HomeMy WebLinkAbout3109Ordinance No. 3109
["Beginning July 1, 1998"]
(Amending or Repealing Ordinances)
CFN-961 Growth Management Act
Passed — 5/18/1993
Wetlands Management
Repealed entirely by Ord. 3746
ORDINANCE NO. ID
AN ORDINANCE of the City of Kent,
Washington, adding a new chapter to the Kent
City Code, Chapter 11.05, entitled "Wetlands
Management" relating to preservation and
management of wetlands within the City of
Kent.
WHEREAS, wetlands and their buffer areas are valuable
and fragile natural resources with significant development
constraints due to flooding, erosion, soil liquefaction
potential, and septic disposal limitations; and
WHEREAS, in their natural state, wetlands provide many
valuable social and ecological services, including controlling
flooding and stormwater runoff by storing or regulating natural
flows; protecting water resources by filtering out water
pollutants, processing biological and chemical oxygen demand,
recycling and storing nutrients, and serving as settling basins
for naturally occurring sedimentation; providing areas for
groundwater recharge; preventing shoreline erosion by stabilizing
the substrate; providing habitat areas for many species of fish,
wildlife, and vegetation, many of which are dependent on wetlands
for their survival, and many of which are on Washington State and
Federal Endangered Species lists; providing open space and visual
relief from intense development in urbanized area; providing
recreation opportunities; and serving as areas for scientific
study and natural resource education; and
WHEREAS, development in wetlands may result in:
increased soil erosion and sedimentation of downstream water
bodies, including navigable channels; increased shoreline
erosion; degraded water quality due to increased turbidity and
loss of pollutant removal processes; elimination or degradation
of wildlife and fisheries habitat; loss of fishery resources from
water quality degradation, increased peak flow rates, decreased
summer low flows, and changes in the streamflow regimen; loss of
stormwater retention capacity and slow-release detention
resulting in flooding, degraded water quality, and changes in the
streamflow regimen of watersheds; loss of groundwater recharge
areas; and
WHEREAS, buffer areas surrounding wetlands are
essential to maintenance and protection of wetland functions and
values, and protect wetlands from degradation by stabilizing soil
and preventing erosion; filtering suspended solids, nutrients and
harmful or toxic substances; moderating impacts of stormwater
runoff; moderating system microclimate; protecting wetland
wildlife habitat from adverse impacts; maintaining and enhancing
habitat diversity and/or integrity; supporting and protecting
wetlands plant and animal species and biotic communities; and
reducing disturbances to wetland resources caused by intrusion of
humans and domestic animals; and
WHEREAS, The loss of the social and ecological services
provided by wetlands results in a detriment to public safety and
welfare; replacement of such services, if possible at all, can
require considerable public expenditure; and
WHEREAS, a considerable acreage of these important
natural resources has been lost or degraded by draining,
dredging, filling, excavating, building, polluting, and other
acts inconsistent with the natural uses of such areas, and
remaining wetlands are in jeopardy of being lost, despoiled, or
impaired by such acts;
WHEREAS, the City Council of the City of Kent hereby
finds that as a result of all of the above, it is necessary to
ensure protection of wetland areas in the City by regulating
activities in wetlands and in sites adjacent to wetlands that may
adversely affect wetland functions and values, to encourage
restoration and enhancement of already -degraded wetland systems
and to encourage creation of new wetland areas; and
WHEREAS, the City Council hereby finds that in order to
accomplish this directive, the City shall amend the Kent City
Code to require site planning through a regulatory system
administered by the Public Works Department, in order to avoid or
minimize damage to wetlands wherever possible; to require that
activities not dependent upon a wetland location be located at
upland sites; and to achieve no net loss of wetland area by
requiring restoration of degraded former wetlands or the creation
of new wetlands from upland sites to offset unavoidable losses;
WHEREAS, the City wishes to protect the rights of
individual property owners by ensuring that City wetland
regulations do not arbitrarily or unfairly deprive them of use of
their land and that the burdens of these regulations are not
borne disproportionately by one group of citizens;
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WHEREAS, the City wishes to provide for review process
that is timely, fair and predictable and that integrates review
of wetland issues with the substantive review of development
permit applications;
WHEREAS, the City wishes to reduce sprawl and take best
advantage of existing City infrastructure by encouraging infill
development, both in upland areas and areas where wetland impacts
can be mitigated by replacement or enhancement;
WHEREAS, the City wishes to use creative zoning
techniques and other mechanisms to avoid the loss of development
rights in property and thereby minimize the adverse fiscal effect
on the City of a loss of jobs and tax base, and encourage the
production of affordable housing for all economic segments of the
population;
WHEREAS,the City wishes to protect the environment,
including wetlands, in order to enhance the quality of life for
City residents; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF KENT HEREBY ORDAINS AS
FOLLOWS:
SECTION 1. There shall be a new chapter added to Title
11 of the Kent City Code, Chapter 11.05, which shall read as
follows:
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CHAPTER 11.05
WETLANDS MANAGEMENT
11.05.010. Short Title, Authority and Purpose
A. This chapter shall be known and may be cited as
the "Kent Wetlands Management Code."
B. This chapter is enacted pursuant to the City's
police powers, the Growth Management Act as codified in Chapter
36.70A of the Revised Code of Washington (RCW), the State
Environmental Policy Act (SEPA) in Chapter 42.21C RCW.
C. The purpose of this chapter is to:
1. Protect the public health, safety and welfare
by preserving, protecting and restoring wetlands through the
regulation of development and other activities within them and
wetland buffers so that nuisances or threats to safety are not
created, and natural wetland functions and values are not
degraded by:
a. impeding flood flows, reducing flood
storage capacity, or impairing natural flood control functions,
thereby resulting in increased flood heights, frequencies or
velocities on other lands;
b. increasing water pollution through
location of domestic waste disposal systems in wetlands;
unauthorized application of pesticides and herbicides; disposal
of solid waste at inappropriate sites; creation of unstable
fills; or the destruction of wetland soils and vegetation;
C. increasing erosion;
d. decreasing breeding, nesting and feeding
areas for many species of waterfowl and shorebirds, including
those rare and endangered;
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e. interfering with the exchange of
nutrients needed by fish and other forms of wildlife;
f. adversely altering the recharge or
discharge functions of wetlands, thereby impacting groundwater or
surface water supplies;
g. significantly altering wetland hydrology
and thereby causing either short -or long-term changes in
vegetational composition, soils characteristics, nutrient
cycling, or water chemistry;
h. destroying sites needed for education
and scientific research, such as outdoor biophysical
laboratories, living classrooms, and training areas;
i. interfering with public rights in
navigable waters and the recreation opportunities provided by
wetlands for fishing, boating, hiking, bird watching, photography
and other passive uses; or
j. destroying or damaging aesthetic and
property values, including significant public viewsheds.
