Article VI Fish And Wildlife Habitat Conservation Areas (FWHCAS)

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

Protect valuable aquatic and terrestrial habitats, including lakes, ponds, rivers, and streams and their associated riparian areas, corridors for state or federally listed species and the ecosystem processes on which these areas depend.

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

§ 18.22.610 Classification/designation.

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

(Ord. 5-20 § 2 (Appx. A))

Fish and wildlife habitat conservation areas (FWHCAs) are areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. FWHCAs include those areas identified as being of critical importance to the maintenance of endangered, threatened, or sensitive species of fish, wildlife or plants, or designated habitats and species of local importance.

The following are designated as fish and wildlife habitat conservation areas:

Areas where federally listed species (endangered and threatened) and state-listed species (endangered, threatened, and sensitive species) have a primary association.

Rivers and streams not otherwise addressed under Washington State Forest Practices regulations (Chapter 76.09 RCW and WAC Title 222).

Commercial and recreational shellfish areas.

Kelp and eelgrass beds.

Surf smelt, Pacific herring, and Pacific sand lance, and other forage fish spawning areas.

Naturally occurring ponds less than 20 acres, including submerged aquatic beds that provide fish and wildlife habitat.

(g)

Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity.

(h)

State natural area preserves, natural resource conservation areas, and state wildlife areas.

Species and habitats of local importance designated pursuant to the process delineated in Article IX (Special Reports) of this chapter.

Designated fish and wildlife habitat conservation areas that are within shoreline jurisdiction are regulated under the shoreline master program in Chapter 18.25 JCC, and in circumstances where this chapter conflicts with the shoreline master program, the provisions of the shoreline master program shall prevail.

(Ord. 5-20 § 2 (Appx. A))

§ 18.22.620 Regulated activities.

Any land use or development activity that is subject to a development permit or approval requirements of this code shall be subject to the provisions of this article. These include, but are not limited to, the following activities and, in certain circumstances, activity allowances, that are directly undertaken or originate in a FWHCA, unless otherwise exempted under JCC § 18.22.230.

Stream Crossings. Any private or public road expansion or construction which is proposed and must cross streams classified within this article shall comply with the following minimum development standards:

The design of stream crossings shall meet the requirements of the Washington Department of Fish and Wildlife. Fish passage shall be provided if necessary to address manmade obstructions on site. Other alternatives may be allowed upon a showing that, for the site under review, the alternatives would be less disruptive to the habitat or that the necessary building foundations were not feasible.

Crossings shall not occur in salmonid spawning areas unless no other reasonable crossing site exists;

Bridge piers or abutments may be allowed either within the floodway or between the ordinary high water marks, provided no other reasonable alternative placement exists;

Crossings shall serve multiple properties whenever possible; and

Where there is no reasonable alternative to providing a culvert, the culvert shall be the minimum length necessary to accommodate the permitted activity.

Utilities. Placement of utilities within designated fish and wildlife habitat areas may be allowed pursuant to the following standards:

Construction of utilities may be permitted in FWHCAs when no practicable or reasonable alternative location is available and the utility corridor does not cause or increase habitat fragmentation for state or federally listed species and meets the requirements for installation, replacement of vegetation and maintenance outlined below. Utilities are encouraged to follow existing or permitted roads where possible.

Construction of sewer lines or on-site sewage systems may be permitted in FWHCA buffers when it can be demonstrated that it is necessary to meet state or local health code requirements; that there are no other practicable alternatives available; and construction meets the requirements of this article. Joint use of the sewer utility corridor by other utilities may be allowed.

New utility corridors shall not be allowed in FWHCAs with known locations of federal- or state-listed endangered, threatened, or sensitive species, except in those circumstances where an approved habitat management plan is in place.

Utility corridor construction and maintenance shall protect the environment of fish and wildlife habitat areas.

New utility corridors shall be aligned when possible to avoid cutting trees greater than 12 inches in diameter at breast height (four and one-half feet) measured on the uphill side.

