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A. Purpose and Goals.

1. The purpose of this chapter is to designate and classify ecologically sensitive and hazardous areas present in shoreline jurisdiction known as critical areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

2. This chapter is to implement the goals, policies, guidelines, and requirements of the city comprehensive plan and the SMA.

3. The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, groundwater recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

4. Goals. By limiting development and alteration of critical areas, this chapter seeks to:

a. Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, volcanic eruptions, or flooding;

b. Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species;

c. Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and

d. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and habitat conservation areas.

5. The regulations of this chapter are intended to protect critical areas in accordance with the SMA and through the application of most current, available scientific and technical information, as determined according to WAC 173-26-201(2)(a), and in consultation with state and federal agencies and other qualified professionals.

6. This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards.

7. The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public.

B. Relationship to Other Regulations.

1. These critical areas regulations shall apply within shoreline jurisdiction as an overlay and in addition to zoning and other regulations adopted by the city.

2. Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

3. These critical areas regulations shall apply concurrently with review conducted under this SMP and State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination and any required shoreline permit.

4. Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, shoreline substantial development permits, hydraulic project approval (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 or 10 permits, national pollutant discharge elimination system permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter.

5. It is not intended that this chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. The SEPA regulations and procedures are not replaced or rescinded by this chapter. It is understood that the provisions of this chapter may not allow development to occur at what otherwise might be the property’s full zoning potential.

C. Mitigation Sequencing.

1. Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize adverse impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential order of preference:

a. Avoiding the adverse 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, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

c. Rectifying the adverse impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

(1) Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

(2) Reducing or eliminating the adverse impact or hazard over time by preservation and maintenance operations during the life of the action;

(3) Compensating for the adverse impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

(4) Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures as appropriate.

2. If specific standards, such as buffers and vegetation requirements, are provided in this chapter, then the city shall not require additional mitigation sequencing analysis under these provisions.

D. Mitigation Requirements.

1. The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable or necessary to achieve other objectives of the SMA, such as accommodation of water-oriented and other preferred uses, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated using the most current, available scientific and technical information in accordance with an approved critical areas report and SEPA documents, so as to result in no net loss of critical area and shoreline ecological functions and values.

2. Except as otherwise provided in this chapter, mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area or shoreline, and to prevent risk from a hazard posed by a critical area.

3. Mitigation shall not be implemented until after city approval of a critical areas report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical areas report.

E. Fees.

1. The city by resolution shall establish fees for filing of a critical area identification form, critical area review processing, and other services provided by the city as required by this chapter. These fees shall be based on the anticipated sum of direct costs incurred by the city for any individual development or action and may be established as a sliding scale that will recover all of the city costs including the enforcement of these code provisions. Basis for these fees shall include, but not be limited to, the cost of engineering and planning review time, cost of inspection time, costs for administration, and any other special costs attributable to the critical area review process.

2. Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application.

F. Administrative Rules. Applicable departments within the city are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration.

G. Interpretation. In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under state statute.

H. Jurisdiction – Critical Areas.

1. Within shoreline jurisdiction, the city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the most current, available scientific and technical information and the provisions herein.

2. Critical areas regulated by this chapter include:

a. Wetlands as designated in BMC 13.13.020, Wetlands;

b. Critical aquifer recharge areas as designated in BMC 13.13.030, Critical aquifer recharge areas;

c. Frequently flooded areas as designated in BMC 13.13.040, Frequently flooded areas;

d. Geologically hazardous areas as designated in BMC 13.13.050, Geologically hazardous areas; and

e. Fish and wildlife habitat conservation areas as designated in BMC 13.13.060, Fish and wildlife habitat conservation areas.

3. All areas within the city’s shoreline jurisdiction meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

4. Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas within shoreline jurisdiction shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this chapter and ensure protection of the functions and values of critical areas. “Adjacent” shall mean any activity located:

a. On a site immediately adjoining a critical area;

b. A distance equal to or less than the required critical area buffer width and building setback;

c. A distance equal to or less than one-half mile (2,640 feet) from a bald eagle nest;

d. A distance equal to or less than 300 feet upland from a stream, wetland, or water body;

e. Within the floodway, floodplain, or channel migration zone; or

f. A distance equal to or less than 200 feet from a critical aquifer recharge area.

I. Building Setbacks. Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. The following may be allowed in the building setback area:

1. Landscaping;

2. Uncovered decks;

3. Building overhangs, if such overhangs do not extend more than 18 inches into the setback area; and

4. Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations as adopted in the Bothell Design and Construction Standards and Specifications and other adopted ordinances and plans.

