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HomeMy WebLinkAboutCAO Comment - Steve Mader1Article VI. Fish and Wildlife Habitat Conservation Areas (FWHCAs) 18.22.600 Purpose. The purposespurpose of this article areis to: (1) Protect, restore, and maintain native fish and wildlife populations by protecting and conserving fish and wildlife habitat and protecting the ecological processes, functions and values, and biodiversity that sustain these resources. (2) Protect valuable aquatic and terrestrial habitats, including lakes, ponds, rivers, and streams and their associated riparian areas, corridors for state or federally listed species and the ecosystem processes on which these areas depend. (3) Regulate development so that isolated populations of species are not created and habitat degradation and fragmentation are minimized. (4) Maintain the natural geographic distribution, connectivity, and quality of fish and wildlife habitat and ensure no net loss of such important habitats, including net losses through cumulative impacts. [Ord. 5-20 § 2 (Appx. A)] 18.22.610 Classification/ and designation. Fish and wildlife habitat conservation areas (FWHCAs) are areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. FWHCAs include those areas identified as being of critical importance to the maintenance of endangered, threatened, or sensitive species of fish, wildlife or plants, or designated habitats and species of local importance. FWHCAs may include, but are not limited to, rare or vulnerable ecological systems, communities, habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and, areas with high relative population density or species richness. FWHCAs does not include such artificial features or structures as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of, and are maintained by, a port district or an irrigation district or company. (1) The following are designated as fish and wildlife habitat conservation areasFWHCAs: (a) Areas where federally listed species (endangered and threatened) and state-listed species (endangered, threatened, and sensitive species) have a primary association.; (b) Rivers and streams not otherwise addressed under Washington State Forest Practices regulations (Chapter 76.09 chapter 76.09 RCW and title 222 WAC Title 222).); (c) Commercial and recreational shellfish areas.; (d) Kelp and eelgrass beds.; (e) Surf smelt, Pacific herring, and Pacific sand lance, and other forage fish spawning areas.; (f) Naturally occurring ponds less than 20 acres, including submerged aquatic beds that provide fish and wildlife habitat.; (g) Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity.; (h) State natural area preserves, natural resource conservation areas, and state wildlife areas.; and (i) Species and habitats of local importance designated pursuant to the process delineated in Article IX (Special Reports) of this chapter. (2) Designated fishFWHCAs and wildlife habitat conservation areastheir associated buffers that are within shoreline jurisdiction are regulated under the shoreline master program in Chapter 18.25 chapter 18.25 JCC, and in circumstances where this chapter conflicts with the shoreline master program, the provisions of the shoreline master program shall prevail. [Ord. 5-20 § 2 (Appx. A)] (3) Sources for Identification. The following sources should be used to identify potential FWHCA locations. These maps are informational only and site evaluations by a qualified professional (i.e. DNR, WDFW, Ecology, Tribes, etc.) or wildlife biologist shall be used to determine compliance with this article. Sources include, but are not limited to: (a) Jefferson County Critical Areas Mapping; (b) Washington State Department water type maps (c) Washington State Department of Fish and Wildlife, Priority Habitats and Species maps and lists; (d) Washington State Department of Fish and Wildlife, forage fish spawning maps; (e) Washington State Department of Ecology, Coastal Atlas online mapping; (f) United States Department of the Interior, Fish and Wildlife Service, Information for Planning and Consultation; (g) United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service Species and Habitat App; and, (h) Northwest Indian Fisheries Commission, Statewide Washington Integrated Fish Distribution map. 18.22.620 Regulated activities Applicability. (1) Any land use or development, land disturbing activity that is subject to a development permit or approval requirements of this codeor use in a FWHCA or its associated buffer shall be subject to the provisions of this article. These include, but are not limited to, the following , unless specially exempted in JCC 18.22.230. 18.22.630 Protection standards. (1) General. An application for land disturbance, development or use on a parcel of real property containing a designated FWHCA or its associated buffer shall adhere to the all of the requirements set forth below. (2) Types of special reports for FWHCA. When a development, use, or activity is proposed on lands which may contain a FWHCA or its associated buffer, an on-site habitat evaluation may be required to determine if a FWHCA or its associated buffers occur in the project area. When required by this section, an applicant shall submit a report documenting the results of an on-site habitat evaluation conducted by a qualified professional or wildlife biologist pursuant to the special report requirements found in Article IX (Special Reports) of this chapter for review and approval by the county. Based on the results of the on-site evaluation, a special report shall be prepared by a qualified professional or wildlife biologist and shall be one of the following: (a) Habitat reconnaissance letter. This type of report shall be used if the field evaluation determines that no regulated FWHCA or buffer is present in the proposed project area, which includes those areas that may be temporarily affected by construction-related activities or would be within the limits of clearing for construction. Habitat reconnaissance letters shall be prepared by a qualified professional or wildlife biologist based on requirements presented in Article IX (Special Reports) of this chapter; (b) Habitat management plan. This type of report shall be used if the field evaluation determines that any portion of the development occurs within a regulated FWHCA or buffer, which includes those areas that may be temporarily affected by construction-related activities and, in certain circumstances, activity allowances, that are directly undertaken or originate in a FWHCA, unless otherwise exempted under JCC 18.22.230.or