The purpose of this chapter is to identify and protect critical areas as required by the Growth Management Act of 1990, and to protect people from hazards posed by critical areas, by supplementing the development requirements contained in the various chapters of the city code and providing for protection measures for critical areas. This resolution is adopted under the authority of RCW Title 35A, Chapter 36.70A RCW and the Leavenworth Municipal Code as now or hereafter amended.
In some areas, it may be important to use the critical areas regulations along with other regulations, such as stormwater management and flood damage prevention regulations, in order to adequately address risks to life, property, and the environment.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
The following definitions supersede terms defined in Chapter 21.90 LMC:
"Alteration"
means any human-induced action that changes the existing condition of a critical area. Alterations include, but are not limited to: grading; filling; dredging; draining; channelizing; discharging pollutants except stormwater; paving, construction, application of gravel; modifying for surface water management purposes; vegetation removal, or any other human activity that changes the existing landforms, vegetation, hydrology, wildlife or wildlife habitat of a critical area. For actions within wetlands, also see "Wetland alteration."
"Development"
includes building, expansion of existing buildings, clearing and grading, new agricultural planting, and land division.
"Repair"
means an activity that restores the character, scope, size, and design of a serviceable area, structure or land use to its previously authorized and undamaged condition.
"Restoration"
means the return of a critical area to a state in which its functions, values and size approach or meet its original, predevelopment state.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
A. 
This chapter classifies and designates critical areas in the city and establishes protection measures for those critical areas. All development or other alterations within, adjacent to, or likely to affect, one or more critical areas, whether public or private, shall be subject to review by the city's administrator or designee for compliance with this chapter. "Adjacent" shall mean any activity located:
1. 
On a site immediately adjoining a critical area;
2. 
Within a distance equal to or less than the required critical area buffer width and building setback;
3. 
Within a distance equal to or less than 300 feet from a stream, wetland, or water body;
4. 
Within a floodway or floodplain; or
5. 
Within 200 feet from a critical aquifer recharge area.
B. 
The provisions of this chapter shall apply to uses permitted outright, accessory or as a conditional use pursuant to the underlying zoning in LMC Title 18 and any development or other alteration requiring a city permit that potentially affects a critical area, unless otherwise exempt. Such uses include but are not limited to:
1. 
Removing, excavating, dredging, dumping, discharging, distributing or filling materials of any kind in a critical area;
2. 
Draining, flooding or altering the water level or water table in a critical area except as necessary to exercise an existing water right permit;
3. 
New surface water management, drainage or erosion control development;
4. 
Driving pilings or placing obstructions in water systems that are in an identified critical area;
5. 
New construction including but not limited to roads and utilities;
6. 
Removal or alteration of existing vegetation through chemicals, clearing, grading, harvesting, shading or planting vegetation that would alter the character of a critical area or designated buffer;
7. 
Uses that result in significant changes in water temperature, physical or chemical characteristics of water sources, including quantity and pollutants, that are in a critical area; and
8. 
Those Class IV conversions under the Forest Practices Act for which the city may condition an application.
C. 
Where two or more types of critical areas overlap, the regulation most protective of critical area functions and values shall apply.
D. 
Where it is determined that a designated critical area is located within shoreline jurisdiction, the provisions of the Shoreline Master Program will be used to regulate that particular critical area. For designated critical areas outside of shoreline jurisdiction the provisions of this chapter shall apply.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
The following uses shall be exempt from the provisions of this chapter, but shall meet all other applicable regulations:
A. 
Normal operation and maintenance of irrigation facilities, limited to removal of sediment and vegetation in existing ditches;
B. 
Existing and ongoing agricultural activities, not to include removal or replacement (within one year) of trees, diverting or impounding water, excavation, ditching, draining, culverting, filling, grading, and similar activities that introduce new adverse impacts to wetlands or other aquatic resources;
C. 
Fish and wildlife habitat conservation area or wetland habitat restoration projects by a public or private agency whose mandate includes such work;
D. 
Forest practices applications, submitted for lands that are not identified for conversion, administered under regulation of the Forest Practices Act, that the city cannot condition an application;
E. 
Low-impact educational activities, scientific research, outdoor recreational activities, including but not limited to interpretive field trips, bird watching and hiking, provided these activities do not temporarily or permanently impact a critical area;
F. 
Site investigative work and studies necessary for preparing land use applications, including but not limited to land surveying, soils tests, water quality studies, wildlife studies and similar tests and investigations; provided, that any disturbance of critical areas shall be the minimum necessary to carry out the work or studies;
G. 
Emergency uses and development necessary to prevent an immediate threat to public health, safety or property, provided the administrator is given written notice within 30 days that such use was performed, and appropriate permitting and mitigation actions follow;
H. 
Minor activities (such as those subject to LMC § 21.09.030, Limited administrative review of applications) not mentioned above and determined by the administrator to pose minimal potential risk to the public health, safety and general welfare;
I. 
Public and private utility and road work (new construction, maintenance and repair) within an improved surface (such as driveways, parking lots, concrete or asphalt surfaces, gravel roads and road shoulders, rights-of-way or easements with existing or previously developed utility infrastructure), except those activities that alter a stream or wetland, such as a bridge or culvert, or result in the transport of sediment or increased stormwater;
J. 