New utility corridors shall be revegetated with appropriate native vegetation at not less than preconstruction vegetation densities or greater, immediately upon completion of construction or as soon thereafter as possible due to seasonal growing constraints. The utility shall ensure that such vegetation survives for a three-year period.

Utility towers should be painted with brush, pad or roller and should not be sandblasted or spray-painted, nor shall lead-based paints be used.

Utilities should follow best management practices for avian protection.

Bank Stabilization.

A stream channel and bank, bluff, and shoreline may be stabilized when naturally occurring earth movement threatens existing legal structures, public improvements, unique natural resources, public health, safety or welfare, or the only feasible access to property, and, in the case of streams, when such stabilization results in maintenance of fish habitat or improved water quality, as demonstrated through a habitat management plan or equivalent study or assessment.

Bluff, bank and shoreline stabilization shall follow the standards of the Jefferson County shoreline master program, geologically hazardous areas provision in this chapter, and the flood damage prevention ordinance.

Gravel mining.

(5)

Forest practices, Class IV general and conversion option harvest plans.

(6)

Road/Street Expansion and New Construction. Any private or public road or street expansion or construction may be allowed in a FWHCA provided it complies with the following minimum development standards:

No other reasonable or practicable alternative exists and the proposed road or street serves multiple properties whenever possible;

Public and private roads are encouraged to provide for other purposes, such as utility crossings, pedestrian or bicycle easements, viewing points, etc.; and

The road or street construction is the minimum necessary, as required by the department of public works' guidelines. Minimum necessary provisions may include projected level of service requirements.

(7)

Outdoor Recreation, Education, and Trails Construction. Activities and improvements that do not significantly affect the function of the FWHCA (including viewing structures, outdoor scientific or interpretive facilities, trails, hunting blinds, etc.) may be permitted in FWHCAs.

Trails and other facilities shall, to the extent feasible, be placed on existing road grades, utility corridors, or other previously disturbed areas;

Trails and other facilities shall be planned to minimize removal of trees, shrubs, snags, and important wildlife habitat;

Viewing platforms, interpretive centers, benches, and access to them, shall be designed and located to minimize impacts to wildlife, fish, or their habitat; or

Trails, in general, shall be set back from streams so that there will be minimal impact to the stream from trail use or maintenance. Trails shall be constructed with pervious surfaces when feasible and trails within FWHCAs are not intended to be used by motorized vehicles.

(8)

Chemical application or storage.

(9)

Land division, land use permits and land alteration (such as excavation, dredging, grading, or filling).

(10)

Modification of hydrologic regime or conditions (including placement of obstructions or impediments to natural water flow or movement).

(11)

Agricultural activities – see Article VIII of this chapter, JCC § 18.22.800.

(12)

Vegetation removal or alteration (could include but is not limited to clearing, harvesting, shading, intentional burning, use of herbicides/pesticides, or planting vegetation that alters the character of the regulated area; provided, the activity is not exempt under JCC § 18.22.230). Minor pruning may be allowed provided it is consistent with JCC § 18.22.530(1)(a) and (b).

(13)

Relocation of streams, or portions of streams, may be allowed when there is no other feasible alternative and when the relocation will result in equal or better habitat and water quality and quantity, and will not diminish the flow capacity of the stream or other natural stream processes; provided, the relocation meets state hydraulic project approval requirements and that relocation of shoreline streams shall be prohibited unless the relocation has been identified formally by the Washington Department of Fish and Wildlife as essential for fish and wildlife habitat enhancement or identified in watershed planning documents prepared and adopted pursuant to Chapter 90.82 RCW.

(Ord. 5-20 § 2 (Appx. A))

§ 18.22.630 Protection standards.

General. Application for a project on a parcel of real property containing a designated FWHCA shall adhere to the requirements in this section.

Drainage and Erosion Control. In addition to complying with the stormwater requirements of Chapter 18.30 JCC, the applicant must clearly show that stormwater quantity, quality, and flow path post-construction will be comparable to pre-construction conditions.

Grading. An applicant submitting a project application shall also submit, and have approved, a grading plan, as specified in Chapter 18.30 JCC.