would be within the limits of clearing for construction. Habitat management plans shall be prepared by a wildlife biologist based on report requirements in Article IX (Special Reports) of this chapter; (1) (c) Enhancement Plan. An enhancement plan of degraded FWHCA or its associated buffer may be prepared by a qualified individual, agency, or wildlife biologist. The plan shall be reviewed and approved by DCD; (d) Dive survey. If the proposed use, development, or activity occurs in marine water, a dive survey shall be required to determine if any FWHCA is present in the project area and if any FWHCA has the potential to be affected by the proposal. The results of the survey shall be described in a special report and supported by photos taken underwater; or (e) Use of best available information. If the potential FWHCA is located off of the property involved is inaccessible, the best available information shall be used to determine the FWHCA boundary and any buffer. (3) Vegetation retention required within a buffer. Compliance with all of the following regarding vegetation retention is required: (a) Vegetation within a FHWCA or its associated buffer shall be retained to the extent practicable. Unless exempt under this chapter, vegetation removal or alteration of a FWHCA or an associated buffer shall be approved by DCD; (b) Altering the habitat conditions of a FWHCA or its associated buffers without prior approval by DCD is prohibited; (c) All trees and understory vegetation lying outside of road rights-of-way and utility easements shall be retained (except for hazard trees) during maintenance clearing of rights-of-way for roadways and utilities; provided, understory vegetation damaged during approved clearing operations may be pruned; and (d) Damage to vegetation retained during initial clearing activities shall be minimized by directional felling of trees to avoid critical areas and vegetation to be retained. (4) Buffer marking. To ensure that buffers are not impacted by adjacent new development or new land disturbing activity and to provide notice of the location of buffers, DCD may require any of the following: (a) Showing the location of the critical area and buffer on all approved site plans adjacent to development or land disturbing activity; (b) Adding permanent fencing, berms, barriers, or native vegetation plantings. This is intended to ensure that development or land disturbing activity does not encroach upon buffers; (c) Posting signs along the buffer edge adjacent to the development or land disturbing activity for commercial, industrial development or uses, or for development or uses on public lands. This is intended to ensure that the public knows the location of the buffers. (d) Record a notice to title on the property with the Jefferson County Auditor prior to approval of the application, if the location of the critical area or its associated buffer is not identified in the development application or on the County’s GIS mapping system. This is intended to disclose to future buyers the existence of critical areas and their associated buffers. (5) Buffers – standard requirements. The administrator shall have the authority to require buffers from the edges of all FWHCAs in accordance with this chapter based on all of the following requirements: (a) General buffers generally. (i) Buffers shall be established for activities adjacent to FWHCAs as necessary to protect the integrity, functions, and values of the resource, consistent with the requirements in Tables 18.22.630(1) and 18.22.630(2) of this section. (ii) A building setback line of five feet is required from the edge of any buffer area; however, nonstructural improvements such as septic drain fields may be located within setback areas. (iii) Buffers shall be retained in their natural condition; however, minor pruning of vegetation to enhance views or provide access may be permitted as long as the function and character of the buffer are not diminished. (iv) Lighting shall be directed away from the FWHCA. (b) Standard buffers for FWHCAs. (i) The standard buffer widths required by this article are considered to be the minimum required to protect the FWHCA functions and values at the time of the proposed activity. When a buffer lacks adequate vegetation to protect critical area functions, the administrator may require additional documentation before allowing a proposal for buffer reduction or buffer averaging. (ii) The standard buffer shall be measured landward horizontally from the ordinary high- water mark (OHWM) or from the edge of the FWHCA as identified in the field. The following standard buffer width requirements are established for streams; provided, portions of streams that flow underground may be exempt from these buffer standards at the administrator’s discretion when it can be demonstrated that no adverse effects on aquatic species will occur. Table 18.22.630(1): Required Buffer Widths for Stream Types* Stream Type Buffer Width (feet) Type “S” – Shoreline Streams 150 Type “F” – Fish Habitat Streams • Urban Growth Areas: 150 • LAMIRDs: 150 • Other County Areas: 200 Type “Np”– Non-Fish Habitat Perennial Streams 100 Type “Ns” – Non-Fish Habitat Seasonal Streams *Note: (a) The buffers above shall apply to culverted streams. (b) The buffers above shall not apply to lawfully established piped streams. The burden of proof is on the applicant to show that the pipe was lawfully established; failure to demonstrate compliance with this requirement shall result in buffers being required. (c) Stream type shall be determined using the criteria in WAC 222-16-030, or as amended. (iii) Buffers for non-stream FWHCAs. The administrator shall determine appropriate buffer widths for non-stream FWHCAs based on the best available information. Buffer widths for non-stream FWHCAs shall be as follows in Table 18.22.630(2): Table 18.22.630(2): Required Buffers for Other FWHCAs Types FWHCA Type Buffer Requirement Areas where federally listed (endangered and threatened) species or state-listed (endangered, threatened, and sensitive) species have a primary association Buffers shall be 150 feet from the edge of the FWHCA; provided, local and site-specific factors shall be taken into consideration and the buffer width based on the best available information concerning the species and habitat(s) in question or the opinions and recommendations of a qualified professional or wildlife biologist with appropriate expertise. Commercial and Recreational Shellfish Areas Buffers shall extend 150 feet landward from OHWM of the marine shore. Kelp and Eelgrass Beds