Chapter 19.12   ENVIRONMENTALLY SENSITIVE AREAS—AGRICULTURAL ACTIVITIES [3]

Sections:


19.12.010   Short title.

The ordinance codified in this chapter shall be referred to as the "Environmentally Sensitive Areas Ordinance." Said ordinance shall become a new chapter entitled 19.12 of the Black Diamond Municipal Code.

(Ord. 474 § 1 Exh. A(2), 1993: Ord. 419 § 1, 1989)

19.12.020   Purpose of provisions.

The purpose of this chapter is to provide for the protection of the fish and wildlife habitat of wetlands, Rock Creek and Ginder Creek and protect public safety through regulation of development within geologically hazardous areas.

(Ord. 474 § 1 Exh. A(1), 1993: Ord. 419 § 1, 1989)

19.12.030   Definitions.

As used in this chapter:

"Buffer" means an area contiguous with a critical area that is required for the integrity, maintenance, function and structural stability of the critical area.

"Classification" means defining value and hazard categories to which critical areas will be assigned.

"Clearing" means the removal of timber, brush, grass, groundcover or other vegetative matter from a site which exposes the earth's surface of the site.

"Critical areas (environmentally sensitive areas)" means and includes the following areas and ecosystems:

1.

Wetlands;

2.

Fish and wildlife habitat conservation areas;

3.

Geologically hazardous areas.

"Erosion hazard areas" means areas with soils, as identified by the U.S. Department of Agriculture Soil Conservation Service (SCS) 1973 Soil Survey, that may experience "severe" to "very severe" erosion hazard (i.e., AgD/Alderwood gravelly sandy loam 15—30 percent slopes, AkF/Alderwood Kitsap very steep, BeD and BeF/Beausite gravelly sandy loam 15+% slopes, KpD/Kitsap silt loam 15—30 percent slopes, OvD and OvF/Ovall gravelly loam 15+% slopes, RaD/Ragnar fine sandy loam 15—25 percent slopes, and RdE/Ragnar-Indianola association, moderately steep Rh/Riverwash.

"Fish and wildlife habitat areas" means those areas identified as being of critical importance to maintenance of fish, wildlife and plant species, including: areas with which endangered, threatened and sensitive species have a primary association; habitats and species of local importance; naturally occurring ponds under twenty acres and their submerged aquatic beds that provide fish or wildlife habitat; lakes, ponds, streams and rivers planted with game fish by a governmental or a tribal entity; state natural area preserves and natural resource conservation areas.

"Geologically hazardous areas" means areas that because of their susceptibility to erosion, sliding, earthquake or other geological events, are not suited to siting commercial, residential or industrial development consistent with public health or safety concerns.

"Habitats of local importance" means a seasonal range or habitat element with which a given species has a primary association and which if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alteration, such as cliffs, talus and wetlands.

"Landslide hazard areas" means (1) any area with a combination of: slopes greater than fifteen percent, and; impermeable soils (typically silt and clay) frequently interbedded with granular soils (predominately sand and gravel), and; springs or groundwater seepage, (2) any area that has shown movement during the Holocene epoch (ten thousand years ago to the present), or that is underlain by mass wastage debris of that epoch, (3) any area potentially unstable as a result of rapid stream incision or stream bank erosion.

Coal Mine Hazards Area.

1.

"Moderate-hazard areas" are areas where mine workings are deeper than one hundred feet (steeply dipping seams) or deeper than fifteen times the thickness of the seam or workings (gently dipping seams). May be affected by broad downwarping.

2.

"High-hazard areas" are areas with abandoned and improperly sealed openings and areas underlain by mine workings shallower than one hundred feet in depth (steeply dipping seams) or shallower than fifteen times the thickness of the seam or workings (gently dipping seams). May be affected by collapse or other subsidence.

"Seismic hazard areas" are areas subject to severe risk of earthquake damage as a result of seismically induced settlement or soil liquefaction. These conditions occur in areas underlain by cohesionless soils of low density, usually in association with a shallow groundwater table.

