City of Enumclaw, WA Article III Critical Area Permits

§ 19.02.130 General requirements.

No regulated activity shall occur within a critical area, or its associated buffer, without the project proponent or applicant having applied for and obtained a critical area permit (see Type I and II permits, EMC Title 15), unless said regulated activity requires another Type I through V permit, in which case said other Type I through V permit shall be the vehicle by which compliance with this chapter is verified.

(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)

§ 19.02.140 Application.

A. Who Must Apply. Any individual, company, agency, or other entity proposing to undertake a regulated activity in the city must apply for a Type I through Type V permit (per EMC Title 15) prior to initiating any site-altering activity that is not allowed under EMC § 19.02.020.

B. Information Requirements. The administrator is authorized to adopt written information requirements for critical area permits. Unless the city waives one or more of the following information requirements, application for a critical area permit under this chapter includes, but is not limited to, the following information:

1. Name and contact information for the project proponent or applicant;

2. Address and/or legal description of the proposed project site;

3. A description of the site, including the size of the proposed site;

4. A description of adjacent properties, including a description of the current use(s) on those properties, a description of the vegetation and vegetation conditions on those properties, the name(s) and contact information for all adjacent property owners, and a listing of any easements that will be needed on adjacent properties or that exist on the proposed project site that grant use to entities other than the project site owner(s);

5. A description of the proposed project activity;

6. A critical areas report that documents the ecological, aesthetic, economic, or other values of the critical areas, including a discussion of the methodology used to identify, delineate, and survey critical areas described in the report (refer to Appendix B[1] of this chapter for minimum report content requirements);

[1] Editor's Note: Appendices are included as an attachment to this title.

7. Site plan(s) or site map(s) at a scale no smaller than one inch equals 40 feet showing the entire parcel of land owned (or under a contract to purchase) by the applicant. In addition the site plan or site map must show:

a. All critical area boundaries and their associated buffers identified and delineated within and in close proximity to the proposed project;

b. Existing and proposed site topography and drainage features (i.e., ditches, streams, culverts, pipelines, etc.);

c. All significant trees, which includes all conifers with a six-inch dbh or greater and all deciduous species with an eight-inch or greater dbh;

d. All existing structures, utilities, roadways, and other site improvements; and

e. The proposed stormwater management plan;

8. A description of site development alternatives and an evaluation of those alternatives vis-a-vis any proposed critical area alterations. Include a rationale for not avoiding or minimizing impacts to critical areas identified within the project site;

9. A mitigation plan may be submitted to the administrator at the time the applicant submits a critical areas permit application (or a Type III through Type V permit application) or the administrator may allow the applicant to defer submittal of the mitigation until after the preliminary project design has been reviewed by the administrator. The applicant will be required, however, to submit a final mitigation plan (see Appendix C[2] of this chapter for mitigation plan requirements) describing mitigation projects for all unavoidable critical area impacts before any project permits are approved by the administrator. The final mitigation plan shall include baseline information, environmental goals and objectives, a financial guarantee quantity worksheet to "bond" the proposed mitigation activities, detailed construction plans, performance standards, a three- to five-year monitoring program, and a contingency plan.

[2] Editor's Note: Appendices are included as an attachment to this title.

C. Preparation of a Critical Areas Report. A critical areas report (see Appendices B and D of this chapter) must be prepared by a qualified professional (critical areas consultant) with expertise in the critical area of concern, as defined in this chapter.

1. The critical areas consultant will be retained by the applicant to complete any of the following activities: critical area site analysis and evaluation, site restoration and/or enhancement, and site development plan or project design. The consultant will be selected from a list of qualified professionals (as defined in WAC 365-195-905(4) and Appendix D of this chapter) that shall be maintained by and on file with the administrator.

2. The applicant may use the professional services of any qualified professional to assist with critical areas assessment and reporting whether they are or are not listed on the city-maintained list. The administrator may request a qualification statement from any consultant providing professional services to an applicant, particularly when critical areas assessments and reporting are part of a proposed land use action or development plan.

