The provisions of this chapter apply to all lands, land uses and development activity within the City. No action shall be taken by any person which results in any alteration of any critical areas except as consistent with the purposes, objectives, and goals of this chapter. The provisions of the current Lake Stevens Shoreline Master Program Appendix B apply to shoreline critical areas within Lake Stevens.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
(a) 
For any regulated activity, a critical areas report is required to support the requested activity. All land use and/or development activities on lands containing critical areas are subject to this chapter and are prohibited unless:
(1) 
The use or activity is found to be exempt by the Planning and Community Development Director or designee per the "allowed activities" sections of this chapter; or
(2) 
The use or activity meets the performance standards found in the "requirements" sections of this chapter; or
(3) 
It can be demonstrated that the denial of authorization of such an activity would deny all reasonable economic uses, as demonstrated per Section 14.88.310. In such a case, approval in writing shall be issued by the Planning and Community Development Director or designee. Approval of a reasonable economic use must be attached to another type of development permit obtained from the City of Lake Stevens prior to undertaking the regulated activity in the critical area or its buffer.
(b) 
Land use and development activities include, but are not limited to, the following activities:
(1) 
The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind.
(2) 
The dumping, discharging, or filling with any material.
(3) 
The draining, flooding, or disturbing of the water level or water table.
(4) 
The driving of pilings.
(5) 
The placing of obstructions.
(6) 
The construction, reconstruction, demolition, or expansion of any structure.
(7) 
The destruction or alteration of vegetation in a critical area through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a critical area.
(8) 
Class IV – General Forest Practices under the authority of the 1992 Washington State Forest Practices Act Rules and Regulations per WAC 222-12-030, or as thereafter amended.
(9) 
Activities that result in a significant change of water temperature, a significant change of physical or chemical characteristics of water sources, including quantity, or the introduction of pollutants.
(10) 
Land that is located wholly within a critical area or its buffer may not be subdivided, unless specifically allowed elsewhere in this chapter.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
Unless specifically prohibited elsewhere in this chapter, the following uses are allowed in any critical area or buffer; provided, that a site/resource-specific report prepared when the activity may result in a loss of functions and values, that describes the environmental limitations of and proposed mitigation for the site, shall be submitted, reviewed, and approved by the City prior to permit issuance or land use approval:
(a) 
Existing and ongoing agricultural activities; provided, that they implement applicable best management practices (BMPs) contained in the latest editions of the USDA Natural Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG); or develop a farm conservation plan in coordination with the local conservation district. BMPs and/or farm plans should address potential impacts from livestock, nutrient and farm chemicals, soil erosion and sediment control and agricultural drainage infrastructure. BMPs and/or farm plans should ensure that ongoing agricultural activities minimize their effects on water quality, riparian ecology, salmonid populations and wildlife habitat.
(b) 
Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class IV – General Forest Practice Permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
(c) 
The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of existing topography, water conditions, or water sources.
(d) 
Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved mechanical, biological or chemical treatments. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.
(e) 
Educational and scientific research activities.
(f) 
Public and Private Pedestrian Trails.
(1) 
Trails may be constructed within the outer 25 percent of the critical area buffers to wetlands and fish and wildlife conservation areas, except that trails may be located within the remainder of the critical area buffer when it is demonstrated through the site/resource-specific report that:
(i) 
No other alternative for the trail location exists which would provide the same educational and/or scientific research opportunities; and
(ii) 
The critical area functions and values will not be diminished as a result of the trail; and
(iii) 
The materials used to construct the trail will not harm the critical area; and
(iv) 
Raised boardwalks using nontreated pilings may be acceptable; and
(v) 
Land disturbance is minimized to the greatest extent possible including removal of significant trees; and
(vi) 
Where possible, the number of trails allowed in critical area buffers shall be limited.
(2) 
Trails proposed in geologically hazardous areas shall be constructed in a manner that does not increase the risk of landslide or erosion in accordance with an approved geotechnical report.
(g) 
Navigation aids and boundary markers.
(h) 
Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. In every case, impacts shall be minimized and disturbed areas shall be immediately restored.
