Whatcom County, WA Article 7 Fish And Wildlife Habitat Conservation Areas (HCA)

§ 16.16.700 Purpose.

The purposes of this article are to:

A. Protect, restore, and maintain native fish and wildlife populations by protecting and conserving fish and wildlife habitat and protecting the ecological processes, functions and values, and biodiversity that sustain these resources.

B. Protect marine shorelines, valuable terrestrial habitats, lakes, ponds, rivers, and streams and their associated riparian areas, and the ecosystem processes on which these areas depend.

C. Regulate development so that isolated populations of species are not created and habitat degradation and fragmentation are minimized.

D. Maintain the natural geographic distribution, connectivity, and quality of fish and wildlife habitat and ensure no net loss of such important habitats, including cumulative impacts.

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

§ 16.16.710 Habitat conservation areas – Designation, mapping, and classification.

A. Habitat conservation areas are those areas identified as being of critical importance to the maintenance of certain fish, wildlife, and/or plant species. These areas are typically identified either by known point locations of specific species (such as a nest or den) or by habitat areas or both. All areas within the county meeting these criteria are hereby designated critical areas and are subject to the provisions of this article.

B. The approximate location and extent of identified fish, wildlife, and sensitive plant habitat areas are shown on the county's critical area maps as well as state and federal maps. A property-specific assessment is necessary to determine the extent of the HCA.

C. Habitat conservation areas shall include all of the following:

1. Surface Waters of the State.

a. All water bodies that meet the criteria for Type S, F, Np, or Ns waters as set forth in WAC 222-16-030 of the Washington Department of Natural Resources (DNR) Water Typing System, as now or hereafter amended.

i. Type S waters are those surface waters which meet the criteria of the Washington Department of Natural Resources, WAC 222-16-030(1) as now or hereafter amended, as a Type S water and are inventoried as "shorelines of the state" under the Shoreline Management Master Program for Whatcom County, pursuant to Chapter 90.58 RCW. Type S waters contain salmonid fish habitat.

ii. Type F waters are those surface waters which meet the criteria of the Washington Department of Natural Resources, WAC 222-16-030(2) as now or hereafter amended, as Type F water. Type F waters contain habitat for salmonid fish, game fish and other anadromous fish.

iii. Type Np waters are those surface waters which meet the criteria of the Washington Department of Natural Resources, WAC 222-16-030(3) as now or hereafter amended, as Type Np water. Type Np waters do not contain fish habitat.

iv. Type Ns waters are those surface waters which meet the criteria of the Washington Department of Natural Resources, WAC 222-16-030(4) as now or hereafter amended, as a Type Ns water. These streams are areas of perennial or intermittent seepage, ponds, and drainage ways having short periods of spring or storm runoff. Type Ns waters do not contain fish.

2. Ditches or other artificial watercourses are considered streams for the purposes of this chapter when:

a. Used to convey natural streams existing prior to human alteration; and/or

b. The waterway is used by anadromous or resident salmonid or other resident fish populations; or

c. Flows directly into shellfish habitat conservation areas.

3. Areas in which federally listed species are found, have a primary association with, or contain suitable or federally defined critical habitat for said listed species, as listed in the U.S. Fish and Wildlife's Threatened and Endangered Species List or Critical Habitat List (http://ecos.fws.gov/ecp/) or the National Marine Fisheries Service (NMFS) (https://www.fisheries.noaa.gov/species-directory/threatened-endangered), as amended.

4. Areas in which state-listed priority species are found, have a primary association with, or contain suitable habitat for said listed species, as listed in the Washington Department of Fish and Wildlife's Priority Habitats and Species List. (http://wdfw.wa.gov/mapping/phs/), as amended.

5. State priority habitats and areas associated with state priority species as listed in Washington Department of Fish and Wildlife's Priority Habitats and Species List (http://wdfw.wa.gov/mapping/phs/ or http://wdfw.wa.gov/conservation/phs/list/), as amended.

6. Areas in which state-listed rare plant species are found, or contain suitable habitat for said listed species, as listed in the Department of Natural Resources' Natural Heritage Program, as amended.

7. Areas in which state-listed saltwater critical areas are found, as listed in WAC 173-26-221(2)(c)(iii).

8. Areas in which state-listed freshwater critical areas are found, as listed in WAC 173-26-221(2)(c)(iv).

9. Naturally occurring or manmade ponds and lakes under 20 acres in size and created prior to September 30, 2005, excluding agricultural, fire protection, and stormwater facilities.

10. Waters of the state.

11. Natural area preserves, aquatic reserves, and natural resource conservation areas as defined by the Washington Department of Natural Resources.