Vegetation Retention. The following provisions regarding vegetation retention shall apply:

Vegetation within FHWCAs or buffers shall be retained to the extent practicable. Unless exempt under this chapter, vegetation removal or alteration of a FWHCA or a buffer shall require review and approval by the department.

Altering the habitat conditions of FWHCAs or buffers without prior review and approval by the department is prohibited.

All trees and understory vegetation lying outside of road rights-of-way and utility easements shall be retained (except for hazard trees) during maintenance clearing of rights-of-way for roadways and utilities; provided, understory vegetation damaged during approved clearing operations may be pruned.

Damage to vegetation retained during initial clearing activities shall be minimized by directional felling of trees to avoid critical areas and vegetation to be retained.

(5)

Buffers – Standard Requirements. The administrator shall have the authority to require buffers from the edges of all FWHCAs in accordance with the following:

Buffers Generally.

Buffers shall be established for activities adjacent to FWHCAs as necessary to protect the integrity, functions, and values of the resource, consistent with the requirements in Tables 18.22.630(1) and 18.22.630(2) of this section.

A building setback line of five feet is required from the edge of any buffer area; however, nonstructural improvements such as septic drain fields may be located within setback areas and buffers.

(iii)

Utilities including sewer lines and on-site sewage systems may be permitted in FWHCA buffers only when no practicable or reasonable alternative location is available.

(iv)

Buffers shall be retained in their natural condition; however, minor pruning of vegetation to enhance views or provide access may be permitted as long as the function and character of the buffer are not diminished.

(v)

Lighting shall be directed away from the FWHCA.

(vi)

The administrator shall have the authority to increase a buffer width, if supported by appropriate documentation showing the increase is needed to protect the functions and values of the FWHCA.

(vii)

The administrator shall require signs be posted at the buffer edge if the proposed activity is commercial or industrial, or if the activity is proposed on public lands.

Prescriptive FWHCA Buffers.

The standard buffer widths required by this article are considered to be the minimum required to protect the FWHCA/stream functions and values at the time of the proposed activity. When a buffer lacks adequate vegetation to protect critical area functions, the administrator may require additional documentation before allowing a proposal for buffer reduction or buffer averaging.

§ 18.22.640 Buffer reductions and averaging.

The standard buffer shall be measured landward horizontally on both sides of the stream from the ordinary high water mark (OHWM) as identified in the field. Nevertheless, the required buffer shall include any adjacent regulated wetland(s), landslide hazard areas or erosion hazard areas and required buffers but shall not be extended across paved roads or other lawfully established structures or hardened surfaces. The following standard buffer width requirements are established; provided, portions of streams that flow underground may be exempt from these buffer standards at the administrator's discretion when it can be demonstrated that no adverse effects on aquatic species will occur.

Table 18.22.630(1): Stream Buffers*
Stream Type	Buffer Requirement
Type "S" – Shoreline Streams	150 feet
Type "F" – Fish Bearing Streams	150 feet
Type "Np"– Non-Fish Bearing Perennial Streams	75 feet
Type "Ns" – Non-Fish Bearing Seasonal Streams greater than or equal to 20% grade	75 feet
Type "Ns" – Non-Fish Bearing Seasonal Streams less than 20% grade	50 feet

*Note:

(a) The buffers above shall apply to culverted streams.

(b) The buffers above shall not apply to lawfully established piped streams. The burden of proof is on the applicant to show that the pipe was lawfully established; failure to demonstrate compliance with this requirement shall result in buffers being required.

(iii)

Buffers for Other FWHCAs. The administrator shall determine appropriate buffer widths for other FWHCAs based on the best available information. Buffer widths for nonstream habitat conservation areas shall be as follows:

