This chapter is established pursuant to the Washington State Growth Management Act, RCW 36.70A.060 and 36.70A.172. This chapter shall be known as the Lewis County critical areas ordinance.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
The purpose of this chapter is to implement the goals and policies of the Washington State Growth Management Act, Chapters 36.70A and 36.70B RCW, the State Environmental Policy Act, Chapter 43.21C RCW, and the Lewis County comprehensive plan, as amended, to protect critical areas of Lewis County. This purpose will be achieved by preserving these valuable ecological resources, maintaining no net loss of ecological functions, and reducing risks to public health and safety by employing best available science as defined by WAC 365-195-900 through 365-195-925.
This chapter also provides county officials and the public with sufficient information to protect critical areas through clear regulations, documentation requirements, review, and approval processes for sites containing critical areas and/or their buffers.
(Ord. 1370 (Exh. B), 2025)
(1)
This chapter classifies and designates critical areas in Lewis County and establishes regulations for the protection of the ecological functions and values of critical areas and the preservation of human health and safety. The chapter also gives special consideration to conservation and protection measures to preserve and enhance anadromous fisheries.
(2)
Administrative provisions of this chapter do not apply to lands within the jurisdiction of the Shoreline Management Act (SMA). Projects within the jurisdiction of the SMA shall be processed under the Lewis County shoreline master program, SMP Chapter 7, Shoreline Administration.
(3)
No alterations to land, water, or vegetation, or the construction or alteration of any structure or improvement, shall occur within a critical area or its buffer, as regulated by this chapter, except in compliance with the provisions of this chapter.
(4)
Failure to comply with the provisions of this chapter shall be considered a violation and be subject to the enforcement procedures in Chapter 17.300 LCC.
(5)
Compliance with the provisions of this title does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required including, but not limited to, shoreline permits, HPA permits, Army Corps of Engineers Section 404 permits, Ecology Section 401 permits, and NPDES permits. The applicant is responsible for complying with these requirements, apart from the process established in this title.
(Ord. 1284 § 4, 2018; Ord. 1327 § 1, 2021; Ord. 1370 (Exh. B), 2025)
(1)
Areas characterized by multiple critical areas shall address the requirements for each of the critical areas.
(2)
In the event of a conflict between these regulations and the other regulations of the county, the regulations that provide the greater protection of the critical areas shall apply.
(3)
No permit granted pursuant to this chapter shall remove the applicant's obligation to comply with other provisions of federal, state, and local law and regulation.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
Mapping. The approximate location and extent of known critical areas is shown on the county's critical area maps. The county shall update the maps as new critical areas are identified and information becomes available.
(2)
Site-Specific Information Required. The county maps and reports should be used as a general guide for critical area investigation. They depict the approximate location and extent of known critical areas. Some critical areas depicted in these resources may no longer exist and critical areas not shown in these resources may occur. Detailed site investigations are needed to determine the actual locations and boundaries of critical areas and buffers, as well as their quality and quantity, which must be based upon the presence of the features applicable to each critical areas element in this chapter. The provisions of this chapter and the findings of a critical areas assessment report and review of the report by the county take precedence over the county's mapping.
(3)
Limitation of Liability. The maintenance of critical area maps does not imply that land outside of mapped critical areas will be without risk. Preparation and maintenance of such maps shall not create a liability on the part of Lewis County, or any officer or employee thereof, for any damages that result from the reliance on said maps for any decision lawfully made hereunder.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
Role of Administrator.
(a)
When a development application is submitted to Lewis County, the administrator shall review the proposal for its relation to critical areas or their buffers.
(b)
When a proposed development or activity is within, abutting, or likely to adversely affect a critical area or buffer pursuant to the provisions of this chapter, the administrator shall:
(i)
Require the applicant to submit a critical area assessment report, subject to LCC § 17.38.070, that has been prepared by a qualified professional.
(ii)
Require the applicant to submit a critical area mitigation plan subject to LCC § 17.38.080, if any impacts to a critical area or buffer are anticipated; provided, that the requirement for a mitigation plan shall not apply to any developments that utilize buffer reductions or averaging.
(iii)
Review and evaluate the proposal based on the application submittals to:
(A)
Determine whether the development proposal conforms to the purposes and performance standards of this code;
(B)
Assess the potential impacts to the critical area and whether the impacts can be avoided or minimized;
(C)
Determine if the mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and any public health, safety, and welfare concerns; and
(D)
Impose any conditions necessary to assure compliance with the requirements of this code, including implementation and monitoring of mitigation, and, where necessary, increasing the size of the required buffer.
