City of Shoreline, WA Subchapter 3 Fish and Wildlife Habitat Conservation Areas

§ 20.240.260 Fish and wildlife habitat – Description and purpose.

A. Fish and wildlife habitat conservation areas (or habitat conservation areas) are lands managed for maintaining populations of species in suitable habitats within their natural geographic distribution so that the habitat available is sufficient to support viable populations over the long term and isolated subpopulations are not created. Fish and wildlife habitat conservation areas include areas with which State and Federal designated threatened, endangered, and sensitive species have a primary association as well as priority species and habitats listed by WDFW, including corridors that connect priority habitat, and those areas that provide habitat for species of local significance, which have been or may be identified in the City of Shoreline Comprehensive Plan. Fish and wildlife habitat conservation areas also include stream areas and buffers that provide important habitat corridors; help maintain water quality; store and convey stormwater and floodwater; recharge ground water; and serve as areas for recreation, education, scientific study, and aesthetic appreciation.

B. The purpose of fish and wildlife habitat conservation areas shall be to protect and conserve the habitat of fish and wildlife species and thereby maintain or increase their populations. The primary purpose of this section is to minimize development impacts to fish and wildlife habitat conservation areas and to:

1. Protect Federal and State listed habitats and species and give special attention to protection and enhancement of anadromous fish populations; and

2. Maintain a diversity of species and habitat within the City; and

3. Coordinate habitat protection to maintain and provide habitat connections; and

4. Help maintain air and water quality and control erosion.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.270 Fish and wildlife habitat – Classification and designation.

A. The City designates the following fish and wildlife habitat conservation areas that meet one or more of the criteria in subsection B of this section, regardless of any formal identification, as critical area, and as such, these areas are subject to the provisions of this chapter. These areas shall be managed consistent with best available science, including WDFW’s Management Recommendations for Priority Habitat and Species. The following fish and wildlife habitat conservation areas are specifically designated, and this designation does not preclude designation of additional areas as consistent with the criteria in subsection B of this section:

1. All regulated streams and wetlands and their associated buffers as determined by a qualified specialist.

2. The waters, bed, and shoreline of Puget Sound up to the OHWM.

B. Fish and wildlife habitat conservation areas are those areas designated by the City based on review of the best available science; input from WDFW, the Department of Ecology, USACE, and other agencies; and any of the following criteria:

1. Areas where State or Federally Designated Endangered, Threatened, and Sensitive Species Have a Primary Association.

a. Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status. Federally designated endangered and threatened species known to be identified and mapped by the Washington State Department of Wildlife in Shoreline include, but may not be limited to, the following:

i. Chinook (Oncorhynchus tshawytscha);

ii. Southern resident orca or killer whales (Orcinus orca).

b. State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the State of Washington that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the State without cooperative management or removal of threats as identified by WDFW. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (State endangered species) and WAC 232-12-011 (State threatened and sensitive species), as amended from time to time. WDFW maintains the most current listing and should be consulted for current listing status. State designated endangered, threatened, and sensitive species known to be identified and mapped by WDFW in Shoreline include, but may not be limited to, the following:

i. Northern goshawk (Accipiter gentilis);

ii. Purple martin (Progne subis).

2. State Priority Habitats and Species. Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status; sensitivity to habitat alteration; and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by WDFW in the Priority Habitats and Species List. Priority habitats and species known to be identified and mapped by WDFW in Shoreline include, but may not be limited to, the following:

a. Biodiversity areas and corridors identified and mapped along Boeing Creek and in and around Innis Arden Reserve Park;

b. Chinook/fall chinook (Oncorhynchus tshawytscha);

c. Coho (Oncorhynchus kisutch);

d. Dungeness crab (Cancer magister);

e. Estuarine intertidal aquatic habitat;

f. Geoduck (Panopea abrupta);

g. Northern goshawk (Accipiter gentilis);

h. Pacific sand lance (Ammodytes hexapterus);

i. Purple martin (Progne subis);

j. Resident coastal cutthroat (Oncorhynchus clarki);

k. Surf smelt (Hypomesus pretiosus); and

l. Winter steelhead (Oncorhynchus mykiss).

3. Commercial and Recreational Shellfish Areas. These areas include all public and private tidelands or bedlands suitable for shellfish harvest, including shellfish protection districts established pursuant to Chapter 90.72 RCW, as amended from time to time.

4. Kelp and Eelgrass Beds and Herring and Smelt Spawning Areas.

5. Waters of the State. Waters of the State include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the State of Washington, as classified in WAC 222-16-030, as amended from time to time. Streams are those areas where surface waters produce a defined channel or bed, not including irrigation ditches, canals, storm or surface water run-off devices, or other entirely artificial watercourses, unless such watercourses are used by fish or are used to convey streams naturally occurring prior to construction. A channel or bed need not contain water year round; provided, that there is evidence of at least intermittent flow during years of normal rainfall. Streams shall be classified in accordance with the DNR water typing system (WAC 222-16-030), hereby adopted in its entirety by reference and summarized as follows:

a. Type S: streams inventoried as “shorelines of the State” under the SMA and the rules promulgated pursuant to the SMA, as amended from time to time;

b. Type F: streams that contain fish habitat. Not all streams that are known to exist with fish habitat support anadromous fish populations, or have the potential for anadromous fish occurrence because of obstructions, blockages, or access restrictions resulting from existing conditions. Therefore, in order to provide special consideration of and increased protection for anadromous fish in the application of development standards, shoreline streams shall be further classified as follows:

i. Anadromous Fish-Bearing Streams (Type F-Anadromous). These streams include:

(A) Fish-bearing streams where naturally recurring use by anadromous fish populations has been documented by a government agency;

(B) Streams that are fish passable or have the potential to be fish passable by anadromous populations, including those from Lake Washington or Puget Sound, as determined by a qualified professional based on review of stream flow, gradient and natural barriers (i.e., natural features that exceed jumping height for salmonids), and criteria for fish passability established by WDFW; and

(C) Streams that are planned for restoration in a six-year capital improvement plan adopted by a government agency or planned for removal of the private dams that will result in a fish-passable connection to Lake Washington or Puget Sound; and

ii. Nonanadromous Fish-Bearing Streams (Type F-Nonanadromous). These include streams that contain existing or potential fish habitat, but do not have the potential for anadromous fish use due to natural barriers to fish passage, including streams that contain resident or isolated fish populations.

The general areas and stream reaches with access for anadromous fish are indicated in the City of Shoreline Stream and Wetland Inventory and Assessment (2004) and basin plans. The potential for anadromous fish access shall be confirmed in the field by a qualified professional as part of a critical area report;

c. Type Np: perennial nonfish habitat streams;

d. Type Ns: seasonal nonfish habitat streams; and

e. Piped stream segments: those segments of streams, regardless of their type, that are fully enclosed in an underground pipe or culvert.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.272 Fish and wildlife habitat – Mapping.

A. Mapping. The approximate location and extent of fish and wildlife habitat areas are shown in the data layers maintained in the City geographic information system (GIS) and shown in Figure 20.230.080. In addition, the following maps and inventories are hereby adopted by reference as amended:

1. WDFW Priority Habitat and Species maps;

2. DNR Official Water Type Reference maps;

3. DNR Puget Sound Intertidal Habitat Inventory maps;

4. DNR Shorezone Inventory;

5. DNR Natural Heritage Program mapping data;

6. Washington State Department of Health Annual Inventory of Shellfish Harvest Areas;

7. Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors reports published by the Washington State Conservation Commission; and

8. DNR State Natural Area Preserves and Natural Resource Conservation Area maps.

B. The inventories and cited maps and resources are to be used as a guide for the City, project applicants, and/or property owners, and may be continuously updated as new fish and wildlife habitat conservation areas are identified or critical area reports are submitted for known fish and wildlife habitat conservation areas. The inventories, maps, and resources are a reference and do not provide a final critical area designation.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.274 Fish and wildlife habitat – General development standards.

A. Development activities and uses shall be prohibited in fish and wildlife habitat conservation areas and associated buffers, except as provided for in this subchapter. Unless allowed under SMC § 20.240.040, subsection C of this section, or SMC § 20.240.276, development activities and uses that result in alteration of fish and wildlife habitat conservation areas shall be subject to the shoreline variance provisions of 20.220.040.

B. Any proposed alterations permitted, consistent with shoreline variance review, to fish and wildlife habitat conservation area shall require the preparation of a habitat conservation area mitigation plan (commonly referred to as a habitat management plan) to mitigate for the adverse impacts of the proposal, consistent with the recommendations specific to the habitat or species of the WDFW Priority Habitat Program. The habitat management plan shall be prepared by a qualified professional and reviewed and approved by the City, consistent with the standards for mitigation plans in SMC §§ 20.240.082 and 20.240.300.

C. Activities Allowed in Fish and Wildlife Habitat Conservation Areas. The activities listed below are allowed in fish and wildlife habitat conservation areas pursuant to SMC § 20.240.040, Allowed activities, and subject to applicable permit approvals. These activities do not require the submission of a critical area report and are exempt from monitoring and financial guarantee requirements, except where such activities result in a loss of the functions and values of a fish and wildlife habitat conservation area. These activities include:

1. Conservation or preservation of soil, water, vegetation, fish, shellfish, and/or other wildlife that does not entail changing the structure or functions of the existing habitat conservation area.

2. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the fish and wildlife habitat conservation area by changing existing topography, water conditions, or water sources.

3. Permitted alteration to a legally constructed structure existing within a fish and wildlife habitat conservation area buffer that does not increase the footprint of the development or hardscape or increase the impact to a fish and wildlife habitat conservation area, consistent with SMC § 20.220.150.

4. Clearing, grading, and the construction of fences and arbors are allowed within the required 10-foot stream buffers for a piped stream segment if no other critical area or buffer is present.

D. Nonindigenous Species. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a fish and wildlife habitat conservation area unless authorized by a State or Federal permit or approval.

E. Mitigation and Contiguous Corridors. Mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical area report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

F. Approvals of Activities. The Director shall condition approvals of development activities allowed within or adjacent to a fish and wildlife habitat conservation area, as necessary to minimize or mitigate any potential adverse impacts. Conditions shall be based on the best available science and may include, but are not limited to, the following:

1. Establishment of buffers;

2. Preservation of important vegetation and/or habitat features such as snags and downed wood specific to the priority wildlife species in the fish and wildlife habitat conservation area;

3. Limitation of access to the habitat area, including fencing to deter unauthorized access;

4. Seasonal restriction of construction activities;

5. Establishment of a duration and timetable for periodic review of mitigation activities; and

6. Requirement of a performance bond, when necessary, to ensure completion and success of proposed mitigation.

G. Mitigation and Equivalent or Greater Shoreline Ecological Functions. Mitigation of alterations to fish and wildlife habitat conservation areas shall achieve equivalent or greater shoreline ecological, biological, and hydrologic functions and shall include mitigation for adverse impacts upstream from, downstream from, or within the same shoreline reach as the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis. Mitigation shall be located on site except when demonstrated that a higher level of ecological functioning would result from an off-site location. Mitigation shall be detailed in a fish and wildlife habitat conservation area mitigation plan, consistent with the requirements of SMC § 20.240.300.