12. Portions of the San Juan Islands National Monument within Whatcom County (including Chuckanut Rock, tip of Eliza Island, Eliza Island Rocks, Lummi Rocks, Baker's Reef, Carter Point, Carter Point Rock, and Seal Rock at the north end of Lummi Island, and subsequently designated areas).

13. Frequently flooded areas that are subject to the Federal Emergency Management Agency's National Flood Insurance Program Biological Opinion (FEMA BiOp).

14. Species and Habitats of Local Importance. Locally important species and habitats that have recreational, cultural, and/or economic value to citizens of Whatcom County, including the following:

a. Species. The department of planning and development services shall maintain a current list of species of local importance as designated by the county council.

b. Habitats.

i. The marine nearshore habitat, including coastal lagoons, and the associated vegetated marine riparian zone. These areas support productive eelgrass beds, marine algal turf, and kelp beds that provide habitat for numerous priority fish and wildlife species including, but not limited to, forage fish, seabird and shorebird foraging and nesting sites, and harbor seal pupping and haulout sites. This designation applies to the area from the extreme low tide limit to the upper limits of the shoreline jurisdiction; provided, that reaches of the marine shoreline that were lawfully developed for commercial and industrial uses prior to the original adoption of this chapter may be excluded from this designation, but not otherwise exempt from this chapter.

ii. The Chuckanut wildlife corridor, which extends east from Chuckanut Bay and adjacent marine waters, including Chuckanut Mountain, Lookout Mountain, the northern portions of Anderson Mountain, and Stewart Mountain continuing along the southern Whatcom County border to Mount Baker/Snoqualmie National Forest boundary. This area represents the last remaining place in the Puget Trough where the natural land cover of the Cascades continues to the shore of Puget Sound.

iii. The department of planning and development services shall maintain a current list and map of habitats of local importance, as designated by the county council.

D. In addition to the species, habitats, and wildlife corridors identified in subsection (C)(14) of this section, the council may designate additional species, habitats of local importance, and/or wildlife corridors as follows:

1. In order to nominate an area, species, or corridor to the category of "locally important," an individual or organization must:

a. Demonstrate a need for special consideration based on:

i. Identified species of declining population;

ii. Documented species sensitive to habitat manipulation and cumulative loss;

iii. Commercial, recreational, cultural, biological, or other special value; or

iv. Maintenance of connectivity between habitat areas;

b. Propose relevant management strategies considered effective and within the scope of this chapter;

c. Identify effects on property ownership and use; and

d. Provide a map showing the species or habitat location(s).

2. Submitted proposals shall be reviewed by the county and may be forwarded to the State Departments of Fish and Wildlife, Natural Resources, and/or other local, state, federal, and/or tribal agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies.

3. If the proposal is found to be complete, accurate, and consistent with the purposes and intent of this chapter and the various goals and objectives of the Whatcom County comprehensive plan and the Growth Management Act, the county council will hold a public hearing to solicit comment. Approved nominations will become designated locally important habitats, species, or corridors and will be subject to the provisions of this chapter.

4. The council may remove species, habitats, or corridors from this list if it can be shown that there is no longer a need to provide protection beyond that afforded by WDFW management strategies. Species and habitats of local importance that are not regulated elsewhere in this chapter may be removed if sufficient evidence has been provided by qualified professionals that demonstrates that the species no longer meets any provisions of subsection (D)(1)(a) of this section.

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

§ 16.16.720 Habitat conservation areas – Use and modification.

The following activities may be permitted in habitat conservation areas and/or their buffers when, pursuant to this chapter (Critical Areas), all reasonable measures have been taken to avoid adverse effects on species and habitats, any applicable Washington Department of Fish and Wildlife management recommendations have been applied, mitigation is provided for all adverse impacts that cannot be avoided, and the amount and degree of the alteration are limited to the minimum needed to accomplish the project purpose; provided, that locally important species and habitats shall be subject to WCC § 16.16.710(C)(12):

A. Reasonable Use. Developments that meet the reasonable use or variance standards set forth in WCC § 16.16.270 and § 16.16.273, respectively.

B. Utilities.

1. Utility lines and facilities may be permitted when all of the following criteria are met:

a. The least impactful construction or installation methodology is used as demonstrated through an alternatives analysis.

b. Impacts to fish and wildlife habitat and/or corridors shall be avoided to the maximum extent possible.

c. Where feasible, installation shall be accomplished by boring beneath the scour depth of the stream or water body and the width of the channel migration zone where present.

d. Trenching of utilities across a stream channel shall be conducted as perpendicular to the channel centerline as possible whenever boring under the channel is not feasible. Utilities shall be installed below potential scour depth regardless of method.

e. Crossings shall be contained within the footprint of an existing road or utility crossing where possible.

f. The utility installation shall not increase or decrease the natural rate, extent, or opportunity of channel migration.