(2)
Application Process.
(a)
No separate application or permit is required for this chapter if the criteria and requirements are otherwise addressed in connection with a Lewis County land use or development permit.
(3)
County Permits. Compliance with the standards in this section shall be a material element of any permit approval.
(4)
Time Period for Critical Areas Report. Approved critical area assessment reports or mitigation plans shall generally be valid for a period of five years.
(5)
Requirement for New Report.
(a)
Modification of Development Proposal. When a proponent modifies the scope of a previously approved proposal, a new critical area assessment report or mitigation plan is required, unless the applicant can demonstrate that the previously prepared information adequately addresses the impacts of the alteration.
(b)
Receipt of Information That Shows Error. When information demonstrates that the initial review was in error, a new critical area assessment report and/or mitigation plan may be required.
(6)
Other Agency Permits and Standards. When permits are required by agencies other than the county, the county shall coordinate the review and establishment of conditions to the maximum extent feasible.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
The activities in this section shall not require a critical area assessment, review or permit as part of this chapter.
(1)
Activities Allowed Without a Lewis County Permit. The activities in subsections (2) through (4) of this section are allowed without the submission of a Lewis County critical areas permit or assessment report; provided, that a critical area assessment report shall be required for the activities when they are not specifically exempted from local review. Exempt activities must not:
(2)
Permit Exempt Activities - Critical Areas and Buffers. The following activities are allowed within critical areas and their buffers without a critical areas permit, when the activities meet the requirements of subsection (1) of this section:
(a)
Normal and routine maintenance and repair of existing public or private facilities within an existing right-of-way, including vegetation management; provided, that the maintenance or repair does not increase the footprint of the facility or right-of-way.
(b)
Utility projects that have minor or short-duration impacts to critical areas, and do not significantly impact the function or values of a critical area(s), as determined by the administrator according to the following criteria:
(i)
There is no practical alternative to the proposed activity with less impact on critical areas;
(ii)
All unavoidable impacts to critical areas and associated buffers are fully mitigated;
(iii)
The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility;
(iv)
The disturbance area associated with the activity is the minimum necessary; and
(v)
The project does not result in the permanent transportation of sediment or increased stormwater flow.
(c)
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. This exemption, however, shall not apply to developments that require local approval for a Class 4 - General forest practice permit (conversion), as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
(d)
Existing and ongoing agricultural activities are not subject to this chapter, so long as the activities are covered by the Lewis County voluntary stewardship program.
(e)
The harvesting of wild crops in a manner that is not injurious to the natural reproduction of such crops, and does not require the tilling of soil, planting of crops, chemical applications, or the alteration of a critical area by changes to topography, water conditions, or water sources.
(f)
Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife.
(g)
Educational and scientific research activities.
(h)
The enhancement of a critical area or critical area buffer through the removal of noxious weeds and/or nonnative invasive plant species, so long as:
(i)
The removal of the noxious weeds and/or invasive plant species is done by hand, unless guidance by the Lewis County or Washington State Noxious Weed Control Board recommends an alternative approach to prevent, control or eradicate the species.
(ii)
All removed plant material is taken away from the site and appropriately disposed of.
(iii)
Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds are handled and disposed of according to a noxious weed control plan appropriate to the species.
(iv)
Revegetation of the site with appropriate native species and at natural densities is allowed in conjunction with the removal of invasive plant species.
(i)
Emergency actions, including those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that 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.
(i)
Hazard Trees. The felling of hazard trees within critical areas and buffers may be performed as an emergency action pursuant to the following conditions:
(A)
Documentation from a qualified professional illustrating that the tree to be removed meets the county's definition of a "hazard tree" (LCC § 17.10.080) must be submitted to the county either prior to the work or within the time frame established by subsection (2)(i)(ii) of this section.
(B)
The hazard tree must remain within the critical area or buffer. Creation of a snag tree is preferred. If this is not feasible, then the felled tree shall remain in place as large woody debris.
(ii)
Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency. In addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the administrator within 14 working days following commencement of the emergency activity, except for county-wide or regional disasters for which the administrator shall provide alternative deadlines.
(iii)
After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action. The person or agency undertaking the action shall obtain all approvals required for this chapter. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency and be completed as provided for in this chapter. An extension may be granted when the administrator determines that more time will be needed, based on a written request from the responsible party.
(j)
Passive recreational uses, sport fishing or hunting, hiking, canoeing, viewing, nature study, photography, scientific or educational review, or similar minimal impact, nondevelopment activities.