(i) 
Normal maintenance, repair, or operation of existing structures, facilities, or improved areas.
(j) 
Installation or construction of City road right-of-way; or installation, replacement, operation, repair, alteration, or relocation of all water, natural gas, cable communication, telephone, or other utility lines, pipes, mains, equipment or appurtenances, not including substations or other buildings, only when required by the City and approved by the Planning and Community Development Director or designee and when avoidance of critical areas and impact minimization has been addressed during the siting of roads and other utilities and a detailed report/mitigation plan is submitted, reviewed, and approved by the City prior to permit issuance or land use approval.
(k) 
Minor expansion of uses or structures existing at the time of adoption of this code, and which are in compliance with all other chapters of this title; provided, that the applicant obtains all required local, State, and Federal permits, including but not limited to a Department of Fish and Wildlife Hydraulic Permit and a Clean Water Act 404 Permit, and the expansion does not create a loss of critical area and functions nor pose a significant threat to water quality. A site/resource-specific report and mitigation plan shall be prepared to describe the critical area, function, and water quality and submitted to the City for review and approval prior to permit issuance. For the purposes of this subsection, "minor expansion" refers to an addition to or alteration of a use or structure and shall be limited to a maximum of 1,000 square feet of impervious area.
(l) 
Stormwater Management Facilities. Dispersion outfalls, bioswales and other low impact facilities may be allowed within the outer 25 percent of the buffer to wetlands and fish and wildlife and conservation areas, when the location of such facilities will not degrade the function or values of the critical area based on the recommendation of a qualified professional for the specific critical area type. Stormwater management facilities in geologically hazardous areas shall be constructed in a manner that does not increase the risk of landslide or erosion in accordance with an approved geotechnical report.
(m) 
Emergency Activities. Those activities that are necessary to prevent an immediate threat to public health, safety, or welfare or pose an immediate risk of damage to private property, and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter.
(n) 
Development when the subject property is separated from a critical area by preexisting, intervening, and lawfully created structures, public roads, or other substantial improvements. The preexisting improvements must be found to separate the subject property from the critical area or impair the delivery of buffer functions.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
All land uses or development applications shall be reviewed to determine whether or not a critical area exists on the property for which the application is filed, what the action's impacts to any existing critical area would be, and what actions are required for compliance with this chapter. No construction activity, including land clearing or grading, shall be permitted until the information required by this section is reviewed and a plan is approved by the City.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
(a) 
Criteria for Best Available Science. The best available science is that scientific information applicable to the critical area prepared by local, State or Federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals, that is consistent with criteria established in WAC 365-195-900 through 365-195-925.
(b) 
Protection of Functions and Values and Fish Usage. Critical area studies and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat, such as salmon and bull trout.
(c) 
Lack of Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function or permitting an alteration of or impact to the critical area, the City shall:
(1) 
Take a precautionary or no-risk approach that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and
(2) 
Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberative scientific approach to taking action and obtaining information in the face of uncertainty. To effectively implement an adaptive management program, the City hereby commits to:
(i) 
Address funding for the research component of the adaptive management program;
(ii) 
Change course based on the results and interpretation of new information that resolves uncertainties; and
(iii) 
Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
Prior to fulfilling the requirements of this chapter, the City of Lake Stevens shall not grant any approval or permission to conduct development or use in a critical area. The Planning and Community Development Director or designee is authorized to adopt administrative procedures for the purpose of carrying out the provisions of this chapter.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
To enable the City to determine compliance with this chapter, at the time of application submittal, the applicant shall file a SEPA Environmental Checklist (if use is subject to SEPA), site/resource-specific reports as specified in Section 14.88.270, and any other pertinent information requested by the Department of Planning and Community Development. The Planning and Community Development Director or designee may waive any of these submittal requirements if deemed unnecessary to make a compliance determination.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