"Wetland or wetlands" means areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adopted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include artificial wetlands. Artificial wetlands are defined as those created from nonwetland sites including but not limited to irrigation and drainage ditches, grasslined swales, canals, detention facilities, with water treatment facilities, farm ponds, landscape amenities.

(Ord. 474 § 1 Exh. A(4), 1993: Ord. 419 § 3, 1989)

19.12.040   Compliance with chapter provisions—Required.

No agricultural activities shall be undertaken by any person or entity which results in a substantial alteration of a sensitive area except in compliance with the requirements and goals, purposes and objectives of this chapter and only with those mitigation measures set forth in Section 19.12.070, below. "Agricultural activities" shall mean uses and practices existing or legally allowed on the effective date of this ordinance on rural land or agricultural land designated under RCW 36.70A.170 including, but not limited to: producing, breeding, or increasing agricultural products; rotating and changing agricultural crops; allowing land used for agricultural activities to lie fallow in which it is plowed and tilled but left unseeded; allowing land used for agricultural activities to lie dormant as a result of adverse agricultural market conditions; allowing land used for agricultural activities to lie dormant because the land is enrolled in a local, state, or federal conservation program, or the land is subject to a conservation easement; conducting agricultural operations; maintaining, repairing, and replacing agricultural equipment; maintaining, repairing, and replacing agricultural facilities, when the replacement facility is no closer to a sensitive area than the original facility; and maintaining agricultural lands under production or cultivation.

(Ord. 474 § 1 Exh. A(5), 1993: Ord. 456 § 1 (part) 1992: Ord. 419 § 2, 1989)

(Ord. No. 875, § 3, 2-26-2009)

19.12.050   Compliance with chapter provisions—Prerequisite to permit issuance.

The city shall not issue, prior to fulfilling the requirements of this chapter, any of the following: any building permit; binding site plan; conditional use permit; franchise right-of-way construction permit; grading permit; lot line adjustment; master plan development; planned unit development; right-of-way permit; shoreline conditional use permit; shoreline substantial development permit; shoreline environmental redesignation; shoreline variance; short subdivision; long subdivision; special use permit; any form of subdivision; unclassified use permit; utility or other use permit; zone reclassification; or any other subsequently adopted permit or required approval not expressly exempt from this chapter.

(Ord. 474 § 1 Exh. A(7), 1993: Ord. 419 § 7(part), 1989)

19.12.060   Fish and wildlife conservation areas.

Fish and wildlife habitats within the city have been identified and ranked in the "City of Black Diamond Fish and Wildlife Habitat" study (David Evans and Associates in January, 1992). High-value habitats include the Rock Creek and Ginder Creek corridors, open water ponds, lakes and riparian forests. These habitats are all streams and wetlands which are identified, ranked and regulated under the wetlands and streams section of this chapter.

(Ord. 474 § 1 Exh. A(8), 1993: Ord. 419 § 7(part), 1989)

19.12.070   Geologically hazardous areas.

A.

"Geologically hazardous areas" include erosion hazards, landslide hazards, seismic hazards, mine hazards and areas subject to geologic events such as differential settlement. Areas of steep slopes (25%+) and past coal mine workings are identified and mapped in the 1980 City of Black Diamond Comprehensive Plan.

B.

For all regulated activities proposed within geologically hazard areas, a geotechnical report prepared by a professional engineer licensed by the state of Washington with expertise in geotechnical engineering shall be submitted. The report should confirm or revise the hazard classification and if a hazard is identified, identify necessary mitigation. The city may require an independent review of any such report by a qualified geotechnical professional selected by the city. The independent review shall be paid for by the applicant. Special inspection requirements may be imposed on construction in hazard areas; provided, whereas an applicant can demonstrate, through submittal of an approved geotechnical assessment, that there are no geologic hazards on site, the requirements for the geotech-nical report may be waived, if approved by a geotechnical engineer, and city council and the planning commission.

(Ord. 474 § 1 Exh. A(9), 1993: Ord. 456 § 1 (part), 1992: Ord. 419 § 8, 1989)

19.12.075   Wetlands and streams— Classification.

Wetlands and streams within the city have been identified and classified in the "City of Black Diamond Wetland and Stream Inventory," (David Evans and Associates, [Recognizance and Level] January, 1992). This report is on file with the city clerk-treasurer.

