A. 
Eligibility for Reasonable Use Exception Application.
1. 
It is the city's responsibility to review all regulated land use activities and approve only those land use proposals that will not adversely impact public health and safety, public investments in infrastructure, and natural resources managed as a public trust.
2. 
It is the responsibility of an applicant requesting plan approval and development permits for a proposed land use action to ensure that all reasonable and practical project alternatives have been thoroughly evaluated in an effort to avoid adversely impacting public health and safety, public investments in infrastructure, and natural resources managed as a public trust.
3. 
To be consistent with the goals and objectives of its current comprehensive plan and the provisions of this chapter, the city shall require an applicant to clearly demonstrate that all efforts have been exhausted in the process of preparing a proposed development plan (land use activity).
4. 
The applicant having exhausted all reasonable and practical efforts to avoid impacts, it is the responsibility of the administrator to ensure that all unavoidable impacts to regulated critical areas are mitigated.
B. 
Compensatory Mitigation – Decision Criteria. Compensatory mitigation for alterations to critical areas, particularly wetlands and fish and wildlife habitat conservation areas, shall, in a reasonable period of time, achieve equivalent or greater biologic function within the critical area altered or in a viable alternative mitigation area. Compensatory mitigation plans shall be consistent with best available science (BAS), watershed approach to mitigation siting, as well as local knowledge and expertise.
1. 
Mitigation of critical area impacts associated with a proposed land use activity shall be required in the following order of preference:
a. 
Impact avoidance: avoiding the impact altogether by not taking a certain action or parts of an action. When it has been demonstrated, to the satisfaction of the administrator, that impact avoidance is neither practical nor prudent, the administrator shall approve one of the following, in descending order of preference;
b. 
Impact minimization: minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
c. 
Impact rectification: rectifying the impact by repairing, rehabilitating, or restoring the affected environment. This may include off-site mitigation areas and the restoration of previously impacted habitats in other critical areas; provided, that a watershed approach to mitigation siting (see Ecology Publication No. 09-06-032) is required;
d. 
Impact reduction over time: reducing or eliminating the impact over time by preservation and maintenance operations;
e. 
Impact compensation: compensating for the impact by replacing, enhancing, or providing substitute resources or environments. This may include mitigation alternatives such as wetland mitigation banking, fee-in-lieu, credit-debit method (reference Ecology Publication No. 10-06-011) and other creative approaches to mitigation that will result in a net increase in critical area function and value;
f. 
Monitoring the impact and taking appropriate corrective measures.
C. 
Minimizing Wetlands Impacts – Decision Criteria. After it has been determined by the city council, based on information presented to the council by the administrator and the applicant, that the loss of critical areas is necessary and unavoidable or that all reasonable economic use has been denied:
1. 
The applicant shall implement project planning and implementation measures intended to minimize critical area impacts; and
2. 
Efforts to minimize critical area impacts shall include but are not limited to:
a. 
Limiting the degree or magnitude of the regulated activity;
b. 
Limiting the implementation of the regulated activity;
c. 
Using appropriate and best available technology;
d. 
Taking affirmative steps to avoid or reduce impacts;
e. 
Sensitive site design and siting of facilities and construction staging areas away from regulated wetlands and their buffers;
f. 
Involving resource agencies early in site planning; and
g. 
Providing protective measures such as siltation curtains, hay bales and other siltation prevention measures, scheduling the regulated activity to avoid interference with wildlife and fisheries rearing, nesting or spawning activities.
D. 
Mitigation of Unavoidable Critical Area Impacts as Part of a Reasonable Use Exception. If the administrator has determined that implementation of an applicant's land use proposal results in adverse impacts to critical areas identified within, or immediately adjacent to, the proposed project site and the application of the provisions of this chapter would deny all reasonable use of the property, the administrator may allow a proposed development that is consistent with the general purposes of this chapter and the public interest to proceed; provided, that the city council finds that:
1. 
Enforcement of the provisions of this chapter would otherwise deny all reasonable use of the property;
2. 
There is no other reasonable use with less impact on the wetland;
3. 
The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the property;
4. 
Any proposed alteration of the wetland is the minimum necessary to allow for reasonable use of the property;
5. 
There is no feasible on-site alternative, including reduction in density and site-planning considerations;
6. 
The inability to derive reasonable economic use from 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 the ordinance codified in this chapter.
(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2572 § 2 (Exh. A § 5), 2015; Ord. 2798 § 2 (Exh. B), 2025)
A. 
All wetland enhancement, restoration, or creation projects required pursuant to this chapter either as a permit condition or as the result of an enforcement action shall follow a mitigation plan prepared by a qualified professional and approved by the administrator.
1. 
Preparation of the mitigation report is an expense borne by the applicant and/or violator.
2. 
The minimum content of a critical area mitigation plan is outlined in Appendix C[1] of this chapter.