2. Protect, to the greatest extent practicable,
the public against losses from unnecessary maintenance and
replacement of public facilities and expenses for public
emergency rescue and relief operations; and
3. Alert appraisers, assessors, owners and
potential buyers or lessees of property to the development
limitations of wetlands.
D. The provisions of this chapter shall be liberally
construed to effectively carry out its purpose in the interest of
the public health, safety and welfare.
R
11.05.020. Definitions
For the purposes of this chapter, the following definitions shall
apply:
A. "Activity." See "Regulated Activity" and "Allowed
Activity" as defined in this section.
B. "Adjacent wetland" means those wetlands bordering,
contiguous or neighboring a river, stream or lake.
C. "Applicant" means a person who files an
application for development and who is either the owner of the
land on which that proposed Regulated Activity would be located,
a contract vendee, a lessee of the land, the person who would
actually control and direct the proposed Regulated Activity, or
the authorized agent of such a person.
D. "Best management practices" means conservation
practices or systems of practices and management measures that:
1. Control soil loss and reduce water quality
degradation caused by nutrients, animal waste, toxics, and
sediment; and
2. Minimize adverse impacts to surface water and
groundwater flow, circulation patterns, and to the chemical,
physical, and biological characteristics of wetlands.
E. "City" means the City of Kent, Washington.
F. "Compensation project" means actions necessary to
replace project -induced wetland and wetland buffer losses,
including land acquisition, planning, construction plans,
monitoring and contingency actions.
G. "Compensatory mitigation" means replacing
project -induced wetland losses or impacts, and includes, but is
not limited to, the following:
1. Restoration. Actions performed to
reestablish wetland functional characteristics and processes
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which have been lost by alterations, activities, or catastrophic
events within an area which no longer meets the definition of a
wetland.
2. Creation. Actions performed to intentionally
establish a wetland at a site where it did not formerly exist.
3. Enhancement. Actions performed to improve
the condition of existing wetlands so that the functions they
provide are of a higher quality.
H. "Dedication" means conveyance of land to the City
or other not-for-profit entity by deed or other instrument of
conveyance.
I. "Department" means the Public Works Department of
the City of Kent, unless otherwise noted.
J. "Developable area" means land outside of wetlands,
wetland buffers or any other restricted area on a particular
piece of property.
K. "Development" means any construction or expansion
of a building, structure or use; or changes in the use of land
that require a development permit from the City or would
otherwise alter or adversely affect a wetland or wetland buffer.
L. "Director" means the Director of the Kent Public
Works Department or his/her authorized designee, unless otherwise
noted.
M. "Emergent wetland" means a wetland with at least
30 percent of the surface area covered by erect, rooted,
herbaceous vegetation as the uppermost vegetative strata.
N. "Enhancement." See "Compensatory Mitigation."
O. "Erosion" means the wearing away of the ground
surface as a result of mass wasting or the movement of wind,
water, soil and/or ice.
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P. "Essential habitat" means habitat necessary for
the survival of federally listed threatened, endangered and
sensitive species and state listed priority species.
Q. "Exotic" means any species of plants or animals
that are foreign to the planning area.
R. "Existing and ongoing agriculture" includes those
activities conducted on lands defined as "Farm and Agricultural
Land" in RCW 84.34.020(2), and those activities involved in the
production of crops or livestock, for example, the operation and
maintenance of farm and stock ponds or drainage ditches,
operation and maintenance of ditches, irrigation systems
including irrigation laterals, canals, or irrigation drainage
ditches, changes between agricultural activities, and normal
maintenance, repair, or operation of existing serviceable
structures, facilities, or improved areas. Activities which bring
an area into agricultural use are not part of an ongoing
operation. An operation ceases to be ongoing when the area on
which it is conducted is converted to a nonagricultural use or
has lain idle for more than eight years, unless the idle land is
registered in a federal or state soils conservation program, or
unless the activity is maintenance of irrigation ditches,
laterals, canals, or drainage ditches related to an existing and
ongoing agricultural activity. Forest practices are not included
in this definition.
S. "Extraordinary hardship" means that the strict
application of the provisions of this chapter and/or rules
adopted to implement this chapter would prevent all reasonable
economic use of the property.
T. "Federal Manual" means Technical Report Y-87-1,
Corps of Engineers Wetlands Delineation Manual, dated January
1987.
C
U. "Forested wetland" means a wetland with at least
20 percent of the surface area covered by woody vegetation
greater than 20 feet in height.
V. "Functions," "beneficial functions," or "functions
and values" means the beneficial roles served by wetlands
including, but not limited to, water quality protection and
enhancement, fish and wildlife habitat, food chain support, flood
storage, conveyance and attenuation, groundwater recharge and
discharge, erosion control, wave attenuation, historical and
archaeological and aesthetic value protection, and recreation.
These beneficial roles are not listed in order of priority.
W. "Grading" means excavation or fill or any
combination thereof, including the establishment of a grade
following the demolition of a structure.
X. "Growing season" means the average frost -free
period of the year in Kent as recorded in National Oceanic and
Atmospheric Administration Frost/Freeze Data from Climatology of
the U.S. No. 20, supplement No. 1, or in equivalent U.S.
government agency records. Growing season, for the purposes of
these regulations, may be considered to be the period from March
1 through October 31 of any calendar year.
Y. "Hydric Soil" means soil that is saturated,
flooded or ponded long enough during the growing season to
develop anaerobic conditions in the upper part. The presence of
hydric soil shall be determined following the methods described
in the Federal Manual.
Z. "Hydrophytic vegetation" means macrophytic plant
life growing in water or on a substrate that is at least
periodically deficient in oxygen as a result of excessive water
content. The presence of hydrophytic vegetation shall be
determined following the methods described in the Federal Manual.
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AA. "In-kind compensation" means to replace wetlands
with substitute wetlands that have characteristics which closely
approximate those destroyed or degraded by a Regulated Activity.
BB. "Isolated wetlands" means those wetlands which:
1. Are outside of and not contiguous to any
lake, river, or stream; and
2. Have no contiguous hydric soil or hydrophytic
vegetation between the wetland and any surface water.
CC. "Maintenance," see definition of "Repair and
Maintenance."
DD. "Mitigation" includes avoiding, minimizing or
compensating for adverse wetland impacts. Mitigation, in the
following order of preference is:
1. Avoiding the impact altogether by not taking
a certain action or parts of an action;
2. Minimizing impacts by limiting the degree or
magnitude of the action and its implementation, by using
appropriate technology, or by taking affirmative steps to avoid
or reduce impacts;
3. Rectifying the impact by repairing,
rehabilitating or restoring the affected environment;
4. Reducing or eliminating the impact over time
by preservation and maintenance operations during the life of the
action;
5. Compensating for the impact by replacing,
enhancing, or providing substitute resources or environments;
6. Monitoring the impact and the compensation
project and taking appropriate corrective measures.
Mitigation may include a combination of the above
measures.