2. On-site sewage disposal systems (OSS) may be permitted in FWHCA buffers when accessory to an approved single-family residence when:

a. It is not feasible to connect to a public sanitary sewer system; and

b. It is located as far as possible from the FWHCA buffer; and

c. It is operated and maintained in accordance with WCC § 24.05.280; provided, that adverse effects on water quality are avoided.

3. Domestic wells serving single-family developments (including plats, short plats, and individual single-family residences) and necessary appurtenances, including a pump and appropriately sized pump house, but not including a storage tank, in HCA buffers when all of the following conditions are met:

a. There is no viable alternative to the well site outside of the buffer and the well is located as far back from the wetland edge as is feasible;

b. Any impacts to the HCA buffer from staging equipment and the well-drilling process are mitigated.

C. Stream crossings, provided they meet all the following criteria:

1. The stream crossing is for an allowed use.

2. There is no other feasible alternative route with less impact on critical areas.

3. The crossing minimizes interruption of natural processes such as channel migration, the downstream movement of wood and gravel, and the movement of all fish and wildlife. Bridges are preferred for all stream crossings and should be designed to maintain the existing stream substrate and gradient, span the bankfull width, or be proven to not have an appreciable increase in backwater elevation at a minimum of a 100-year event and provide adequate vertical clearance for debris likely to be encountered at high water.

4. Culverts shall be designed according to applicable state and federal guidance criteria for fish passage as identified in Water Crossing Design Guidelines, WDFW 2013, as amended, and/or the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000 (and subsequent revisions), and in accordance with a state hydraulic project approval. The applicant or property owner shall maintain fish passage.

5. The county may require that existing culverts be removed, replaced, or fish passage barrier status corrected as a condition of approval if the culvert is detrimental to fish passage or water quality.

6. Roadway widths at culvert crossings shall be limited to the minimum width necessary to accommodate the roadway's classification. Culvert length shall be the minimum that is compatible with the roadway width.

7. Shared common crossings are the preferred approach where multiple properties can be accessed by one crossing.

D. Private Access. Access to private development sites may be permitted to cross FWHCAs and their buffers if:

1. There are no feasible alternative alignments. Alternative access shall be pursued to the maximum extent feasible, including through the provisions of Chapter 8.24 RCW.

2. The access is designed to cause the least impact to the habitat conservation area and/or its buffer (which may require the applicant to apply for an exception or deviation from the development standards).

3. Access is not achievable through the administrative provisions of WCC § 16.16.740 (Habitat conservation area buffer modification).

E. Agricultural Uses. Construction or improvements, other than buildings, that are associated with an agricultural use in the outer 25 percent of the CPAL designated buffer; or the reconstruction, remodeling, or maintenance of such structures in a habitat conservation area buffer, subject to all of the following criteria:

1. The structure is located within an existing lot of record and is an ongoing agricultural use.

2. There is no other feasible location with less impact to critical areas. However, this provision does not apply to the reconstruction, maintenance and/or remodeling of preexisting structures.

3. Clearing and grading activity and impervious surfaces are limited to the minimum necessary to accommodate the proposed structure and, where possible, surfaces shall be made of pervious materials.

4. Unavoidable adverse effects on critical areas are mitigated in accordance with this chapter.

F. Stormwater Management Facilities.

1. Stormwater management facilities limited to detention/retention/treatment ponds, media filtration, lagoons and infiltration basins may be permitted in a stream buffer, subject to all of the following standards:

a. The facility is located in the outer 50 percent of the standard stream buffer and does not displace or impact a forested riparian community;

b. There is no other feasible location for the stormwater facility and the facility is located, constructed, and maintained in a manner that minimizes adverse effects on the buffer and adjacent critical areas;

c. The stormwater facility meets applicable county or state stormwater management standards and the discharge water meets state water quality standards; and

d. Low impact development approaches have been considered and implemented to the maximum extent feasible.

2. Stormwater conveyance or discharge facilities such as dispersion trenches, level spreaders, and outfalls may be permitted in a habitat conservation area buffer on a case-by-case basis when the director determines that all of the following are met:

a. Due to topographic or other physical constraints, there are no feasible locations for these facilities outside the buffer;

b. The discharge is located as far from the ordinary high water mark as possible and in a manner that minimizes disturbance of soils and vegetation, except on shoreline slopes where location shall be determined by site characteristics to minimize adverse impacts;

c. The discharge outlet is designed to prevent erosion and promote infiltration;

d. The discharge meets freshwater and marine state water quality standards, including the need to evaluate cumulative impacts to 303(d) impaired water bodies and total maximum daily load (TMDL) standards as appropriate at the point of discharge. Standards should include filtration through mechanical or biological means, vegetation retention, timely reseeding of disturbed areas, use of grass-lined bioswales for drainage, and other mechanisms as appropriate within approved stormwater "special districts"; and

e. The discharge outlet is designed to exclude fish from entering or migrating into stormwater conveyance systems.