Buffers apply to areas where native kelp and eelgrass species occur only, and buffers shall extend 22 feet from each patch. There is no buffer for nonnative kelp and eelgrass beds. Surf Smelt, Pacific Herring, and Pacific Sand Lance Spawning Areas Buffers shall extend 150 feet landward from OHWM of the marine shore. Non-Shoreline Natural Ponds and Lakes (Under 20 Acres) (along with any submerged aquatic beds serving as fish or wildlife habitat) • Lakes and ponds that have a direct surface connection to a fish-habitat stream segment: 200 feet from the OHWM; • Lakes and ponds that have only a direct surface connection to a non-fish-habitat stream segment: 100 feet from the OHWM; • Other lakes and ponds: 50 feet from the OHWM. Shoreline Natural Ponds and Lakes (20 Acres and Larger) (along with any submerged aquatic beds serving as fish or wildlife habitat) Buffers shall extend 100 feet from the OHWM; provided, where wetlands are associated with the shoreline, the buffer requirements shall also apply. Natural Area Preserves Natural Resource Conservation Areas Buffers shall not be required adjacent to these areas. These areas are assumed to encompass the land required for species preservation. Designated Habitats of Local Importance The need for and dimensions of buffers for other locally important species or habitats shall be determined on a case-by-case basis. FWHCA Type Buffer Requirement [Ord. 5-20 § 2 (Appx. A)] (6) When buffer averaging may be allowed. (a) The administrator shall have the authority to average buffers in a FWHCA area up to 25 percent when all of the following criteria are met: (i) The specific standards for mitigation sequencing in JCC 18.22.640 have been applied during the siting and design of the proposed project. To the extent practicable, that may include consideration all of the following avoidance and minimization measures: (A) Trees and other existing native vegetation are avoided, and alterations are placed on existing road grades, utility corridors, or other developed lands if present; or (B)The buffer is increased adjacent to the higher-functioning area or more- sensitive portion of the buffer or FWHCA and decreased adjacent to the lower functioning or less-sensitive portion; and (ii) Lower intensity land uses are located in the reduced buffer area if feasible; (iii) The development is designed to separate and screen impacts such as noise, glare, vegetation trampling, etc. of adjacent land uses from the critical area. The site design shall consider the varying degrees of impacts of different land uses. For example, parking lots, store entrances, and roads generally have higher noise and glare impacts than the rear of the store. Site screening should take advantage of natural topography or existing vegetation, wherever possible. Where natural screening is not available, berms, landscaping, and structural screens should be implemented (e.g., orient buildings to screen parking lots and store entrances from critical area). Landscaping shall be consistent with JCC 18.30.130; and (ii) The total area contained in the buffer after averaging is no less than that which would be contained within the standard buffer area and all increases in buffer dimension are parallel to the FWHCA; (iii) The buffer averaging does not reduce the functions or values of the FWHCA or riparian habitat, or the buffer averaging, in conjunction with vegetation enhancement, increases the habitat function; (iv) The buffer averaging is necessary due to site constraints caused by existing physical characteristics such as slope, soils, vegetation, or existing legally permitted development; (v) The slopes adjacent to the FWHCA within the buffer area are stable; (vi) Buffer averaging of reduced buffers shall not be allowed; and (vii) The modified buffer shall meet the well vegetated buffer standard, which is comprised of at least 40 percent aerial cover of native trees and shrubs in its existing or proposed enhanced condition at maturity. This shall also include the removal of invasive non-native plants (e.g., Himalayan blackberry) or noxious weeds and replacement with native vegetation. An enhancement plan or habitat management plan shall be required to achieve this standard. These plans shall include a 5-year monitoring plan to ensure that standards are met. (b) The administrator shall have the authority to average buffers in a FWHCA area up to 50 percent when all of the following requirements are met: (i) A habitat management plan shall be submitted; (ii) The modified buffer shall meet the definition of a fully vegetated buffer, which shall contain at least 80 percent aerial cover of native trees and shrubs in its existing or proposed enhanced condition at maturity. This shall also include the removal of invasive non-native plants (e.g., Himalayan blackberry) or noxious weeds and replacement with native vegetation. An enhancement plan or habitat management plan shall be required to achieve this standard. These plans shall include a 5-year monitoring plan to ensure that standards are met; (iii) Allows for the natural movement of a stream within its floodplain or channel migration zone; (iv) Separates development from potential flooding impacts; (v) Limits visual, auditory, and direct intrusion between critical areas and developed environments; (vi) Protects important wildlife habitat components for species dependent or associated with wetland, marine, and riverine environments; (vii) Protects wildlife movement; and (viii) Does not significantly impact erosion and landslide hazard areas adjacent to the critical area. (7) When buffer reduction may be allowed. The administrator has the authority to reduce standard buffer widths outlined in Table 18.22.630(1) and Table 18.22.630(2) at the location of a proposed development on a case-by-case basis up to 25 percent. The decision to reduce standard buffer widths of up to 25 percent shall be processed as a Type I land use decision under JCC 18.40.040. Table 18.22.630(3): Reduced Buffers for FWHCAs FWHCA Type Reduced Buffer Width (feet) Type “F” – Fish Habitat Streams Other County Areas: 150 feet. Type “Np”– Non-Fish Habitat Perennial Streams 75 feet. Type “Ns” – Non-Fish Habitat Seasonal Streams Non-Shoreline Natural Ponds and Lakes (Under 20 Acres) (along with any submerged aquatic beds serving as fish or wildlife habitat) • Lakes and ponds that have a direct surface connection to a fish- habitat stream segment: 150 feet; • Lakes and ponds that have only a direct surface connection to a non- fish-habitat stream segment: 75 feet. Applicants for a reduced buffer shall