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EE. "Mitigation Banking" is the collective offsite
creation, restoration or enhancement of uplands, or in some
instances, existing wetlands, to compensate for unavoidable
adverse impacts due to private development, public works
projects, and other construction activities. Banking differs
from most offsite compensatory mitigation projects in that
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mitigation banking is a pram created by agencies or g
organizations to provide a relatively large mitigation site which
will be used to compensate for many (usually unrelated)
development projects; more traditional compensatory mitigation
measures are typically individual projects which may give little
consideration to regional wetlands management.
FF. "Native Vegetation" means plant species which are
indigenous to the planning area.
GG. "Offsite compensation" means to replace wetlands
away from the site on which a wetland has been impacted by a
regulated activity.
HH. "On-site compensation" means to replace wetlands
at or adjacent to the site on which a wetland has been impacted
by a regulated activity.
II. "Out -of -kind compensation" means to replace
wetlands with substitute wetlands whose characteristics do not
closely approximate those destroyed or degraded by a regulated
activity.
JJ. "Owner" means any person having title to, a
substantial beneficial interest in, or control of a building or
property, including but not limited to a lessee, guardian,
receiver or trustee, and the owner's duly authorized agent.
KK. "Person" means a natural person, his/her heirs,
executors, administrators or assignees, or a firm, partnership or
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corporation and its or their successors and assignees, or a
governmental entity.
LL. "Pollution" means such contamination, or other
alteration of the physical, chemical or biological properties of
wetlands, or such discharge of any liquid, gaseous, solid,
radioactive or other substance into wetlands as will or is likely
to cause a nuisance or render such wetlands harmful, detrimental
or injurious to the public health, safety or welfare, or to
domestic, commercial, industrial, agricultural, recreational or
other legitimate beneficial uses, or to livestock, wildlife,
fish, native vegetation or other aquatic life.
mm. "Practicable alternative" means an alternative
that is available and capable of being carried out after taking
into consideration cost, existing technology, and logistics in
light of overall project purposes, and having less impacts to
wetlands. It may involve using an alternative site in the general
region that is available to the applicant and may feasibly be
used to accomplish the project.
NN. "Priority habitats" are 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.
oo. "Priority species" are those species identified by
the Washington State Department of Wildlife as a Priority
Species.
pp. "Repair or maintenance" means an activity that
restores the character, scope, size, and design of a serviceable
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area, structure, or land use to its previously authorized and
undamaged condition. Activities that change the character, size,
or scope of a project beyond the original design and drain,
dredge, fill, flood, or otherwise alter additional wetlands are
not included in this definition.
QQ. "Restoration." See "Compensatory Mitigation."
RR. "Scrub -shrub wetland" means a wetland with at
least 30 percent of its surface area covered by woody vegetation
less than 20 feet in height as the uppermost strata.
SS. "Sensitive Area Tract" means a separate tract that
is created to protect the sensitive area and its buffer, and
whose ownership is assured as provided in Section 11.05.140 of
this Chapter.
TT. "Serviceable" means presently useable.
UU. "Site" means any lot or parcel of land or
contiguous combination thereof, where activities are proposed,
performed or permitted.
VV. "Subject property" means the site where an
activity requiring a permit or approval under this chapter will
WW. "Unavoidable and necessary impacts" are impacts to
wetlands that remain after an applicant has demonstrated that no
practicable alternative exists for the proposed project.
XX. "Water -dependent" means requiring the use of
surface water that would be essential to fulfill the purpose of
the proposed project.
YY. "Wetlands," means all those areas in the City of
Kent that are inundated or saturated by surface or ground water
at a frequency and duration sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions during
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the growing season. Wetlands generally include swamps, marshes,
bogs, and similar areas. Wetlands do not include those artificial
wetlands intentionally created from nonwetland sites, including,
but not limited to, irrigation and drainage ditches, grass-lined
swales, canals, detention facilities, wastewater treatment
facilities, farm ponds, and landscape amenities. The applicant
shall bear the burden of proving that the site was not previously
a wetland. Wetlands include artificial wetlands intentionally
created from nonwetland areas for the purpose of mitigating
conversion of wetlands. For identifying and delineating a
wetland, the City of Kent shall rely on the methodology contained
in the Federal Manual as defined above.
ZZ. "Wetlands of Outstanding Significance," means
wetlands designated as Unique and Fragile pursuant to Section
15.08.260 of the Kent Zoning Code, and mapped on the City's
Hazard Area Development Limitations Map, except for the Kent
Sewage Lagoon.
AAA. "Wetland buffer" or "wetland buffer zone" is an
area that surrounds and protects a wetland from adverse impacts
to the functions and values of a wetland.
BBB. "Wetland classes," "classes of wetlands" or
"wetland types" means the wetland classes or subclasses of the
wetlands taxonomic classification system described in the U.S.
Fish and Wildlife Service's Classification of Wetlands and
Deepwater Habitats of the United States, FWS/OBS-79/31 (Cowardin
et al., 1979).
CCC. "Wetland edge" means the boundary of a wetland as
delineated based on the definitions in this chapter and the
procedures specified in Section 11.05.040 herein.
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11.05.030. General Provisions.
A. Applicability. The requirements of this chapter
apply to all activities and development occurring in a wetland or
wetland buffer as defined in Section 11.05.020 herein. Property
located in a wetland or wetland buffer as defined in this chapter
is subject to both its zoning classification regulations and to
the additional requirements imposed under this chapter. In any
case where there are irreconcilable differences between the
provisions of the underlying zone and this chapter, the
provisions of this chapter shall apply.
B. Protection of General Public. It is expressly the
purpose of this chapter to protect the health, safety and welfare
of the general public, and not to create or otherwise establish
or designate any particular class or group of persons who will or
should be especially protected or benefitted by the terms of this
chapter.
C. Compliance by Owners. It is the specific intent
of this chapter to place the obligation of complying with its
requirements upon the owner of the property or land within its
scope, and no provision of, nor any term used in this chapter is
intended to impose any duty whatsoever upon the City, its
officers, officials or employees.
D. Right of Entry. Upon presentation of the proper
credentials, the Director or the Director's duly authorized
representative may, with the consent of the owner or occupier of
land, or pursuant to a lawfully issued warrant, enter at
reasonable times, any land subject to such consent or warrant, to
perform the duties imposed by this chapter.
E. Liability. Nothing contained in this chapter is
intended to be nor shall be construed to create or form the basis
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for liability on the part of the City, or its officers,
officials, employees or agents for any injury or damage resulting
from the failure of any owner of property or land to comply with
the provisions of this chapter, or by reason or in consequence of
any inspection, notice order, certificate, permission or approval
authorized or issued in connection with the implementation or
enforcement of this chapter, or by reason of any action or
inaction on the part of the City related in any manner to the
enforcement of this chapter by its officers, officials, employees
or agents.
F. Enforcement Authority; Administrative Procedures.
1. Enforcement. The Director is hereby
designated the City Official to exercise the powers granted by
this chapter.