(k)
Site investigative work required by a city, county, state, or federal agency in conjunction with the preparation of a land use application submittal, or the monitoring of a restoration or mitigation site, such as surveys, soil logs, percolation tests, and other related activities. In any such activity, impacts on the critical areas must be avoided where possible, minimized where necessary, and disbursed to the extent possible. Critical areas shall be restored to the preexisting level of function and value within one year after tests are concluded.
(l)
Maintenance of existing, lawfully established landscaping and gardens within a critical area or its buffer, including, but not limited to, mowing lawns, weeding, removal of noxious and invasive species, harvesting and replanting of garden crops, pruning, and replanting and replacement of ornamental vegetation to maintain the condition and appearance of such areas as they existed prior to adoption of this code; provided, that such activities do not expand any further into the critical area or buffer. Home and garden herbicides, pesticides, and fertilizers may be used to maintain existing landscaping and gardens within critical area buffers, when applied at times and rates specified on the label in accordance with Washington State Department of Agriculture and other applicable regulations. Home and garden herbicides, pesticides, and fertilizers may not be used in wetlands, streams, or other water bodies without the submittal of a critical areas permit.
(3)
Permit Exempt Activities - Wetlands and Their Buffers. The following activities are additionally allowed within wetlands and their buffers without a critical areas permit, when the activities meet the requirements of subsection (1) of this section:
(a)
Drilling for utilities/utility corridors under a buffer with entrance/exit portals located completely outside of the wetland boundary; provided, that the drilling does not interrupt the ground water connection to the wetland or stream or the percolation of the surface water through the soil column. Specific studies shall be submitted by a hydrologist to determine whether the ground water connection to the wetland, or the percolation of surface water through the soil column, will be disturbed.
(b)
Maintenance and Repair of Existing Legally Established Stormwater Management Facilities. Temporary buffer impacts may occur if all of the following criteria are met:
(4)
Permit Exempt Activities - Buffers Only. The following activities are allowed within critical area buffers without a critical areas permit, when the activities meet the requirements of subsection (1) of this section:
(a)
Repair and maintenance of nonconforming uses or structures, when legally established within the buffer; provided, that the activities do not increase the degree of nonconformity for the critical area, or otherwise cause a net loss in the ecological functions of the critical area or buffer.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
A critical areas assessment report shall be required when a proposal is located within the areas specified in the following sections:
(2)
The critical areas assessment report shall include the following information:
The administrator may waive portions of the submittal requirements, if he/she determines that they are not applicable to the proposed activity.
(3)
Impacts to Critical Areas Known. When a project will impact critical areas and/or their buffers, beyond any standards allowed for buffer averaging and reduced buffer widths, the applicant may submit a report that consolidates the requirements for both the assessment report and the mitigation plan (per LCC § 17.38.080).
(4)
Submittal of Electronic Information. Applicants shall provide the reports and maps in an electronic format that allows site data to be incorporated into the county geographic information system (GIS) database; provided, that the administrator may waive this requirement for single-family developments. Applicants are encouraged to coordinate the electronic submittal guidelines with the administrator. Please note: this standard shall not be construed as a requirement to use a specific computer software.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
Mitigation Report. Where a proposal would alter or impact a critical area or buffer, the applicant shall submit a mitigation plan, critical aquifer recharge area report or geotechnical report in accordance with the following requirements:
(2)
Mitigation Sequencing. The mitigation plan, critical aquifer recharge area report or geotechnical report shall demonstrate that all reasonable efforts have been made to mitigate impacts to critical areas and their buffers in the following prioritized order:
(a)
Avoiding the adverse impact altogether by not taking a certain action or parts of an action, or by moving the action.
(b)
Minimizing adverse impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology and engineering, or by taking affirmative steps to avoid or reduce adverse impacts.
(c)
Rectifying the adverse impact by repairing, rehabilitating or restoring the affected environment.
(d)
Reducing or eliminating the adverse impact over time by preservation and maintenance operations during the life of the action.
(e)
Compensating for the adverse impact by replacing, enhancing, or providing similar substitute resources or environments, monitoring any adverse impact and mitigation, and taking appropriate corrective or adaptive management measures.
(f)
Monitoring the impact and taking appropriate corrective measures.
(3)
The mitigation of individual projects may include a combination of the above measures as needed to achieve the most effective protection or compensatory mitigation of the critical area functions and values.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
Monitoring Required. The administrator shall require applicants to monitor mitigation projects to ensure that the performance standards are satisfactorily met. Monitoring reports shall be submitted to the county in accordance with the monitoring timetables articulated in the mitigation plan or geotechnical report, typically over a period of five to 10 years.
