction notice, and provide for an administrative pre-deprivation hearing within 10 business days of the notice. In an emergency situation where there is a significant threat to public safety or the environment, the county may issue a stop work order. The stop work order shall include, in writing, the right to request an administrative pre-deprivation hearing within 72 hours following receipt of the stop work order. Failure to comply with the order to stop work shall be a gross misdemeanor punishable upon conviction by a minimum fine of $500.00 up to a maximum fine of $1,000 or one year in jail, or both. Under no circumstance may the court defer or suspend any portion of the minimum $500.00 fine for any conviction under this section. Each day or part thereof of noncompliance with said order to stop work shall constitute a separate offense.

The county may suspend or revoke a permit if the applicant violates the conditions or limitations set forth in the permit or exceeds the scope of the work set forth in the permit.

The prosecuting attorney may enforce compliance with this chapter by such injunctive, declaratory, or other actions as deemed necessary to ensure that violations are prevented, ceased, or abated.

Any person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have committed a violation for the purposes of the civil penalty.

After the Fact Permit Fee. After the fact permit application fees shall be double the amount established by the Unified Fee Schedule.

(Ord. 2005-068 § 1; Ord. 2009-013 § 2 (Exh. 2); Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.290 Conservation program on agriculture lands (CPAL).

Repealed by Ord. 2017-077 § 1 (Exh. A).

(Ord. 2005-068 § 1)

§ 16.16.295 Open space and conservation.

The following programs may be employed to minimize the burden to individual property owners from application of the provisions of this chapter:

Open Space. Any property owner whose property contains a critical area or buffer and who meets the applicable qualifying criteria may apply for open space taxation assessment pursuant to Chapter 84.34 RCW.

Native Growth Protection Area (NGPA) Easement. Any person who owns an identified critical area or its associated buffer may place an NGPA easement over that portion of the property by naming the county or its qualified designee under RCW 64.04.130 as beneficiary of the conservation. This NGPA easement may be in lieu of separate critical areas tracts that qualify for open space tax assessment described in subsection A of this section. The purpose of the easement shall be to preserve, protect, maintain, and limit use of the affected property. The terms of the NGPA easement may include prohibitions or restrictions on access and shall be approved by the property owner and the county.

Conservation Futures Fund. The county may consider using the conservation futures property tax fund as authorized by RCW 84.34.230 for the acquisition of properties containing significant critical areas and their associated buffers.

(Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))