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HomeMy WebLinkAboutCAO Comment - Brooke Frickleton 1201 3rd Ave #2200, Seattle, Washington 98101 p. (206) 343-0681 futurewise.org December 17, 2025 Department of Community Development - CAO Comments Jefferson County 621 Sheridan Street Port Townsend, Washington 98368 Dear Commissioners & Staff: Subject: Comments on the draft Jefferson County Critical Areas Ordinance (CAO) Update for 12/17 Public Hearing Send via email to: dcd@co.jefferson.wa.us; Thank you for the opportunity to comment on the Jefferson County Critical Area Ordinance Update. Futurewise supports periodic reviews and updates to the critical areas regulations and the improvements included in draft. However, a few of the updates are ill-advised as will be documented below. Additional updates are also needed to comply with the Growth Management Act. Futurewise works throughout Washington State to support land-use policies that encourage healthy, equitable and opportunity-rich communities, and that protect our most valuable farmlands, forests, and water resources. Futurewise has members and supporters throughout Washington State including Snohomish County. SITE PLANS AND CRITICAL AREAS REVIEW The draft regulations should clarify when critical areas review is required and what information must be submitted. Activities such as draining wetlands, clearing vegetation, or grading can adversely impact critical areas even when they occur outside designated buffers. Current regulations may not capture all activities that impact critical areas, particularly those affecting downstream resources through hydrologic connections. Watershed-scale processes beyond the waterline strongly influence riparian ecosystem functions, including canopy cover, riparian condition, impervious Department of Community Development - CAO Comments December 17, 2025 Page 2 surfaces and stormwater discharge, sediment delivery, altered watershed hydrology, and nutrient dynamics 1 Recommendation: Require site plans for all activities that may impact critical areas, documenting: - All critical areas and buffers within 300 feet or the applicable buffer width (whichever is greater) 2 - Potential downstream impacts from stormwater discharge, altered hydrology, or pollutant transport3 - Avoidance and minimization measures considered4 - Off-site analysis for projects discharging stormwater beyond site boundaries5 Note: Jefferson County already requires site plan elements for permits and requires depiction of critical areas and buffers as applicable; CAR updates should ensure the critical-areas review trigger and required content capture impacts beyond a fixed 300-foot distance where larger buffers or downstream impacts may exist (Jefferson County Code, Ch. 18.40, Site Plan Requirements). RIPARIAN BUFFER WIDTHS Current buffer widths may not protect riparian functions necessary for salmon recovery and Southern Resident killer whale prey availability. Jefferson County contains critical habitat for ESA-listed salmonids. WDFW's comprehensive science synthesis concludes that "the width of the riparian ecosystem is estimated by one 200-year site-potential tree height (SPTH) measured from the edge of the active channel or active floodplain" and that "protecting functions within at least one 200-year SPTH is a scientifically 1 Rentz, R., Windrope, A., Folkerts, K., & Azerrad, J. (2020). Riparian Ecosystems, Volume 2: Management Recommendations. Habitat Program, Washington Department of Fish and Wildlife, Olympia. pp. 10, 28–29 2 Washington State Department of Ecology, Stormwater Management Manual for Western Washington, Vol. I, Ch. 3, Publication No. 24-10-013, July 2024, pp. 149–150; WDFW, 2009, Land Use Planning for Salmon, Steelhead and Trout 3 Washington Department of Fish and Wildlife. (2022). Net Ecological Gain Standard Proviso Summary Report. Olympia, WA. 4 Washington Department of Fish and Wildlife. (2022). Net Ecological Gain Standard Proviso Summary Report. Olympia, WA.p.23 5 Washington State Department of Ecology, Stormwater Management Manual for Western Washington, Vol. I, Ch. 3 (Off-site Analysis and Mitigation), Publication No. 24-10-013, July 2024, pp. 149–150 Department of Community Development - CAO Comments December 17, 2025 Page 3 supported approach if the goal is to protect and maintain full function of the riparian ecosystem"6 The GMA requires that critical areas regulations protect