Walkways and trails; provided, that those pathways are limited to minor crossings having no adverse impact on water quality. They should be generally parallel to the perimeter of the wetland, located only in the outer 25 percent of the wetland buffer area, and located to avoid removal of significant trees. They should be limited to pervious surfaces no more than five feet in width for pedestrian use only. Raised boardwalks utilizing nontreated pilings may be acceptable;
K. 
Noxious weed control using best management practices;
L. 
Fire management within fish and wildlife habitat conservation areas or wetland buffers where required by the city fire official, state, federal agency or Chelan County Fire District.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
A. 
If application of this chapter would prohibit development or other alteration by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section. To qualify for an exception the agency or utility must demonstrate that:
1. 
There is no other practical alternative to the proposed development which has less impact on critical areas;
2. 
The application of this chapter would unreasonably restrict the ability to provide needed services or benefit to the public;
3. 
The proposed use does not pose a threat to the public health, safety or welfare;
4. 
The proposal protects critical area functions and values to the extent feasible and provides for mitigation in accord with the provisions of this chapter; and
5. 
The proposal is consistent with other applicable regulations and standards.
B. 
Where a permit is required, a request for exception shall be submitted to the city with the permit application materials. Whether or not a permit is required, the request shall be supplemented with an explanation as to how the public agency and utility exception criteria are satisfied. The administrator may require additional information or studies to supplement the exception request.
C. 
A public agency and utility exception shall be processed according to the provisions of LMC Title 21, Development Code Administration, governing a full administrative review.
D. 
It shall be a condition of any alteration granted a public agency and utility exception that only the portion of the alteration that must be located in a critical area may be so located.
(Ord. 1395 § 1 (Exh. A), 2011)
The city administrator, or his/her designee, is appointed to administer and implement this chapter.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
A. 
This chapter is not intended, and shall not be construed or applied in a manner, to deny reasonable use of private property and/or deny any state or United States Constitutional rights. If an applicant, after review by the administrator, or his or her designee, believes that the decision of the administrator would deny reasonable use of the applicant's property (as so designated in this chapter), use may be permitted by the city council subject to appropriate conditions which may include an approved mitigation plan or in-lieu fee.
B. 
Relief for Reasonable Use. An applicant appealing to the city council under this reasonable use provision shall demonstrate the following:
1. 
No reasonable use with less impact is feasible and reasonable;
2. 
There is no feasible and reasonable on-site alternative to the activities proposed, considering possible changes in site layout, reductions in density and similar factors;
3. 
The proposed activities, as conditioned, will result in the minimum possible impact;
4. 
All reasonable mitigation measures have been implemented or assured; and
5. 
The inability to derive reasonable use is not the result of the applicant's actions.
Example
Reasonable Use Scenarios in the Diagram
A – No reasonable use exception would be granted because there is sufficient space outside the critical area clearing limits.
B – A reasonable use exception might be granted since there is insufficient space for a reasonable use. The development area would need to be limited or scaled back in size and located where the impact is minimized. The jurisdiction might consider a variance to the required setback to minimize intrusion into the protection area.
C – A reasonable use exception would be granted for a minimal development if the property is completely encumbered and mitigation methods are applied.
D – The jurisdiction might consider modifications to the required setback to prevent intrusion into the protection area.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
A variance from the dimensional standards may be granted by the hearing examiner subject to the variance criteria set forth in Chapter 18.56 LMC and upon a showing by the applicant that:
A. 
There are special circumstances applicable to the subject property or to the proposed uses such as shape, topography, location or surroundings, that have not occurred as a result of the landowner's own actions, that do not apply generally to other properties, and which support the granting of a variance from these standards;
B. 
Such variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question;
C. 
The granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvement, or critical area;
D. 
For fish and wildlife habitat conservation areas only: there shall be no negative effects on winter range, critical winter range and migration corridors due to the variance. Mitigation measures that can be demonstrated to offset the variance shall be deemed equal to "no negative effect."
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
A. 
Vegetation removal is subject to the provisions of this chapter and may be considered development. Native vegetation removal is prohibited unless otherwise provided within this chapter.
B. 
Unauthorized Vegetation Removal. Vegetation removal conducted without the appropriate review and approvals shall be mitigated in conformance with an approved mitigation plan meeting the standards of this chapter.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)
Regulations are just one tool to protect the many functions of critical areas. Along with regulations, there are many nonregulatory tools important to critical areas protection. These include stewardship actions taken by landowners, private groups, and the community. The city and residents may benefit from programs from the Cascadia Conservation District, Recreation and Conservation Office, Department of Natural Resources, Chelan-Douglas Land Trust, Trout Unlimited, Cascade Columbia Regional Fisheries Enhancement Group, Yakama Nation, or the Wenatchee River Institute (educational), to name a few groups.
(Ord. 1597 § 1 (Att. A), 2019)
In case of disagreement regarding the findings or recommendations of any critical area study, geological assessment, geotechnical report, or other analysis prepared to ensure the use of the best available science in the implementation of the city's critical areas regulations, the city, at its discretion, may require an evaluation by an independent qualified professional regarding the analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate. The cost of such evaluation will be paid by the applicant.
(Ord. 1395 § 1 (Exh. A), 2011; Ord. 1597 § 1 (Att. A), 2019)