A.

Methodology for Wetland and Identification/Delineation. Wetland identification and delineation shall be consistent with the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands.

B.

Classification of Wetlands. Wetlands in the city are classified according to the state of Washington Department of Ecology Four-Tier Wetlands Rating System. The classifications and classification criteria are as follows:

1.

Category I Wetlands.

a.

Documented habitat for endangered or threatened fish or animal species or for potentially extirpated plant species recognized by state or federal agencies; or

b.

High quality native wetland communities, including documented Category I or II quality Natural Heritage Wetland sites and sites which qualify as a Category I or II quality Natural Heritage Wetland;

c.

High quality, regionally rare wetland communities with irreplaceable ecological functions, including sphagnum bogs and fens, estuarine, wetlands or mature forested swamps; or

d.

Wetlands of Exceptional Local Significance. The criteria for such a designation shall be developed and adopted by the local jurisdiction under appropriate public review and administrative appeal procedures. The criteria may include, but not be limited to, rarity, groundwater recharge areas, significant habitats, unique educational sites or other specific functional values within a watershed or other regional boundary.

2.

Category II Wetlands.

a.

Regulated wetlands that do not contain features outlined in Category I; and

b.

Documented habitats for sensitive plant, fish or animal species recognized by federal or state agencies; or

c.

Rare wetland communities listed in subsection (1)(c) of this section which are not high quality; or

d.

Wetland types with significant functions which may not be adequately replicated through creation or restoration; or

e.

Regulated wetlands with significant habitat value based on diversity and size; or

f.

Regulated wetlands contiguous with salmonid fish-bearing waters, including streams where flows are intermittent; or

g.

Regulated wetlands with significant use by fish and wildlife.

3.

Category III Wetlands.

a.

Regulated wetlands that do not contain features outlined in Category I, II or IV.

4.

Category IV Wetlands.

a.

Regulated wetlands which do not meet the criteria of a Category I or II wetland; and

b.

Isolated wetlands that are less than or equal to one acre in size; and have only one wetland class; and have only one dominant plant species (monotypic vegetation); or

c.

Isolated wetlands that are less than or equal to two acres in size, and have only one wetland class and a predominance of exotic species.

C.

Classification Streams. Streams within the city are classified according to the state of Washington Department of Natural Resources Water Typing System. The classification and classifications criteria are as follows:

1.

Type 1 Water: all waters, within their ordinary high-water mark, as inventoried as "shorelines of the state" under RCW Chapter 90.58.

2.

Type 2 Water: segments of natural waters which are not classified as Type 1 water and have a high use and are important from a water quality standpoint for:

a.

Domestic water supplies;

b.

Public recreation;

c.

Fish spawning, rearing or migration or wildlife uses; or

d.

Are highly significant to protect water quality.

3.

Type 3 Water: segments of natural waters which are not classified as Type 1 or 2 water and have a moderate to slight use and are moderately important from a water quality standard point for:

a.

Domestic use;

b.

Public recreation;

c.

Fish spawning, rearing or migration or wildlife uses; or

d.

Have moderate value to protect water quality.

4.

Type 4 Water: segments of natural waters which are not classified as Type 1, 2 or 3. Their significance lies in their influence on water quality downstream in Type 1, 2 or 3 waters. These may be perennial or intermittent.

5.

Type 5 Water: all other waters, in natural water courses, including streams with or without a well defined channel, areas of perennial or intermittent seepage, ponds and natural sinks. Drainage ways having short periods of spring runoff are considered to be Type 5 waters.

D.

Buffers. All wetland buffers shall be measured from the wetland edge as marked in the field. The width of the wetland buffer is determined from the identified wetland category. Minimum buffer width requirements are as follows:

1.

Wetlands:

a.

Category I — seventy-five feet;

b.

Category II — seventy-five feet;

c.

Category III — fifty feet;

d.

Category IV — twenty-five feet.

In addition, there shall be a twenty-five-foot building structure setback from any wetland buffer.

2.