Unless waived per Section 14.88.260, all applications for land use or development permits proposed on properties containing or adjacent to critical areas or their defined setbacks or buffers shall include site/resource-specific reports prepared to describe the environmental limitations of the site. These reports shall conform in format and content to guidelines prepared by the Department of Planning and Community Development, which is hereby authorized to do so. The report shall be prepared by a qualified professional who is a biologist or a geotechnical engineer as applicable with experience preparing reports for the relevant type of critical area. The report and conclusions present in the critical area report shall be based on best available science.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
In the event that mitigation and/or enhancement is required, the Department of Planning and Community Development shall require the applicant to provide a mitigation plan for approval and a performance and maintenance bond in a form and amount acceptable to the City in accordance with Section 14.88.278. The plan shall provide information on land acquisition, construction, maintenance and monitoring of the replaced critical area that creates a no-net-loss area in function of the original area in terms of acreage, function, habitat, geographic location and setting. All mitigation plans shall include the following items, which shall be submitted by the applicant or a qualified biologist, civil or geotechnical engineer:
(a) 
Data collected and synthesized for the critical area and/or the newly restored site:
(1) 
Description of existing site conditions, critical areas and proposed buffers;
(2) 
Description of proposed impacts to critical areas and buffers and proposed plans to mitigate those impacts; and
(3) 
Documentation of best available science or site criteria supporting the proposed mitigation plan;
(b) 
Specific goals and objectives describing site function, target species, selection criteria and measures to avoid and minimize impacts shall include:
(1) 
Reducing or eliminating the impact over time by preservation and maintenance operations;
(2) 
Compensating for the impact by replacing, enhancing, or providing substitute resources or environments;
(3) 
Enhancing significantly degraded critical areas and buffers in combination with restoration or creation of wetlands and fish and wildlife conservation areas. Such enhancement should be part of a mitigation package that includes replacing the impacted area by meeting appropriate ratio requirements; and
(4) 
Unless it is demonstrated that a higher level of ecological functioning would result from an alternate approach, compensatory mitigation for ecological functions shall be either in-kind and on site, or in-kind and within the same stream reach, subbasin, or drift cell. Mitigation actions shall be conducted within the same subdrainage basin and on the same site as the alteration except as specifically provided for in Sections 14.88.440 and 14.88.840;
(c) 
Performance standards, which shall include criteria for assessing project specific goals and objectives and whether or not the requirements of this chapter have been met;
(d) 
Contingency plans which clearly define the course of action or corrective measures needed if performance standards are not met;
(e) 
A legal description and a survey prepared by a licensed surveyor of the proposed development site and location of the critical area(s) on the site;
(f) 
A scaled site plan that indicates the proposed timing, duration and location of construction in relation to zoning setback requirements and sequence of construction phases including cross-sectional details, topographic survey data (showing percent slope, existing and finished grade elevations at two-foot intervals or less), mitigation area, and water table elevation with sufficient detail to explain, illustrate and provide for:
(1) 
Soil and substrate conditions, topographic elevations, scope of grading and excavation proposal, erosion and sediment treatment and source controls needed for critical area construction and maintenance;
(2) 
Planting plans specifying plant species, types, quantities, location, size, spacing, or density. The planting season or timing, watering schedule, and nutrient requirements for planting, and where appropriate, measures to protect plants from destruction; and
(3) 
Contingency or mid-course corrections plan and a minimum five-year monitoring and replacement plan establishing responsibility for removal of exotic and nuisance vegetation and permanent establishment of the critical area and all component parts. The monitoring plan is subject to the provisions of Sections 14.88.277 and 14.88.278;
(g) 
A clearly defined approach to assess progress of the project, including the measurement of the success of a mitigation project by the presence of native species and an increase in the coverage of native plants over the course of the monitoring period;
(h) 
The plan must indicate ownership, size, type, and complete ecological assessment including flora, fauna, hydrology, functions, etc., of the critical area being restored or created; and
(i) 
The plan must also provide information on the natural suitability of the proposed site for establishing the replaced critical area, including water source and drainage patterns, topographic position, wildlife habitat opportunities, and value of existing area to be converted.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
The Director or designee may approve the establishment and use of a mitigation bank or in-lieu fee mitigation program to provide mitigation required by this chapter. The approval may allow deviations from the requirements of Parts IV and VIII of this chapter with respect to the treatment of wetlands and fish and wildlife habitat conservation areas or buffers.
