22.08.040 Critical saltwater habitats (fish and wildlife habitat conservation areas).
A. Policies.
1. Development within critical saltwater habitats including, but not limited to, designated habitats of local significance, all kelp beds, eelgrass beds, spawning and holding areas for forage fish, such as herring, smelt and sand lance, subsistence, commercial and recreational shellfish beds, mudflats, intertidal habitats with vascular plants, and areas with which priority species have a primary association, should result in no net loss of ecological function, comply with the applicable requirements in this title and those specific use policies and regulations in Chapter 22.09 BMC.
2. Protection of critical saltwater habitats should incorporate the participation of resource agencies including tribal nations to assure consistency with other legislatively created mandates and programs in addition to local and regional government entities. (Including but not limited to Washington State Department of Fish and Wildlife, Lummi Nation, Nooksack Tribe, Port of Bellingham, Puget Sound Action Team, Department of Ecology.)
3. Permitted uses adjacent to or within critical saltwater habitats should not compromise the ability to restore these features in the future.
B. Regulations.
1. No structures of any kind shall be placed in or constructed over critical saltwater habitats unless they result in no net loss of ecological function, are associated with a water-dependent use, comply with the applicable requirements within this chapter and Chapter 22.09 BMC and meet all of the following conditions:
a. The project, including any required mitigation, will result in no net loss of ecological functions associated with critical saltwater habitat;
b. Avoidance of impacts to critical saltwater habitats by an alternative alignment or location is not feasible or would result in unreasonable and disproportionate cost to accomplish the same general purpose;
c. The project is consistent with the state’s interest in resource protection and species recovery;
d. The public’s need for such an action or structure is clearly demonstrated and the proposal is consistent with protection of the public trust, as embodied in RCW 90.58.020;
e. Shorelands that are adjacent to critical saltwater habitats shall be regulated per the requirements within this program.
2. A qualified professional shall demonstrate compliance with the above criteria in addition to the required elements of a critical area report as specified in Chapter 22.06 BMC. [Ord. 2013-02-005 § 2 (Exh. 1)].