demonstrate in a habitat management plan to the satisfaction of the administrator that all of the following criteria are met: (a) Buffer averaging is not feasible; (b) The specific standards for mitigation sequencing in JCC 18.22.640 have been applied during the siting and design of the proposed development, which may include consideration of all or the following avoidance and minimization measures: (i) Trees and other existing native vegetation are avoided, and alterations are placed on existing road grades, utility corridors, or other developed lands if present; (ii) The buffer is reduced adjacent to the lower functioning or less-sensitive portion of the buffer or FWHCA; (iii) Lower intensity land uses are located in the reduced buffer area if feasible; (iv) The development is designed to separate and screen impacts such as noise, glare, vegetation trampling, etc. of adjacent land uses from the critical area. The site design shall consider the varying degrees of impacts of different land uses. For example, parking lots, store entrances, and roads generally have higher noise and glare impacts than the rear of the store. Site screening should take advantage of natural topography or existing vegetation, wherever possible. Where natural screening is not available, berms, landscaping, and structural screens should be implemented (e.g., orient buildings to screen parking lots and store entrances from critical area). Landscaping shall be consistent with JCC 18.30.130; (c) The buffer reduction shall not adversely affect the habitat functions and values of the adjacent FWHCA or other critical area; (d) The buffer shall not be reduced to less than 75 percent of the standard buffer; (e) The slopes adjacent to the FWHCA within the buffer area are stable; (f) The reduced buffer shall be fully vegetated. A fully vegetated buffer is one that contains or will mature into a dense, multi-storied, diverse native vegetation community that provides riparian functions adequate to protect the adjacent waterbody. A fully vegetated buffer contains at least 80 percent aerial cover of trees and shrubs in its existing or proposed enhanced condition at maturity. This shall also include the removal of invasive non-native plants (e.g. Himalayan blackberry) or noxious weeds and replacement with native vegetation. Based on the condition of the buffer the administrator may require an enhancement plan or habitat management plan to achieve the fully vegetated standard in its existing or proposed enhanced condition at maturity. These plans shall include a 5-year monitoring plan to ensure that standards are met; and (g) For overwater development or uses, a reduction of the buffers shall be based on the review of reports, established criteria or through consultation with federal and state agencies. (8) Buffer reduction process and criteria Buffer Averaging Permit Process Up to 25% Type I per Section 18.22.630(6)(a) JCC Up to 50% Type II per Section 18.22.630(6)(b) JCC * * Variances1 Buffer Reduction2 Permit Process Up to 25% Administrative Type I Variance 18.22.630(7) JCC Over 25%to 75% Type III Critical Area Variance JCC 18.22.250 Over 75% Type III Reasonable Use Exception JCC 18.22.260 Footnote 1. A Critical area stewardship plan (CASP) meeting the provisions of 18.22.965 may be utilized instead of critical area variances or Reasonable Use Exception 2. Buffer reduction not allowed if buffer averaging is feasible. (9) Increasing Buffer Widths. Buffer widths may be increased on a case-by-case basis, as determined by the administrator, to protect the functions and values of a FWHCA. Supporting documents that may be used to support this determination include but are not limited to: (a) The FWHCA is used by, or has habitat features that could be used by, state or federally listed threatened or endangered species; (b) The FWHCA serves as nesting or foraging habitat for raptors or great blue herons; (c) The area adjacent to the FWHCA is susceptible to erosion or landslide; or (d) The area adjacent to the FWHCA has minimal deep rooting, native vegetation or the slopes are greater than 30 percent. (10) Voluntary Restoration. FWHCAs and their associated buffers that have been previously altered such that the functions, values, and natural processes have been diminished are encouraged to be restored to conditions that existed prior to the alteration. Voluntary restoration requires the submission of an enhancement plan or habitat management plan to DCD for review and approval prior to issuance of a County permit to restore a FWHCA or its associated buffer. DCD shall provide information or technical expertise, where possible, in facilitating restoration of a FWHCA or its associated buffer to previously existing conditions. This could include, but is not limited to, referring interested property owners to restoration information, efforts, and funds. (11) Stream Crossings. Stream crossing may be permitted buffers only when no practicable or reasonable alternative location is available Any private or public road expansion or construction which is proposed and mustshall cross streams classified within this article shall comply with all of the following minimum development standards: (a) (a) There are no practicable or reasonable alternative location is available; (b) A habitat management plan and site plan shall be submitted that show the impacts to the FWHCA and its buffer are minimized, that any disturbed areas shall be immediately restored, and the enhanced with through the establishment of native vegetation; (c) The design of stream crossings shall meet the requirements of the Washington State Department of Fish and Wildlife. Fish passage shall be provided if necessary to address manmade obstructions on site. Other alternatives may be allowed upon a showing that, for the site under review, the alternatives would be less disruptive to the habitat or that the necessary building foundations were not feasible.; (b) d) Crossings shall not occur in salmonid spawning areas unless no other reasonable crossing site exists; (c) e) Bridge piers or abutments may be allowed either within the floodway or between the ordinary high water marks, provided no other reasonable alternative placement exists; (d) f)Crossings shall serve multiple properties whenever possible; and, (e) g) Where there is no reasonable alternative to providing a culvert, the culvert shall be the minimum length necessary to accommodate the permitted activity. (2) 12) Utilities. Utilities including sewer lines, on-site sewage systems and stormwater facilities (serving one parcel, development