J. Protection of Critical Areas. Any action taken pursuant to this chapter shall result in equivalent or greater functions and values of the critical areas and shorelines associated with the proposed action, as determined by the most current, available scientific and technical information. All actions and developments shall be designed and constructed in accordance with mitigation sequencing subsection C of this section to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts, before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas.

K. Activities Allowed Without a Critical Areas Report.

1. Critical Areas Report. Activities allowed under this chapter shall have been reviewed and permitted or approved by the city or other agency with jurisdiction, but do not require submittal of a separate critical areas identification form or critical areas report, unless such submittal was required previously for the underlying permit. The shoreline administrator may apply conditions to the underlying shoreline permit or approval to ensure that the allowed activity is consistent with the provisions of this chapter to protect critical areas.

2. Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices, adopted pursuant to the city of Bothell design and construction standards and specifications, and any other adopted plans and regulations, that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense within a time frame approved by the shoreline administrator, and in any case work shall begin no later than six months of the date of the incident.

3. Allowed Activities. The following activities are allowed:

a. Permit Requests Subsequent to Previous Critical Area Review. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits), and construction approvals (such as building permits) if all of the following conditions have been met:

b. The provisions of this chapter have been previously addressed as part of another approval;

(1) There have been no material changes in the potential impact to the critical area or buffer since the prior review;

(2) There is no new information available that is applicable to any critical area review of the site or particular critical area;

(3) The permit or approval has not expired or, if no expiration date, no more than five years has elapsed since the issuance of that permit or approval; and

(4) Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

c. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure that does not further alter or increase the adverse impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of structures substantially damaged by fire, flood, or act of nature must be initiated within one year of the date of such damage, as evidenced by the submittal of a valid building permit, and diligently pursued to completion;

d. Activities Within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a city authorized private roadway except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased storm water, subject to the following:

(1) Critical area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

(2) Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance;

e. Minor Utility Projects. Utility projects that have minor or short-duration impacts to critical areas, as determined by the shoreline administrator in accordance with the criteria below, and that do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water. Such allowed minor utility projects shall meet the following criteria:

(1) There is no practical alternative to the proposed activity with less adverse impact on critical areas;

(2) The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and

(3) The activity involves disturbance of an area less than 75 square feet;

f. Public and Private Nonmotorized Trails. Public and private nonmotorized trails, except when such trails are located within wetlands, or fish and wildlife habitat conservation areas, or their buffers. Nonmotorized trails shall be subject to the following:

(1) The trail surface shall meet all other requirements including water quality standards set forth in the city of Bothell design and construction standards and specifications, and any other adopted plans and regulations;

(2) Nonmotorized trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report;

(3) Nonmotorized trails proposed to be located in wetland buffers shall follow the requirements of BMC 13.13.020(F)(7)(i)(2)(A); and

(4) Nonmotorized trails proposed to be located in fish and wildlife habitat conservation area buffers shall follow the requirements of BMC 13.13.060(E)(12)(d);

g. Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the shoreline administrator and that the removal activities are also consistent with BMC 13.09.030, Shoreline vegetation conservation:

(1) The removal of the following vegetation with hand labor and light equipment only:

(A) Invasive and noxious weeds listed on the King or Snohomish County noxious weed lists;

(B) English ivy (Hedera helix);

(C) Himalayan blackberry (Rubus discolor, R. procerus);

(D) Evergreen blackberry (Rubus laciniatus);

(E) Reed canarygrass (Phalaris arundinacea); and

(F) Purple loosestrife (Lythrum salicaria);

(2) Removed vegetation shall be replaced with native species as approved by the shoreline administrator;

(3) The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

(A) The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;

(B) Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

(C) All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease, revegetation by invasive species, or pest transmittal to other healthy vegetation;

(D) The landowner shall replace any trees that are removed with new trees at a ratio of three replacement trees for each tree removed (3:1) within one year in accordance with an approved restoration plan. Replacement trees may be planted at a different, nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum of one inch in diameter at breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball;

(E) If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods of removal that will minimize impacts; and

(F) Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this chapter;

(4) Measures to control a fire or halt the spread of disease or damaging insects consistent with the state Forest Practices Act, Chapter 76.09 RCW, and local forest practices; provided, that the removed vegetation shall be replaced in-kind or with similar native species within one year in accordance with an approved restoration plan; and

(5) Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;

h. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the city; provided, that their use shall be restricted in accordance with state Department of Fish and Wildlife Management recommendations and the regulations of the state Department of Agriculture and the U.S. Environmental Protection Agency;

i. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be the minimum necessary and disturbed areas shall be immediately restored; and

j. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers.