(a)
Monitoring should occur for at least five years from the date of plant installation. Ten years may be applied as warranted on a case-by-case basis to track achievement of mitigation plan goals and objectives (such as tree canopy or tree height metrics).
(b)
The administrator may reduce the time frame for monitoring to three years for small mitigation projects that involve limited critical area or buffer revegetation or vegetation enhancement; provided, that this provision shall not apply to wetland mitigation sites.
(c)
The administrator may waive the monitoring requirement for small-scale mitigation projects of approximately 1,000 square feet or less. These requests shall be reviewed on a case-by-case basis by the administrator.
(2)
Schedule for Monitoring. Monitoring reports for mitigation projects shall be submitted every year, unless an alternative schedule is approved. A potential schedule for a 10-year monitoring period includes the submittal of reports in years one, two, three, five, seven and 10. Three- and five-year monitoring periods require a report in each monitoring year. The administrator may modify report submittal requirements on a case-by-case basis.
(3)
Monitoring Report. Monitoring reports shall include sufficient information to document and assess the degree of mitigation success or failure as defined by the performance standards articulated in the approved mitigation plan or geotechnical report. Information to be provided in monitoring reports shall include the following:
(a)
Methods used to document compliance with the performance standards;
(b)
Measurements of the percent survival of planted material, plant cover, stem density, presence of invasive species, and/or other attributes;
(c)
For sites that involve wetland creation, reestablishment or rehabilitation, hydrologic observations of soil saturation/inundation as needed to demonstrate that a site meets the wetland hydrology criterion;
(d)
Representative photographs of the site;
(e)
A written summary of the overall site conditions and recommendations for maintenance actions if needed; and
(f)
Other information that the administrator deems necessary to ensure the success of the mitigation.
(4)
Projects That Fail to Meet Monitoring Objectives. For projects that fail to address the performance standards identified in the mitigation plan or geotechnical report, the administrator may (among other options):
(5)
The permanent protection of mitigation areas or facilities shall be achieved through deed restriction and/or other protective covenant.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
A project applicant shall demonstrate sufficient capability to implement the mitigation project, monitor the site, and make corrections if the mitigation fails to meet projected goals. A surety to ensure the success of the mitigation may be required:
(a)
When deemed necessary by the administrator, the applicant shall post a mitigation surety in the amount of 125 percent of the estimated cost of the uncompleted mitigation actions. The value of the surety shall be based on an itemized cost estimate of the proposed mitigation activities, including clearing and grading, plant materials, plant installation, irrigation, weed management, monitoring, and other costs.
(b)
The surety shall be in the form of an assignment of funds or other means approved by the administrator.
(c)
The surety shall remain in effect until the administrator determines, in writing, that the standards that have been bonded for have been met. The surety shall generally be held by the county for a period of five years to ensure that the required mitigation has been fully implemented and demonstrated to function. The surety may be held for longer periods when necessary.
(d)
After the initial completion of the mitigation, a surety for the construction of the mitigation may be reduced to an amount not to exceed the cost of the monitoring plus not less than 25 percent of the construction cost.
(e)
The depletion, failure, or collection of surety funds shall not discharge the obligation of an applicant or violator to complete the required mitigation, maintenance, or monitoring.
(f)
Public development proposals may be relieved from having to comply with the bonding requirements of this section if the agency demonstrates that: public funds have been committed to the mitigation, maintenance, or monitoring; and the funds will be available throughout the monitoring period.
(2)
Default. Any failure to satisfy the critical area requirements established by law or condition, including but not limited to the failure to provide a monitoring report within 30 days of its due date or the failure to comply with other provisions of an approved mitigation plan, shall constitute a default of the surety. The county may demand the payment of the financial guarantee or pursue some other remedy that is authorized by the county code or other applicable law. All funds recovered pursuant to this section shall be used to complete the required mitigation.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)
(1)
Technical analyses, including critical areas assessments, mitigation plans, and geotechnical reports, that are submitted as part of an application shall be completed by a qualified critical area professional as defined in LCC § 17.10.170.
(2)
Peer Review Allowed. During the course of review, the administrator may retain, at the applicant's expense, a qualified professional to perform a peer review of the assessment and mitigation reports. The administrator may similarly consult outside agencies with expertise that pertains to the proposal when necessary.
(Ord. 1284 § 4, 2018; Ord. 1370 (Exh. B), 2025)