16.55.500 Performance standards – Specific habitats

16.55.500 Performance standards – Specific habitats.

1. No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association, unless a management plan consistent with applicable state or federal agency regulations or guidance is provided. Appropriate management measures shall be included in a critical areas report prepared by a qualified professional for review by the city. The city may require a consultation with the respective agency prior to approval.

2. Nesting bald eagles and bald eagle habitat shall be protected consistent with the U.S. Fish and Wildlife Service Bald Eagle Management Guidelines, or the state or federal regulations in place at the time of application. Whenever activities are proposed adjacent to a verified nest territory or communal roost, a bald eagle habitat management plan shall be developed by a qualified professional. Activities are adjacent to managed bald eagle sites when they are within 660 feet of a nest or within one-half mile (2,640 feet) of a shoreline foraging area. Approval of the activity shall not occur prior to consultation with the state or federal agency with authority on bald eagle pairs and their nest.

1. All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a. Activities shall be timed to occur only during the allowable work window as designated by the Washington Department of Fish and Wildlife for the applicable species;

b. An alternative alignment or location for the activity is not feasible;

c. The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas;

d. Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques, according to an approved critical area report; and

e. Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report.

2. Structures that prevent the migration of fish shall not be allowed in the portion of water bodies currently, historically, or potentially used by fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed.

3. Fills, when authorized by the shoreline master program, shall not adversely impact fish or their habitat or shall mitigate any unavoidable impacts and shall only be allowed for a water-dependent use.

C. Wetland Habitats. All proposed activities within or adjacent to habitat conservation areas containing wetlands shall conform to the wetland development performance standards set forth in this chapter. If nonwetlands habitat and wetlands are present at the same location, the provisions of this chapter which provide the greater protection to the habitat apply.

D. Stream Buffers (Riparian Habitat Areas). Unless otherwise allowed in this chapter, all clearing, grading, structures, storage of materials and activities shall be located outside of the stream buffer.

Buffer Standards. The buffer standards required by this chapter presume the existence of a dense vegetation community in the buffer adequate to protect the stream functions and values. When a buffer lacks adequate vegetation, the director may increase the standard buffer, requiring buffer planting or enhancement, and/or deny a proposal for buffer reduction or buffer averaging. Buffers may not include areas that are functionally and effectively disconnected from the stream or buffer areas by a public or private road.

1. Stream Buffers Widths (Riparian Habitat Area Widths). Stream buffer widths are shown in Table 16.55.500(A). A stream buffer shall have the minimum width recommended, unless a greater width is required pursuant to subsection (D)(2) of this section, a lesser width is allowed pursuant to subsection (D)(3) of this section, or averaging is proposed, pursuant to subsection (D)(4) of this section. Widths shall be measured outward in each direction, on the horizontal plane, from the ordinary high water mark, or from the top of bank, if the ordinary high water mark cannot be identified. Riparian areas should be sufficiently wide to achieve the full range of riparian and aquatic ecosystem functions, which include but are not limited to protection of instream fish habitat through control of temperature and sedimentation in streams; preservation of fish and wildlife habitat; and connection of riparian wildlife habitat to other habitats.

Table 16.55.500(A) Stream Buffer Widths by Stream Type
Creek	Segment	Minimum	Maximum
Padden	McKenzie to Donovan Avenue – Type F	75 feet	150 feet
Padden	Donovan Avenue to Old Fairhaven Parkway – Type F	100 feet	150 feet
Padden	Old Fairhaven Parkway to I-5 – Type F	100 feet	150 feet
Padden	I-5 to Lake Padden – Type F	150 feet	200 feet
Connelly	Mouth to Detention Dam – Type F	75 feet	150 feet
Baker	Mouth to I-5 – Type F	100 feet	150 feet
All Other Type F Streams	All	75 feet	150 feet
Type Np Streams	All	50 feet	150 feet
Type Ns Streams	All	50 feet	100 feet
Type Np and Ns Streams with high mass wasting risk		200 feet	225 feet