(a) 
Credits from a mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands and fish and wildlife habitat conservation areas or buffers when:
(1) 
Criteria in Sections 14.88.440 and 14.88.840 are met;
(2) 
The bank is certified under Chapter 173-700 WAC;
(3) 
The Department determines that the mitigation bank provides appropriate compensation for the authorized impacts and that at minimum all proposals using a mitigation bank shall have made reasonable efforts to avoid and minimize impacts to wetlands, fish and wildlife habitat conservation areas and buffers through sequencing;
(4) 
The proposed use of credits is consistent with the terms and conditions of the bank's certification;
(5) 
The compensatory mitigation agreement occurs in advance of authorized impacts;
(6) 
Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the bank's certification; and
(7) 
The use of the mitigation bank will result in equivalent treatment of the functions and values of the critical area or buffer to offset the impacts on the project site such that the total net impact will be no net loss of critical area functions and values in the watershed in which the impacts will occur.
(b) 
In-lieu fee mitigation shall be established in accordance with the guidance contained in "Guidance on In-lieu Fee Mitigation" (Washington State Department of Ecology, December 2012, or latest edition, Publication No. 12-06-012) based upon the following order of preference:
(1) 
A City or County approved program that gives priority to sites that will expand or improve habitat for Lake Stevens and associated tributaries;
(2) 
A City or County approved program that utilizes receiving mitigation sites within the same subbasin as the approved impact; and
(3) 
A City or County approved program that gives priority to sites within the same subbasin and/or a predefined service area that includes the City of Lake Stevens.
(Ord. 984 Sec. 3 (Exh. C), 2019)
(a) 
All compensatory mitigation projects shall be monitored for the period necessary to establish that performance standards have been met, but in no event for less than five years following the acceptance of the installation/construction by the Planning and Community Development Director or designee.
(b) 
Monitoring reports on the status of the mitigation project shall be submitted to the Planning and Community Development Department. The reports shall be prepared by a qualified consultant and shall include monitoring information on wildlife, vegetation, water quality, water flow, stormwater storage and conveyance, and existing or potential degradation. Reports shall be submitted in accordance with the following schedule:
(1) 
At the time of construction;
(2) 
Thirty days after planting;
(3) 
Early in the growing season of the first year;
(4) 
End of the growing season of the first year;
(5) 
Twice the second year (at the beginning and end of the growing season); and
(6) 
Annually thereafter, to cover a total monitoring period of at least five growing seasons.
(c) 
The Planning and Community Development Director or designee shall have the authority to extend the monitoring and surety period and require additional monitoring reports and maintenance activities beyond the initial five-year monitoring period for any project that involves one or a combination of the following factors:
(1) 
Creation or restoration of forested wetland or buffer communities;
(2) 
Failure to meet the performance standards identified in the mitigation plan;
(3) 
Failure to provide adequate replacement for the functions and values of the impacted critical area; or if
(4) 
Additional monitoring is warranted.
(Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
(a) 
If the development proposal is subject to compensatory mitigation, the applicant shall enter into an agreement with the City to complete the mitigation plan approved by the City and shall post a mitigation performance surety to ensure mitigation is fully functional.
(b) 
The surety shall be in the amount of 150 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 a detailed, itemized cost estimate of the mitigation activity including clearing and grading, plant materials, plant installation, irrigation, weed management, monitoring and all other costs.
(c) 
The surety shall be in the form of an assignment of funds, bond, security device, or other means acceptable to the City Finance Director in consultation with the City Attorney.
(d) 
The performance surety authorized by this section shall remain in effect until the City determines, in writing, that the permit conditions, code requirements and/or standards bonded for have been met. Once the mitigation installation has been accepted by the Director or designee, the bond may be reduced to 20 percent of the original mitigation cost estimate and shall become a maintenance surety. Said maintenance surety shall generally be held by the City 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 under Section 14.88.277(c).
