14.250.330 Critical Areas in Shoreline Jurisdiction

14.250.330 Critical Areas in Shoreline Jurisdiction.

1. The provisions and regulations of Chapters 14.255 SMC, Critical Areas; 14.265 SMC, Critical Aquifer Recharge Areas; 14.270 SMC, Flood Hazard Areas; and 14.275 SMC, Geologically Hazardous Areas shall be applicable to development within the shoreline jurisdiction except as exempted in SMC 14.250.020 or as may be modified in this section. If the provisions of any of those chapters conflict with this chapter, or any part of the Shoreline Management Program, the provisions of this chapter and the program shall prevail.

2. The provisions and regulations of Chapter 14.260 SMC and SMC 14.280.050 and 14.280.060 are not applicable within the shoreline jurisdiction.

3. Activities that are exempt from Chapters 14.255, 14.265, 14.270, and 14.275 SMC shall comply with this chapter. Such activities may require a shoreline letter of exemption, shoreline substantial development permit, shoreline variance or shoreline conditional use permit consistent with the provisions of this chapter.

4. The variance and reasonable use provisions of SMC 14.255.010, 14.255.100, 14.255.110 and 14.255.120 shall not apply to development in the shoreline jurisdiction. Projects that propose to vary from the standards of this chapter, including the critical areas, bulk, dimensional, and performance standards of Chapters 14.255 through 14.280 SMC, incorporated by reference, shall require a shoreline variance according to the provisions of this chapter and Chapter 173-27 WAC.

5. Critical area reports shall be provided consistent with requirements of SMC 14.255.060.

1. To ensure there is no net loss in shoreline ecological functions from the current conditions, proposed development in the shoreline jurisdiction must be designed to avoid impacting the environment.

2. If avoidance is not feasible then the development must be designed to minimize the impacts and compensate for them.

3. To ensure there is no net loss in shoreline ecological functions resulting from any individual development proposal where avoidance of environmental impacts was not feasible, the Director may require applicants to provide a special analysis that:

a. Describes the options that were considered to avoid impacts but were determined to be not feasible;

b. Demonstrates how the design of the project minimizes the effect of any unavoidable impacts; and

c. Shows how proposed mitigation measures will adequately compensate for the negative impacts.

1. Adverse environmental impacts shall be avoided if feasible. Where not feasible to completely avoid environmental impacts, mitigation measures shall be applied in the following sequence of steps, in order of priority:

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

b. Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to avoid or reduce impacts;

c. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

d. Reducing or eliminating the impact over time by preservation and maintenance operations;

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

f. Monitoring the impact and the compensation projects and taking appropriate corrective measures.

2. Lower priority measures shall be applied only where higher priority measures are determined to be infeasible or inapplicable.

3. Application of the mitigation measures must achieve no net loss of ecological functions for each development and shall not result in required mitigation in excess of that necessary to assure that the development will result in no net loss of shoreline ecological functions.

4. When compensatory measures are appropriate pursuant to the mitigation priority sequence above, preferential consideration shall be given to measures that replace the impacted functions directly and in the immediate vicinity of the impact. However, alternative compensatory mitigation within the watershed that addresses limiting factors or identified critical needs for shoreline resource conservation based on watershed or comprehensive resource management plans applicable to the area of impact may be authorized.

1. Wetlands shall be designated in accordance with the approved federal wetland delineation manual and applicable regional supplements as set forth in WAC 173-22-035.

2. Wetlands shall be rated according to the Washington State Department of Ecology wetland rating system found in the 2014 Washington State Wetland Rating System for Western Washington (Ecology Publication No. 14-06-029). Wetlands shall be rated based on categories that reflect the functions and values of each wetland, with categories based on the criteria provided in the 2014 Washington State Wetland Rating System for Western Washington, as follows:

a. Category I Wetlands. Category I wetlands are those wetlands of exceptional value in terms of protecting water quality, storing flood and stormwater, and/or providing habitat for wildlife as indicated by a rating system score of twenty-three (23) points or more. These are wetland communities of infrequent occurrence that often provide documented habitat for sensitive, threatened or endangered species, and/or have other attributes that are very difficult or impossible to replace if altered.

b. Category II Wetlands. Category II wetlands have significant value based on their function as indicated by a rating system score of twenty (20) to twenty-two (22) points. They do not meet the criteria for Category I rating but occur infrequently and have qualities that are difficult to replace if altered.

c. Category III Wetlands. Category III wetlands have important resource value as indicated by a rating system score of between sixteen (16) and nineteen (19) points.

d. Category IV Wetlands. Category IV wetlands are wetlands of limited resource value as indicated by a rating system score of less than sixteen (16) points. They typically have vegetation of similar age and class, lack special habitat features, and/or are isolated or disconnected from other aquatic systems or high quality upland habitats.