Buffers for streams with no associated wetlands shall be measured from the centerline of the stream. Minimum stream buffer requirements are as follows:

a.

Type 1 — seventy-five feet;

b.

Type 2 — seventy-five feet;

c.

Type 3 — fifty feet;

d.

Type 4 — twenty-five feet;

e.

Type 5 — twenty-five feet.

E.

Permitted Uses in Buffers. Passive recreation parks, pedestrian and bicycle trails, and road and utilities only as necessary and as crossing. Storm drainage facilities are discouraged from locating within buffers, but may be allowed under special circumstances if so approved by the planning commission. Prior to approval, the planning commission must make a finding of no adverse effect on water quality.

F.

Mitigation. Recognizing the importance of wetlands for flood control, biological support, groundwater recharge, and water quality improvement, the filling of Category 1, 2 and 3 wetlands will be prohibited. Other proposed alterations, as defined below, will be reviewed on a case-by-case basis, consistent with the intent and requirements of this code. Alterations will only be allowed through the variance process (Section 19.12.090). Up to .5 acres of a Category 4 wetland may be filled or disturbed providing a two to one (2:1) wetland replacement ratio (including compensating flood storage) is maintained by the permit applicant.

Alteration. An "alteration" means any change other than that caused by nature. A "substantial alteration," requiring mitigation set forth above includes but is not limited to, grading, dredging, channelization, cutting, clearing, relocating or removing vegetation, applying herbicides or pesticides or any hazardous or toxic substance, discharging pollutants, grazing domestic animals (except on grazed wet meadows), modifying for surface water management purposes or any other human activity that changes the existing vegetation, hydrology, wildlife or wildlife habitat.

G.

Procedures for Single-Family Dwellings. The following procedure shall apply to construction of a single-family dwelling and accessory structures on a single lot subdivided prior to adoption of these regulations.

1.

Identification. When the city determines that a wetland may be present on or immediately adjacent to a single-family lot subject to these procedures, the applicant for the building permit shall submit a written statement prepared by a wetland specialist to the city. This statement shall identify the wetland type, estimated size and required buffer. From this information the applicant shall prepare a site plan which includes a map of the wetland boundaries with respect to the boundaries of the lot and proposed construction activities. The city may review and approve this information.

2.

City Determination Regarding Impacts to Wetlands and/or Buffers. If the city determines that the proposed activity will impact only the required buffer, the city may administratively allow up to a fifty percent reduction in the buffer if the applicant demonstrates that:

a.

The reduction is necessary to permit use of the property for a single-family residence;

b.

Any temporary intrusion into the remaining buffer for construction activities includes provisions for adequate restoration of the buffer; and

c.

There will be no adverse impacts to the wetland (buffer enhancement may be required to meet this criteria).

If the city determines that the proposed activity will impact both the required buffer and wetland, a wetland delineation report will be required. Construction in the wetland and buffer will be allowed only if a variance is approved as outlined in Section 19.12.090 by the city council.

(Ord. 474 § 1 Exh. A(10), 1993)

19.12.080   Exceptions to chapter applicability.

Exceptions to the provision of this chapter include:

A.

Removal of hazardous trees on private property determined to be unsafe by the building official;

B.

Removal of any plants that are on the state's noxious weed list, provided such removal is by mechanical means and not through the use of herbicides or pesticides;

C.

Landscaping in existence at the time of passage of the ordinance codified in this chapter which are located in the setback area, provided no herbicides, pesticides or fertilizers are utilized within twenty-five feet of the water's edge;

D.

Restoration of streams and wetlands shall be allowed, provided restoration shall be performed under a plan for the design, implementation, maintenance and monitoring of the project prepared by a civil engineer and qualified biologist, and shall be carried out under the direct supervision of a qualified biologist pursuant to the criteria set out in the King County Code, Title 21. A biologist shall be defined in accordance with the definition used in the King County Code Title 21;

E.

Pedestrian trails or walking/bicycle paths may be provided, not to exceed ten feet;

F.

Emergency conditions caused by high water or flooding which can reasonably be expected to endanger lives or property;

G.