H. Approvals and the Best Available Science. Any approval of alterations or impacts to a fish and wildlife habitat conservation area shall be supported by the best available science.

I. Buffers.

1. Establishment of Buffers. The Director shall require the establishment of buffer areas for activities adjacent to fish and wildlife habitat conservation areas in order to protect fish and wildlife habitat conservation areas. Buffers shall consist of an undisturbed area of native vegetation or areas identified for restoration established to protect the integrity, functions, and values of the affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and the type and intensity of human activity proposed to be conducted nearby and shall be consistent with the applicable management recommendations issued by WDFW.

2. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply. Larger buffers may be required and activities may be further restricted during the specified season.

3. Habitat Buffer Averaging. The Director may allow the recommended fish and wildlife habitat area buffer width to be reduced in accordance with a critical area report, the best available science, and the applicable management recommendations issued by WDFW, only if:

a. It will not reduce stream or habitat functions;

b. It will not adversely affect fish and wildlife habitat;

c. It will provide additional natural resource protection, such as buffer enhancement;

d. The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer; and

e. The buffer width is not reduced by more than 25 percent in any location.

J. Signs and Fencing of Fish and Wildlife Habitat Conservation Areas.

1. Temporary Markers. The outer perimeter of the fish and wildlife habitat conservation area or buffer and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary “clearing limits” fencing in such a way as to ensure that no unauthorized intrusion will occur. The marking is subject to inspection by the Director prior to the commencement of permitted activities during the preconstruction meeting required under SMC § 20.50.330(E). This temporary marking and fencing shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

2. Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the Director may require the applicant to install permanent signs along the boundary of a fish and wildlife habitat conservation area or buffer, when recommended in a critical area report or otherwise required by the provisions of this chapter.

a. Permanent signs shall be made of an enamel-coated metal face and attached to a metal post or another material of equal durability and nonhazardous. Signs shall be posted at an interval of one per lot or every 50 feet, whichever is less, and shall be maintained by the property owner in perpetuity. The signs shall be worded consistent with the text specified in SMC § 20.240.110 or with alternative language approved by the Director.

b. The provisions of subsection (J)(2)(a) of this section may be modified as necessary to assure protection of sensitive features or wildlife.

3. Fencing. Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts. Permanent fencing shall be required at the outer edge of the fish and wildlife habitat conservation area buffer under the following circumstances; provided, that the Director may waive this requirement:

a. As part of any development proposal for subdivisions, short plats, multifamily, mixed use, and commercial development where the Director determines that such fencing is necessary to protect the shoreline ecological functions of the fish and wildlife habitat conservation area; provided, that breaks in permanent fencing may be allowed for access to allowed uses (subsection C of this section and SMC § 20.240.280(D));

b. As part of development proposals for public and private parks where the adjacent proposed use is active recreation and the Director determines that such fencing is necessary to protect the shoreline ecological functions of the fish and wildlife habitat conservation area;

c. When buffer averaging is part of a development proposal; or

d. At the Director’s discretion, to protect the shoreline ecological functions of the fish and wildlife habitat conservation area, as demonstrated in a critical area report. If found to be necessary, the Director shall condition any permit or authorization issued pursuant to this chapter to require the applicant to install a permanent fence at the edge of the fish and wildlife habitat conservation area or buffer, when fencing will prevent future impacts to the fish and wildlife habitat conservation area.

e. The applicant shall be required to install a permanent fence around the fish and wildlife habitat conservation area or buffer when domestic grazing animals, only as allowed under SMC § 20.40.240, are present or may be introduced on site.

K. Subdivisions. The subdivision and short subdivision of land in fish and wildlife habitat conservation areas and associated buffers are subject to the following:

1. Land that is located wholly within a fish and wildlife habitat conservation area or its buffer may not be subdivided;

2. Land that is located partially within a fish and wildlife habitat conservation area or its buffer may be divided; provided, that the developable portion of each new lot and its access are located outside of the fish and wildlife habitat conservation area or its buffer. The final lots shall each meet the minimum lot size requirements of SMC § 20.50.020;

3. Access roads and utilities serving the proposed subdivision may be permitted within the fish and wildlife habitat conservation area and associated buffers only if the applicant’s qualified professional(s) demonstrate, and the City determines, that no other feasible alternative exists, all unavoidable impacts are fully mitigated, and the use is consistent with this chapter.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.276 Fish and wildlife habitat – Specific habitat development standards.

In addition to the provisions in SMC § 20.240.274, the following development standards apply to the specific habitat types identified below:

A. Endangered, Threatened, and Sensitive Species.

1. No development shall be allowed within a fish and wildlife habitat conservation area or buffer with which State or Federally endangered, threatened, or sensitive species have a primary association, except that which is provided for by a management plan established by WDFW or applicable State or Federal agency.