2. Administrative Procedures. Within 30 days
from the adoption of this chapter, the Director shall initiate
administrative procedures necessary to carry out the requirements
of this chapter.
11.05.040. Lands to Which this Chapter Applies
A. Geographic Scope. The boundaries within which
this chapter shall be effective are coextensive with the
corporate City limits, and shall include all unincorporated areas
annexed to the City on and after the effective date of this
chapter.
B. Determination of Wetland Boundary by Delineation.
The exact location of the wetland boundary shall be determined
through the performance of a field investigation applying the
wetland definition provided in Section 11.05.020 by professionals
using the Federal Manual.
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An applicant may request the Department to perform
the delineation, provided the applicant pays the Department for
all necessary expenses associated with performing the
delineation. The Department shall consult with qualified
professional scientists and technical experts or other experts as
needed to perform the delineation.
Where the applicant has provided a delineation of
the wetland boundary, the Department shall verify the accuracy
of, and may render adjustments to, the boundary delineation. The
decision of the Department may only be appealed pursuant to
Section 11.05.210.
C. Pre -application Delineation. Property owners or
their agents may obtain a non-binding opinion regarding a wetland
delineation prior to submittal of any development permit
application.
D. Time Limits for Delineation. A wetland
delineation which has been confirmed by the Department pursuant
to SEPA review shall be binding upon the City and the applicant
for one year from the date of issuance of the threshold
determination. If a complete application for a building permit
or subdivision involving the same wetland is filed within one
year of the issuance of the threshold determination, the
delineation shall be binding upon the City and the applicant
while the permit or subdivision application is active.
11.05.050. Wetlands Rating System
A. The following rating system is hereby adopted for
the purpose of determining the size of wetland buffers and
otherwise reviewing permits under this chapter. For the purposes
of this Section, the U.S. Fish and Wildlife Service's
Classification of Wetlands and Deepwater Habitats of the United
.
States, FWS/OBS-79-31 (Cowardin et al., 1979) contains the
descriptions of wetland classes and subclasses.
1. Category 1 Wetlands. Wetlands which meet any
of the following criteria:
a. The documented presence of species
proposed or listed by the federal or state government as
endangered, threatened, or other species identified by the, states
Department of Natural Resources through its Natural Heritage data
or by the state Department of Wildlife as a Priority Species, or
the presence of critical or outstanding actual habitat for those
species;
b. Wetlands equal to or greater than two
acres in size having 40% to 60% permanent open water in dispersed
patches with two or more classes of vegetation;
C. Wetlands equal to or greater than ten
acres in size and having three or more wetland classes, one of
which is open water; or
d. The presence of bogs or fens.
e. Wetlands which have been designated
Unique and Fragile under the Kent Zoning Code, Section 15.08.260
and mapped on the City's Official Hazard Area Development
Limitations Map.
2. Category 2 Wetlands. Wetlands which meet any
of the following criteria, and which are not Category 1 wetlands:
a. Wetlands greater than one acre in size;
b. Wetlands equal to or less than one acre
in size and having three or more wetland classes;
C. Wetlands equal to or less than one acre
that have a forested wetland class;
d. The documented presence of heron
rookeries or raptor nesting sites.
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3. Category 3 Wetlands. Wetlands that are equal
to or less than one acre in size and that have two or fewer
wetland classes, and which are not Category 1 or Category 2
wetlands.
C. In order to obtain a permit to conduct regulated
activities in a wetland of outstanding significance, an applicant
must demonstrate to the satisfaction of the Director that
application of the standards contained in this chapter would deny
all reasonable economic use of the property.
11.05.060. Regulated Activities
A. No regulated activity, other than repairs and
maintenance of their property by owner or occupant of 10,000
square feet or less of isolated Category 2 or Category 3
wetlands, shall be undertaken in a wetland or wetland buffer
without first obtaining approval from the Director pursuant to
Section 11.05.100. Regulated activities are any of the following
activities which occur in a wetland or its buffer:
1. The removal, excavation, grading, or dredging
of soil, sand, gravel, minerals, organic matter, or material of
any kind;
2. The dumping, discharging, or filling with any
material;
3. The draining, flooding, or disturbing of the
water level or water table;
4. The driving of pilings;
5. The placing of obstructions;
6. The construction, reconstruction, demolition,
or expansion of any structure;
7. The destruction or alteration of wetlands
vegetation through clearing, harvesting, shading, intentional
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burning, or planting of vegetation that would alter the character
of a wetland, provided that these activities are not part of a
forest practice exclusively governed under chapter 76.09 RCW and
its rules; or
8. Activities that result in a significant
change of water temperature, a significant change of physical or
chemical characteristics of wetlands water sources, including
quantity, or the introduction of pollutants; or
9. The construction of utility facilities,
utility systems and essential public infrastructure.
B. Where a regulated activity is proposed which would
be partly within and partly without the wetland or wetland
buffer, approval shall be required for the entire regulated
activity. The standards of this chapter shall apply only to that
part of the regulated activity which occurs within the wetland or
wetland buffer unless the underlying zoning requires that the
entire regulated activity comply with all or part of this
chapter.
C. The Kent Lagoons shall be subject to this chapter
with the exception of those activities allowed by Resolution No.
922, adopted by the Kent City Council in March 1981.
11.07.070. Allowed Activities.
A. The following activities shall be allowed within a
wetland or wetland buffer without prior approval from the
Director to the extent that they are not prohibited by other
local, state (forest practices and conversions shall be governed
by Chapter 76.09 RCW and rules promulgated thereunder) or federal
law and provided that they are conducted using best management
practices. This exemption does not apply where such activities
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result in the conversion of a wetland or wetland buffer to a use
to which it was not previously subjected.
1. Conservation or preservation of soil, water,
vegetation, fish, shellfish, and other wildlife;
2. Outdoor recreational activities, including
fishing, bird watching, hiking, boating, horseback riding,
swimming, canoeing, and bicycling;
3. The harvesting of wild crops in a manner that
is not injurious to natural reproduction of such crops and
provided the harvesting does not require tilling of soil,
planting of crops, or alteration of the wetland by changing
existing topography, water conditions or water sources;
4. Existing and ongoing agricultural activities;
5. The repair and maintenance (but not
construction) of drainage ditches;
6. Educational activities, scientific research,
and use of nature trails;
7. The placement of navigation aids and boundary
markers;
8. The placement of boat mooring buoys;
9. Site investigative work necessary for land
use application submittals such as surveys, soil logs,
percolation tests and other related activities. In every case,
wetland impacts shall be minimized and disturbed areas shall be
immediately restored;
B. Notice required. The following activities and
uses are allowed within wetlands and wetland buffers provided
that written notice at least ten days prior to the commencement
of such work has been given to the Director with such exemptions
as noted in Section 11.05.060.A and provided that wetland impacts
are minimized and that disturbed areas are immediately restored:
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1. Normal maintenance, repair, or operation of
existing serviceable structures, facilities, or improved areas,
such as public and private infrastructure improvements, utility
facilities and utility systems. Maintenance and repair does not
include any modification that changes the character, scope, or
size of the original structure, facility, or improved area and
does not include the construction of a maintenance road; and
2. Minor modification of existing serviceable
structures within a buffer zone where modification does not
adversely impact wetland functions.