3. Phosphorus-reducing BMP structures approved and installed through the homeowners' improvement program (or as may be renamed) within the Lake Whatcom watershed to treat runoff from existing development may be permitted within fish and wildlife habitat conservation area buffers; provided, that they are located the maximum feasible distance from the ordinary high water mark.

G. Recreation.

1. Trails. Construction of trails may be permitted in a habitat conservation area buffer when not directly related to a crossing and are subject to all of the following standards:

a. There is no other feasible alternative route with less impact on the critical area.

b. The trail minimizes erosion and sedimentation, hydrologic alteration, and disruption of natural processes such as channel migration, wood recruitment and natural wildlife movement patterns.

c. Private trails shall not exceed four feet in width, and public trails shall not exceed 10 feet in width, though some portions may be wider to meet the requirements of the Americans with Disabilities Act.

d. They shall be made of pervious material or elevated where feasible.

e. They shall be designed to avoid removal of significant trees.

f. Trails may include limited viewing platforms that shall not exceed eight feet in width and shall be made of pervious materials where feasible.

g. The trail through riparian (stream) buffer shall be located in the outer 25 percent of the standard buffer, unless necessary to provide educational opportunities.

h. The trail is constructed and maintained in a manner that minimizes disturbance of the buffer and associated critical areas.

2. Marinas and Launch Ramps. Construction, reconstruction, repair, and maintenance of marinas and launch ramps may be permitted when consistent with the regulations found in WCC § 23.40.060 (Marinas and launch ramps), regardless of whether the proposed project is within shoreline jurisdiction or not.

3. Docks. Construction, reconstruction, repair, and maintenance of docks may be permitted when consistent with the Army Corps of Engineers' Regional General Permit 6 (Structures in Inland Marine Waters of Washington State) and the regulations found in WCC § 23.40.150 (Mooring structures), regardless of whether or not the proposed project is within shoreline jurisdiction.

4. Accessory Structures. When located in the shoreline jurisdiction, residential recreational accessory structures – such as a boat equipment storage shed, a small uncovered boat storage rack, a fire pit, and a pathway leading to the shoreline – may be permitted in an HCA buffer; provided:

a. Such structures are located as far from the shoreline as feasible and on previously impacted buffer areas;

b. The maximum area, inclusive of existing lawfully established accessory structures, shall be limited to 10 percent of the buffer's area or 500 square feet, whichever is less;

c. No more than 20 percent of the linear length of shoreline is occupied by a building or structure;

d. Individual structures shall be limited to a total footprint area of 100 square feet and 10 feet in height; and

e. The shoreline is 75 percent or at ratios outlined in WCC § 16.16.760, whichever is greater, planted (or replanted) with native vegetation to a minimum depth of 15 feet landward from the ordinary high water mark.

f. This provision shall not apply to residential developments authorized using the constrained lot provisions of WCC § 23.40.150(B).

H. Relocation of streams, or portions of streams, when there is no other feasible alternative and when the relocation will result in equal or better habitat and water quality and quantity, and will not diminish the flow capacity of the stream or other natural stream processes; provided, that the relocation meets state hydraulic project approval requirements and that relocation of shoreline streams shall be prohibited unless the relocation has been identified formally by the Washington State Department of Fish and Wildlife as essential for fish and wildlife habitat enhancement or identified in watershed planning documents prepared and adopted pursuant to Chapter 90.82 RCW, the WRIA 1 Salmonid Recovery Plan, or the WRIA 1 Watershed Management Board Habitat Project List, or the county's shoreline restoration plan.

I. Clearing and grading, when allowed as part of an authorized activity or as otherwise allowed in these standards, may be permitted; provided, that the following shall apply:

1. Grading is allowed only during the designated dry season, which is typically regarded as May to October of each year; provided, that the county may extend or shorten the designated dry season on a case-by-case basis, based on actual weather conditions. Special scrutiny shall be given to Lakes Samish, Padden, and Whatcom watersheds, and water resource special management areas as described in WCC § 20.80.735.

2. Appropriate erosion and sediment control measures shall be used at all times, consistent with best management practices in the Department of Ecology's Stormwater Management Manual for Western Washington. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, disturbed topsoil shall be salvaged and/or redistributed to other areas of the site. Areas shall be revegetated as needed to stabilize the site.