3. Wetland buffer width standards within SMC 14.260.060 shall be superseded by the following:

a. Wetland buffers identified in Table 3: Standard Wetland Buffer Widths are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the required wetland rating system. Wetland buffers have been established in accordance with the best available science.

Table 3. Standard Wetland Buffer Widths
	Buffer width (in feet) based on habitat score
Wetland Category	3-4	5	6-7	8-9
Category I: Based on total score	75	105	165	225
Category I: Bogs and Wetlands of High Conservation Value	190			225
Category I: Forested	75	105	165	225
Category II: Based on score	75	105	165	225
Category III (all)	60	105	165	225
Category IV (all)	40

b. The use of the standard buffer widths requires the implementation of the measures in Table 4: Required Measures to Minimize Impacts to Wetlands, where applicable to a specific proposal, to minimize the impacts of the adjacent land uses. If an applicant chooses not to apply the mitigation measures in Table 4, then a thirty-three (33) percent increase in the width of all buffers listed in Table 3 is required.

Table 4. Required Measures to Minimize Impacts to Wetlands
Disturbance	Required Measures to Minimize Impacts
Lights	• Direct lights away from wetland.
Noise	• Locate activity that generates noise away from wetland. • If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source immediately adjacent to the outer edge of the wetland buffer.
Toxic runoff	• Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered. • Establish covenants limiting use of pesticides within 150 feet of wetlands. • Apply integrated pest management.
Stormwater runoff	• Retrofit stormwater detention and treatment for roads and existing adjacent development. • Prevent channelized flow from lawns that directly enters the buffer. • Use low impact development techniques (per PSAT publication on LID techniques).
Change in water regime	• Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns.
Pets and human disturbance	• Use privacy fencing or plant-dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion. • Place wetland and its buffer in a separate tract or protect with a conservation easement.
Dust	• Use best management practices to control dust.
Disruption of corridors or connections	• Maintain connections to off-site areas that are undisturbed. • Restore corridors or connections to off-site habitats by replanting.

c. Outright reduction of wetland buffer widths shall not be allowed within shoreline jurisdiction.

d. No wetland buffer occurring in the shoreline jurisdiction shall be reduced in any location by more than twenty-five (25) percent of the standard buffer width, regardless of wetland category, and only when reduction occurs as part of wetland buffer averaging.

4. Identification of hydric soils and identification and delineation of wetlands shall be done in accordance with the approved federal wetland delineation manual and applicable regional supplements. For wetland delineation purposes, the definitions of “forested wetland” and “mature forested wetland” shall be consistent with the definitions provided within wetland identification, delineation, and rating systems required by this chapter.

5. Mitigation shall be provided consistent with this chapter and SMC 14.260.080.Wetland mitigation ratios tables within SMC 14.260.080(H) shall be superseded by the mitigation ratios in Table 5: Wetland Mitigation Ratios. Ratios for rehabilitation and enhancement may be reduced when combined with 1:1 replacement through creation or reestablishment (see Table 1a, Wetland Mitigation in Washington State Part 1: Agency Policies and Guidance Version 1; Ecology Publication No. 06-06-011a, Olympia, WA, March 2006, or as revised).

Table 5. Wetland Mitigation Ratios
Category and Type of Wetland	Creation or Reestablishment	Rehabilitation Only	Enhancement Only
Category IV	1.5:1	3:1	6:1
Category III	2:1	4:1	8:1
Category II	3:1	6:1	12:1
Category I: Based on functions	4:1	8:1	16:1
Category I: Mature and old-growth forest	6:1	12:1	24:1
Category I: High conservation value/bog	Not considered possible	Case-by-case	Case-by-case

a. As an alternative to mitigation ratios, mitigation requirements may also be determined using the credit/debit tool described in Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Western Washington: Final Report (Ecology Publication No. 10-06-011, Olympia, WA, March 2012, or as revised) if approved by the Planning Director.