or legal lot of record) may be permitted in critical area buffers only when no practicable or reasonable alternative location is available. Placement of utilities within designated fish and wildlife habitat areas FWHCA may be allowed pursuant to all of the following standardsrequirements: (a) (a) A habitat management plan or enhancement plan and site plan shall be submitted that show the impacts to the FWHCA and its buffer are minimized, that any disturbed areas shall be immediately restored, and the enhanced with through the establishment of native vegetation; (b) Construction of utilities may be permitted in FWHCAs when no practicable or reasonable alternative location is available and the utility corridor does not cause or increase habitat fragmentation for state or federally listed species and meets the requirements for installation, replacement of vegetation and maintenance outlined below. Utilities are encouraged to follow existing or permitted roads where possible.; (b) c) Construction of sewer lines or on-site sewage systems may be permitted in FWHCA buffers when it can be demonstrated that it is necessary to meet state or local health code requirements;, that there are no other practicable alternatives available;, and construction meets the requirements of this article. Joint use of the sewer utility corridor by other utilities may be allowed.; (c) d) New utility corridors shall not be allowed in FWHCAs with known locations of federal- or state-listed endangered, threatened, or sensitive species, except in those circumstances where an approved habitat management plan is in place.; (d) e) In addition to meeting the utilities standards a above, new utility corridors (serving more than one property) proposed within fish and wildlife habitat conservation areas or their associated buffers shall require a critical area variance under JCC18.22.250; (f) Utility corridor construction and maintenance shall protect the environment of fish and wildlife habitat areas.FWHCAs as follows: (i) New utility corridors shall be aligned when possible, to avoid cutting trees greater than 12 inches in diameter at breast height (four and one-half feet) measured on the uphill side.; and, (ii) New utility corridors shall be revegetated with appropriate native vegetation at not less than preconstruction vegetation densities or greater, immediately upon completion of construction or as soon thereafter as possible due to seasonal growing constraints. The utility shall ensure that such vegetation survives for a three-year period.; and, (e) g) Utility towers should be painted with brush, pad or roller and should not be sandblasted or spray-painted, nor shall lead-based paints be used.; and, (f) h) Utilities should follow best management practices for avian protection. (3) Bank Stabilization. (a) (13) Bank Stabilization. Bank stabilization within designated fish and wildlife habitat areas may be allowed pursuant to all of the following criteria: (a) No practicable or reasonable alternative location is available; (b) A habitat management plan and site plan shall be submitted that show the impacts to the FWHCA and its buffer are minimized, that any disturbed areas shall be immediately restored, and the enhanced with through the establishment of native vegetation; (c) A stream channel and bank, bluff, and shoreline may be stabilized when naturally occurring earth movement threatens existing legal structures, public improvements, unique natural resources, public health, safety or welfare, or the only feasible access to property, and, in the case of streams, when such stabilization results in maintenance of fish habitat or improved water quality, as demonstrated through a habitat management plan or equivalent study or assessment.; and, (b) c) Bluff, bank and shoreline stabilization shall follow the standards of the Jefferson County shoreline master program,chapter 18.25 JCC (Shoreline Master Program), geologically hazardous areas provision in this chapter, and the flood damage prevention ordinancechapter 15.15 JCC (Flood Damage Prevention. (4) Gravel mining. (5) Forest practices, Class IV general(14) Road and conversion option harvest plans. (6) Road/Street Expansion and New Construction. Any. The expansion of a legally established private or public road or street expansion or construction may be allowed in a FWHCA or its associated buffer; provided it complies with the all of following minimum development standardscriteria: (a) No other reasonable or practicable alternative exists and the proposed road or street serves multiple properties whenever possible; (b) (b) A habitat management plan or enhancement plan shall be submitted with a site plan addressing the impacts to the FWHCA and its associated buffer are minimized, that any disturbed areas shall be immediately restored, and the enhanced with through the establishment of native vegetation; (c) Public and private roads are encouraged to provide for other purposes, such as utility crossings, pedestrian or bicycle easements, viewing points, etc.; and (c) d) The road or street construction is the minimum necessary, as required by the department of public works’ guidelines. Minimum, where minimum necessary provisions may include projected level of service requirements. (7) 15) New public or private roads. In addition to meeting the requirements for road and street expansion in subsection 14 of this section, the establishment of a new public or private road is subject to the requirement of a variance under JCC 18.22.250. (16) Outdoor Recreation, Education, and Trails Construction. Activities and improvementsImprovements that do not significantly affect the function of the FWHCA or its associated buffer (including viewing structures, outdoor scientific or interpretive facilities, trails, hunting blinds, etc.) may be permitted in FWHCAs.a FWHCA and its associated buffer provided they comply with all of the following minimum criteria: (a) A habitat management plan or enhancement plan shall be submitted with a site plan addressing the impacts to the FWHCA and its buffer are minimized, that any disturbed areas shall be immediately restored, and the enhanced with through the establishment of native vegetation;(b) Trails and other facilities shall, to the extent feasible, shall be placed on existing road grades, utility corridors, or other previously disturbed areas; (b) c) Trails and other facilities shall be planned to minimize removal of trees, shrubs, snags, and important wildlife habitat; (c) d) Viewing platforms, interpretive centers, benches, and access to them, shall be