The maintenance of ponds and retention/detention systems provided such maintenance will not result in any damage to the sensitive area, fish and wildlife;

H.

Normal and routine maintenance or repair of existing electric, streets, water, sewer, storm water, retention systems, natural gas, cable communications and telephone utility-related activities when undertaken pursuant to city-approved best management practices to avoid impacts to the critical areas. This exemption also includes installation or construction in an improved public road right-of-way (electrical facilities with a voltage of fifty-five thousand volts or less) and relocation of facilities (electrical facilities with a voltage of fifty-five thousand volts or less) when required by the city and when the city approves the new location. However, the construction of a new street in a critical area is required to be approved as set forth in the variance procedures set forth in Section 19.12.090.

(Ord. 474 § 1 Exh. A(12), 1993: Ord. 419 § 11, 1989)

19.12.090   Variances.

Variances from the regulations contained in this chapter may be granted by the city council provided:

A.

The applicant files an application for a variance setting forth the location of the property, the location of the environmentally sensitive areas, setting forth the variance requested, and providing a mitigation measure to mitigate adverse effects the variance may have on wildlife and fishery habitat;

B.

The city shall set a time and place for public hearing to consider the application. Written notice of the application and the hearing date shall be given to all property owners of record within a three-hundred foot radius of the external boundaries of the subject property requesting the variance. In addition, notice shall be posted on the nearest public street from the property at least ten days prior to the hearing;

C.

A variance shall only be granted by the city council upon specific findings that mitigation measures shall be taken and implemented to enhance wildlife and fishery habitat as a substitute for the action taken necessitating the variance. The city council may require the posting of a bond or cash amount equal to the value of the mitigation measure and if the mitigation measure is not taken within six months from the date that any alteration takes place, then the city may contract such mitigation measure to be done and utilize bond or cash held of the purpose of paying for the mitigation measure;

D.

A variance may be granted for the building setback to be reduced to, no less than fifty percent of the setback, by the council after a public hearing is done at a planning committee meeting;

E.

Single-Family Dwellings. If strict application of these regulations would not allow use of the property for a single-family dwelling, the city council may approve use of the property for a single-family dwelling following a public hearing. Approval shall be granted only if the following conditions are met:

1.

The proposed activity will have only minor impacts to the wetland, and

2.

The proposed activity will not jeopardize the continued existence of species listed by the federal government or the state of Washington as endangered, threatened, sensitive or documented priority species or priority habitats, and

3.

The proposed activity will not cause significant degradation of groundwater or surface water quality, and

4.

All adverse impacts to the wetland will be mitigated to the greatest extent possible, and

5.

There will be no damage to public or private property and no threat to the health and safety of people caused by the proposed activity, and

6.

The inability to use the property for a single-family dwelling is not the result of segregating or dividing the property after the effective date of the provisions codified in this chapter.

(Ord. 474 § 1 Exh. A(11), 1993: Ord. 419 § 10, 1989)

19.12.100   Resolution of conflicting provisions.

In the event any provision of the Black Diamond Municipal Code conflicts with the provisions contained in this chapter, the more restrictive shall apply.

(Ord. 474 § 1 Exh. A(6), 1993: Ord. 419 § 6, 1989)

19.12.110   Violation—Penalty.

A.

Any person that violates the terms of this chapter shall be guilty of a misdemeanor and shall be penalized as provided in Chapter 1.12 of the Black Diamond Municipal Code. Each individual alteration shall be considered a separate offense.

B.

Restoration and/or mitigation as described in Section 19.12.070 may be required by a civil action when any environmentally sensitive area has been altered in violation of this chapter.

(Ord. 474 § 1 Exh. A(13), 1993: Ord. 456 § 1 (part), 1992: Ord. 419 § 9, 1989)



FOOTNOTE(S):


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Editor's note— Ord. No. 875, § 2, adopted Feb. 26, 2009, amended the title of Ch. 19.12 to read as herein set out. Prior to inclusion of said ordinance, ch. 19.12 was entitled, "Environmentally Sensitive Areas." (Back)

Cross reference— See Chapter 18.84 of this code for additional regulations on environmentally sensitive areas. (Back)