Table 18.22.630(2): Buffers for Other FWHCAs
FWHCA Type	Buffer Requirement
Areas where federally listed (endangered and threatened) species or state-listed (endangered, threatened, and sensitive) species have a primary association	Buffers shall be 150 feet; provided, local and site specific factors shall be taken into consideration and the buffer width based on the best available information concerning the species/habitat(s) in question or the opinions and recommendations of a qualified professional with appropriate expertise.
Commercial and Recreational Shellfish Areas	Buffers shall extend 150 feet landward from ordinary high water mark of the marine shore.
Kelp and Eelgrass Beds	Buffers apply to areas where native kelp and eelgrass species occur only, and buffers shall extend 22 feet from each patch. There is no buffer for nonnative kelp and eelgrass beds.
Surf Smelt, Pacific Herring, and Pacific Sand Lance Spawning Areas	Buffers shall extend 150 feet landward from ordinary high water mark of the marine shore.
Natural Ponds and Lakes (along with any submerged aquatic beds serving as fish or wildlife habitat)	Ponds under 20 acres – buffers shall extend 50 feet from the ordinary high water mark. Lakes 20 acres and larger – buffers shall extend 100 feet from the ordinary high water mark; provided, where wetlands are associated with the shoreline, the wetland buffer requirements shall also apply.
Natural Area Preserves Natural Resource Conservation Areas	Buffers shall not be required adjacent to these areas. These areas are assumed to encompass the land required for species preservation.
Game Fish Planted by a Governmental or Tribal Agency (lakes, ponds, streams, and rivers)	Ponds under 20 acres – buffers shall extend 50 feet from the ordinary high water mark. Lakes 20 acres and larger – buffers shall extend 100 feet from the ordinary high water mark; provided, where wetlands are associated with the shoreline, the wetland buffer requirements shall also apply. Streams and rivers – see Table 18.22.630(1).
Designated Habitats of Local Importance	The need for and dimensions of buffers for other locally important species or habitats shall be determined on a case-by-case basis.

(Ord. 5-20 § 2 (Appx. A))

The administrator shall have the authority to reduce buffer widths on a case-by-case basis; provided, the specific standards for avoidance and minimization in JCC § 18.22.660 shall apply, and when the applicant demonstrates to the satisfaction of the administrator that all of the following criteria are met:

The buffer reduction shall not adversely affect the habitat functions and values of the adjacent FWHCA or other critical area.

The buffer shall not be reduced to less than 75 percent of the standard buffer, unless it can be demonstrated through a special report prepared by a qualified professional that there will be no net loss of FWHCA functions or values.

The slopes adjacent to the FWHCA within the buffer area are stable and the gradient does not exceed 30 percent.

The administrator shall have the authority to average buffer widths on a case-by case basis; provided, the specific standards for avoidance and minimization in JCC § 18.22.660 shall apply, and when the applicant demonstrates to the satisfaction of the administrator that all the following criteria are met:

The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer and all increases in buffer dimension are parallel to the FWHCA.

The buffer averaging does not reduce the functions or values of the FWHCA or riparian habitat, or the buffer averaging, in conjunction with vegetation enhancement, increases the habitat function.

The buffer averaging is necessary due to site constraints caused by existing physical characteristics such as slope, soils, or vegetation.

The buffer width averaging does not reduce the buffer to less than 75 percent of the standard width or 50 percent for single-family residential development.

The slopes adjacent to the FWHCA within the buffer area are stable and the gradient does not exceed 30 percent.

Buffer averaging shall not be allowed if FWHCA buffers are reduced.

The limits of clearing for the proposed development or use shall be shown on the site plan relative to the FWHCA and the buffer.

§ 18.22.650 Habitat management reports – When required.

In the case of short plat, long plat, binding site plan, and site plan approvals under this code, the applicant shall include on the face of any such instrument the boundary of the FWHCA.

(5)

The applicant may also choose to dedicate the buffer through a conservation easement or deed restriction that shall be recorded with the Jefferson County auditor. Such easements or restrictions shall, however, use the forms approved by the prosecuting attorney.

(Ord. 5-20 § 2 (Appx. A))

When a development, use, or activity is proposed on lands designated as a fish and wildlife habitat conservation area or a buffer, a habitat evaluation may be required. An on-site habitat evaluation determines if FWHCAs or buffers occur in the project area.

If the proposed use, development, or activity occurs in marine water, a dive survey shall be required to determine if any FWHCA is present in the project area and if any FWHCA has the potential to be affected by the proposal.