designed and located to minimize impacts to wildlife, fish, or their habitat; or (d) e) Private trails, serving one parcel or legal lot of record, may be permitted within the buffer provided that they do not exceed three feet in width and are designed to minimize the impact to wetlands and their associated buffers. Trails, in general, serving multiple parcels or subdivision shall be set back from streams so that there will be minimal impact to the stream from trail use or maintenance.not exceed six 6 feet in width in the buffer. Trails shall be constructed with pervious surfaces when feasibleor boardwalks and trails within FWHCAs areshall not intended to be usedutilized by motorized vehicles.; (8) Chemical application or storage. (9) Land division, land use permits and land alteration (such as excavation, dredging, grading, or filling). (10) Modification of hydrologic regime or conditions (including placement of obstructions or impediments to natural water flow or movement). (11) Agricultural activities – see Article VIII of this chapter, JCC 18.22.800. (12) Vegetation removal or alteration (could include but is not limited to clearing, harvesting, shading, intentional burning, use of herbicides/pesticides, or planting vegetation that alters the character of the regulated area; provided, the activity is not exempt under JCC 18.22.230). Minor pruning may be allowed provided it is consistent with JCC 18.22.530(1)(a) and (b). (13) (f) The size, configuration and surfacing of regional and public trails within a buffer shall be determined through a Type II Variance. Regional trails shall be limited to a maximum of 12-foot-wide paved surface 6-foot-wide gravel shoulders for non-motorized public access. This shall also include the submission of a mitigation plan prepared by wetlands specialist addressing the impacts to the FWHCA and its buffer are minimized, so that any disturbed areas shall be immediately restored, and the enhanced with through the establishment of native vegetation. (17) Stream Relocation. (i) In addition to the submission of a habitat management plan, the relocation of streams, or portions of streams, requires a variance under JCC18.22.250. (ii) Relocation of a stream may be allowed when there is no other feasible alternative and when the relocation will result in equal or better habitat and water quality and quantity, and will not diminish the flow capacity of the stream or other natural stream processes; provided, the relocation meets state hydraulic project approval requirements and that relocation of shoreline streams shall be prohibited unless the relocation has been identified formally by the Washington State Department of Fish and Wildlife as essential for fish and wildlife habitat enhancement or identified in watershed planning documents prepared and adopted pursuant to Chapter 90.82 chapter 90.82 RCW. [Ord. 5-20 § 2 (Appx. A)] 18.22.630 Protection standards. (1) General. Application for a project on a parcel of real property containing a designated FWHCA shall adhere to the requirements in this section. (2) Drainage and Erosion Control. In addition to complying with the stormwater requirements of Chapter 18.30 JCC, the applicant must clearly show that stormwater quantity, quality, and flow path post-construction will be comparable to pre-construction conditions. (3) Grading. An applicant submitting a project application shall also submit, and have approved, a grading plan, as specified in Chapter 18.30 JCC. (4) Vegetation Retention. The following provisions regarding vegetation retention shall apply: (a) Vegetation within FHWCAs or buffers shall be retained to the extent practicable. Unless exempt under this chapter, vegetation removal or alteration of a FWHCA or a buffer shall require review and approval by the department. (b) Altering the habitat conditions of FWHCAs or buffers without prior review and approval by the department is prohibited. (c) All trees and understory vegetation lying outside of road rights-of-way and utility easements shall be retained (except for hazard trees) during maintenance clearing of rights-of-way for roadways and utilities; provided, understory vegetation damaged during approved clearing operations may be pruned. (d) Damage to vegetation retained during initial clearing activities shall be minimized by directional felling of trees to avoid critical areas and vegetation to be retained. (5) Buffers – Standard Requirements. The administrator shall have the authority to require buffers from the edges of all FWHCAs in accordance with the following: (a) Buffers Generally. (i) Buffers shall be established for activities adjacent to FWHCAs as necessary to protect the integrity, functions, and values of the resource, consistent with the requirements in Tables 18.22.630(1) and 18.22.630(2) of this section. (ii) A building setback line of five feet is required from the edge of any buffer area; however, nonstructural improvements such as septic drain fields may be located within setback areas and buffers. (iii) Utilities including sewer lines and on-site sewage systems may be permitted in FWHCA buffers only when no practicable or reasonable alternative location is available. (iv) Buffers shall be retained in their natural condition; however, minor pruning of vegetation to enhance views or provide access may be permitted as long as the function and character of the buffer are not diminished. (v) Lighting shall be directed away from the FWHCA. (vi) The administrator shall have the authority to increase a buffer width, if supported by appropriate documentation showing the increase is needed to protect the functions and values of the FWHCA. (vii) The administrator shall require signs be posted at the buffer edge if the proposed activity is commercial or industrial, or if the activity is proposed on public lands. (b) Prescriptive FWHCA Buffers. (i) The standard buffer widths required by this article are considered to be the minimum required to protect the FWHCA/stream functions and values at the time of the proposed activity. When a buffer lacks adequate vegetation to protect critical area functions, the administrator may require additional documentation before allowing a proposal for buffer reduction or buffer averaging. (ii) The standard buffer shall be measured landward horizontally on both sides of the stream from the ordinary high water mark (OHWM) as identified in the field. Nevertheless, the required buffer shall include any adjacent regulated wetland(s), landslide hazard areas or erosion hazard areas and required buffers but shall not be extended across