2. Whenever activities are proposed adjacent to a fish and wildlife habitat conservation area with which State or Federally endangered, threatened, or sensitive species have a primary association, such area shall be protected through the application of protection measures in accordance with a critical area report prepared by a qualified professional and approved by the City. Approval for alteration of the fish and wildlife habitat conservation area or its buffer shall not occur prior to consultation with WDFW for animal species, DNR for plant species, and other appropriate Federal or State agencies.

B. Anadromous Fish.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a. Subsection A of this section applies to anadromous fish where those populations are identified as endangered, threatened, or sensitive species;

b. Activities shall be timed to occur only during the allowable work window as designated by WDFW for the applicable species;

c. An alternative alignment or location for the activity is not feasible;

d. The activity is designed so that it will not degrade the shoreline ecological function of the fish habitat or other critical areas; and

e. Any impacts to the shoreline ecological function of the fish and wildlife habitat conservation area are mitigated in accordance with an approved critical area report.

2. Structures that prevent migration shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided, consistent with RCW 77.57.030, as amended from time to time, that allow the upstream migration of adult fish and prevent fry and juveniles migrating downstream from being trapped or harmed.

3. Fills, when authorized by the City and all applicable joint aquatic resource permit application approvals, shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impacts and shall only be allowed for a water-dependent use.

C. Wetland Habitats. All proposed activities within or adjacent to fish and wildlife habitat conservation areas containing wetlands shall conform to the wetland development performance standards set forth in Chapter 20.240 SMC, Subchapter 4, Wetlands. If nonwetlands habitat and wetlands are present at the same location, the provisions of this subchapter or the Wetlands subchapter, whichever provides greater protection to the habitat, apply.

D. Streams. Activities, uses, and alterations of streams shall be prohibited, subject to the shoreline variance provisions (SMC § 20.220.040), unless otherwise allowed by the allowed activities provisions of this chapter. No alteration to a stream buffer shall be permitted unless consistent with the provisions of this chapter and the specific standards for development outlined below.

1. Type S and Type F-Anadromous Streams. Development activities and uses that result in alteration of Type S and Type F-anadromous streams and their associated buffers shall be prohibited subject to the shoreline variance provisions of SMC § 20.220.040.

2. Type F-Nonanadromous and Type Np Streams. Development activities and uses that result in alteration of Type F-nonanadromous and Type Np streams are prohibited subject to the shoreline variance provisions of SMC § 20.220.040.

3. Type Ns Streams. Development activities and uses that result in unavoidable impacts may be permitted in Type Ns streams and associated buffers in accordance with an approved critical area(s) report and compensatory mitigation plan, and only if the proposed activity is consistent with the purpose and intent of the SMA, this Master Program, and this chapter. Full compensation for the loss of acreage and functions of streams and buffers shall be provided in compliance with the mitigation performance standards and requirements of these regulations.

4. Stream Crossing. Crossing of streams may be permitted based on the findings in a critical area report, subject to the limitations in subsections (D)(1), (2), and (3) of this section, and consistent with the following:

a. Bridges. Bridges shall be used to cross Type S and Type F-anadromous streams. Culverted crossings and other obstructive means of crossing Type S and Type F-anadromous streams shall be prohibited; and

b. Culverts. Culverts are allowed for crossing of Type F-nonanadromous, Np, and Ns streams when fish passage will not be impaired and when the following design criteria and conditions are met:

i. Oversized culverts, which allow for fish passage and floodplain or wetland connectivity, will be installed;

ii. Culverts for Type F streams shall be designed for fish passage that will allow natural stream functions and processes to occur (i.e., sediment, wood, and debris transport) where appropriate;

iii. Gravel substrate will be placed in the bottom of the culvert to a minimum depth of one foot for Type F streams;

iv. A maintenance covenant shall be recorded on title with King County that requires the property owner to, at all times, keep any culvert free of debris and sediment to allow free passage of water and, if applicable, fish; and

v. The City may require that a culvert be removed from a stream as a condition of approval, unless it is demonstrated conclusively that the culvert is not detrimental to fish habitat or water quality, or removal would be detrimental to fish or wild-life habitat or water quality.

5. Relocation. Relocation of a Type S, F, or Np stream may be allowed, subject to the limitations in subsections (D)(1) and (2) of this section, and only when the proposed relocation is part of an approved mitigation or rehabilitation plan, will result in equal or better habitat and water quality, and will not diminish the flow capacity of the stream. Relocation of a Type Ns stream may be allowed, subject to the limitation in subsection (D)(3) of this section, and only when the proposed relocation will result in equal or better habitat and water quality and will not diminish the flow capacity of the stream.

6. Restoring Piped Watercourses. The City allows the voluntary opening of previously channelized/culverted streams and the rehabilitation and restoration of streams. Restoring piped watercourses may be approved, consistent with the following:

a. When piped watercourse sections are restored, a protective buffer shall be required of the stream section. The buffer distance shall be consistent with the buffer relief that may be granted consistent with SMC § 20.240.056, Shoreline restoration projects. The stream and buffer area shall include habitat improvements and measures to prevent erosion, landslide, and water quality impacts. Opened channels shall be designed to support fish and wildlife habitat and uninhibited fish access, unless determined to be unfeasible as demonstrated in a restoration plan reviewed and approved by the City;

b. Removal of pipes conveying streams shall only occur when the City determines that the proposal will result in an improvement of water quality and ecological functions and will not significantly increase the threat of erosion, flooding, slope stability, or other hazards; and

c. Where the buffer of the restored stream would extend onto an adjacent property, the applicant shall obtain a written agreement from the affected neighboring property owner prior to the City approving the restoration of the piped watercourse.