[1]
Editor's Note: Appendices are included as an attachment to this title.
3. 
Unless the administrator, in consultation with a qualified professional, determines, based on the size and nature of the development proposal, the nature of the impacted wetland, and the degree of cumulative impacts on the wetland from other development proposals, that the scope and specific requirements of the mitigation plan may be reduced from what is listed in Appendix C of this chapter, the mitigation plan shall include information in response to every item listed.
B. 
The applicant or violator shall receive written approval of the mitigation plan by the city prior to commencement of any wetland restoration, creation or enhancement activity.
C. 
Permit Conditions. Any compensation project prepared pursuant to this section and approved by the city shall become part of the application for the permit.
D. 
City personnel reviewing the mitigation plan and the applicant's consultants or staff preparing the mitigation plan are encouraged to consult with and solicit comments of any federal, state, regional, or local agency, including tribes, having any special expertise with respect to any environmental impact prior to approving a mitigation proposal which includes wetlands compensation.
E. 
The mitigation plan may be reviewed by other agency personnel for compliance with other state and federal regulations. The applicant is encouraged to provide sufficient, clear, and concise information regarding the proposed mitigation plan design and implementation in order for such agencies to comment on the overall adequacy of the mitigation proposal in a timely manner. Approval of a proposed mitigation plan by the city does not mean that the plan has been approved by other reviewing agencies.
F. 
Compensatory wetland mitigation is not required for regulated activities:
1. 
For which a permit has been obtained for critical area impacts that will only occur in the outer 50 percent of a buffer, or expanded buffer, and which have no adverse impacts to regulated wetlands or no significant reduction in buffer function and value; or
2. 
Allowed activities pursuant to EMC § 19.02.020(B), provided such activities utilize best management practices to protect the functions and values of regulated wetlands.
(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)
A. 
As a condition of any permit allowing alteration of critical areas, or as an enforcement action pursuant to Chapter 15.12 EMC, the city shall require that the applicant engage in the restoration, creation or enhancement of critical areas and their buffers in order to offset the impacts resulting from the applicant's actions.
B. 
The applicant shall develop a plan (see Appendix C[1] of this chapter) that provides for land acquisition (if necessary), construction, maintenance and monitoring of replacement wetlands that provides equal or greater functions and values as the original wetlands.
[1]
Editor's Note: Appendices are included as an attachment to this title.
C. 
The overall goal of any critical areas mitigation project designed and implemented to compensate for wetland or fish and wildlife habitat conservation area impacts shall be no net loss of habitat (wetland, stream, riparian area, buffer, pond, etc.) functions and values and to strive for a net resource gain in habitat functions and values over present conditions. Compensation should be completed, whenever it is feasible, prior to any critical area alteration.
D. 
Mitigation for Lost or Affected Functions. Compensatory mitigation actions shall address functions affected by the alteration to achieve functional equivalency or improvement and shall provide similar wetland functions as those lost, except when:
1. 
The lost wetland provides minimal functions as determined by a site-specific function assessment, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal Washington State Watershed Assessment Plan or similar protocol; or
2. 
Out-of-kind replacement will best meet formally identified watershed goals, such as replacement of historically diminished wetland types.
E. 
Preference of Mitigation Actions. Mitigation actions that require compensation by replacing, enhancing, or substitution shall occur in the following order of preference:
1. 
Restoring wetlands on upland sites that were formerly wetlands.
2. 
Creating wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative introduced species.
a. 
This should only be attempted when there is a consistent source of hydrology and it can be shown that the surface and subsurface hydrologic regime is conducive for the wetland community that is being designed.
3. 
Enhancing significantly degraded wetlands in combination with restoration or creation. Such enhancement should be part of a mitigation package that includes replacing the impacted area meeting appropriate ratio requirements.
F. 
Type and Location of Mitigation. Preference shall be given to the location of the mitigation in the following order, unless it can be demonstrated that a higher level of ecological functioning would result from an alternate mitigation approach:
1. 
On-site, in-kind compensation should be provided except where the applicant can demonstrate that:
a. 
The hydrology and ecosystem of the original wetland and those who benefit from the hydrology and ecosystem will not be significantly adversely impacted by the on-site loss; and
b. 
On-site compensation is not scientifically feasible due to problems with hydrology, soils, waves, or other factors; or
c. 
Compensation is not practical due to potentially adverse impact from surrounding land uses; or
d. 
Existing functional values at the site of the proposed restoration are significantly greater than lost wetland functional values; or
e. 
Local or regional goals for flood storage, flood conveyance, habitat or other wetland functions have been established and strongly justify location of compensatory measures at another site.
2. 
Off-site, within the same stream reach or watershed, in-kind compensation shall occur within the same stream reach or sub-basin as the wetland loss occurred; provided, that Category IV wetlands may be replaced outside of the watershed when there is no reasonable alternative and local or regional environmental goals are furthered by this action.