(e) 
Depletion, failure, or collection of surety funds shall not discharge the obligation of an applicant to complete required mitigation, maintenance, monitoring, or restoration.
(f) 
Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.
(g) 
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. Upon notice of any default, the City may demand immediate payment of any financial guarantees or require other action authorized by the City code or any other law.
(h) 
Any funds paid or recovered pursuant to this section shall be used to complete the required mitigation or other authorized action.
(i) 
The Director or designee may authorize a one-time temporary delay, up to 180 days, in completing mitigation activities when environmental conditions could produce a high probability of failure or significant construction difficulties. The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation. The request for the temporary delay shall include a written justification documenting the environmental constraints that preclude implementation of the mitigation plan and shall include a financial guarantee. The justification shall be verified by the City before approval of any delay.
(j) 
The provisions of Section 14.16A.180 (Security Mechanisms) shall also apply if necessary to ensure adequate protection of the public interest.
(Ord. 773, Sec. 2, 2008; Ord. 811, Sec. 73, 2010; Ord. 984 Sec. 3 (Exh. C), 2019)
The approximate location and extent of critical areas in the City are displayed on various inventory maps available at the Department of Planning and Community Development. More data will be included as inventories are completed in compliance with the requirements of the Growth Management Act. Maps and inventory lists are guides to the general location and extent of critical areas. Critical areas not shown are presumed to exist in the City and are protected under all the provisions of this chapter. In the event that any of the designations shown on the maps or inventory lists conflict with the criteria set forth in this chapter, the criteria and site-specific conditions shall control. Other mapping sources may include:
(a) 
Washington Department of Fish and Wildlife Priority Habitat and Species maps.
(b) 
Washington State Department of Natural Resources official water type reference maps, as amended.
(c) 
Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors reports published by the Washington Conservation Commission.
(d) 
Washington State Department of Natural Resources State Natural Area Preserves and Natural Resource Conservation Area maps.
(e) 
Washington State Department of Natural Resources Natural Heritage Program mapping data.
(f) 
Lake Stevens and/or Snohomish County maps.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
Pesticide use is not allowed in critical areas, including critical area buffers, unless it is determined by the Planning and Community Development Director or designee that there is no alternative to controlling invasive species using integrated pest management practices. If pest control is being proposed as mitigation measures to control invasive species, a pesticide management plan must be submitted to the Planning and Community Development Department. The pesticide management plan must be part of the critical areas report required in Section 14.88.270 for any development proposal, and shall include why there is no other alternative to pesticide use, mitigation of pesticide use, planned application schedules, types of pesticides proposed for use, and a means to prevent or reduce pesticide movement to groundwater and surface water. Any pesticides used within 25 feet of a wetland (100 feet if spraying) have to be listed in the MSDS as nontoxic to fish and aquatic invertebrates. The report shall be prepared by a qualified specialist.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
Buildings and other structures shall maintain the standard building setbacks per the underlying zoning district, depending on the site orientation, from all critical area buffer tracts or easements or 10 feet from the edges of all critical areas, if no buffers are required, to ensure adequate width for construction staging, maintenance and repair of primary buildings and accessory structures and use of improvements without disturbing the critical area buffer or critical area.
The following may be allowed in the building setback area:
(a) 
Uncovered decks;
(b) 
Building overhangs, if such overhangs do not extend more than 18 inches into the setback area;
(c) 
Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations as adopted;
(d) 
Accessory structures less than 200 square feet may be set back five feet; and
(e) 
Fences and walls are exempt when the fence or wall further separates incompatible uses outside of the critical area and its associated buffer and when any temporary or permanent impacts are mitigated according to this chapter and in compliance with other provisions of this title, based on the recommendation of a qualified professional for the specific critical area type.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
Permanent fencing and signage adjacent to a regulated wetland or stream corridor shall be required. Permanent signage may be required for geologically hazardous areas and setback buffers not approved for alteration under Section 14.88.670.
(a) 
Fencing.