11.05.080. Emergency Activities; Temporary Emergency Approval
A. Criteria for Granting a Temporary Emergency
Approval. Notwithstanding the provisions of this chapter or any
other laws to the contrary, the Director may issue a temporary
emergency wetlands approval if:
1. The Director determines that an imminent
threat to public health, safety or the environment will occur if
an emergency approval is not granted; and
2. The threat or loss may occur before approval
can be issued or modified under the procedures otherwise required
by this chapter.
B. Conditions of Emergency Approval. Any emergency
approval granted shall:
1. Incorporate to the greatest extent
practicable and feasible but not inconsistent with the emergency
situation, the standards and criteria required for non -emergency
activities;
2. Be limited in duration to the time required
to complete the authorized emergency activity, not to exceed
ninety (90) days; and
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3. Require the restoration of any wetland
altered as a result of the emergency activity within the ninety -
day period. If restoration is not completed within ninety days,
approval must be obtained in accordance with this chapter.
C. Emergency Utility Repairs. Emergency repairs to
utilities that require immediate attention and which would
endanger the public if a temporary emergency permit were required
shall be allowed for a period not exceeding 72 hours.
11.05.090. Prohibited Activities.
Activities not specifically described by this chapter as Allowed
or Regulated, and which do not constitute Emergency Activities
under Section 11.05.080 or Non -conforming Activities under
Section 11.05.180 are prohibited. In order to conduct an
otherwise prohibited activity in a wetland or wetland buffer, the
applicant must satisfy the requirements for a special exception,
as described in Section 11.05.170.
11.05.100. General Requirements and Procedures.
A. Inconsistent Development Prohibited. No activity
or development shall be undertaken and no use shall be
established in a wetland or a wetland buffer unless the Director
has determined that it is consistent with the provisions of this
chapter.
B. Standards. A regulated activity in a wetland or
wetland buffer shall only be approved if the proposed regulated
activity, as conditioned, is consistent with the provisions of
this chapter, all other applicable laws and:
1. The proposed regulated activity avoids
adverse impacts to wetlands and wetland buffers; or the applicant
has demonstrated that any adverse impacts of the regulated
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activity are both unavoidable and necessary, as described in
Section 11.05.120, and affirmative and appropriate measures are
proposed as conditions which will minimize and compensate for
unavoidable impacts; and
2. The proposed regulated activity results in no
net loss of wetland area; or
3. Refusal to approve the activity would deny
the applicant all reasonable economic use of the subject
property.
C. Procedures.
1. The burden of proving that an allowed or
regulated activity meets the applicable standards of this chapter
shall be on the applicant.
2. The applicant may be required to submit
information or data, in addition to that routinely required with
development applications, sufficient to enable the Director to
evaluate the proposed Activity or to prepare any necessary
environmental documents.
3. In addition to other requirements provided in
this chapter, the Director may attach to a development permit any
conditions necessary to ensure compliance with this chapter and
all other applicable laws.
4. Nothing in this section shall be construed to
limit the Director's authority and/or that of the Responsible
Official to condition or deny a project pursuant to the State
Environmental Policy Act.
5. The Department shall, to the extent
practicable and feasible, consolidate the processing of wetlands -
related aspects of other City regulatory programs which affect
activities in wetlands, such as subdivision, clearing and
grading, floodplain, hazard area regulations, etc., with the
25
Wetland Approval process established herein so as to provide a
timely and coordinated permit process.
6. Where an activity regulated under this
chapter also requires a Section 404 permit from the federal Army
Corps of Engineers, the Department shall, to the extent
practicable and feasible, coordinate the City's approval process
with the federal approval process to avoid duplication, while
ensuring that all standards in this chapter are met.
D. Application Requirements.
Application for approval of activities in wetlands
shall be in accordance with the administrative procedures to be
established by the Director under Subsection 11.05.030(F)(2).
11.05.110. Wetland Buffers and Building Setback Lines
A. Standard Buffer Zone Widths.
Wetland buffer zones shall be required for all
regulated activities adjacent to wetlands. Any wetland created,
restored or enhanced as compensation for approved wetland
alterations shall also include the standard buffer required for
the category of the created, restored, or enhanced wetland. All
buffers shall be measured from the wetland boundary as surveyed
in the field pursuant to the requirements of Section 11.05.040.
The width of the wetland buffer zone shall be determined
according to the rating assigned to the wetland in accordance
with Section 11.05.050.
B. Enhanced Wetland Buffers.
Enhanced wetland buffers may be used to satisfy
landscaping requirements where the City determines that the
buffer as enhanced by the applicant will provide greater
protection of wetland functions, and as determined by the
Planning Director, will serve the same function as landscaping
26
that would otherwise be required pursuant to Chapter 15.07 of the
Kent City Code. Approved landscaping vegetation must meet
wetland buffer vegetation requirements.
1. For Category 1 wetlands, the minimum buffer
zone shall be 100 feet.
2. For Category 2 wetlands, the standard buffer
zone shall be 50 feet.
3. For Category 3 wetlands, the standard buffer
zone shall be 25 feet.
C. Building Setback Lines.
A minimum building setback line of 15 feet shall
be required from the edge of a wetland buffer.
D. Increased Wetland Buffer Zone Width.
The City may .require increased buffer zone widths
on a case-by-case basis when a larger buffer is necessary to
protect wetland functions and values based on local conditions.
This determination shall be supported by appropriate
documentation showing that it is reasonably related to protection
of the functions and values of the wetland. The documentation
must demonstrate that:
1. A larger buffer is necessary to maintain a
viable population of existing species; or
2. The wetland is used by species listed by the
federal government or the state as endangered, threatened,
sensitive or documented priority species or habitats, or
essential or outstanding potential habitat for those species or
has unusual nesting or resting sites such as heron rookeries or
raptor nesting trees;
3. The adjacent land is susceptible to severe
erosion and erosion control measures will not effectively prevent
adverse wetland impacts; or
27
4. The adjacent land has minimal vegetative
cover or slopes greater than 15 percent.
i
E. Standard Buffer Width Averaging.
Standard wetland buffer zones may be modified by
averaging buffer widths. Wetland buffer width averaging shall be
allowed only where the applicant demonstrates all of the
following:
1. Averaging will provide the necessary
biological, chemical and physical support necessary to protect
the wetland in question, taking into account the type, intensity,
scale and landscape location of the proposed land use;
2. The wetland contains variations in
sensitivity due to existing physical characteristics which
justify the averaging;
3. The proposal minimizes disturbances caused by
land uses in areas adjacent to any buffers which are reduced.