3. 
Either on-site and in-kind, or off-site within the same stream reach or sub-basin in-kind. Mitigation actions shall be conducted within the same subdrainage basin and on the same site as the alteration except when all of the following apply:
a. 
There are no reasonable on-site or in-subdrainage basin opportunities or on-site and in-subdrainage basin opportunities do not have a high likelihood of success, after a determination of the natural capacity of the site to mitigate for the impacts. Consideration should include: anticipated wetland mitigation replacement ratios, buffer conditions and proposed widths, hydrogeomorphic classes of on-site wetlands when restored, proposed flood storage capacity, and potential to mitigate riparian fish and wildlife impacts (such as connectivity);
b. 
Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the impacted wetland; and
c. 
Off-site locations shall be in the same subdrainage basin unless:
(1) 
Established watershed goals for water quality, flood or conveyance, habitat, or other wetland functions have been established and strongly justify location of mitigation at another site; or
(2) 
Credits from a state-certified wetland mitigation bank are used as mitigation and the use of credits is consistent with the terms of the bank's certification.
4. 
In selecting compensation sites, applicants shall pursue mitigation sites in the following order of preference:
a. 
Degraded wetland sites;
b. 
Upland sites which were formerly wetlands;
c. 
Upland sites generally having bare ground or vegetative cover consisting primarily of exotic introduced species, weeds, or emergent vegetation;
d. 
Other disturbed upland.
G. 
Mitigation Timing. Mitigation projects shall be completed and the approved monitoring plan activated prior to initiating any ground or vegetation disturbing activities in a critical area.
1. 
In all other cases, mitigation shall be completed immediately following disturbance and prior to issuance of a certificate of occupancy or the use of the project site or development that was conditioned upon the completion of such compensation or mitigation projects.
2. 
Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.
3. 
If the applicant submits a written request for a temporary delay in an aspect of the mitigation plan implementation, the administrator may authorize a one-time-only temporary delay, up to 120 days, in completing minor construction and landscaping when environmental conditions present a high probability of failure or significant construction or plant installation difficulties. The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety, and general welfare of the public.
a. 
The request for the temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the mitigation plan. The justification must be verified and approved by the city and include a financial guarantee.
H. 
Mitigation Ratios. Mitigation ratios refer to the amount of area required to mitigate a wetland impact or the mitigation effort required to mitigate wetland function and value lost in a smaller area than was impacted by a land use activity.
1. 
Acreage Replacement Ratios. The following ratios shall apply to creation or restoration that is in-kind, is on-site, is the same category, is timed prior to or concurrent with alteration, and has a high probability of success.
Wetland Category
Mitigation Ratio
I
3:1
II
2:1
III
1.5:1
IV
1:1
a. 
The first number specifies the acreage of replacement wetlands and the second specifies the acreage of wetlands altered.
b. 
These ratios do not apply to remedial actions resulting from unauthorized alterations; greater ratios shall apply in those cases.
c. 
These ratios do not apply to the use of credits from a state-certified wetland mitigation bank. When credits from a certified bank are used, replacement ratios should be consistent with the requirements of the bank's certification.
2. 
Function and Value Replacement Ratios. The administrator may reduce the mitigation ratios listed above if the applicant proposes to mitigate for critical area impacts by enhancing previously impacted wetlands to increase the wetland category.
a. 
For example, an applicant may have a need to mitigate for impacts to an isolated 7,500 square feet of highly degraded pasture wetland (wet meadow) dominated by grass species and facultative emergent species. The applicant proposes off-site mitigation through the restoration (enhancement) of a 5,000-square-foot scrub-shrub/emergent adjacent to a salmonid-bearing stream without a functional buffer by lowering the whole mitigation area into the floodplain, grading a small open water area fed by surface flow and ground water, an emergent area with greater plant diversity and a lengthened hydroperiod, the addition of snags and large woody debris, and planting the buffer with tree, shrub, and groundcover species. The administrator would be consistent with the provisions in this chapter by approving the applicant's proposed mitigation plan.
3. 
Increased Replacement Ratio. The administrator may increase the ratios for wetland enhancement, restoration, or creation projects under the following circumstances:
a. 
Uncertainty exists as to the probable success of the proposed restoration or creation; or
b. 
A significant period of time will elapse between impact and replication of wetland functions; or
c. 
Projected losses in functional value; or
d. 
Proposed mitigation will result in a lower category wetland or reduced functions relative to the wetland being impacted; or
e. 
The impact was an unauthorized impact.
4. 
Decreased Replacement Ratio. The administrator may decrease these ratios if:
a. 
Findings of special studies coordinated with agencies with expertise demonstrate that no net loss of critical area function or value is attained under the decreased ratio;
b. 