3. The moisture-holding and infiltration capacity of the topsoil layer shall be maintained by minimizing soil compaction or reestablishing natural soil structure and infiltrative capacity on all are-as of the project area not covered by impervious surfaces.

J. Shoreline stabilization may be permitted when consistent with the shoreline stabilization regulations found in WCC § 23.40.190 (Shoreline stabilization), regardless of whether the proposed project is within shoreline jurisdiction or not.

K. Public flood protection measures may be permitted, subject to WCC Title 17, Article 4 of this chapter and a state hydraulic project approval; provided, that bioengineering or soft armoring techniques shall be used where feasible. Hard bank armoring may occur only in situations where soft approaches do not provide adequate protection.

L. In-stream structures such as, but not limited to, high-flow bypasses, dams, and weirs shall be allowed only as part of a watershed restoration project as defined pursuant to WCC Title 23 or identified in watershed planning documents prepared and adopted under Chapter 90.82 RCW, the salmonid recovery plan or Watershed Management Board habitat project list, and the county's shoreline restoration plan and upon acquisition of any required state or federal permits. The structure shall be designed to avoid adverse effects on stream flow, water quality, or other habitat functions and values.

M. All other development may be allowed in shellfish protection districts outside of actual shellfish habitats with a valid project permit and when the requirements of subsection (B)(2) of this section are met.

N. Alteration or removal of beaver-built structures more than two years old; provided, that:

1. The property owner can show that the beaver dam is harming or likely to harm his or her property.

2. It has been demonstrated that beaver deceivers or auto leveler devices cannot appropriately resolve ponding/backwatering that is negatively affecting adjacent land or property.

3. Impacts to wetland, river, or stream functions are minimized and mitigation is provided to compensate for lost ecological value.

4. The property owner obtains an HPA from WDFW prior to initiating alteration or removal of the beaver-built structure.

5. The property owner provides a copy of the HPA to the director.

O. On Eliza Island, applicants shall complete the U.S. Fish and Wildlife Service (USFWS) self-assessment to determine whether a USFWS bald eagle permit is needed and, if so, apply for one. Development activities near bald eagle habitat shall be carried out consistent with the National Bald Eagle Guidelines.

P. Timber Removal.

1. To allow for greater flexibility in a development proposal when an application has been submitted for a conversion option harvest plan (COHP) or a Class IV General FPA, an applicant has the opportunity to remove timber within the standard buffers if the applicant's mitigation measures incorporate all of the performance standards based upon water type listed in Table 3. In conformance with professional standards used by the Washington Department of Natural Resources for forest practices in sensitive areas, all removal of timber within HCA buffers shall be subject to conditions specified by the director in conjunction with an on-site technical team review in which participation by representatives of the proponent, Ecology, WDFW, WDNR and natural resource representatives of affected Indian tribes is solicited.

2. The intent of this section is to provide an additional opportunity for an applicant to propose some level of timber removal within the riparian habitat zone, as long as it can be demonstrated that the function of the buffer can be maintained at the levels described below. If the buffer, in its current state, cannot meet these standards, then the director will not be able to give its approval for any activity which would inhibit recovery of or degrade the current buffer.

3. The current performance of a given buffer area is compared to its potential performance as rated by the Natural Resources Conservation Service's most recent soil survey of Whatcom County. In consultation with a representative from the Natural Resource Conservation Service, soil conservation district, or professional forester, the applicant will determine the capability of the site for woodland management, using the most suitable tree species according to the soil survey, and establish the stand characteristics that would be expected from a mature stand of those species established on site.

4. If the current stand can exceed the riparian protection that could be expected based on site potential, then additional activity may be allowed provided the following performance standards can be met.

5. The provisions of this subsection P shall not apply within shoreline jurisdiction.

Table 3. Performance-Based Riparian Standards*
Water type	Performance Standards
Type S	Maintain 95 percent of total LWD recruitment expected to enter freshwater stream(s) from a mature stand; and
	Maintain 85 percent of the trees which are greater than 24 inches DBH within 100 feet of the water(s); and
	Maintain an average of 75 percent canopy cover (based on canopy densitometer readings at the water(s) edge).
	The applicant may further request some limited timber harvest of up to 30 percent of the merchantable timber within the outer 100 feet of any 200-foot required buffer provided the harvest:
	(a) Does not reduce the LWD and canopy requirements; and
	(b) The applicant will increase the total buffer size by 50 feet to mitigate for the limited timber harvest in the required buffer to provide additional wildlife habitat. The additional 50-foot buffer shall retain a minimum of 50 percent of the total number of trees with 25 percent of the total trees left having a diameter at breast height (DBH – four and one-half feet) greater than 12 inches; and
	(c) No more than 50 percent of the dominant trees in the outer 100 feet may be harvested.
Type F	Maintain 85 percent of total LWD recruitment expected to enter freshwater stream(s) from a mature stand; and
	Maintain 85 percent of the trees which are greater than 18 inches DBH within 100 feet of the water(s); and
	Maintain an average of 75 percent canopy cover (based on canopy densitometer readings at the water(s) edge).
Types Np and Ns	Maintain 50 percent of total LWD recruitment expected to enter freshwater stream(s) from a mature stand; and
	Maintain 85 percent of the trees which are greater than 24 inches DBH within 50 feet of the water(s); and
	Maintain an average of 75 percent canopy cover (based on canopy densitometer readings at the water(s) edge).