L. Critical Area Project Review Process. The city shall conduct a critical area project review process. As part of this review, the city shall:

1. Verify the information submitted by the applicant;

2. Evaluate the project area and vicinity for critical areas;

3. Determine whether the proposed project is likely to impact the functions or values of critical areas; and

4. Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.

5. If the proposed project is within, adjacent to, or is likely to impact a critical area, implement the following steps:

a. Require a critical areas report from the applicant that has been prepared by a qualified professional;

b. Review and evaluate the critical areas report. The city shall utilize third party review whenever it is deemed necessary by the shoreline administrator;

c. Determine whether the development proposal conforms to the purposes and performance standards of this chapter;

d. Assess the potential adverse impacts to the critical area and determine if they can be avoided or minimized; and

e. Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter.

M. Critical Area Identification Form.

1. Submittal. Prior to the city’s consideration of any proposed activity allowed pursuant to subsection (K)(3) of this section, Allowed Activities, the applicant shall submit to the city a complete critical area identification form on forms provided by the city.

2. Site Inspection. Upon receipt of a project application and a critical area identification form, the shoreline administrator shall conduct a site inspection to review critical area conditions on site if deemed warranted. The shoreline administrator shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

3. Critical Area Identification Form Review Process. The shoreline administrator shall review the critical area identification form, conduct a site inspection, and review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal and if a more detailed critical areas report shall be submitted. The shoreline administrator may use the following indicators to assist in determining the need for a critical areas report:

a. Indication of a critical area on the city critical areas maps that may be impacted by the proposed activity;

b. Information and scientific opinions from appropriate agencies, including but not limited to the Departments of Fish and Wildlife, Natural Resources, and Ecology;

c. Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

d. A finding by a qualified professional or a reasonable belief by the shoreline administrator that a critical area may exist on or adjacent to the site of the proposed activity.

4. Decision on Identification Form.

a. No Critical Areas Present. If after a site visit the shoreline administrator’s analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the shoreline administrator shall rule that the critical area review is complete and note on the identification form the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

b. Critical Areas Present, But No Impact – Waiver. If the shoreline administrator determines that there are critical areas within or adjacent to the project area, but that the most current, available scientific and technical information shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the shoreline administrator may waive the requirement for a critical areas report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

(1) There will be no alteration of the critical area or buffer;

(2) The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter; and

(3) The proposal is consistent with other applicable regulations and standards.

A summary of this analysis and the findings shall be included in any staff report or decision on the underlying permit.

c. Critical Areas May Be Affected by Proposal. If the shoreline administrator determines that a critical area or areas may be affected by the proposal, then the shoreline administrator shall notify the applicant that a critical areas report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report.

5. Shoreline Administrator’s Determination Subject to Reconsideration. A determination regarding the apparent absence of one or more critical areas by the shoreline administrator is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received.

If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances.

N. Public Notice of Initial Determination. The city shall notify the public of proposals in accordance with BMC Title 11, in addition to any requirements of BMC 13.17.030, Review and processing requirements, and the following:

1. If the shoreline administrator determines that no critical areas report is necessary, the city shall state the reasons for this determination in the notice of application issued by the city for the proposal.

2. If the shoreline administrator determines that there are critical areas on the site that the proposed project is unlikely to impact and the project meets the requirements for and has been granted a waiver from the requirement to complete a critical areas report, a summary of the analysis and findings for this decision shall be stated in the notice of application for the proposal.

3. If the shoreline administrator determines that critical areas may be affected by the proposal and a critical areas report is required, public notice of the application shall include a description of the critical area that might be affected and state that a critical areas report(s) is required.

O. Critical Areas Report – Requirements.

1. Preparation by Qualified Professional. If required by the shoreline administrator in accordance with subsection L of this section, the applicant shall submit a critical areas report prepared by a qualified professional as defined herein.

2. Incorporation of the Most Current Available Scientific and Technical Information. The critical areas report shall use scientifically valid methods and studies in the analysis of critical areas data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

3. Minimum Report Contents. At a minimum, the report shall contain the following:

a. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

b. A copy of the site plan for the development proposal including:

(1) A map to scale depicting critical areas, buffers, the development proposal, and any areas to be cleared; and

(2) A description of the proposed storm water management plan for the development and consideration of impacts to drainage alterations;

c. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

d. Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;

e. A statement specifying the accuracy of the report, and all assumptions made and relied upon;

f. An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development, including a functions and values analysis;

g. An analysis of site development alternatives including a no development alternative;

h. A description of reasonable efforts made to apply mitigation sequencing pursuant to subsection C of this section, Mitigation Sequencing, to avoid, minimize, and mitigate adverse impacts to critical areas;

i. Plans for adequate mitigation, as needed, to offset any adverse impacts, in accordance with subsection Q of this section, Mitigation Plan Requirements, including, but not limited to:

(1) The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

(2) The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

j. A discussion of the performance standards applicable to the critical area and proposed activity;

k. Financial guarantees to ensure compliance; and

l. Any additional information required for the critical area as specified in the corresponding section.