Evaluations shall be conducted pursuant to the special report requirements found in Article IX (Special Reports) of this chapter.

Types of Reports. When required by this section, an applicant shall submit a report documenting the results of the habitat evaluation for county review and approval. Based on the results of the site evaluation, a report shall be prepared by a qualified professional and either be:

Habitat Reconnaissance Letter. This type of report shall be used if the field evaluation determines that no regulated fish and wildlife habitat conservation area or buffer is present in the proposed project area, which includes those areas that may be temporarily affected by construction-related activities or would be within the limits of clearing for construction. Habitat reconnaissance letters shall be prepared by a wildlife biologist based on requirements presented in Article IX (Special Reports) of this chapter.

Habitat Management Plan. This type of report shall be used if the field evaluation determines that any portion of the proposed project occurs within a regulated FWHCA or buffer, which includes those areas that may be temporarily affected by construction-related activities or would be within the limits of clearing for construction. This type of report shall be used if a proposed buffer reduction or buffer averaging does not exceed 25 percent of the standard buffer width, as shown in Tables 18.22.630(1) and (2). Habitat management plans shall be prepared by a wildlife biologist based on report requirements in Article IX (Special Reports) of this chapter.

If the proposal cannot meet the mitigation or critical areas stewardship plan requirements of this chapter, a critical area variance or reasonable use exception in JCC § 18.22.250 or § 18.22.260 shall be followed and a habitat management plan shall be required. An applicant may pursue a financially bonded critical area stewardship plan (CASP) as applicable under JCC § 18.22.965, provided the proposal can meet all CASP financial and other provisions.

If a dive survey is required, the results of the survey shall be described in a report and supported by photos taken underwater.

(Ord. 5-20 § 2 (Appx. A))

§ 18.22.660 Mitigation.

When Required. Mitigation is required for FWHCA buffer reductions greater than 25 percent but less than 50 percent of the standard buffer widths. Applications for FWHCA buffer reductions greater than 50 percent may pursue a financially bonded critical areas stewardship plan or be approved for buffer reductions greater than 50 percent through a hearing examiner variance or reasonable economic use exception in accordance with this chapter. All unavoidable impacts to FWHCA require mitigation.

FWHCA Mitigation Sequencing. The overall goal shall be no net loss of functions, natural processes, or area within a FWHCA or a FWHCA buffer. All regulated development, uses, and activities in a FWHCA or an associated buffer shall be mitigated in the following order:

Avoiding the impact altogether by not taking a certain action or parts of an action;

Minimizing adverse impacts by limiting the degree or magnitude of the action and its implementation;

Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment to the historical condition or the condition existing at the time of the initiation of a project;

Reducing or eliminating the adverse impact over time by preservation and maintenance operation during the life of the action;

Compensating for the adverse impact by replacing, enhancing, or providing substitute resources or environments;

Monitoring the required compensation and taking appropriate corrective measures when necessary.

Mitigation – Minimum Requirements and Types of Mitigation.

Minimum mitigation requirements are as follows:

Unavoidable impacts to a FWHCA area or buffer shall be mitigated with at least a 1:1 mitigation ratio. The administrator has the authority to require buffer mitigation at a higher ratio if the area to be adversely affected consists of intact native habitat.

Unavoidable impacts to a FWHCA shall require mitigation that fully compensates for all adverse effects to FWHCA functions, natural processes, and area.

FWHCAs mitigation shall include the following options:

On-Site Mitigation. The applicant may propose on-site mitigation if the mitigation proposal compensates for the loss or degradation to existing habitat.

Off-Site Mitigation. The applicant may propose off-site mitigation if:

(A)

On-site mitigation is not feasible and the mitigation proposal compensates for the loss or degradation of existing habitats and species; or

(B)

Off-site mitigation occurs within a connected habitat of a similar nature to the maximum extent practicable and provides better protection of the FWHCA or a significant ecological and functional improvement to the FWHCA; and

(C)

There is a willing landowner that accepts the proposed mitigation; and

(D)

A mitigation agreement/easement is recorded that specifies the individuals or parties responsible for implementing, maintaining, and monitoring the mitigation area.