1. The provisions of SMC 14.280.010 through 14.280.040 shall apply to the shoreline jurisdiction. The provisions of SMC 14.280.050 through14.280.060 shall not apply in the shoreline jurisdiction and are replaced by the following provisions:

a. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a habitat conservation area, except with approval of a state or federal agency with expertise.

b. Preference in mitigation shall be given to contiguous wildlife habitat corridors.

c. In reviewing development proposals, the City shall seek opportunities to restore degraded riparian fish and wildlife functions such as breeding, rearing, migration, and feeding.

d. The City shall require buffers of undisturbed native vegetation adjacent to habitat conservation areas in accordance with SMC 14.250.330(E)(3). Buffer widths shall reflect the sensitivity of the habitat and may reflect the intensity of nearby human activity.

e. When a species is more sensitive to human activity during a specific season of the year, the City may establish an extra outer buffer from which human activity is excluded during said season.

f. No development shall be allowed within a habitat conservation area or buffer with which state or federal endangered, threatened, or sensitive species have a primary association, except in exchange for restoration as approved by the Planning Director or as provided in a management plan approved by a state or federal agency with appropriate expertise.

g. No development shall be permitted which degrades the functions or values of anadromous fish habitat, including structures or fills which impact migration or spawning, except in exchange for restoration.

h. Construction and other activities within streams shall be seasonally restricted as necessary to protect the resource. Activities shall be timed to occur during work windows designated by the Washington Department of Fish and Wildlife for applicable fish species and shall be consistent with the required state and federal approvals. It shall be the applicants’ responsibility to obtain the required state and federal approvals.

i. Shoreline erosion control shall use bioengineering methods or soft armoring in accordance with an approved critical area report.

j. Relocation of streams is not permitted unless it is part of a stream restoration project and it will result in equal or better habitat and water quality, and will not diminish the flow capacity of the stream. It shall be the applicants’ responsibility to obtain the required state and federal approvals.

k. The following requirements shall apply to culverts:

i. Culverts may be allowed in streams only if they are necessary for the development to occur, if they are designed according to the Washington Department of Fish and Wildlife criteria for fish passage, and if a state hydraulic project approval has been issued.

ii. The applicant or property owner shall keep every culvert free of debris and sediment at all times to allow free passage of water and, if applicable, fish.

iii. The City may require that a stream be removed from an existing culvert as a condition of approval, unless the culvert is not detrimental to fish habitat or water quality, or removal and/or replacement would be detrimental to fish or wildlife habitat or water quality on a long-term basis.

iv. It shall be the applicants’ responsibility to obtain the required state and federal approvals.

l. Clearing and grading, when permitted as part of an authorized development activity or as otherwise allowed in these standards, shall comply with the following:

i. Grading shall be allowed only during the designated dry season, beginning April 1st and ending October 31st of each year; provided, that the City may extend or shorten the designated dry season on a case-by-case basis to reflect actual weather conditions and the incorporation of best management practices to control stormwater.

ii. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the site; provided, that such redistribution shall not constitute authorized fill.

iii. The moisture-holding capacity of the topsoil layer shall be maintained by minimizing soil compaction or re-establishing natural soil structure and infiltrative capacity on all areas of the project area not covered by impervious surfaces.

m. To the extent facilities are allowed in habitat conservation areas, the following regulations shall apply:

i. Trails shall be on the outer twenty-five (25) percent edge of the stream buffer except for limited viewing platforms and crossings. Trails and platforms shall be of pervious materials.

ii. Road bridges and culverts shall be designed according to the Washington Department of Fish and Wildlife Fish Passage Design at Road Culverts, 1999, and the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000.

iii. Utility lines shall be accomplished by boring beneath the scour depth and hyporheic zone (the saturated zone beneath and adjacent to streams that filters nutrients and maintains water quality). Utilities shall avoid paralleling streams or changing the natural rate of shore or channel migration.

iv. New and expanded public flood protection measures shall require a biological assessment approved by the agency responsible for protecting federally listed species.

v. In-stream structures such as high-flow bypasses, sediment ponds, in-stream ponds, retention and detention facilities, tide gates, dams, and weirs shall be allowed only as part of an approved restoration project. It shall be the applicants’ responsibility to obtain the required state and federal approvals.

vi. Stormwater conveyance structures shall incorporate fish habitat features and the sides of open channels and ponds shall be vegetated to retard erosion, filter sediments, and shade the water.

vii. Watercourse alterations shall be in accordance with SMC 14.270.060(H).

a. Table 6 below establishes the standard width of required stream buffers (also known as riparian habitat areas):