Notes:

* These standards must be exceeded before additional activity can be permitted within the riparian zone. Applicants electing to employ performance-based mitigation in accordance with the above matrix shall include appropriate analysis and justification in their site assessment/habitat management plan.

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

§ 16.16.730 Habitat conservation area buffers.

In addition to the applicable general protective measures found in WCC § 16.16.265 and § 16.16.720, the director shall have the authority to require buffers from the edges of all habitat conservation areas in accordance with the following:

A. General.

1. Buffers shall be established for activities adjacent to habitat conservation areas as necessary to protect the integrity, functions, and values of the resource. Buffer widths shall reflect the sensitivity of the species or habitat present and the type and intensity of the proposed adjacent human use or activity. Buffers shall not include areas that are functionally and effectively disconnected from the habitat conservation area by an existing legally established road or other substantially developed surface.

2. The standard buffer widths required by this section are considered to be the minimum required and presume the existence of a dense vegetation community in the buffer zone adequate to protect the ecological functions and values at the time of the proposed activity. When a buffer lacks adequate vegetation to protect critical area functions, the director may increase the standard buffer, require buffer planting or enhancement, and/or deny a proposal for buffer reduction or buffer averaging.

3. The standard buffer shall be measured landward horizontally from the edge of the ordinary high water mark as identified in the field. The required buffer shall be extended to include any abutting regulated wetland(s), landslide hazard areas, and/or erosion hazard areas and required buffers.

4. For streams, the standard buffer is measured from the ordinary high water mark on both sides of the stream; provided, that for streams with identified channel migration zones, the buffer shall extend outward horizontally from the outer edge of the channel migration zone on both sides.

5. Portions of streams that flow underground may be exempt from these buffer standards at the director's discretion when it can be demonstrated that no adverse effects on aquatic species will occur.

B. Habitat Conservation Areas Buffer Widths.

1. Standard buffer widths for habitat conservation areas shall be as identified in Table 4.

2. For habitat conservation areas not listed in Table 4, including those of locally important habitats and species and state priority habitats and areas with which federally listed or state priority species have a primary association, minimum buffers shall be based on a habitat management plan prepared pursuant to WCC § 16.16.750. The director shall have the authority to require a critical area assessment report and/or habitat management plan (HMP) pursuant to WCC § 16.16.750, and may require mitigation to ensure that unmitigated adverse effects do not occur.

Table 4. Buffer Requirements for HCAs
Habitat Conservation Area	Buffer Requirement
Type S – Freshwater	Streams – 200 feet
	Lakes – 100 feet
Type S – Marine	150 feet
Type F – Lake	100 feet
Type F – Stream	150 feet
Type Np	50 feet
Type Ns	50 feet
Manmade ponds identified in WCC § 16.16.710(C)(9)	25 feet, unless otherwise approved through a habitat management plan pursuant to subsection (B)(2) of this section, or a conservation farm plan pursuant to Article 8

(Formerly 16.16.740; Ord. 2005-068 § 1; Ord. 2017-077 § 1 (Exh. A); Ord. 2024-047 § 2 (Exh. F))

§ 16.16.740 Habitat conservation area buffer modification.

Buffer widths may be increased, decreased, or averaged in accordance with the following provisions, which provide flexible approaches to maximize both ecological functions and allowed uses. All mitigation proposed shall be consistent with this chapter.

A. Buffer Width Increasing. The director may require the standard buffer width to be increased or to establish a nonriparian buffer, when such buffers are necessary for one of the following:

1. To protect priority fish or wildlife using the HCA.

2. To provide connectivity when a Type S or F water body is located within 300 feet of:

a. Another Type S or F water body; or

b. A fish and wildlife HCA; or

c. A Category I, II or III wetland.

3. To comply with the requirements of a habitat management plan prepared pursuant to WCC § 16.16.750.

4. To protect fish and wildlife habitat, maintain water quality, ensure adequate flow conveyance, provide adequate recruitment for large woody debris, maintain adequate water temperatures, or maintain in-water conditions.