the functions and values of designated areas (RCW 36.70A.172(1)). Recommendation: - Adopt riparian buffers of one 200-year SPTH for: - Type S, F, and Np streams. - Lakes and ponds supporting salmonids. - Marine shorelines. - Provide buffer width tables based on site-potential tree heights for Jefferson County’s ecological zones, or require site-specific SPTH determination by qualified professionals7 PRIORITY HABITATS AND SPECIES DESIGNATION The draft regulations may not fully designate and protect WDFW Priority Habitats and Species (PHS) and DNR Natural Heritage Program rare plants, as required by GMA Fish and wildlife habitat conservation areas must include State priority habitats and species as identified by WDFW.8 PHS List explains that cities and counties use PHS to fulfill planning requirements under the GMA and Shoreline Management Act.9 The PHS List further states that WDFW management recommendations are developed through comprehensive review and synthesis of the best scientific information available,10 Recommendation: - Designate all WDFW Priority Habitats and Species as fish and wildlife habitat conservation areas - Incorporate WDFW Management Recommendations as protection standards 6 Quinn, Wilhere & Krueger (eds.), 2020, Riparian Ecosystems, Volume 1 (WDFW), p. 271); Rentz, R., Windrope, A., Folkerts, K., & Azerrad, J. (2020). Riparian Ecosystems, Volume 2: Management Recommendations. Habitat Program, Washington Department of Fish and Wildlife, Olympia. 7 Id. 8 (RCW 36.70A.172; WAC 365-190-130); Washington State Department of Commerce. (n.d.). Critical Areas Handbook: A handbook for reviewing critical areas regulations 9 WDFW, 2008, Priority Habitats and Species List, pp. 1–2 10 Id. Department of Community Development - CAO Comments December 17, 2025 Page 4 - Designate DNR Natural Heritage Program rare plants (endangered, threatened, sensitive, and review group 1 species) and protect associated ecosystems; the PHS List directs rare plant and plant community information to DNR Natural Heritage Program11 - Update critical areas maps to show PHS data layers and require PHS review for development proposals where relevant (WDFW, PHS List, 2008, pp. 4–5). WATER RESOURCE PROTECTION The draft CAO’s water-availability language is currently too general to reliably prevent unlawful expansion of permit-exempt groundwater withdrawals through new development and land divisions. In particular, the draft provision referencing WRIA 17 instream flow rules does not clearly identify which permit types trigger review, what “proof” is required, or what findings the County must make to demonstrate compliance. Legal Requirements: - RCW 36.70A.070(1) requires protection of groundwater quality and quantity for public water supplies. - RCW 36.70A.070(5)(c)(iv) requires rural development to protect surface and groundwater resources. RCW 36.70A.590 requires development regulations to ensure proposed water uses are consistent with RCW 90.44.050 (permit-exempt wells) and applicable instream flow rules when the County makes building permit and subdivision decisions (i.e., the statutory “decision points” for new development). Whatcom County v. Hirst requires that counties not simply assume water is legally available; local decision-making must be supported by evidence showing water is both factually and legally available.12 Jefferson County’s current UDC framework treats potable water largely as an application/documentation issue and often defers to other approvals without clearly establishing a “legal availability” decision standard for permit-exempt wells. For example, JCC 18.30.030 broadly requires potable water to be delivered by a means approved by DOH and/or Jefferson County public health, without specifying a legal-availability standard tied to instream flow compliance or RCW 11Washington DNR Natural Heritage Program, 2024, Washington Vascular Plant Species of Conservation Concern 12 See also State Dept. of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1 (2002 Department of Community Development - CAO Comments December 17, 2025 Page 5 90.44.050 limitations. Likewise, JCC 18.40.100(1)(g) requires “evidence of available and adequate water supply,” which may be a water right permit “or another form sufficient to verify,” but does not itself define a WRIA-17/permit- exempt-well legal test. Recommendation: - Adopt regulations ensuring proposed water uses comply with RCW 90.44.050 