Table 6. Habitat Conservation Area Buffer Widths for Specified Rivers/Streams
River/Stream	Habitat Buffer Width
• Snohomish River • Pilchuck River	100 feet; provided, that: • Limited public access is allowed in the 50 feet nearer the river, and • Water-dependent and water-related uses are allowed in the 50 feet further from the river, if mitigation measures result in the uses contributing toward projects that enhance salmonid rearing habitat as identified in the Snohomish ESA Strategy and if, as further mitigation, public access is permitted across the waterfront portion of the site when such a mitigation measure is supported by the particular circumstances and the purposes of the Critical Areas Code. • The buffer shall not extend landward of the Riverfront Trail, where the trail acts as a permanent interruption in the Historic Riverfront SED.
• Cemetery Creek downstream of Fobes Road, Bunk Foss Creek, and any tributaries thereof containing salmonids • All streams flowing into Blackmans Lake, including that part of Swifty Creek above Blackmans Lake	100 feet; provided, that limited public access is allowed in the first 50 feet of buffer.
• Swifty Creek below Blackmans Lake • Myrick’s Fork in the Cemetery Creek basin • Collins Creek in the Bunk Foss Creek basin (upstream of salmon spawning and rearing areas)	50 feet; provided, that limited public access is allowed in the first 25 feet of buffer.

b. If Table 6 does not cover a particular stream, the following Table 7 shall apply:

Table 7. Habitat Conservation Area Buffer Widths for Non-Specified Rivers/Streams
Stream Type	Standard Buffer Width
Type F (fish-bearing other than S)	75 feet
Type Np (non-fish, perennial)	50 feet
Type Ns (non-fish, seasonal)	35 feet

c. Widths shall be measured perpendicular outward in each direction, on the horizontal plane, from the ordinary high water mark, or from the top of bank if the ordinary high water mark cannot be identified, or from the outer edge of the channel migration zone when present. Upon the presence of one (1) or more types of critical areas and buffers, the buffer shall be measured from the delineated critical area boundary as determined by a qualified professional as defined by WAC 365-195-905(4).

d. The Planning Director may modify the buffer widths in the above tables in accordance with the following:

i. Buffer widths may be increased as necessary to fully protect riparian functions. For example, the buffer may be extended to the outer edge of the floodplain or windward into an area of high tree blow-down potential.

ii. If the stream enters an underground culvert or pipe, and is unlikely to ever be restored aboveground, the Planning Director may waive the buffer along the under grounded stream; provided, that where the stream enters and emerges from the pipe the opposite outer edges of the buffer shall be joined by a radius equal to the buffer width, with said radius projecting over the piped stream.

1. The following table establishes the allowed uses in buffer areas:

Table 8. Allowed Uses in Habitat Conservation Area and Wetland Buffers
Uses That May Be Permitted (P) in Buffer, Provided There Is No Net Loss of Ecological Function	Habitat Conservation Area Buffer	Wetland Buffer
	All Shorelines	Category IV	Category III	Category II	Category I
Water-dependent and water-related uses	P
Public parks and public water enjoyment uses	P
Bio-retention facilities, percolation trenches, and similar non-structural stormwater facilities, excluding detention ponds	P	P1	P1
Utility poles, lines, and other facilities that do not require clearing and cannot be placed in another location due to the function of the utility	P	P	P	P	P
Pedestrian trails, minimal wildlife viewing structures, and other limited public access	P2	P2	P2	P2	P2

1Stormwater outfalls/dispersion facilities may only be located in the outer twenty-five (25) percent of the standard buffers for Category III and Category IV wetlands. Such facilities shall not be allowed in the buffers for Category I and Category II wetlands.

2Pedestrian trails must:

aBe located in the outer twenty-five (25) percent of the buffer area;

bHave a permeable surface; and

cBe no more than five (5) feet in width.

1. Vegetation and vegetated areas within designated critical areas and their required buffers shall be preserved, enhanced, and restored in compliance with this chapter so as to protect or improve shoreline ecological processes and functions. Such measures shall be as prescribed herein and/or by a critical areas report prepared pursuant to Chapter 14.255 SMC.

2. Except as specifically permitted by this chapter, no disturbance to vegetation within a prescribed buffer or a buffer approved pursuant to this chapter shall occur without prior written approval of the City.

a. Where unapproved disturbance occurs, the property owner, if private land, or responsible party, if public land, shall provide a critical area report and vegetation management plan to determine whether and what restoration steps shall be implemented and maintained to restore prior ecological functions.

b. The restoration plan must be approved by the Planning Director and implemented by the property owner/responsible party.