D. Critical Area Boundary. Critical area boundary shall be determined by the applicant through the performance of a field investigation.

1. The administrator, when requested by the applicant, may waive the delineation of the boundary requirement for the applicant and, in lieu of delineation by the applicant, perform the delineation.

a. Per WAC 173-22-035, all wetland delineations will be completed in accordance with the methodologies defined in the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands and the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0); or in accordance with future revised delineation manuals required by federal and state agencies.

2. The administrator shall consult with qualified critical areas consultants and technical experts or other experts as needed to perform the delineation.

3. The applicant may be charged for the costs incurred in accordance with the provisions of this section.

4. Where the administrator delineates a wetland at the request of the applicant, such delineation shall be considered a final determination.

5. Where the applicant delineates the critical area boundary, the administrator shall verify the accuracy of, and may adjust, the boundary. If the applicant contests the adjusted boundary, the administrator shall, at the applicant's expense, obtain expert services to render a final delineation.

E. Best Available Science. A critical areas report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter. Recommendations for buffer width averaging, buffer width reduction, and buffer impact mitigation actions must be based in best available science, which includes local expertise and site-specific knowledge.

F. Additional Studies. When an applicant submits an application for a critical area permit, the application shall indicate whether any environmentally critical area is located on the site. If the administrator determines that sufficient environmental information to evaluate a proposal is not available, the administrator shall notify the applicant that special environmental studies are required.

1. Special environmental studies may include a comprehensive site inventory and analysis, a wetland study, a geotechnical study, a discussion of potential impacts from the proposed development, and specific measures designed to mitigate any potential on- or off-site adverse environmental impacts of the applicant's proposal.

2. The administrator shall develop and maintain a detailed list of required study contents.

3. All special studies shall be completed by a firm or individual selected, in concert between the city and the applicant, from a list of qualified professional critical area consultants that is maintained by and available from the administrator.

(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)

§ 19.02.150 Permit review.

A. As part of the permit review process, the city shall:

1. Verify the information submitted by the applicant;

2. Evaluate the available current city critical areas maps and data files to determine if there are identified critical areas within or in close proximity to the proposed project site. The administrator may require the applicant to submit a critical area reconnaissance report (CARR) form (see Appendix B[1] of this chapter) to assist in the determination regarding the presence of identified and regulated critical areas. The CARR form must be prepared by a qualified professional;

[1] Editor's Note: Appendices are included as an attachment to this title.

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

4. Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.

B. If the proposed project is within, adjacent to, or is likely to impact a critical area, the city shall:

1. Require the applicant to complete a field study of the project site and immediate surrounding area to the administrator. The applicant shall be required, at a minimum, to submit a critical areas report (see Appendix B of this chapter) to the administrator. The critical areas report must be prepared by a qualified professional;

2. Review and evaluate the critical areas report. The city may hire a third-party consultant, at the applicant's expense, to review the application materials for the critical area permit;

3. Determine whether the development proposal conforms to the purposes and performance standards of this chapter, including the criteria in EMC § 19.02.160(A) and (B).

(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)

§ 19.02.160 Criteria for permit review, approval, denial, and issuance.

A. A permit shall only be granted if the permit, as conditioned, is consistent with the purposes and intent of this chapter. Additionally, permits shall only be granted if:

1. A proposed action follows mitigation sequencing as described in EMC § 19.02.230(B)(1);

2. The proposal is compatible in design, scale, and use with other development or potential development in the area; and

3. The proposed actions implement, to the maximum extent possible, the best available construction, design, and development techniques that will result in the least adverse impact to the critical area.

B. Any alteration to a critical area, unless otherwise provided for in this chapter, shall be reviewed and approved, approved with conditions, or denied based on the proposal's ability to comply with all of the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with mitigation sequencing, EMC § 19.02.230;

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

3. The proposal is consistent with the general purposes of this title and the public interest;

4. Any alterations permitted to the critical area are mitigated in accordance with mitigation requirements, EMC § 19.02.250;

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

6. The proposal is consistent with all other applicable local, state, and federal regulations and standards.

C. The city may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this chapter.

D. Except as provided for by this chapter, any project that cannot adequately mitigate its impacts to critical areas in the sequencing order of preferences in EMC § 19.02.230 shall be denied.