E. Priority Species. Fish and wildlife habitat conservation areas or buffers with priority species shall be subject to the following:

1. Development activities and uses that result in unavoidable impacts may be permitted in priority species habitat areas and associated buffers in accordance with an approved critical area(s) report and habitat management plan, only if the proposed activity is consistent with the purpose and intent of the SMA, this Master Program, and this chapter. Full compensation for the loss of acreage and functions of habitat and buffer areas shall be provided in compliance with the mitigation performance standards and requirements of these regulations.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.280 Fish and wildlife habitat – Required buffer areas.

A. Buffer widths for fish and wildlife habitat areas shall be based on consideration of the following factors: species-specific recommendations of WDFW; recommendations contained in a habitat management plan submitted by a qualified professional; and the nature and intensity of land uses and activities occurring on the land adjacent to the site.

B. Low-impact uses and activities that are consistent with the purpose and function of the habitat buffer and do not detract from its integrity may be permitted within the buffer depending on the sensitivity of the habitat area. Examples of uses and activities which may be permitted in appropriate cases include trails that are pervious, viewing platforms, low impact stormwater management facilities such as bioswales and other similar uses and activities; provided, that any impacts to the buffer resulting from such permitted facilities shall be fully mitigated.

C. Standard Required Stream Buffer Widths. Buffer widths shall reflect the sensitivity of the stream type, the risks associated with development and, in those circumstances permitted by these regulations, the type and intensity of human activity and site design proposed to be conducted on or near the stream area. Stream buffers shall be measured from the OHWM or the top of the bank, if the OHWM cannot be determined. Buffers shall be measured with rounded ends where streams enter or exit piped segments.

1. The following buffers are established for streams based upon the DNR water typing system and further classification based on anadromous or nonanadromous fish presence for the Type F streams:

Table 20.240.280(1)
Stream Type	Standard Buffer Width (ft)
Type S	150
Type F-anadromous	115
Type F-nonanadromous	75
Type Np	65
Type Ns	45
Piped Stream Segments	10

2. Increased Stream Buffer Widths. The recommended stream buffer widths shall be increased, as follows:

a. When the qualified professional determines that the recommended width is insufficient to prevent habitat degradation and to protect the structure and functions of the habitat area;

b. When the flood hazard area exceeds the recommended stream buffer width, the stream buffer area shall extend to the outer edge of the flood hazard area;

c. When a channel migration zone is present, the stream buffer width shall be measured from the outer edge of the channel migration zone;

d. When the habitat area is in an area of high blowdown potential, the stream buffer width shall be expanded an additional 50 feet on the windward side; or

e. When the habitat area is within an erosion or landslide hazard area, or buffer, the stream buffer width shall be the recommended distance, or the erosion or landslide hazard area or buffer, whichever is greater.

3. Stream Buffer Width Averaging with Enhancement. The Director may allow the recommended stream buffer width to be reduced in accordance with an approved critical area report and the best available science, on a case-by-case basis, by averaging buffer widths. Any allowance for averaging buffer widths shall only be granted based on the development and implementation of a buffer enhancement plan for areas of buffer degradation, consistent with the provisions in subsection (C)(4) of this section. Only those portions of the stream buffer existing within the project area or subject parcel shall be considered in the total buffer area for buffer averaging. Averaging of buffer widths may only be allowed where a qualified professional demonstrates that:

a. The width reduction and buffer enhancement plan provides evidence that the stream or habitat functions, including those of nonfish habitat and riparian wildlife, will be:

i. Increased or maintained through plan implementation for those streams where existing buffer vegetation is generally intact native vegetation; or

ii. Increased through plan implementation for those streams where existing buffer vegetation is inadequate to protect the functions and values of the stream;

b. The total area contained in the buffer area of each stream on the development proposal site is not decreased after averaging;

c. The recommended riparian habitat area width is not reduced by more than 25 percent in any one location; and

d. The width reduction will not be located within another critical area or associated buffer.

4. Stream Buffer Enhancement Measures. The measures determined most applicable and/or appropriate will be considered in buffer averaging requirements. These include but are not limited to:

a. Removal of fish barriers to restore accessibility to fish.

b. Enhancement of fish habitat using log structures incorporated as part of a fish habitat enhancement plan.

c. Enhancement of fish and wildlife habitat structures that are likely to be used by wild-life, including wood duck houses, bat boxes, nesting platforms, snags, root-wads/stumps, birdhouses, and heron nesting areas.

d. Additional enhancement measures may include:

i. Planting native vegetation within the buffer area, especially vegetation that would increase value for fish and wildlife, increase stream bank or slope stability, improve water quality, or provide aesthetic/recreational value; or

ii. Creation of a surface channel where a stream was previously underground, in a culvert or pipe. Surface channels that are “daylighted” shall be located within a buffer area and shall be designed with energy dissipating functions or channel roughness features such as meanders and rootwads to reduce future bank failures or nearby flooding; or

iii. Removal or modification of existing stream culverts (such as at road crossings) to improve fish passage, stream habitat, and flow capabilities; or

iv. Upgrading of retention/detention facilities or other drainage facilities beyond required levels.