3. Invasive species and state-recognized noxious weeds, as designated by the Planning Director, may be removed from critical area buffers without a permit as part of a buffer restoration or enhancement project if such activities are performed without increasing sediment transport to a water body and if replacement plantings will provide greater benefit to shoreline ecological processes.

a. Buffer restoration projects shall not reduce the existing buffer width.

b. Unless plans are approved by the City for alternative methods, plant removal shall consist of physical uprooting by hand or light equipment, chemical treatment of individual plants, or shallow excavation of no more than one thousand (1,000) square feet of dense infestations.

4. In the absence of a development proposal, existing, lawfully established residential landscaping and gardens within a shoreline buffer may be retained, replaced, and maintained to continue the condition, appearance, and extent of such areas as they existed prior to the adoption of this code. However, this exception does not apply to unmaintained buffer areas, native growth protection areas, mitigation sites, or other areas protected by conservation easements or similar restrictions, and as further provided in this chapter.

5. Trees in excess of six (6) inches in diameter measured four (4) feet above surrounding grade shall only be removed from a critical area or critical area buffer within the shoreline jurisdiction with justification of improvement to ecological functions and processes and with prior written approval of the Planning Director.

a. Any tree within a critical area or buffer deemed by a certified arborist to be a hazard to structures or public safety may be pruned or removed to protect public health and safety consistent with a plan prepared by a certified arborist.

b. Trees that pose an immediate threat to property or safety may be removed if a report with photographic documentation from a certified arborist justifying such removal is submitted and approved by the Planning Director within thirty (30) days following removal.

c. Trees removed from buffer areas shall be replaced at a two-to-one (2:1) ratio.

i. Proposals for replacement trees shall be approved prior to tree removal unless emergency removal is justified due to an imminent threat posed by a hazard tree, in which case the tree replacement plan shall be submitted within thirty (30) days following removal.

ii. Replacement trees in a shoreline buffer shall be planted within thirty (30) feet of the OHWM and should be selected to thrive in a shoreline environment.

d. Portions of dead or dying trees not representing a risk to public health and safety shall be retained as snags for wildlife. Cut portions of trees shall be left in the critical area or its buffer unless removal is recommended as determined by a qualified professional as defined by WAC 365-195-905(4).

e. Trees may be selectively pruned for safety and view maintenance where pruning is conducted in a manner that does not harm the health of the trees. Pruning shall only occur according to a plan prepared by a certified arborist and approved by the Planning Director.

6. Vegetation management plans shall be provided as part of a critical area report for required shoreline buffer areas.

a. Vegetation management plans shall be prepared by a qualified professional as defined by WAC 365-195-905(4).

b. Vegetation management plans shall evaluate the ecological value of existing vegetation in the buffer and propose actions to ensure that buffer areas provide ecological functions equivalent to a dense native vegetation community to the extent possible. Required vegetation shall be maintained over the life of the development.

c. For private development, recording of a conservation easement or similar legal restriction may be required to ensure preservation of vegetation within the buffer.

d. Where consistent with the intent of buffer functions, vegetation management plans shall minimize impairment of views of the water body or shoreline from public streets, parks, overlooks, and other adjacent public places.

a. Proposals to implement an alternative restoration plan may be requested by an applicant:

i. Where mitigation of ecological impacts is required; or

ii. Where a critical area report or other information demonstrates buffer enhancements consistent with this chapter would be ineffective or pose a greater ecological risk than preserving existing conditions.

b. Proposals for alternative habitat restoration shall focus on restoring the most critical ecological functions and shall include plans for some habitat restoration or enhancement. In approving an alternative habitat restoration plan, the Planning Director shall consider factors such as changes in surface water runoff rates and water quality, current vegetative conditions, and imposing conditions to limit negative impacts including, but not limited to, ambient noise, light and glare, and activity levels.

c. Habitat enhancements should:

i. First focus on offsetting the project’s negative impacts on habitats;

ii. But, if that is not possible, may focus on restoring other critical ecological functions in the shoreline that have been lost or diminished.

d. Habitat enhancements can include, but are not limited to:

i. Placement of large woody debris in water;

ii. Off-site buffer vegetation management;

iii. Or implementation of other projects identified in the shoreline restoration plan.

e. Where a restoration project is proposed as alternative mitigation, the critical areas report shall evaluate ecological value provided by the proposed improvements relative to the impact of the encroachment.

f. Alternative restoration plans shall be approved at the Planning Director’s discretion. In approving an alternative restoration plan, the Planning Director must determine the mitigation measures proposed will provide broad ecological benefits over a wider area than would a mitigation plan that would only offset the impacts of an individual development. (Ord. 2336, 2018)