paved roads or other lawfully established structures or hardened surfaces. The following standard buffer width requirements are established; provided, portions of streams that flow underground may be exempt from these buffer standards at the administrator’s discretion when it can be demonstrated that no adverse effects on aquatic species will occur. Table 18.22.630(1): Stream Buffers* Stream Type Buffer Requirement Type “S” – Shoreline Streams 150 feet Type “F” – Fish Bearing Streams 150 feet Type “Np”– Non-Fish Bearing Perennial Streams 75 feet Type “Ns” – Non-Fish Bearing Seasonal Streams greater than or equal to 20% grade 75 feet Table 18.22.630(1): Stream Buffers* Stream Type Buffer Requirement Type “Ns” – Non-Fish Bearing Seasonal Streams less than 20% grade 50 feet *Note: (a) The buffers above shall apply to culverted streams. (b) The buffers above shall not apply to lawfully established piped streams. The burden of proof is on the applicant to show that the pipe was lawfully established; failure to demonstrate compliance with this requirement shall result in buffers being required. (c) Stream type shall be determined using the criteria in WAC 222-16-030, or as amended. (iii) Buffers for Other FWHCAs. The administrator shall determine appropriate buffer widths for other FWHCAs based on the best available information. Buffer widths for nonstream habitat conservation areas shall be as follows: Table 18.22.630(2): Buffers for Other FWHCAs FWHCA Type Buffer Requirement Areas where federally listed (endangered and threatened) species or state-listed (endangered, threatened, and sensitive) species have a primary association Buffers shall be 150 feet; provided, local and site specific factors shall be taken into consideration and the buffer width based on the best available information concerning the species/habitat(s) in question or the opinions and recommendations of a qualified professional with appropriate expertise. Commercial and Recreational Shellfish Areas Buffers shall extend 150 feet landward from ordinary high water mark of the marine shore. Kelp and Eelgrass Beds Buffers apply to areas where native kelp and eelgrass species occur only, and buffers shall extend 22 feet from each patch. There is no buffer for nonnative kelp and eelgrass beds. Surf Smelt, Pacific Herring, and Pacific Sand Lance Spawning Areas Buffers shall extend 150 feet landward from ordinary high water mark of the marine shore. Natural Ponds and Lakes (along with any submerged aquatic beds serving as fish or wildlife habitat) Ponds under 20 acres – buffers shall extend 50 feet from the ordinary high water mark. Lakes 20 acres and larger – buffers shall extend 100 feet from the ordinary high water mark; provided, where wetlands are associated with the shoreline, the wetland buffer requirements shall also apply. Natural Area Preserves Natural Resource Conservation Areas Buffers shall not be required adjacent to these areas. These areas are assumed to encompass the land required for species preservation. Game Fish Planted by a Governmental or Tribal Agency (lakes, ponds, streams, and rivers) Ponds under 20 acres – buffers shall extend 50 feet from the ordinary high water mark. Lakes 20 acres and larger – buffers shall extend 100 feet from the ordinary high water mark; provided, where wetlands are associated with the shoreline, the wetland buffer requirements shall also apply. Streams and rivers – see Table 18.22.630(1). Designated Habitats of Local Importance The need for and dimensions of buffers for other locally important species or habitats shall be determined on a case-by-case basis. [Ord. 5-20 § 2 (Appx. A)] 18.22.640 Buffer reductions Impact Assessment and averaging. (1) The administrator shall have the authority to reduce buffer widths on a case-by-case basis; provided, the specific standards for avoidance and minimization in JCC 18.22.660 shall apply, and when the applicant demonstrates to the satisfaction of the administrator that all of the following criteria are met: (a) The buffer reduction shall not adversely affect the habitat functions and values of the adjacent FWHCA or other critical area. (b) The buffer shall not be reduced to less than 75 percent of the standard buffer, unless it can be demonstrated through a special report prepared by a qualified professional that there will be no net loss of FWHCA functions or values. (c) The slopes adjacent to the FWHCA within the buffer area are stable and the gradient does not exceed 30 percent. (2) The administrator shall have the authority to average buffer widths on a case-by case basis; provided, the specific standards for avoidance and minimization in JCC 18.22.660 shall apply, and when the applicant demonstrates to the satisfaction of the administrator that all the following criteria are met: (a) The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer and all increases in buffer dimension are parallel to the FWHCA. (b) The buffer averaging does not reduce the functions or values of the FWHCA or riparian habitat, or the buffer averaging, in conjunction with vegetation enhancement, increases the habitat function. (c) The buffer averaging is necessary due to site constraints caused by existing physical characteristics such as slope, soils, or vegetation. (d) The buffer width averaging does not reduce the buffer to less than 75 percent of the standard width or 50 percent for single-family residential development. (e) The slopes adjacent to the FWHCA within the buffer area are stable and the gradient does not exceed 30 percent. (f) Buffer averaging shall not be allowed if FWHCA buffers are reduced. (3) The limits of clearing for the proposed development or use shall be shown on the site plan relative to the FWHCA and the buffer. (4) In the case of short plat, long plat, binding site plan, and site plan approvals under this code, the applicant shall include on the face of any such instrument the boundary of the FWHCA. (5) The applicant may also choose to dedicate the buffer through a conservation easement or deed restriction that shall be recorded with the Jefferson County auditor. Such easements or restrictions shall, however, use the forms approved by the prosecuting attorney. [Ord. 5-20 § 2 (Appx. A)] 18.22.650 Habitat management reports – When required. (1) When a development, use, or activity is proposed on lands designated as a fish and wildlife habitat conservation area or a buffer, a habitat evaluation may be required. An on-site habitat evaluation determines if FWHCAs or buffers occur in the project area. (2) If the proposed use, development, or activity