D. Stream Buffer Allowed Uses and Alteration. Activities and uses shall be prohibited in stream buffers, except as provided for in this chapter. Stream buffers shall be maintained as undisturbed or restored natural vegetation. No clearing or grading activities are allowed within required stream buffers except as allowed under SMC §§ 20.240.040, 20.240.274, and WAC 173-27-040, as amended from time to time, or consistent with an approved buffer enhancement plan consistent with the provisions of this subchapter. No structures or improvements shall be permitted within the stream buffer area, including buildings, decks, and docks, except as otherwise permitted or required under the SMA, this Master Program, and this chapter, or under one of the following circumstances:

1. Approved Mitigation. When the improvements are part of an approved rehabilitation or mitigation plan; or

2. Trails. Construction of trails over and in the buffer of piped stream segments, and the construction of trails near other stream segments, consistent with the following criteria:

a. Trails should be constructed of pervious surface, with preference for natural materials. Raised boardwalks utilizing nontreated pilings may be acceptable;

b. Trails shall be designed in a manner that minimizes impact on the stream system;

c. Trails shall have a maximum trail corridor width of five feet; and

d. Trails should be located within the outer 25 percent of the buffer, i.e., that portion of the buffer that is farther away from the stream and located to avoid removal of significant trees; or

3. Footbridges. Construction of footbridges that minimize the impact to the stream system; or

4. Informational Signs. Construction and placement of informational signs or educational demonstration facilities limited to no more than one square yard surface area and four feet high, provided there is no permanent infringement on stream flow; or

5. Stormwater Management Facilities. Establishment of low impact stormwater management facilities, such as stormwater dispersion outfalls and bioswales, may be allowed within stream buffers consistent with the adopted stormwater manual; provided, that:

a. No other location is feasible;

b. Pipes and conveyance facilities only in the outer 25 percent of the standard buffer area as set forth in Table 20.240.280(1);

c. Stormwater dispersion outfalls, bioswales, bioretention facilities, and other low impact facilities consistent with the adopted stormwater manual may be allowed anywhere within stream buffers when determined by a qualified professional that the location of the facility will enhance the buffer area and protect the stream; and

d. Such facilities are designed consistent with the requirements of SMC § 20.70.330; or

6. Development Proposals within Physically Separated and Functionally Isolated Stream Buffers. Consistent with the definition of “buffers” (SMC § 20.20.012), areas that are functionally isolated and physically separated from stream due to existing, legally established roadways and railroads, or other legally established structures or paved areas eight feet or more in width that occur between the area in question and the stream shall be considered physically isolated and functionally separated stream buffers. Once determined by the Director, based on a submitted critical area report, to be a physically separated and functionally isolated stream buffer, development proposals shall be allowed in these areas.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.290 Fish and wildlife habitat – Critical area report requirements.

A. Report Required. If the Director determines that the site of a proposed development includes, is likely to include, or is adjacent to a fish and wildlife habitat conservation area, a critical area report shall be required. Critical area report requirements for fish and wildlife habitat conservation areas are generally met through submission to the Director of one or more fish and wildlife habitat critical area reports. In addition to the general critical area report requirements of SMC § 20.240.080, critical area reports for fish and wildlife habitat conservation areas shall meet the requirements of this section. Critical area reports for two or more types of critical areas shall meet the report requirements for each relevant type of critical area.

B. Preparation by a Qualified Professional. Critical areas reports for a habitat conservation area shall be prepared and signed by a qualified professional who is a biologist, ecologist, or other scientist with the minimum required experience, per SMC § 20.20.042, related to the specific type(s) of fish and wildlife habitats identified.

C. Third Party Review Required. Critical areas studies and reports on fish and wildlife habitat conservation areas shall be, at the applicant’s sole expense, subject to third party review, consistent with SMC § 20.240.080(C), and in any of the additional following circumstances:

1. Mitigation is required for impacts to Type S, Type F, or Type Np streams and/or buffers; or

2. Mitigation is required for impacts to Type Ns streams.

D. Minimum Report Contents for Fish and Wildlife Habitat Conservation Areas. The critical area written report(s) and accompanying plan sheet(s) shall contain the following information at a minimum:

1. The minimum report contents required per SMC § 20.240.080(E);

2. Documentation of any fieldwork performed on the site, including field data sheets for delineations, water typing and other habitat conservation area classification, baseline hydrologic data, site photos, etc.;

3. A description of the methodologies used to conduct the delineations, classifications, or impact analyses, including reference;

4. Site Plans. A copy of the site plan sheet(s) for the project shall be included with the written report and shall include, at a minimum:

a. Maps (to scale) depicting delineated and surveyed fish and wildlife habitat conservation areas and required buffers on site, including buffers for off-site critical areas that extend onto the project site; the development proposal; other critical areas; clearing and grading limits; areas of proposed impacts to fish and wildlife habitat conservation areas and/or buffers (include square footage estimates); and

b. A depiction of the proposed stormwater management facilities and outlets (to scale) for the development, including estimated areas of intrusion into the buffers of any critical areas. The written report shall contain a discussion of the potential impacts to the fish and wildlife habitat conservation areas associated with anticipated hydroperiod alterations from the project;

5. Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the potential presence or absence of designated critical fish or wildlife species or habitat. A critical area report for a fish and wildlife habitat conservation area shall contain an assessment of habitats including the following site- and proposal-related information at a minimum:

a. Detailed description of vegetation on and adjacent to the project area and its associated buffer;

b. Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;

c. A discussion of any Federal, State, or local special management recommendations, including WDFW habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

d. A detailed discussion of the direct and indirect potential impacts on habitat by the project, including potential impacts to water quality;

e. A discussion of measures, including avoidance, minimization, and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with SMC § 20.240.053;

f. A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs; and

6. Additional Technical Information Requirements for Streams. Critical area reports for streams shall be consistent with the specific development standards for streams in SMC §§ 20.240.276 and 20.240.280 and may be met through submission of one or more specific report types. If stream buffer enhancement is proposed to average stream buffer width, a stream buffer enhancement plan shall be submitted in addition to other critical area report requirements of this section. If no project impacts are anticipated and standard stream buffer widths are retained, a stream delineation report, general critical areas report or other reports, alone or in combination, may be submitted as consistent with the specific requirements of this section. In addition to the basic critical area report requirements for fish and wildlife habitat conservation areas provided in subsections A through C of this section, technical information on streams shall include the following information at a minimum:

a. A written assessment and accompanying maps of the stream and associated hydrologic features on and off site within 200 feet of the project area, including the following information at a minimum:

i. Stream survey showing the field delineated OHWM(s);

ii. Standard stream buffer boundary;

iii. Boundary for proposed stream buffers averaging, if applicable;

iv. Vegetative, faunal, and hydrologic characteristics;

v. Soil and substrate conditions; and

vi. Topographic elevations, at two-foot contours;

b. A detailed description and functional assessment of the stream buffer under existing conditions pertaining to the protection of stream functions, fish habitat and, in particular, potential anadromous fisheries;

c. A habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and stream functions;

d. Proposed buffer enhancement, if needed, including a written assessment and accompanying maps and planting plans for buffer areas to be enhanced, including the following information at a minimum:

i. A description of existing buffer conditions;

ii. A description of proposed buffer conditions and how proposed conditions will increase buffer functions in terms of stream and fish habitat protection;

iii. Performance standards for measuring enhancement success through a monitoring period of at least five years; and

iv. Provisions for monitoring and submission of monitoring reports documenting buffer conditions, as compared to performance standards, for enhancement success;

e. A discussion of ongoing management practices that will protect the shoreline ecological function of the stream through maintenance of vegetation density within the stream buffer.

E. Additional Information. When appropriate due to the type of habitat or species present or the project area conditions, the Director may also require the critical area report to include:

1. Where impacts are proposed, mitigation plans consistent with the requirements of SMC § 20.240.082 and the fish and wildlife habitat mitigation performance standards and requirements of SMC § 20.240.300;

2. Third party review to include any recommendations as appropriate by a qualified professional, under contract with or employed by the City, may be required at the applicant’s expense of the critical area report analysis and the effectiveness of any proposed mitigating measures or programs;

3. A request for consultation with WDFW, the Department of Ecology, local Native American Indian tribes or other appropriate agency;

4. Copies of the joint aquatic resource permit application (JARPA) and related approvals, such as a hydraulic project approval (HPA) from the DFW, when applicable to the project; and

5. Detailed surface and subsurface hydrologic features both on and adjacent to the site.

(Ord. 856 § 2 (Exh. B), 2019)

§ 20.240.300 Fish and wildlife habitat – Mitigation performance standards and requirements.

A. Requirements for Mitigation. Where impacts cannot be avoided, and the applicant has exhausted all feasible design alternatives, the applicant or property owner shall seek to implement other appropriate mitigation actions in compliance with the intent, standards, and criteria of this section. Mitigation provisions shall be applied through the shoreline variance provisions in SMC § 20.220.040, unless mitigated alterations are specifically allowed by the provisions of this subchapter. In an individual case, these actions may include consideration of alternative site plans and layouts, reductions in the density or scope of the proposal, and/or implementation of the performance standards listed in this section.

B. Additional Requirements for Stream Mitigation. Significant adverse impacts to the shoreline ecological function of the stream area shall be mitigated. Mitigation actions shall be implemented in the preferred sequence: avoidance, minimization, restoration, and replacement. Proposals that include less preferred and/or compensatory mitigation shall demonstrate that:

1. All feasible and reasonable measures will be taken to reduce impacts and losses to the stream, or to avoid impacts where avoidance is required by these regulations;

2. The restored, created, or enhanced stream area or buffer will be available and persistent as the stream or buffer area it replaces; and

3. No overall net loss will occur in the shoreline ecological functions of the stream.

C. Compensating for Lost or Impacted Functions. Mitigation of alterations to fish and wildlife habitat shall achieve equivalent or greater shoreline ecological, biological, and hydrologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site on a per function basis. Mitigation shall be located on site except when demonstrated that a higher level of ecological functioning would result from an off-site location. A mitigation plan may include the following:

1. Native vegetation planting plan;

2. Retention, enhancement, or restoration plan of specific habitat features;

3. Plans for control of nonnative invasive plant or wildlife species; and

4. Stipulations for use of innovative, sustainable building practices.

D. Preference of Mitigation Actions. Methods to achieve compensation for the shoreline ecological function of fish and wildlife habitat shall be approached in the following order of preference:

1. Protection. Mitigation measures that increase the protection of the identified fish and wild-life habitat conservation areas may include but are not limited to:

a. Increased or enhanced buffers;

b. Setbacks for permanent and temporary structures;

c. Reduced project scope;

d. Limitations on construction hours;

e. Limitations on hours of operation; and/or

f. Relocation of access.

2. Restoration. Restoration of degraded habitat.

3. Creation. Creation (establishment) of wildlife habitat on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative species. This should be attempted only when the site conditions are conducive to the habitat type that is anticipated in the design.