**Note that water and stream types are defined in BMC 16.55.510.

2. Increasing Buffer Widths. The director shall have the authority to increase the minimum buffer width up to the maximum width as follows:

a. When the director determines that the minimum width is insufficient to prevent habitat degradation and to protect the structure and functions of the habitat area as a result of a habitat assessment pursuant to BMC 16.55.480(C);

b. When the frequently flooded area exceeds the minimum stream buffer width, the stream buffer shall extend to the outer edge of the frequently flooded area;

c. When a channel migration zone is present, the stream buffer shall extend to the outer edge of the channel migration zone; or

d. When the stream buffer is within a landslide hazard area, or its buffer, the stream buffer width shall be determined by the director based on a recommendation from qualified professionals in the field of geology and stream ecology/wildlife;

3. Reducing Buffer Widths. The director shall have the authority to reduce the minimum buffer widths when all the following criteria are met:

a. The buffer reduction shall not adversely affect the functions and values of the stream and habitat;

b. The buffer of a Type F or Np stream shall not be reduced to less than 75 percent of the minimum buffer;

c. The buffer of Type Ns stream shall not be reduced to less than 50 percent of the minimum buffer; and

d. The applicant implements all reasonable measures to reduce the adverse effects of adjacent land uses and ensure no new loss of buffer functions and values. The specific measures below shall be implemented to the greatest extent possible and include, but are not limited to, the following:

i. Direct lights away from the stream and stream buffer;

ii. Locate facilities that generate substantial noise away from the stream and stream buffer;

iii. Construct a wildlife permeable fence around the buffer and post signs at the buffer to clearly indicate the location of the stream buffer area pursuant to BMC 16.55.230;

iv. Plant buffer with “impenetrable” native vegetation appropriate for the location;

v. Use low impact development techniques to the greatest extent possible; and

vi. Establish and record a permanent conservation easement to protect the stream and stream buffer and restrict the use of pesticides and herbicides in the easement.

4. Averaging Buffer Widths. The director has the authority to average stream buffer widths on a case-by-case basis when all the following criteria are met:

a. The buffer averaging does not reduce the functions or values of the stream or stream buffer; and

b. 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 for averaging must be parallel to the stream; and

c. The stream or stream buffer contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation; and

d. The buffer width is not reduced in any location to less than 50 percent of the standard width or 35 feet, whichever is greater, on a case-by-case basis as a result of a habitat assessment pursuant to BMC 16.55.480(C); and

e. The buffer has not been reduced in accordance with this section. Buffer averaging is not allowed if the buffer has been reduced; and

f. There were no feasible alternatives to the site design without buffer averaging.

5. Stream Buffer Impacts. When buffer width adjustments through buffer averaging or reduction do not remove the proposed activity from the buffer, then the activity is considered a buffer impact. When unavoidable buffer impacts occur, compensatory mitigation shall be provided at a ratio of 1:1. The mitigation shall occur on the same site when feasible or within the same stream system preferably. The mitigation shall ensure that the stream and stream buffer functions and values are not diminished due to the impacts.

6. Stream Buffers on Mitigation Sites. Stream buffer widths at mitigation sites shall comply with the buffer requirements of this chapter.

7. Building Setbacks from Stream Buffers. Buildings, structures, paving, and other hard surfacing shall be set back a distance of 15 feet from the edge of the stream buffer unless a smaller setback is approved by the director. This setback is to avoid conflicts with tree branches and/or critical root zones of trees that are in the buffer or will be planted in the buffer. The following may be allowed in the building setback from the buffer if they do not cause damage to the critical root zone of trees in the buffer.

a. Landscaping;

b. Uncovered decks, roof eaves and overhangs, unroofed stairways and steps;

c. Pervious ground surfaces, such as driveways, patios, and parking may be allowed; provided, that they are engineered as a pervious system as defined in BMC 16.80.050. Such improvements may be subject to the requirements in Chapter 15.42 BMC, Stormwater Management;

d. Above and below ground water conservation cisterns and associated infrastructure, used for residential rainwater catchment but not to exceed 300 square feet total; provided, that if above ground, the necessary foundation is engineered as a pervious system.

E. Aquatic Habitat. The activities listed below are allowed in stream buffers, and waters of the state with the exception of wetlands. Approval of the activity shall be obtained in the appropriate critical area permit, minor critical area permit, or exception, depending on the activity. Mitigation shall be provided in accordance with the provisions of this chapter.