5. To compensate for degraded vegetation communities, Clean Water Act 303(d) impaired water bodies or steep slopes adjacent to the habitat conservation area.

6. To maintain areas for channel migration and/or frequently flooded areas.

7. To protect adjacent or downgradient areas from erosion, landslides, or other hazards.

8. To protect waters from high intensity adjacent land uses.

The increased buffer distance may be limited to those areas that provide connectivity or are necessary to protect habitat functions. Increasing the buffer widths will only be done where necessary to preserve the structure, function and value of the habitat.

B. Buffer Width Averaging.

1. Buffer width averaging allows limited reductions of buffer width in specified locations while requiring increases in others. Averaging of required buffer widths shall be allowed only where the applicant demonstrates that all of the following criteria are met:

a. The buffer has not been reduced pursuant to subsection C of this section. Buffer averaging is not allowed if the buffer has been reduced; and

b. Averaging is necessary to accomplish the purpose of the proposal and no reasonable alternative is available due to site constraints caused by existing physical characteristics such as slope, soils, or vegetation; and

c. The habitat contains variations in sensitivity due to existing physical characteristics; and

d. Averaging will not adversely impact the functions and values of fish and wildlife conservation areas; and

e. Averaging meets performance standards for protecting fish species; and

f. The total area contained within the buffer after averaging is no less than that contained within the standard buffer prior to averaging; and

g. The slopes adjacent to the habitat conservation area within the buffer area are stable and the gradient does not exceed 30 percent; and

h. The buffer width shall not be reduced below 75 percent of the standard buffer width.

2. In the specified locations where a buffer has been reduced to achieve averaging, the director may require enhancement to the remaining buffer to ensure no net loss of ecologic function, services, or value.

C. Buffer Width Reduction.

1. The director shall have the authority to reduce buffer widths on a case-by-case basis; provided, that the general standards for alternatives analysis and mitigation sequencing per WCC § 16.16.260 have been applied, and when the applicant demonstrates to the satisfaction of the director that all of the following criteria are met:

a. The buffer has not been averaged pursuant to subsection B of this section. Buffer reduction is not allowed if the buffer has been averaged.

b. The applicant demonstrates buffer averaging is not feasible.

c. The buffer shall not be reduced to less than 75 percent of the standard buffer specified in Table 4.

d. The slopes adjacent to the habitat conservation area within the buffer area are stable and the gradient does not exceed 30 percent (see Article 3 of this chapter).

e. The applicant has demonstrated application of mitigation sequencing as required in WCC § 16.16.260 (General mitigation requirements).

f. To minimize impacts and provide equivalent functions and values as required by this section, the director may require any or all of the following:

i. The use of alternative on-site wastewater systems in order to minimize site clearing, where appropriate;

ii. Using low impact development (LID) and LID best management practices where appropriate.

g. All buffer reduction impacts are mitigated and result in equal or greater protection of the HCA functions and values. This includes enhancement of existing degraded buffer area and providing mitigation for the disturbed buffer area.

2. In all circumstances when the buffer between the area of reduction and the habitat conservation area is degraded, this degraded portion of the buffer shall include replanting with native vegetation in order to achieve a dense vegetative community.

D. Buffer Width Variance. Standard buffer widths may be reduced by more than 25 percent through a variance pursuant to WCC § 16.16.273 (Variances); provided, that buffer averaging beyond that allowed in subsection B of this section is prohibited.

(Ord. 2024-047 § 2 (Exh. F))

§ 16.16.750 Habitat conservation areas – Review and reporting requirements.

A. When county critical area maps or other sources of credible information indicate that a site proposed for development or alteration is more likely than not to contain habitat conservation areas or buffers, or could adversely affect a habitat area or buffer, the director shall require a site evaluation (field investigation) by a qualified professional or other measures to determine whether or not the species or habitat is present. If no habitat conservation areas are present, then review will be considered complete. If the site evaluation determines that the species or habitat is present, the director shall require a critical areas assessment report or habitat management plan (HMP), except; provided, that:

1. No report or evaluation shall be required for developments outside of buffers within the upland portions of shellfish conservation areas.

2. The director shall have the authority to waive the report requirement when s/he determines that the project is a single-family building permit development that involves less than one-half acre of clearing and/or vegetation removal and will not directly disturb the species, or specific areas or habitat features that comprise the habitat conservation area (nest trees, breeding sites, etc.) as indicated by a site plan or scaled drawing of the proposed development.