4. Unless otherwise provided, a critical areas report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the shoreline administrator.

P. Critical Areas Report – Modifications to Requirements.

1. Limitations to Study Area. The shoreline administrator may limit the required geographic area of the critical areas report as appropriate if:

a. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

b. The proposed activity will affect only a limited part of the subject site.

2. Modifications to Required Contents. The applicant may consult with the shoreline administrator prior to or during preparation of the critical areas report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

3. Additional Information Requirements. The shoreline administrator may require additional information to be included in the critical areas report when determined to be necessary to the review of the proposed activity in accordance with this chapter. Additional information that may be required includes, but is not limited to:

a. Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

b. Grading and drainage plans; and

c. Information specific to the type, location, and nature of the critical area.

Q. Mitigation Plan Requirements. When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical areas report. The mitigation plan shall include:

1. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

a. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation goals; identification of resource functions; and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

b. A review of the most current, available scientific and technical information supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

c. An analysis of the likelihood of success of the compensation project.

2. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this chapter have been met.

3. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

a. The proposed construction sequence, timing, and duration;

b. Grading and excavation details;

c. Erosion and sediment control features;

d. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

e. Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

4. Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, and seven after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.

5. Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

6. Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with subsection V of this section, Bonds to Ensure Mitigation, Maintenance, and Monitoring.

R. Unauthorized Critical Area Alterations.

1. When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

2. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional using the most current, available scientific and technical information and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The shoreline administrator shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

3. Minimum Performance Standards for Restoration.

a. For alterations to critical aquifer recharge areas, frequently flooded areas, wetlands, and habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

(1) The historic structural and functional values shall be restored, including water quality and habitat functions;

(2) The historic soil types and configuration shall be replicated;

(3) The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

(4) Information demonstrating compliance with the requirements in subsection Q of this section, Mitigation Plan Requirements, shall be submitted to the shoreline administrator.

b. For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

(1) The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;

(2) Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

(3) The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

4. Site Investigations. The shoreline administrator is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The shoreline administrator shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

S. Critical Area Markers and Signs.

1. The boundary at the outer edge of critical area tracts and/or easements shall be delineated with permanent survey stakes, using iron or concrete markers as established by local survey standards.

2. The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

3. These provisions may be modified by the shoreline administrator as necessary to ensure protection of sensitive features or wildlife needs.

T. Notice on Title.

1. In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county records and elections division according to the direction of the city. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.

2. This notice on title shall not be required for a development proposal by a public agency or public or private utility:

a. Within a recorded easement or right-of-way;

b. Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

c. On the site of a permanent public facility.

3. The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording.

U. Critical Area Tracts.

1. All critical areas and their buffers shall be placed in separate critical areas tracts, and shall be designated on all site plans, binding site plans, planned unit developments’ records of surveys, or subdivision approval, as follows:

a. All landslide hazard areas and buffers;

b. All wetlands and buffers;

c. All fish and wildlife habitat conservation areas and buffers when applicable and appropriate; and

d. All other lands to be protected from alterations as conditioned by project approval.

2. Critical area tracts shall be recorded on all documents of title of record for all affected lots.

3. Critical area tracts shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restriction:

a. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

b. The right of the city to enforce the terms of the restriction.

4. The city may require that any required critical area tract be dedicated to the city, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowners’ association or other legal entity (such as a land trust, which ensures the ownership, maintenance, and protection of the tract).

V. Bonds to Ensure Mitigation, Maintenance, and Monitoring.

1. When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

2. The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

3. The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

4. Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

5. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

6. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

7. Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or require other action authorized by the city code or any other law.

8. Any funds recovered pursuant to this section shall be used to complete the required mitigation.

W. Critical Area Inspections. Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

X. Native Plants. Where native plants are required by regulations in this chapter, applicants shall select plants from the list maintained by the city or consult guidance provided by King or Snohomish Counties or the Washington Native Plant Society. (Ord. 2112 § 3 (Exh. C), 2013).