1. Clearing and Grading. When clearing and grading is permitted as part of an authorized activity or as otherwise allowed in these standards, the following shall apply:

a. Grading is allowed only during the dry season, which is typically regarded as beginning on May 1st and ending on October 1st of each year; provided, that the city may extend or shorten the dry season on a case-by-case basis, determined on actual weather conditions.

b. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the project area.

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

d. Erosion and sediment control that meets or exceeds the standards set forth in Chapter 15.42 BMC shall be provided.

2. Shoreline Erosion Control Measures. New, replacement, or substantially improved shoreline erosion control measures may be permitted in accordance with an approved critical area report that demonstrates the following:

a. Natural shoreline processes will be maintained. The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-quarter mile of the project area.

b. The shoreline erosion control measures will not degrade fish or wildlife habitat conservation areas or associated wetlands.

c. Adequate mitigation measures ensure that there is no net loss of the functions or values of intertidal habitat or riparian habitat as a result of the proposed shoreline erosion control measures.

d. The proposed shoreline erosion control measures do not result in alteration of intertidal migration corridors.

3. Stream Bank Stabilization. Stream bank stabilization to protect new structures from future channel migration is not permitted except when such stabilization is achieved through bioengineering or soft armoring techniques in accordance with an approved critical area report.

4. Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, and bridges may be permitted in accordance with an approved critical area report subject to the following standards:

a. There is no other feasible alternative route with less impact on the fish populations, stream, or stream buffer, and mitigation sequencing has been applied;

b. The crossing minimizes interruption of downstream movement of wood and gravel;

c. Roads in riparian habitat areas or their buffers shall not run parallel to the water body;

d. Trails shall be located on the outer edge of the riparian area or buffer except for limited viewing platforms and crossings unless there is a location that has a lesser impact on the water body. Trails shall not be located in the channel migration zone and shall be the minimum width necessary for safe travel;

e. Crossings, where necessary, shall only occur as near to perpendicular with the water body as possible;

f. Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical area report;

g. Road bridges are designed to be consistent with Washington State’s Department of Fish and Wildlife “Water Crossing Design Guidelines” (2013) and the National Marine Fisheries Service “Anadromous Salmonid Passage Facility Design” (2011).

5. Utility Facilities. New utility lines and facilities may be permitted in accordance with an approved critical area report, if they comply with the following criteria:

a. There is no alternative location;

b. Fish and wildlife habitat areas shall be avoided to the maximum extent possible;

c. Installation shall be accomplished by boring beneath the scour depth and hyporheic zone of the water body and channel migration zone, where feasible;

d. If a utility is proposed to cross or span a stream, the utility shall cross at an angle greater than 60 degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;

e. Crossings shall be contained within the footprint of an existing road or utility crossing where possible;

f. The utility route shall avoid paralleling the stream or following a down-valley course near the channel; and

g. The utility installation shall not increase or decrease the natural rate of shore migration or channel migration.

6. Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to the city’s review and approval of a critical area report and the approval of a federal biological assessment by the federal agency responsible for reviewing actions related to a federally listed species.

7. Instream Structures. Instream structures, such as, but not limited to, high flow bypasses, sediment ponds, instream ponds, retention and detention facilities, tide gates, dams, and weirs, shall be allowed only as part of an approved watershed basin restoration project approved by the city and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect habitat conservation areas.

a. Stormwater management facilities shall not be located within stream buffers, with the following exceptions:

i. Conveyance systems may be located in stream buffers on a case-by-case basis if deemed necessary and approved by the public works and planning and community development departments.

ii. Full dispersion of flow, as defined in Chapter 15.42 BMC, may be allowed in a stream buffer if approved by the public works and planning and community development departments.

b. The facilities specified above in subsections (E)(8)(a)(i) and (ii) of this section are allowed only if impacts to the buffer, resulting from their installation, are avoided or mitigated.

c. Stormwater management design and facilities shall be consistent with Chapter 15.42 BMC, as amended, to protect stream conditions and functions.

9. Restoration. Restoration, relocation, alteration and/or realignment of a stream channel to improve ecological functions provided such action is concurrently reviewed and approved by the Washington State Department of Fish and Wildlife, the United States Army Corps of Engineers and if required, the Department of Ecology. [Ord. 2016-02-005 § 33; Ord. 2005-11-092].