(1) 
The applicant shall install permanent fencing so as to not interfere with species migration, including fish runs, and fencing shall be constructed in a manner that minimizes impacts to the critical areas and associated buffer;
(2) 
The fence shall be designed and constructed to clearly demarcate the buffer from the developed portion of the site and to limit access of landscaping equipment, vehicles, or other human disturbances; and
(3) 
No pressure treated posts and rails will be used for signage or fencing, unless shown to be inert.
(b) 
Signs designating the presence of a critical area shall be posted along the buffer boundary. The signs shall be posted at a minimum rate of one every 100 lineal feet, or one per lot, whichever provides more coverage. Standard details for signage shall be kept on file at the Planning and Community Development Department.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
(a) 
Unless otherwise required in this chapter, native growth protection areas shall be used in all development proposals to delineate and protect the following critical areas and buffers:
(1) 
All geologically hazardous areas not approved for alteration and associated setback buffers;
(2) 
All wetlands and buffers; and
(3) 
All fish and wildlife habitat conservation areas and buffers.
(b) 
Native growth protection areas created pursuant to this chapter shall be designated on the face of the plat, short plat or other recorded drawing pursuant to Sections 14.16C.105 and 14.18.040 and shall be protected by one of the following methods:
(1) 
Development proposals for subdivisions, short subdivisions, binding site plans and similar land use actions that segregate property shall use separate critical area tracts to delineate and protect native growth protection areas. The critical area tract shall be held by each lot owner in the development in an undivided interest or held by a homeowner's association or other legal entity, which assures the ownership, maintenance, and protection of the tract; or
(2) 
For development proposals that do not segregate lots, the permit holder shall record a native growth protection area easement with the Snohomish County Auditor stating the location of and the limitations associated with all of the critical areas and associated buffers or mitigation sites on the property. Restrictions and limitations shall be stated on the face of the deed applicable to the property and recorded with the Snohomish County Auditor.
(c) 
Such easements or tracts shall cover the critical area as delineated by its defined boundaries and buffers.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
All streams and wetlands under this chapter and their required buffers shall be permanently protected by designating them as native growth protection areas (NGPAs) in accordance with Section 14.88.290. NGPAs are to be left permanently undisturbed in a substantially or environmentally enhanced natural state. No clearing, grading, filling, building construction or placement, or road construction is allowed except the following:
(a) 
On a case by case basis when supported by a critical areas assessment study, crossings for underground utility lines which utilize the shortest alignment possible and for which no alignment that would avoid such a crossing is feasible.
(b) 
Removal of hazardous trees by the property owner, when based on a recommendation by a qualified arborist and an assessment of hazardous tree risk study and when approved by the City.
(1) 
Any trees removed in an NGPA shall be replaced at a 3:1 ratio or at a 1.5:1 ratio when four-to-six-foot-tall native evergreen trees are planted with the total count being rounded up to the next whole number.
(2) 
Any tree removed should only be cut to a point that it does not present a danger to adjacent properties or structures but can provide wildlife habitat.
(c) 
Existing legally (ongoing) established structures, and nonnative or ornamental landscaping, including, but not necessarily limited to, gardens, yards, pastures, and orchards, are not required to be designated as NGPAs.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019; Ord. 1179, Sec. 22, 2024)
On-site density transfers may be permitted when critical areas are located on the property subject to the following provisions:
(a) 
Only the area contained in the following critical areas and their associated buffers are eligible to be used in the density transfer calculation:
(1) 
Category II, III, and IV wetlands;
(2) 
Fish and wildlife conservation areas; and
(3) 
Geologically hazardous areas, not approved for alteration.
(b) 
The development must be proposed to connect to sewer service and sewer service must be available.
(c) 
The base density shall be consistent with the densities set forth in Chapter 14.36 for the zoning districts. The site density shall be calculated using the area of the subject property divided by the minimum lot size of the applicable zone.
(d) 
The overall density of the proposed site may be transferred from the undevelopable portion to the developable part of the site and the development when the development is not using other allowed reductions or modifications to critical areas and buffers defined in this chapter.