occurs in marine water, a dive survey shall be required to determine if any FWHCA is present in the project area and if any FWHCA has the potential to be affected by the proposal. (3) Evaluations shall be conducted pursuant to the special report requirements found in Article IX (Special Reports) of this chapter. (4) Types of Reports. When required by this section, an applicant shall submit a report documenting the results of the habitat evaluation for county review and approval. Based on the results of the site evaluation, a report shall be prepared by a qualified professional and either be: (a) Habitat Reconnaissance Letter. This type of report shall be used if the field evaluation determines that no regulated fish and wildlife habitat conservation area or buffer is present in the proposed project area, which includes those areas that may be temporarily affected by construction-related activities or would be within the limits of clearing for construction. Habitat reconnaissance letters shall be prepared by a wildlife biologist based on requirements presented in Article IX (Special Reports) of this chapter. (b) Habitat Management Plan. This type of report shall be used if the field evaluation determines that any portion of the proposed project occurs within a regulated FWHCA or buffer, which includes those areas that may be temporarily affected by construction-related activities or would be within the limits of clearing for construction. This type of report shall be used if a proposed buffer reduction or buffer averaging does not exceed 25 percent of the standard buffer width, as shown in Tables 18.22.630(1) and (2). Habitat management plans shall be prepared by a wildlife biologist based on report requirements in Article IX (Special Reports) of this chapter. (c) If the proposal cannot meet the mitigation or critical areas stewardship plan requirements of this chapter, a critical area variance or reasonable use exception in JCC 18.22.250 or 18.22.260 shall be followed and a habitat management plan shall be required. An applicant may pursue a financially bonded critical area stewardship plan (CASP) as applicable under JCC 18.22.965, provided the proposal can meet all CASP financial and other provisions. (d) If a dive survey is required, the results of the survey shall be described in a report and supported by photos taken underwater. [Ord. 5-20 § 2 (Appx. A)] 18.22.660 Mitigation. (1) When Required. Mitigation is required for FWHCA buffer reductions greater than 25 percent but less than 50 percent of the standard buffer widths. Applications for FWHCA buffer reductions greater than 50 percent may pursue a financially bonded critical areas stewardship plan or be approved for buffer reductions greater than 50 percent through a hearing examiner variance or reasonable economic use exception in accordance with this chapter. All unavoidable impacts to FWHCA require mitigation. (2) FWHCA Mitigation Sequencing. The overall goal of mitigation shall be no net loss of functions, natural processes, orvalue, and area within a FWHCA or a FWHCA its associated buffer. All regulatedunavoidable impacts to FWHCA require mitigation. (1) FWHCA Mitigation Sequence. Mitigation includes avoiding, minimizing, or compensating for adverse impacts to an FWHCA or buffers. When a proposed use or development, uses, and activities in activity poses potentially significant adverse impacts to a FWHCA or buffer, the preferred sequence of mitigation as defined below shall be followed unless the applicant demonstrates that an associated buffer shall be mitigated in the following order:overriding public benefit would warrant an exception to this preferred sequence. (a) Avoiding the impact altogether by not taking a certain action or parts of an action; (b) Minimizing adverse impacts by limiting the degree or magnitude of the action and its implementation; (c) Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment to the historical condition or the condition existing at the time of the initiation of a project; (d) Reducing or eliminating the adverse impact over time by preservation and maintenance operation during the life of the action; (e) Compensating for the adverse impact by replacing, enhancing, or providing substitute resources or environments; (f) Monitoring the required compensation and taking appropriate corrective measures when necessary. (2) Impact Assessment. All potential impacts to a FWHCA and its associated buffer shall be identified and described in the habitat management plan. Impact assessments shall be made based on requirements in Article IX (Special Reports). (3) Mitigation – Minimum Requirements and Types of Mitigation. (a) Minimum mitigation requirements are as follows: (i) Unavoidable impacts to a FWHCA area or buffer shall be mitigated with at least a 1:1 mitigation ratio. The administrator has the authority to require buffer mitigation at a higher ratio if the area to be adversely affected consists of intact native habitat. (ii) Unavoidable impacts to a FWHCA shall require mitigation that fully compensates for all adverse effects to FWHCA functions, natural processes, and area. (b) FWHCAs A FWHCA mitigation shall include the following options: (i) On-Site Mitigation. The applicant may propose on-site mitigation if the mitigation proposal compensates for the loss or degradation to existing habitat. (ii) Off-Site Mitigation. The applicant may propose off-site mitigation if: (A) On-site mitigation is not feasible and the mitigation proposal compensates for the loss or degradation of existing habitats and species; or (B) Off-site mitigation occurs within a connected habitat of a similar nature to the maximum extent practicable and provides better protection of the FWHCA or a significant ecological and functional improvement to the FWHCA; and (C) There is a willing landownerowner that accepts the proposed mitigation; and (D) A mitigation agreement/ or easement is recorded that specifies the individuals or parties responsible for implementing, maintaining, and monitoring the mitigation area. (c) In-Lieu Fee Mitigation (ILF). As an alternative to permittee-responsible mitigation, an in-lieu fee program may be used to compensate for impacts or alterations to a fish and wildlife habitat conservation areaFWHCA or a buffer, if an established in-lieu fee program is available for the project area. Use of the in-lieu fee program to address impacts to fish and wildlife habitat conservation areasan FWHCA or buffers shall adhere to the in-lieu mitigation requirements in JCC 18.22.740( 18.22.740(4). [Ord. 5-20 § 2 (Appx. A)])