4. Width averaging will not adversely impact the
wetland functional values;
5. The total area contained within the wetland
buffer after averaging is no less than that contained within the
standard buffer prior to averaging. In no instance shall the
buffer width be reduced by more than 50% of the standard buffer
or be less than 25 feet.
F. Except as otherwise specified, wetland buffer
zones shall be retained in their natural condition. Where buffer
disturbance has occurred during construction, revegetation with
native vegetation may be required.
G. Permitted Uses in a Wetland Buffer Zone.
Regulated activities shall not be allowed in a buffer zone except
for the following:
NN
1. Activities and maintenance having minimal
adverse impacts on buffers and no adverse impacts on wetlands.
These may include but are not limited to low intensity, passive
recreational activities such as pervious trails, nonpermanent
wildlife watching blinds, short term scientific or educational
activities, and sports fishing.
2. Stormwater management facilities if designed
according to the guidelines for natural wetlands and stormwater
management contained in the Department of Ecology's Stormwater
Management Manual for the Puget Sound Basin (Technical Manual).
3. Biofiltration swales, if sited and designed
so that the buffer zone as a whole provides the necessary
biological, chemical and physical support necessary to protect
the wetland in question, taking into account the type, location,
intensity, scale and landscape location of the proposed land use.
11.05.120. Avoiding Wetland Impacts
A. Regulated activities shall not be authorized in a
wetland except where it can be demonstrated that the impact is
both unavoidable and necessary as described below, or that all
reasonable economic uses are denied.
B. Except for wetlands described in subsection
12.05.120(C) and 12.05.120(D) below, the following provisions
shall apply:
1. For water -dependent activities, unavoidable
and necessary impacts can be demonstrated where there are no
practicable alternatives which would not involve a wetland or
which would not have less adverse impact an a wetland, and would
not have other significant adverse environmental consequences.
Stormwater management facilities will be considered in wetlands
subject to review under the wetlands and stormwater management
29
guidelines referenced in Section 11.05.110(G)(2), and all other
applicable provisions in this chapter, except that under no
circumstances will such facilities be permitted in wetlands of
outstanding significance.
2. Where nonwater-dependent activities are
proposed, the applicant must demonstrate that:
a. The basic project purpose not reasonably
be accomplished using an alternative site in the general region
that is available to the applicant and may feasibly be used to
accomplish the project.
b. A reduction in the size, scope,
configuration, or density of the project as proposed and all
alternative designs of the project as proposed that would avoid,
or result in less, adverse impact on a wetland or its buffer will
not accomplish the basic purpose of the project; and
C. In cases where the applicant has
rejected alternatives to the project as proposed due to
constraints such as zoning, deficiencies of infrastructure, or
parcel size, the applicant has made reasonable attempt to remove
or accommodate such constraints.
C. 1. With respect to isolated Category 3 wetlands,
and isolated Category 2 wetlands which are not Category 3
wetlands only because they exceed one acre in size, the following
applies: Regulated activities which result in the filling of no
more than 10,000 square feet of a wetland may be permitted if
mitigation is provided consistent with the standards of
Section 11.05.160.
2. In computing the total allowable wetland fill
area under this subsection, the Director shall include any areas
that have been filled since January 1, 1991. For example, if
5,000 square feet of a wetland were filled in February, 1991,
30
future applicants would only be allowed a maximum of 5,000
additional square feet under this subsection. Any proposed fill
over 10,000 square feet must demonstrate unavoidable and
necessary impacts as described in Subsection 11.05.120(D) above.
D. Fills of wetlands described in subsection
11.05.120.C, which are less than or equal to 2000 square feet and
which are necessary as part of the development of a single family
residence, may be mitigated for with fees in lieu of mitigation,
provided the fees are directed toward an existing mitigation bank
which is owned and operated by the City.
11.05.130. Limited Density Transfer
For residential development proposals on lands containing wetland
buffers, the Planning Department shall determine allowable
dwelling units based on the formula below. The maximum number of
dwelling units (DU) for a lot or parcel which contains wetland
buffers shall be equal to: (ACRES IN BUFFER) X (DU/ACRE) X
(DENSITY CREDIT)
Percentage of site in buffers Density Credit
1-20%
100%
21-40%
80%
41-60%
60%
61-80%
40%
81-100%
20%
11.05.140. Sensitive Area Tracts
A. Condition of Approval. As a condition of approval
pursuant to this Chapter, the Director shall require creation of
a separate sensitive area tract containing the areas determined
31
to be wetland and/or wetland buffer. Sensitive area tracts are
separate tracts containing wetlands and wetland buffers with
perpetual deed restrictions requiring that the tract remain
undeveloped. Sensitive area tracts are an integral part of the
lot in which they are created, are not intended for sale, lease
or transfer, and shall be included in the area of the parent lot
for purposes of subdivision method and minimum lot size.
B. Protection of Sensitive Area Tracts. The Director
shall require that the sensitive area tract created pursuant to
subsection 11.05.140.A above be protected by one of the following
methods:
1. The applicant shall dedicate to the City or
other public or non-profit entity specified by the Director, an
easement for the protection of native vegetation within a wetland
and/or its buffer; or
2. The applicant shall record against the
property, a permanent and irrevocable deed restriction on all
lots containing a sensitive area tract or tracts created as a
condition of approval. Such deed restriction(s) shall be
approved by the Director and the City Attorney and prohibit in
perpetuity the development, alteration, or disturbance of
vegetation within the sensitive area tract except for purposes of
habitat enhancement as part of an enhancement project which has
received prior written approval from the City and any other
agency with jurisdiction over such activity.
11.05.150. Notice on Title
The owner of any property with field verified presence of
wetlands or wetland buffers for which a wetland permit
application is submitted shall, as a condition of permit
issuance, record a notice of the existence of such wetland or
32
wetland buffer against the property with the King County
Department of Records and Elections. The notice shall be
approved by the Director and the City Attorney for compliance
with this provision. The titleholder will have the right to
challenge this notice and to have it deleted if the wetland
designation no longer applies.
11.05.160. Compensating for Wetland Impacts.
A. Condition of Approval. As a condition of any
approval allowing alteration of wetlands and/or wetland buffers,
or as an enforcement action pursuant to Section 11.05.200, the
Director shall require that the applicant engage in the
restoration, creation or enhancement of wetlands and their
buffers in order to offset the impacts resulting from the
applicant's or violator's actions. The applicant shall develop a
plan that provides for land acquisition, construction,
maintenance and monitoring of replacement wetlands that recreate
as nearly as practicable the original wetlands in terms of
acreage, function, geographic location and setting.
B. Goal. The overall goal of any compensatory
mitigation project shall be to replace the same type of wetland
lost, with all associated functions and values. No net loss of
wetland acreage shall be required. Compensation shall be
completed prior to wetland destruction, where practicable.
C. Performance Standards. Compensatory mitigation
shall follow a mitigation plan which includes the components
listed in 11.05.160(E), and which is approved by the Director.