(e) 
The development shall meet applicable policies, setbacks and other standards of the City except:
(1) 
The minimum lot size of the underlying zoning district may be reduced by 30 percent in order to accommodate the transfer in densities;
(2) 
Lot widths of Chapter 14.48, Table 14.48-I may not be less than 40 feet;
(3) 
The front setbacks specified in Chapter 14.48, Table 14.48-I may be reduced by five feet, but in no instance may the garage setback be less than 19 feet;
(4) 
The proposed development must be compatible with the character of the area and adjacent uses; and
(5) 
The area to which density is transferred must not be constrained by other critical areas.
(Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
A project permit applicant may request approval of an innovative design, which addresses wetland, fish and wildlife habitat conservation area or buffer treatment in a manner that deviates from the standards set forth in Sections 14.88.400 through 14.88.440, Fish and Wildlife Conservation Areas, and Sections 14.88.800 through 14.88.840, Wetlands.
(a) 
An innovative development design will be considered in conjunction with the primary land use project approval or building permit approval, when the project is consistent with subsection (b) of this section. An applicant may include the innovative development design proposal in the project pre-application review packet for review.
(b) 
The applicant shall demonstrate in a site/resource-specific report required pursuant to Section 14.88.270 how the innovative development design complies with the following requirements:
(1) 
The innovative development design will achieve protection equivalent to or better than the treatment of the functions and values of the critical areas that would be obtained by applying the standard prescriptive measures contained in this chapter;
(2) 
Applicants for innovative development design must consider measures prescribed in guidance documents, such as watershed conservation plans or other similar conservation plans, and low impact stormwater management strategies which address wetlands, fish and wildlife habitat conservation areas or buffer protection consistent with this chapter;
(3) 
The innovative development design will not be materially detrimental to the public health, safety or welfare or injurious to other properties or improvements located outside of the subject property; and
(4) 
Applicants for innovative development design are encouraged to consider measures prescribed in the Puget Sound Action Team 2012 Technical Guidance Manual for Low Impact Development or as amended.
(Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
The dedication of critical areas and their buffers as open space may not be used to satisfy park mitigation requirements. Park land must be dedicated or fees in lieu of dedication must be paid as set forth in this title. However, if an applicant provides recreation amenities in buffers as allowed under this chapter, the cost of those amenities may be subtracted from the total park mitigation calculated for a given project with prior approval of the Planning and Community Development Director.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
In order to conduct a regulated activity in a critical area where the applicant is claiming that denial of authorization of such an activity would deny all reasonable economic uses of the property, the applicant must demonstrate that such is the case. If a regulated activity is allowed within a critical area it must minimize impacts per the "requirements" sections, below. If the Planning and Community Development Director or designee determines that alteration of a critical area is necessary and unavoidable, written findings addressing each of the items listed in this section shall be placed in the official project file. Demonstration of denial of all reasonable economic uses shall be accomplished as follows:
(a) 
An applicant must demonstrate that denial of the permit would impose an extraordinary hardship on the part of the applicant brought about by circumstances peculiar to the subject property.
(b) 
For water-dependent activities, unavoidable and necessary impact can be demonstrated where there are no practicable alternatives which would not involve a wetland or fish and wildlife conservation area or which would not have less adverse impact on a wetland or fish and wildlife conservation area, and would not have other significant adverse environmental consequences.