If a compensatory mitigation project is undertaken adjacent to riverine, riparian, or wetland systems and increases the overall functions and values of these systems; or
c. 
If compensatory mitigation successfully occurs in advance of the proposed wetland altering activity.
(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)
A. 
Wetland Mitigation Banking and In-Lieu Fee (ILF) Mitigation Opportunities.
1. 
Credits from a wetland mitigation bank or federally certified in-lieu fee (ILF) program may be approved for use as compensation for unavoidable impacts to wetlands, fish and wildlife conservation areas and other aquatic resources when:
a. 
The bank is certified by WDOE under Chapter 173-700 WAC or the federally certified ILF program is certified by the U.S. Army Corps of Engineers per federal regulations (33 CFR Part 332 and 40 CFR Part 230, Subpart J);
b. 
The administrator determines that the wetland mitigation bank or federally certified ILF program provides appropriate compensation for wetland, fish and wildlife conservation areas or other aquatic resource impacts associated with the applicant's project; and
c. 
The proposed use of credits is consistent with the terms and conditions of the bank or ILF program's certification.
2. 
Replacement ratios for projects using bank or ILF program credits shall be consistent with replacement ratios specified in the bank or program's certification.
3. 
Credits from a certified wetland mitigation bank or ILF program may be used to compensate for impacts located within the service area specified in the bank or ILF program's certification.
B. 
Cooperative Restoration, Creation or Enhancement Projects. The city may encourage, facilitate, and approve cooperative projects wherein a single applicant, group of applicants, or other entity with demonstrated capability may undertake a compensatory mitigation project with funding from each of the applicants or another source under the following circumstances:
1. 
Restoration, creation, or enhancement at an individual location (site) may be scientifically or economically impractical, difficult, or impossible; or
2. 
Creation of one or several larger wetlands, riparian areas, or buffer areas in an off-site location may be preferable to the mitigation of many small wetlands in their existing on-site locations; or
3. 
Restoration/relocation of a previously degraded stream channel in conjunction with the creation of floodplain wetlands, riparian corridors, and enhanced buffers may have a greater benefit to fish and wildlife production in the watershed than smaller individual mitigation projects located within current or future project sites; and
4. 
The applicant or applicants proposing cooperative compensation projects shall:
a. 
Submit a cooperative project mitigation plan prepared by a qualified professional that contains the information required listed in Appendix C[1] of this chapter;
[1]
Editor's Note: Appendices are included as an attachment to this title.
b. 
Demonstrate compliance with the provisions of this chapter and all standards, rules, requirements, and regulations enforced by other resource management agencies with jurisdictional interest in the proposed project;
c. 
Demonstrate, in the form of contractual agreements or verifiable funding sources (i.e., an escrow account), that the organizational and fiscal capability to act cooperatively are in place and are perpetual;
d. 
Demonstrate that long-term management capability can and will be provided through the entire life of the project; and
e. 
Obtain all state and federal permits and approvals necessary for the compensation project prior to making formal application to the city.
f. 
Note: This is an opportunity for individual land owners contemplating or anticipating future development opportunities to occur on the lands collectively to form a legal entity for the purpose of eliminating small, low function and value Category III and Category IV wetlands located on their individual properties and cooperatively mitigating the individual impacts in a larger off-site location in advance of the actual critical area impacts. The same concept can be used to restore and/or relocate stream habitat or to connect isolated areas of wildlife habitat.
(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2572 § 2 (Exh. A § 6), 2015; Ord. 2798 § 2 (Exh. B), 2025)
A. 
Compensatory mitigation shall follow an approved mitigation plan pursuant to EMC § 19.02.140(B)(9) and shall meet the following minimum performance standards:
1. 
Given the uncertainties in scientific knowledge and the need for expertise and monitoring, critical area compensatory mitigation projects may be permitted only when the city finds that the mitigation project is associated with an activity or development otherwise permitted and that the restored, created, or enhanced wetland will be as persistent as the wetland it replaces.
2. 
Additionally, the applicant shall:
a. 
Demonstrate sufficient scientific expertise (including current knowledge of best available science), supervisory capability, and financial resources to carry out the proposed mitigation project;
b. 
Demonstrate the capability to adequately monitor the site and to maintain (make corrections) the mitigation area during the monitoring period so the mitigation project does not fail to meet the environmental goals and performance standards defined in the approved mitigation plan; and
c. 
Protect and manage, or provide for the protection and management of, the mitigation area to avoid future development-related impacts or degradation within the mitigation area and to provide for long-term persistence of the compensation area.
3. 
Wetland functions and values shall be calculated using the best professional judgment of a qualified professional using the best available techniques.
(Ord. 2293 § 2 (Exh. A), 2005; Ord. 2798 § 2 (Exh. B), 2025)