B. In addition to the reporting requirements of WCC § 16.16.255, the habitat conservation area assessment report/HMP shall describe the characteristics of the subject property and adjacent areas, including condition, quality, function, and values of the habitat conservation area at a scale appropriate to the function being evaluated (see WAC 365-196-830(6)). The assessment shall include determination of appropriate buffers as set forth in WCC § 16.16.740. The assessment shall also include field identification and/or delineation of habitat areas, analysis of historical aerial photos, and review of public records as necessary to determine potential effects of the development action on critical areas. Assessment reports shall include the following site- and proposal-related information unless the director determines that any portion of these requirements is unnecessary given the scope and/or scale of the proposed development:

1. A map drawn to a common scale or survey showing the following information:

a. Topographic, hydrologic, and vegetative features.

b. The location and description of wildlife and habitat features, and all critical areas on or within 200 feet of the site, or farther, given the scale appropriate to the function being evaluated.

c. Proposed development activity.

d. Existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.

e. Surrounding land uses and zoning (to ensure appropriate buffer).

2. An analysis, including an analysis of cumulative impacts, of how the proposed development activities will affect the fish and wildlife habitat conservation area and/or buffer, including the area of direct disturbance; effects of stormwater management; effects on any 303(d) impaired water bodies; proposed alteration to surface or subsurface hydrology; natural drainage or infiltration patterns; clearing and grading impact; temporary construction impacts; effects of increased intensity of use (including noise, light, human intrusion, etc.).

3. Provisions to reduce or eliminate adverse impacts of the proposed development activities on the functions and values of the habitat conservation area including, but not limited to:

a. Buffering;

b. Clustering of development;

c. Retention of native vegetation;

d. Access limitations;

e. Seasonal restrictions on construction activities in accordance with the guidelines developed by the Washington State Department of Fish and Wildlife, the U.S. Army Corps of Engineers, the salmonid recovery plan and/or other agency or tribe with expertise and jurisdiction over the subject species/habitat; and

f. Other appropriate and proven low impact development techniques.

4. Management recommendations developed by WDFW through its Priority Habitat and Species program.

5. Additional information including, but not limited to, direct observations of species use or detailed physical and biological characteristics both on and off site at an appropriate scale (see WAC 365-196-830(6)). The assessment of off-site conditions shall be based on available information and shall not require accessing off-site properties.

6. Applicants near a bald eagle nest shall complete the U.S. Fish and Wildlife Service (USFWS) self-assessment to determine whether a USFWS bald eagle permit is needed and, if so, apply for one. Development activities near bald eagle habitat shall be carried out consistent with the National Bald Eagle Guidelines.

C. All habitat management plans should be prepared in consultation with the State Department of Fish and Wildlife and/or other federal, state, local or tribal resource agencies with jurisdiction and expertise in the subject species/habitat, and shall contain a review of the most current best available science applicable to the subject species/habitat.

D. For single-family building permits, the applicant may hire a qualified professional to prepare the assessment report or may request that the county assess the regulated HCA(s) and buffers and determine the impacts associated with the project, subject to the following:

1. Availability of county staff shall be at the discretion of the director and subject to workload and scheduling constraints.

2. Fees for county staff services shall be in accordance with the Unified Fee Schedule.

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

§ 16.16.760 Habitat conservation areas – Mitigation standards.

Activities that adversely affect habitat conservation areas and/or their buffers as determined by the director shall include mitigation sufficient to achieve no net loss of habitat functions and values or an ecological lift in accordance with WCC § 16.16.260 and this section.

A. Mitigation in the form of habitat restoration or enhancement is required when a habitat is altered permanently as a result of an approved project. Alterations shall not result in net loss of habitat.

B. All mitigation sites shall have buffers consistent with the buffer requirements established in WCC § 16.16.740; provided, that the director shall have the authority to approve a smaller buffer when existing site constraints (such as a road) prohibit attainment of the standard buffer. Mitigation actions shall not create buffer encumbrances on adjoining properties.

C. Mitigation projects involving in-water work including, but not limited to, installation of large woody debris shall be designed to ensure there are no adverse hydraulic effects on up- or down-gradient properties. The county public works river and flood division shall review any such mitigation projects for compliance with this provision.

D. As applicable, apply mitigation standards of the Army Corps of Engineer Regional General Permit 6 for inland marine waters as amended February 12, 2020.

E. For permanent impacts to habitat conservation areas or their buffers, mitigation shall be provided at the following ratios, unless the director approves a habitat management plan with greater ratios:

1. Where the mitigation is in place and functional before the impacts occur (i.e., advanced mitigation), at a ratio determined by the functions, values, and goals of an advanced mitigation plan.

2. Where the mitigation is in place within one year of the impact occurring, at a 1:1 ratio (area or function).

3. Where the mitigation is placed after one year of the impact occurring, at a 1.25:1 ratio (area or function).

4. For retroactive permits the director may require the ratio shall be up to double the ratio in subsection (E)(3) of this section.

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