(c) 
Where non-water-dependent activities are proposed, it shall be presumed that adverse impacts are avoidable. This presumption may be rebutted upon a demonstration that:
(1) 
The basic project purpose cannot reasonably be accomplished utilizing one or more other sites in the general region that would avoid, or result in less, adverse impact on regulated critical areas;
(2) 
A reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs of the project as proposed that would avoid, or result in less, adverse impact on a critical area or its buffer will not accomplish the basic purpose of the project; and
(3) 
In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as zoning, deficiencies of infrastructure, or parcel size, the applicant has made reasonable attempt to remove or accommodate such constraints.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 903, Sec. 52, 2013; Ord. 984 Sec. 3 (Exh. C), 2019)
If an applicant for an activity or development proposal demonstrates to the satisfaction of the Planning and Community Development Director or designee that application of these standards would deny all reasonable economic use of the property as provided by Section 14.88.220, development, as may be conditioned, shall be allowed if the applicant also demonstrates all of the following to the satisfaction of the Director:
(a) 
If proposed in a wetland, stream, creek, river, lake or other surface water, that the proposed project is water-dependent or requires access to the wetland as a central element of its basic function; or
(b) 
If proposed in a critical area not listed in subsection (a) of this section, that it is not water-dependent but has no practicable alternative; and
(c) 
That no reasonable use with less impact on the critical area and its buffer is possible (e.g., agriculture, aquaculture, transfer or sale of development rights or credits, sale of open space easements, etc.);
(d) 
That there is no feasible on-site alternative to the proposed activities, including reduction in density, phasing of project implementation, change in timing of activities, revision of road and lot layout, and/or related site planning considerations, that would allow a reasonable economic use with less adverse impacts to the critical area and its buffer;
(e) 
That the proposed activities will result in minimum feasible alteration or impairment to the functional characteristics of the critical area and its existing contours, vegetation, fish and wildlife resources, hydrological, and geologic conditions;
(f) 
That disturbance of the critical area has been minimized by locating any necessary alteration in buffers to the extent possible;
(g) 
That the proposed activities will not jeopardize the continued existence of endangered, threatened, or sensitive species as listed by the Federal Government or the State of Washington. An applicant is required to confirm with the State of Washington that special conditions or recommendations are not required for candidate or monitor species;
(h) 
That the proposed activities will not cause significant degradation of groundwater or surface water quality;
(i) 
That the proposed activities comply with all State, local and Federal laws, including those related to sediment control, pollution control, floodplain restrictions, and on-site wastewater disposal;
(j) 
That any and all alterations to critical areas and their buffers will be adequately mitigated;
(k) 
That there will be no damage to nearby public or private property and no threat to the health or safety of people on or off the property;
(l) 
That the inability to derive reasonable economic use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of this chapter; and
(m) 
That deliberate measures have been taken to minimize the impacts. Minimizing impacts shall include but not be limited to:
(1) 
Limiting the degree or magnitude of the prohibited activity;
(2) 
Limiting the implementation of the prohibited activity;
(3) 
Using appropriate and best available technology;
(4) 
Taking affirmative steps to avoid or reduce impacts;
(5) 
Sensitive site design and siting of facilities and construction staging areas away from critical areas and their buffers;
(6) 
Involving resource agencies early in site planning;
(7) 
Providing protective measures such as siltation curtains, hay bales and other siltation prevention measures; and
(8) 
Scheduling the prohibited activity to avoid interference with wildlife and fisheries rearing, resting, nesting or spawning activities.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 903, Sec. 53, 2013; Ord. 984 Sec. 3 (Exh. C), 2019)
A regulated activity that was approved prior to the passage of this chapter and to which significant economic resources have been committed pursuant to such approval but which is not in conformity with the provisions of this chapter may be continued subject to the following:
(a) 
No such activity shall be expanded, modified, or substituted in any way that increases the extent of its nonconformity without a permit issued pursuant to the provisions of this chapter;
(b) 
Except for cases of discontinuance as part of normal agricultural practices, if a nonconforming activity is discontinued for 180 days, any resumption of the activity shall conform to this chapter;
(c) 
If a nonconforming use or activity is destroyed by human activities or a natural occurrence, it shall not be resumed except in conformity with the provisions of this chapter;
(d) 
Activities or adjuncts thereof that are or become nuisances shall not be entitled to continue as nonconforming activities.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)
The Snohomish County Assessor's office considers critical area regulations in determining the fair market value of land. Any owner of an undeveloped critical area who has dedicated an easement or entered into a perpetual conservation restriction with the City of Lake Stevens or a nonprofit organization to permanently control some or all regulated activities in that portion of land assessed consistent with these restrictions shall be considered for exemption from special assessments to defray the cost of municipal improvements such as sanitary sewers, storm sewers, and water mains.
(Ord. 741, Sec. 2, 2007; Ord. 773, Sec. 2, 2008; Ord. 984 Sec. 3 (Exh. C), 2019)