All mitigation plans shall meet the following minimum performance
standards:
1. Given the uncertainties in scientific
knowledge and the need for expertise and monitoring, wetland
33
compensatory projects may be permitted only when the Director
finds that the compensation project is associated with an
activity or development otherwise permitted and that the
restored, created or enhanced wetland will be as persistent as
the wetland it replaces. Additionally, applicants shall:
a. Demonstrate sufficient scientific
expertise, supervisory capability, and financial resources to
carry out the mitigation project;
b. Demonstrate the capability for
monitoring the site and to make corrections during this period if
the project fails to meet projected goals; and
C. Protect and manage or provide for the
protection and management of the compensation area to avoid
further development or degradation and to provide for long-term
persistence of the compensation area.
D. Restoration and Creation of Wetlands and Wetland
Buffers.
1. Any person who alters wetlands shall restore
or create equivalent areas or greater areas of wetlands than
those altered in order to compensate for wetland losses. Any
created or restored wetlands shall be protected by the provisions
of this chapter.
2. Acreage replacement and enhancement ratio.
Wetland alterations shall be replaced or enhanced using the
formulas below. The first number specifies the acreage of
wetlands requiring replacement and the second specifies the
acreage of wetlands altered. These ratios do not apply to
remedial actions resulting from illegal alterations.
a. Compensation for alteration of
Category 1 wetlands shall be accomplished as follows:
34
1. By creation of new wetlands at a
ratio of 3:1; or
2. By creation of new wetlands at a
ratio of 1:1 and by enhancement of existing wetlands at a ratio
of 3:1, or
3. By a combination of creation of new
wetlands and enhancement of existing wetlands within the range of
the ratios set out in subsections 1 and 2 above, so long as a
minimum 1:1 creation ratio is met (for example, creation of new
wetlands at a 1.5:1 ratio along with enhancement of existing
wetlands at a ratio of 2.5:1 may be acceptable).
b. Compensation for alteration of Category
2 and 3 wetlands shall be accomplished as follows:
1. By creation of new wetlands at a
ratio of 1.5:1; or
2. By creation of new wetlands at a
ratio of 1:1 and by enhancement of existing wetlands at a ratio
of 1:1; or
3. By a combination of creation of new
wetlands and enhancement of existing wetlands within the range of
ratios set out in subsections 1 and 2 above, so long as a minimum
1:1 creation ratio is met (for example, creation of new wetlands
at a ratio of 1.5:1 along with enhancement of existing wetlands
at a ratio of 0.5:1 may be acceptable.)
4. Decreased Replacement Ratio. The Director
may decrease the required replacement ratio where the applicant
provides the mitigation prior to altering the wetland, and a
minimum acreage replacement ratio of 1:1 is provided. In such a
case, the mitigation must be in place, monitored for 3 growing
seasons and be deemed a success prior to allowing any
alterations.
35
5. Wetlands Enhancement.
a. Any applicant proposing to alter
wetlands may propose to enhance existing Category 3 wetlands, and
Category 2 wetlands which are described in Section 11.05.120.0 in
order to compensate for wetland losses.
b. A wetlands enhancement compensation
project shall be considered provided that enhancement for one
function and value will not degrade another function or value.
Acreage replacement ratios shall be required as described in
Subsection 11.05.160.D above.
C. Category 1 wetlands shall not be
enhanced.
6. Wetland Type. In-kind compensation shall be
provided except that, out -of -kind compensation may be accepted
where:
a. The wetland system is already
significantly degraded and out -of -kind -replacement will result in
a wetland with greater functional value;
b. Technical problems such as exotic
vegetation and changes in watershed hydrology make implementation
of in-kind compensation impracticable; or
C. Out -of -kind replacement will best meet
identified regional goals (eg., replacement of historically
diminished wetland types).
7. Location. On-site compensation shall be
provided except where the applicant can demonstrate that:
a. The hydrology and ecosystem of the
original wetland and those who benefit from the hydrology and
ecosystem will not be substantially damaged by the onsite loss;
and
36
b. On-site compensation is not
scientifically feasible due to problems with hydrology, soils, or
other factors; or
C. Compensation is not practical due to
potentially adverse impacts from surrounding land uses; or
d. Existing functional values at the site
of the proposed restoration are significantly greater than lost
wetland functional values; or
e. Established regional goals for flood
storage, flood conveyance, habitat or other wetland functions
have been established and strongly justify location of
compensatory measures at another site.
8. Off-site compensation shall occur within the
same watershed as the wetland loss occurred, unless the applicant
can demonstrate extraordinary hardship.
9. In selecting compensation sites for creation
or enhancement to satisfy the requirements of Section 11.05.160,
applicants shall pursue siting in the following order of
preference:
a. Upland sites which were formerly
wetlands and significantly degraded wetlands. Such wetlands are
typically (1) isolated; (2) have only one wetland class, and (3)
one dominant plant species or a predominance of exotic species;
b. Idled upland sites generally having bare
ground or vegetative cover consisting primarily of exotic
introduced species, weeds, or emergent vegetation; and
C. Other disturbed upland.
10. Timing. Where feasible, compensatory
projects shall be completed prior to activities that will disturb
wetlands, immediately after activities that will temporarily
37
disturb wetlands, and prior to use or occupancy of the activity
or development which was conditioned upon such compensation.
Construction of compensation projects shall be timed to reduce
impacts to existing wildlife and flora.
11. Cooperative restoration Creation or
Enhancement Projects (Mitigation Banks). The City encourages,
and may facilitate and approve cooperative projects wherein a
single applicant or other organization with demonstrated
capability may undertake a compensation project with funding from
other applicants. Any mitigation banking must be consistent with
all requirements of this chapter.
E. Components of Mitigation Plans. All wetland
restoration, creation and/or enhancement projects required
pursuant to this chapter either as a permit condition or as the
result of an enforcement action shall follow a mitigation plan
prepared by qualified wetland professionals approved by the
Director. The applicant or violator must receive written
approval of the mitigation plan by the Director prior to
commencement of any wetland restoration, creation or enhancement
activity. The mitigation plan shall contain at least the
following components:
1. Baseline Information. A written assessment
and accompanying maps of the impacted wetland including, at a
minimum, wetland delineation; existing wetland acreage;
vegetative, faunal and hydrologic characteristics; soil and
substrate conditions; and topographic elevations. If the
compensation site is different from the impacted wetland site,
baseline information should also include existing acreage;
relationship within watershed and to existing waterbodies;
existing and proposed adjacent site conditions; buffers; and
ownership.
38
2. Environmental Goals and Objectives. A
written report shall be provided identifying goals and objectives
and describing: site selection criteria; compensation goals;
target evaluation species and resource functions; dates for
beginning and completion; and a complete description of the
functions and values sought in the new wetland. The goals and
objectives shall be related to the functions and values of the
original wetland, or if out -of -kind, the type of wetland to be
emulated. The report shall also include an analysis of the
likelihood of success of the compensation project at duplicating
the original wetland, and the long-term viability of the project,
based on the experiences of comparable projects, if any.