4. Enhancement. Enhancement of significantly degraded habitat in combination with restoration or creation. Enhancement alone will result in a loss of habitat acreage and is less effective at replacing the functions lost. Enhancement should be part of a mitigation package that includes replacing the impacted area and meeting appropriate ratio requirements.

5. Preservation. Preservation of high-quality, at-risk fish and wildlife habitat as compensation is generally acceptable when done in combination with restoration, creation, or enhancement; provided, that a minimum of 1:1 acreage replacement is provided by reestablishment or creation. Preservation of high-quality, at-risk fish and wildlife habitat may be considered as the sole means of compensation for habitat impacts when the following criteria are met:

a. Habitat impacts will not have a significant adverse impact on habitat for listed fish, or other ESA-listed species;

b. There is no net loss of habitat functions and values within the watershed or basin;

c. The impact area is small (generally less than one-half acre) and/or impacts are occurring to a low-functioning system; and

d. All preservation sites shall include buffer areas adequate to protect the habitat and its functions and values from encroachment and degradation.

E. Location and Timing of Stream Mitigation.

1. Mitigation shall be provided on site, unless on-site mitigation is not scientifically feasible due to the physical features of the property. The burden of proof shall be on the applicant to demonstrate that mitigation cannot be provided on site.

2. When mitigation cannot be provided on site, mitigation shall be provided in the immediate vicinity of the permitted activity on property owned or controlled by the applicant, such as an easement, provided such mitigation is beneficial to the fish and wildlife habitat conservation area and associated resources. It is the responsibility of the applicant to obtain title to off-site mitigation areas. Mitigation may be considered on City-owned property, or on similar publicly owned property for which title is not available, through a City mitigation program if programmatic mitigation areas have been identified by the City.

3. In-kind mitigation shall be provided, except when the applicant demonstrates and the City concurs that greater functional and habitat value can be achieved through out-of-kind mitigation.

4. Only when it is determined by the City that subsections (B)(1), (2), and (3) of this section are inappropriate and impractical shall off-site, in-kind mitigation or off-site, out-of-kind mitigation be considered.

5. When stream mitigation is permitted by this chapter on site or off site, the mitigation project shall occur near an adequate water supply (stream, ground water) with a hydrologic connection to the mitigation area to ensure successful development or restoration.

6. Any agreed-upon mitigation proposal shall be completed prior to project construction, unless a phased schedule that assures completion concurrent with project construction has been approved by the City.

7. Restored or created streams, where permitted by this chapter, shall be an equivalent or higher stream value or function than the altered stream.

F. Performance Standards. The following mitigation measures shall be reflected in fish and wild-life habitat conservation area mitigation planning:

1. The maintenance and protection of habitat functions and values shall be considered a priority in site planning and design;

2. Buildings and structures shall be located in a manner that preserves and minimizes adverse impacts to important habitat areas. This may include clustering buildings and locating fences outside of habitat areas;

3. Retained habitat shall be integrated into open space and landscaping;

4. Where possible, habitat and vegetated open space shall be consolidated in contiguous blocks;

5. Habitat shall be located contiguous to other habitat areas, open space, or landscaped areas, both on and off site, to contribute to a continuous system or corridor that provides connections to adjacent habitat areas;

6. When planting is required, the following standards shall apply:

a. Native species, indigenous to the region, shall be used in any landscaping of disturbed or undeveloped areas and in any enhancement of habitat or buffers;

b. Plant selection shall be consistent with the existing or projected site conditions, including slope aspect, moisture, and shading;

c. Plants should be commercially available or available from local sources;

d. Plant species high in food and cover value for fish and wildlife shall be used;

e. Mostly perennial species should be planted;

f. Committing significant areas of the site to species that have questionable potential for successful establishment shall be avoided;

g. Plant selection, densities, and placement of plants shall be determined by a qualified professional and shown on the design plans;

h. Stockpiling soil and construction materials should be confined to upland areas and contract specifications should limit stockpiling of earthen materials to durations in accordance with City clearing and grading standards, unless otherwise approved by the City;

i. Planting instructions shall be submitted which describe placement, diversity, and spacing of seeds, tubers, bulbs, rhizomes, sprigs, plugs, and transplanted stock;

j. Controlled release fertilizer shall be applied (if required) at the time of planting and afterward only as plant conditions warrant as determined during the monitoring process;

k. An irrigation system shall be installed, if necessary, for the initial establishment period;

l. The heterogeneity and structural diversity of vegetation shall be emphasized in land-scaping; and

m. Significant trees shall be preserved;

7. All construction specifications and methods shall be approved by a qualified professional and the City; and

8. Construction management shall be provided by a qualified professional. Ongoing work on site shall be inspected by the City.

G. Mitigation Plan. Mitigation plans shall be submitted as part of the required critical area report consistent with the requirements of SMC §§ 20.240.080, 20.240.082, and 20.240.290 and this section. When revegetation is required as part of the mitigation, then the mitigation plan shall meet the standards of SMC § 20.240.350(H), excluding those standards that are wetland specific.

H. Monitoring Program and Contingency Plan. A monitoring program shall be implemented by the applicant to determine the success of the mitigation project and any necessary corrective actions. This program shall determine if the original goals and objectives are being met. The monitoring program will be established consistent with the guidelines contained in SMC § 20.240.082(D).

(Ord. 856 § 2 (Exh. B), 2019)