E. Favorable Determination. If the administrator determines that the proposed activity meets the criteria in this section and complies with the applicable provisions of this chapter, the administrator shall prepare a written notice of determination and identify any required conditions of approval. The notice of determination and conditions of approval shall be included in the project file and be considered in the next phase of the city's review of the proposed activity in accordance with any other applicable codes or regulations.

1. Any conditions of approval included in a notice of determination shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous determination pending re-review of the proposal and conditions of approval by the administrator.

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

F. Unfavorable Determination. If the administrator determines that a proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the criteria in subsection B of this section and the provisions of this chapter, the administrator shall prepare written notice of the determination that includes findings of noncompliance.

1. No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the provisions of this chapter.

2. Following notice of determination that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this chapter, the applicant may request consideration of a revised critical areas report. If the revision is found to be substantial and relevant to the critical area review, the administrator may reopen the critical area review and make a new determination based on the revised report.

G. Completion of the Critical Area Review. The city's determination regarding critical areas pursuant to this chapter shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved.

H. Appeals. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved.

(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)

§ 19.02.170 Variance.

A. Variance. Variances from the standards of this chapter may be authorized by the administrator in accordance with the procedures set forth in the zoning variance section of the city code. The city council shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

B. Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

1. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;

2. The special conditions and circumstances do not result from the actions of the applicant;

3. A literal interpretation of the provisions of this chapter would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;

4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;

5. The granting of the variance is consistent with the general purpose and intent of this chapter, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

6. The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

7. The granting of the variance is consistent with the general purpose and intent of the current comprehensive plan and adopted development regulations.

C. Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

D. Time Limit. The city shall prescribe a time limit of five years within which the action for which the variance is required shall have begun, be completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application.

(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)

§ 19.02.180 Permit fees.

A. Filing Fees. At the time of a critical area permit application, the applicant shall pay a filing fee determined by the city fee resolution.

B. Financial Guarantees. At the time of a critical area permit approval, the applicant will be required to post a financial guarantee for all critical area alteration mitigation activities. The financial guarantee shall be paid prior to initiating any activities in a critical area. The financial guarantee amount will vary by project and may be determined by:

1. The applicant securing three bona fide bids from experienced landscaping contractors or qualified critical area restoration contractors to install, maintain, and monitor a mitigation plan that has been approved by the administrator. The highest bid will determine the bond amount. The administrator can, at the applicant's expense, solicit an independent bid for installation, maintenance, and monitoring of the approved plan if the administrator believes the applicant's submittal is significantly lower than expected.

2. The administrator can prepare, or have prepared, a standard bond quantity worksheet to determine the bond quantity.

3. The applicant depositing a cash deposit in a joint city/applicant interest-bearing account at a local financial institution.

a. Interest accrued while the cash deposit is held in deposit at the financial institution will be deposited in the applicant's interest account.

b. No funds will be dispersed from the cash account or the interest account unless the applicant fails to implement the approved mitigation plan within a reasonable time period (12 months) following approval of the mitigation plan and site plans and the initiation of construction.

c. If the applicant fails to perform as directed in the approved mitigation plan, both the interest and cash accounts will be forfeited by the applicant to the administrator.

4. Financial guarantees posted for mitigation projects will be posted in two parts, a construction guarantee and a maintenance/monitoring guarantee. After the applicant has implemented the construction and planting phases of the mitigation project and the mitigation effort is approved by the administrator, the construction portion of the financial guarantee will be released to the applicant. Following the end of the five-year maintenance and monitoring period and a review by the administrator indicating the project has been approved, the maintenance and monitoring financial guarantee will be released to the applicant.

(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)