3. Performance Standards. Specific measurable
criteria shall be provided for evaluating whether the goals and
objectives of the project are being achieved, and for determining
when and if remedial action or contingency measures should be
implemented. Such criteria may include water quality standards,
survival rates of planted vegetation, species abundance and
diversity targets, habitat diversity indices, or other
ecological, geological or hydrological criteria.
4. Detailed Construction Plans. Written
specifications and descriptions of compensation techniques shall
be provided, as specified by the Director.
5. Monitoring Program. A program outlining the
approach for monitoring construction of the compensation project
and for assessing a completed project shall be provided.
6. Contingency Plan. Identification of
potential courses of action, and any corrective measures to be
taken when monitoring or evaluation indicates project performance
standards are not being met.
39
7. Permit Conditions. Any compensation project
prepared pursuant to this section and approved by the Director
shall become part of the application for the permit.
8. Performance Bonds and Demonstration of
Competence. A demonstration of financial resources,
administrative, supervisory, and technical competence and
i
scientific expertise of sufficient standing to successfully
execute the compensation project shall be provided. A
compensation project manager shall be named and the
qualifications of each team member involved in preparing the
mitigation plan and implementing and supervising the project
shall be provided, including educational background and areas of
expertise, training and experience with comparable projects. In
addition, bonds ensuring fulfillment of the compensation project,
monitoring program, and any contingency measure shall be posted
in the amount of one hundred twenty (125) percent of the expected
cost of compensation, plus a factor to be determined to allow for
inflation during the time the project is being monitored, and an
administration fee to reimburse the City for the projected costs
to be incurred by the City during the course of the monitoring
program which shall not exceed ten (10) percent.
9. Consultation with Other Agencies. Applicants
are encouraged to consult with federal, state, local agencies
and tribes having expertise or interest in a compensatory
mitigation proposal.
11.05.170. Reasonable Use - Exceptions to Standards
A. If an applicant for a development proposal
demonstrates to the satisfaction of the Director that application
of the standards of this chapter would deny all reasonable
economic use of the property, development as conditioned shall be
40
allowed if the applicant also demonstrates all of the following
to the satisfaction of the Director:
1. That the proposed development is
water -dependent or requires access to the wetland as a central
element of its basic function, or is not water -dependent but has
no practicable alternative pursuant to Section 11.05.120;
2. That no reasonable use with less impact on
the wetland and its buffer is possible;
3. That there is no feasible on-site alternative
to the proposed development, including reduction in density,
phasing of project implementation, change in timing of
activities, revision of road and lot layout, and/or related site
planning considerations, that would allow a reasonable economic
use with less adverse impacts to wetlands and wetland buffers;
4. That the proposed development will result in
minimum feasible alteration or impairment to the wetland's
functional characteristics and its existing contours, vegetation,
fish and wildlife resources, and hydrological conditions;
5. That disturbance of wetlands has been
minimized by locating any necessary alteration in wetland buffers
to the extent possible;
6. That the proposed development will not
jeopardize the continued existence of species listed by the
federal government or the state as endangered, threatened,
sensitive, or documented priority species or priority habitats;
7. That the proposed development will not cause
significant degradation of groundwater or surface -water quality;
8. That the proposed development complies with
all state, local and federal laws, including those related to
sediment control, pollution control, floodplain restrictions, and
on-site wastewater disposal;
41
9. That any and all alterations to wetlands and
wetland buffers will be mitigated as provided in Section
11.05.160.
10. That there will be no damage to nearby public
or private property and no threat to the health or safety of
people on or off the property; and
11. That the inability to derive reasonable
economic use of the property is not the result of actions by the
applicant, or the present or prior owner of the property, in
segregating or dividing the property and creating the
undevelopable condition after the effective date of this chapter.
B. Prior to granting any special exception under this
section, the Director shall make written findings on each of the
items listed in this subsection. As part of any special
exception under this section, the applicant shall be required to
take deliberate measures to minimize wetland impacts.
11.05.180. Non -conforming Wetland Activities
A non -conforming wetland activity (including uses and
structures) is one which was lawful when begun, but which
activity is not in conformity with the provisions of this
chapter. A non -conforming activity or use may be continued
without the necessity of conformance to the provisions of this
chapter only so long as the activity or use is not:
1. expanded, changed, enlarged or altered in any way
after the effective date of the provisions of this chapter, such
as to increase the extent of its nonconformity;
2. discontinued for twelve continuous months after
the effective date of the provisions of this chapter, except in
cases of discontinuance for normal agricultural practices; or
42
3. damaged or destroyed by fire, flood, explosion,
wind, earthquake, war, riot or other natural disaster, and where
the cost of restoration exceeds fifty percent of the fair market
value of the activity at the time of damage.
11.05.190. Commencement of Regulated Activities or Development
No construction authorized by this chapter shall begin or be
authorized until all necessary permits for construction have been
obtained and all review and appeal proceedings have been
terminated.
11.05.200. Enforcement
Procedures for investigation and notice of violation, compliance
and the imposition of civil penalties for the violation of any
requirements of this chapter shall be as specified in
Chapter 15.10 of the Kent City Code, Enforcement of the Zoning
Code.
11.05.210. Appeals.
A. The following final decisions of the Director may
be appealed to the Hearing Examiner, as set forth in Chapter 2.32
of the Kent City Code:
1. Conditioning or denial of a development
permit on the basis of the provisions of this Chapter; or
2. Denial of a special exception under Section
11.05.170.
3. The Director's delineation decision as set
forth in Section 11.05.040.
B. The Hearing Examiner shall give substantial weight
to any final discretionary decision of the Director rendered
pursuant to this chapter.
43
C. The decision of the hearing examiner shall be
final unless an appeal is filed pursuant to Section 2.32.150 of
the Kent City Code within fourteen (14) days from the date the
final decision is rendered.
SECTION 2. SEVERABILITY. The provisions of this
ordinance are declared to be separate and severable. The
invalidity of any clause, sentence, paragraph, section or portion
of this ordinance or the application thereof to any person or
circumstances, shall not affect the validity of the remainder of
this ordinance or the validity of its application to other
persons or circumstances.
SECTION 3. EFFECTIVE DATE. This ordinance shall take
effect and be in force thirty (30) days from and after its
passage, approval and publication s provided by law.
DAN KELLEHER, MAYOR
ATTEST:
BRENDA JACOBER, T CLERK
APPROVED AS TO FORM:
ROGER A. LUrBOVICH, CITY ATTO
44
PASSED the day of
APPROVED the Z2 day of
PUBLISHED the -;�/ day of
45
1993.
1993.
1993.
I hereby certify that this is a true copy of
Ordinance No. c� / D 9 , passed by the City Council of the City
of Kent, Washington, and approved by the Mayor of the City of
Kent as hereon indicated.
wetlands.ord
( SEAL)
BRENDA JA B , CITY CLERK
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