and applicable instream flow rules, consistent with RCW 36.70A.590. - Require water availability documentation for all new development (Jefferson County Code, Ch. 18.40, Application Requirements, p. 1). - Limit permit-exempt withdrawals in a manner consistent with RCW 90.44.050 - Require water right applications or mitigation for developments exceeding permit-exempt limits - Prohibit new withdrawals in closed basins or where instream flow rules would be violated ( - Protect groundwater resources from saltwater intrusion where coastal aquifers are vulnerable (Jefferson County Draft CAR/CAO SIPZ provisions; WAC 365-190- 100(6) (aquifer recharge areas)). - Use the CAO update process to recommend follow-up amendments to related JCC code sections so the CAO’s standard is implemented consistently across permitting, rather than relying on vague cross-references (e.g., align JCC 18.30.030 and JCC 18.40.100(1)(g) with the CAO’s enforceable decision standard). SEA LEVEL RISE AND CLIMATE RESILIENCE Current regulations do not adequately address sea level rise impacts projected for Jefferson County’s extensive marine shorelines. Projections for Washington sea level rise are available and have been synthesized for planning purposes, and sea level rise differs from FEMA flood studies because FEMA studies are based on past events and are centered on the 1% annual chance flood, whereas sea level rise affects coastal water levels at all times.13 Recommendation: - Update flood hazard maps and development standards to incorporate sea level rise projections and avoid reliance solely on historical FEMA flood studies - Prohibit subdivision of new lots where buildable area would be within projected 2100 sea level rise inundation zone. 13 Miller et al., 2018, Projected Sea Level Rise for Washington State—A 2018 Assessment; National Research Council, 2012). Department of Community Development - CAO Comments December 17, 2025 Page 6 - Require new structures to be sited outside projected inundation zones where lot size permits and elevate new/substantially improved structures above projected sea level rise elevation - Establish landward migration corridors for wetlands and aquatic vegetation and limit new shoreline armoring that prevents habitat migration NET ECOLOGICAL GAIN AND ADAPTIVE MANAGEMENT A "no net loss" (NNL) goal is not enough where ecosystems are already degraded and continuing to decline. Washington State Academy of Sciences concluded that "NNL has not been an effective approach for ecosystem or habitat management and protection nor for the maintenance of ecosystem services," and that "without policy changes, these types of losses will continue and will contribute to the disappearance of distinct habitats and ecosystem types".14 Jefferson County should go beyond NNL and adopt a net ecological gain standard, defined as achieving conditions where "after development, there is an increase in biodiversity or resilience that improves the delivery of valued ecosystem functions in the affected ecosystem"15. WDFW's 2022 report emphasizes that "public projects should contribute to a higher environmental standard when conducting the public's business" and recommends "investing in ecosystem restoration through each public works project, big or small".16 Achieving NEG requires enforceable mitigation sequencing, monitoring, and enforcement capacity. Local programs must be able to determine whether mitigation measures were implemented and enforced Recommendations: • Adopt an explicit "net ecological gain" performance standard for critical areas, requiring measurable improvement over baseline conditions at an appropriate cumulative scale • Make mitigation sequencing mandatory and enforceable, emphasizing avoidance and minimization first and requiring that any unavoidable impacts be more than offset by ecological gains that are durable and maintained over time 14 Washington State Academy of Sciences. (2022). Assessment of No Net Loss and Recommendations for Net Ecological Gain Metrics, Indicators, and Monitoring. Seattle, WA. P.8 15 Id 16 Washington Department of Fish and Wildlife. (2022). Net Ecological Gain Standard Proviso Summary Report. Olympia, WA. Department of Community Development - CAO Comments December 17, 2025 Page 7 • Require project applicants to provide baseline documentation, quantified outcomes/metrics, and a monitoring plan capable of demonstrating whether the project delivers NEG • Establish a Countywide monitoring and reporting program that tracks cumulative impacts and cumulative gains, with defined "triggers" that require regulatory tightening or added mitigation when results fall short of NEG • Conduct annual audits of permits, exemptions, variances, and mitigation outcomes, and publish results to support adaptive management and accountability • Fund and staff an enforcement program sufficient to verify compliance and require corrective actions when mitigation or monitoring shows underperformance • Apply an especially high NEG expectation to County public works and other public projects GEOLOGIC HAZARDS AND LANDSLIDE BUFFERS The draft should strengthen protections for geologically hazardous areas— especially landslide hazards—because landslides can cause fatalities, destroy homes, and run out beyond mapped hazard boundaries. Landslide impacts can extend outside mapped hazard areas, so fixed default buffers may not protect people and property, and site-specific evaluation is often necessary.17 Recommendations: - Increase landslide buffer protections and prohibit construction in landslide buffers as a default standard. - Require site-specific geotechnical studies to determine appropriate buffer widths and hazard extents where needed, and apply those study-based buffers to keep structures out of hazard runout and impact areas. - Require review of any landslide or geologic hazard capable of harming a proposed lot or building site, including hazards that could affect the site from outside the parcel boundary. WILDFIRE SETBACKS AND DEFENSIBLE SPACE 17 Robert L. Schuster & Lynn M. Highland, The Third Hans Cloos Lecture: Urban landslides: socioeconomic impacts and overview of mitigative strategies 66 BULLETIN OF ENGINEERING GEOLOGY AND THE ENVIRONMENT 1, p. 22 (2007); Sean R. LaHusen, Alison R. Duvall, Adam M. Booth, and David R. Montgomery, Surface roughness dating of long-runout landslides near Oso, Washington (USA), reveals persistent postglacial hillslope instability GEOLOGY pp. *2 – 3 Department of Community Development - CAO Comments December 17, 2025 Page 8 The draft should address wildfire risk where development occurs near vegetated critical areas and buffers, because defensible space needs and ongoing building maintenance can create pressure to intrude into protected buffers.18 Recommendation: - Require an additional setback (at least 30 feet) between structures and the edge of critical areas/buffers in areas subject to wildfire danger, to allow a Home Ignition Zone and to allow building maintenance without buffer encroachment. - Prohibit combustible structures (e.g., decks) within that setback area to reduce ignition vulnerability. AGRICULTURE AND CRITICAL AREAS The draft should not allow new or expanded agricultural conversion within wetlands, fish and wildlife habitat conservation areas, or their buffers, because conversion and associated practices can eliminate wetlands and degrade riparian and aquatic habitat functions through runoff, sediment, nutrients, pesticides, and altered hydrology.19 Recommendation: - Amend agricultural provisions so that new or expanded areas of agricultural activities are not allowed within fish and wildlife conservation areas, wetlands, or their buffers. - Keep the solution in the avoidance/prohibition standard (rather than only describing impacts in an informational “resource concerns” section), because preventing conversion is the protective measure needed to avoid permanent habitat loss.20 The Growth Management Act requires critical areas regulations that protect functions and values using best available science, and the County should strengthen its draft to ensure it meets that standard. We appreciate your consideration and are available to discuss these recommendations. If you require additional information, please contact me at email: brooke@futurewise.org. 18 Cohen, J.D., 2000, USDA Forest Service; NFPA Firewise USA guidance 19 . Washington State Department of Ecology, 2022, Wetland Guidance for CAO Updates; WDFW, 2009, Land Use Planning for Salmon, Steelhead and Trout. 20 Washington State Department of Ecology, 2008, Making Mitigation Work; Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415 (2007) Department of Community Development - CAO Comments December 17, 2025 Page 9 Sincerely, Brooke Frickleton Deputy Legal Director All cited documents should be maintained in the administrative record.