Blaine City Zoning Code

Division 5

ENVIRONMENTAL AND CULTURAL RESOURCE MANAGEMENT

§ 17.80.010 State provisions adopted by reference.

The city adopts the following sections or subsections of Chapter 197-11 WAC by reference, as well as RCW 43.21C.410, Battery charging and exchange station installation.

197-11-040	Definitions.
197-11-050	Lead agency.
197-11-055	Timing of the SEPA process.
197-11-060	Content of environmental review.
197-11-070	Limitations on action during SEPA process.
197-11-080	Incomplete or unavailable information.
197-11-090	Supporting documents.
197-11-100	Information required of applicants.
197-11-300	Purpose of this part.
197-11-305	Categorical exemptions.
197-11-310	Threshold determination process.
197-11-315	Environmental checklist.
197-11-330	Threshold determination process.
197-11-335	Additional information.
197-11-340	Determination of nonsignificance (DNS).
197-11-350	Mitigated DNS.
197-11-355	Optional DNS.
197-11-360	Determination of significance (DS)/initiation of scoping.
197-11-390	Effect of threshold determination.
197-11-400	Purpose of EIS.
197-11-402	General requirements.
197-11-405	EIS types.
197-11-406	EIS timing.
197-11-408	Scoping.
197-11-410	Expanded scoping.
197-11-420	EIS preparation.
197-11-425	Style and size.
197-11-430	Format.
197-11-435	Cover letter or memo.
197-11-440	EIS contents.
197-11-442	Contents of EIS on nonproject proposals.
197-11-443	EIS contents when prior nonproject EIS.
197-11-444	Elements of the environment.
197-11-448	Relationship of EIS to other considerations.
197-11-450	Cost-benefit analysis.
197-11-455	Issuance of DEIS.
197-11-460	Issuance of FEIS.
197-11-500	Purpose of this part.
197-11-502	Inviting comment.
197-11-504	Availability and cost of environmental documents.
197-11-508	SEPA register.
197-11-535	Public hearings and meetings.
197-11-545	Effect of no comment.
197-11-550	Specificity of comments.
197-11-560	FEIS response to comments.
197-11-570	Consulted agency costs to assist lead agency.
197-11-600	When to use existing environmental documents.
197-11-610	Use of NEPA documents.
197-11-620	Supplemental environmental impact statements – Procedures.
197-11-625	Addenda – Procedures.
197-11-630	Adoption – Procedures.
197-11-635	Incorporation by reference – Procedures.
197-11-640	Combining documents.
197-11-650	Purpose of this part.
197-11-655	Implementation.
197-11-660	Substantive authority and mitigation.
197-11-680	Appeals.
197-11-700	Definitions.
197-11-702	Act.
197-11-704	Actions.
197-11-706	Addendum.
197-11-708	Adoption.
197-11-710	Affected tribe.
197-11-712	Affecting.
197-11-714	Agency.
197-11-716	Applicant.
197-11-718	Built environment.
197-11-720	Categorical exemption.
197-11-722	Consolidated appeal.
197-11-724	Consulted agency.
197-11-726	Cost-benefit analysis.
197-11-728	County/city.
197-11-730	Decisionmaker.
197-11-732	Department.
197-11-734	Determination of nonsignificance (DNS).
197-11-736	Determination of significance (DS).
197-11-738	EIS.
197-11-740	Environment.
197-11-742	Environmental checklist.
197-11-744	Environmental document.
197-11-746	Environmental review.
197-11-748	Environmentally sensitive area.
197-11-750	Expanded scoping.
197-11-752	Impacts.
197-11-754	Incorporation by reference.
197-11-756	Lands covered by water.
197-11-760	License.
197-11-762	Local agency.
197-11-764	Major action.
197-11-766	Mitigated DNS.
197-11-768	Mitigation.
197-11-770	Natural environment.
197-11-772	NEPA.
197-11-774	Nonproject.
197-11-776	Phased review.
197-11-778	Preparation.
197-11-780	Private project.
197-11-782	Probable.
197-11-784	Proposal.
197-11-786	Reasonable alternative.
197-11-788	Responsible official.
197-11-790	SEPA.
197-11-792	Scope.
197-11-793	Scoping.
197-11-794	Significant.
197-11-796	State agency.
197-11-797	Threshold determination.
197-11-799	Underlying government action.
197-11-800	Categorical exemptions.
197-11-880	Emergencies.
197-11-890	Petitioning DOE to change exemptions.
197-11-900	Purpose of this part.
197-11-916	Application to ongoing actions.
197-11-920	Agencies with environmental expertise.
197-11-922	Lead agency rules.
197-11-924	Determining the lead agency.
197-11-926	Lead agency for governmental proposals.
197-11-928	Lead agency for public and private proposals.
197-11-930	Lead agency for private projects with one agency with jurisdiction.
197-11-932	Lead agency for private projects requiring licenses from more than one agency when one of the agencies is a county/city.
197-11-934	Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.
197-11-936	Lead agency for private projects requiring licenses from more than one state agency.
197-11-938	Lead agencies for specific proposals.
197-11-940	Transfer of lead agency status to a state agency.
197-11-942	Agreements on lead agency status.
197-11-944	Agreements on division of lead agency duties.
197-11-946	DOE resolution of lead agency disputes.
197-11-948	Assumption of lead agency status.
197-11-960	Environmental checklist.
197-11-965	Adoption notice.
197-11-970	Determination of nonsignificance (DNS).
197-11-980	Determination of significance and scoping notice (DS).
197-11-985	Notice of assumption of lead agency status.
197-11-990	Notice of action.

(Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; A(3), 2011; Ord. 2793 § 2 Exh; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.020 Additional definitions.

(WAC 713-806-030)

In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this chapter the following terms shall have the following meanings, unless the context indicates otherwise:

"Department"

means any division, subdivision or organizational unit of the city established by ordinance, rule or order.

"SEPA rules"

means Chapter 197-11 WAC adopted by the Department of Ecology.

"Ordinance"

means the ordinance, resolution, or other procedure used by the city to adopt regulatory requirements.

"Early notice"

means the city's response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant's proposal (mitigated DNS procedures).

(Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.030 Lead agency determination and responsibilities.

(WAC 173-806-070)

The lead agency for all nonexempt actions by the city and any department within the city, whether receiving an application for or initiating a proposal that involves a nonexempt action, shall be the city of Blaine community development services department.

The SEPA responsible official shall be the director of community development or designee, who shall supervise compliance with the threshold determination requirements, and, if an EIS is necessary, shall supervise preparation of the EIS.

When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions of the proposal. The city shall neither prepare nor require the preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the city may conduct supplemental environmental review under WAC 197-11-600.

If the city receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the city must be initiated by the responsible official.

The responsible official acting on behalf of the lead agency and the city of Blaine are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944.

For private projects, the responsible official shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is, which agencies require nonexempt licenses).

( Formerly 17.80.060; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2728 § 2 (Exh. A), 2009; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.040 SEPA checklist, exemptions and threshold determination.

The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, for making the threshold determination. A SEPA checklist is not required if one of the following applies:

The lead agency SEPA official determines the applicant's proposal exempt; or

SEPA compliance has already been completed; or

SEPA compliance has been initiated by another agency; or

The city and applicant agree that the applicant's proposal will result in a threshold determination of significance requiring the preparation of an EIS.

For private proposals requiring a checklist, the applicant is responsible for completing the environmental checklist. For city proposals, the department initiating the proposal shall complete the environmental checklist.

If a proposal is exempt, a SEPA checklist is not required.

In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required. If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department's consideration is exempt.

If a proposal includes both exempt and nonexempt actions, the city may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

The city shall not give authorization for any nonexempt action, any action that would have an adverse environmental impact, or any action that would limit the choice of alternatives.

A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved.

A department may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved.

The city shall complete a threshold determination that is based upon review of the environmental checklist and any public comments. The threshold determination shall be conducted upon expiration of the public comment period on the notice of application. Public notification of the determination and a public comment period of 14 days shall follow the completion of the threshold determination unless the optional DNS process as provided in WAC 197-11-355 was used, in which case the provisions of WAC 197-11-355 shall apply.

If it is determined that an EIS is required, the public review process will begin when the EIS is complete.

( Formerly 17.80.070; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.050 Mitigated DNS.

(WAC 173-806-100)

As provided in this section and in WAC 197-11-350, the responsible official may issue a determination of nonsignificance (DNS) based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.

As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the city shall base its threshold determination within 14 days of receiving the changed or clarified proposal:

If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a determination of nonsignificance under WAC 197-11-340(2).

If the city indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate.

The applicant's proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to "control noise" or "prevent storm water runoff" are inadequate, whereas proposals to "muffle machinery to X decibel" or "construct 200-foot storm water retention pond at Y location" are adequate.

Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

A mitigated DNS is issued under WAC 197-11-340(2), requiring a 14-day comment period and public notice.

Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city.

If the city's tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the city should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).

( Formerly 17.80.080; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.060 Preparation of EIS – Additional considerations.

(WAC 173-806-120)

Preparation of draft and final EISs and SEISs is the responsibility of the community development services department under the direction of the SEPA responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

The draft and final EIS or SEIS shall be prepared by city staff or by a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city's procedure for EIS preparation, including approval of the consultant to be retained by the applicant, the draft and final EIS prior to distribution.

The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.)

( Formerly 17.80.090; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 09-2728 § 2 (Exh. A), 2009; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.070 Designation of official to perform consulted agency responsibilities for the city.

(WAC 173-806-140)

The SEPA responsible official shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, or reviewing a draft EIS.

The SEPA responsible official shall be responsible for the city's compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city.

( Formerly 17.80.110; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.080 Substantive authority.

(WAC 173-806-160)

The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city.

Notwithstanding any other provisions of the Blaine Municipal Code, the city may attach conditions related to environmental review under SEPA to a permit or approval for a proposal so long as:

Such conditions are necessary to mitigate specific probable significant adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and

Such conditions are in writing; and

The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

The city has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

Such conditions are based on one or more policies in subsection (D) of this section and cited in the license or other decision document.

The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a final EIS or final supplemental EIS prepared pursuant to this chapter; and

A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

The denial is based on one or more policies identified in subsection (D) of this section and identified in writing in the decision document.

The city designates and adopts by reference the following policies as the basis for the city's exercise of authority pursuant to this section:

The city shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

Preserve important historic, cultural and natural aspects of our national heritage;

Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities;

Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources;

The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment;

The city adopts by reference the policies of the following city documents:

(A)

City of Blaine comprehensive plan;

(B)

City of Blaine shoreline management program;

(C)

City of Blaine land use code, BMC Title 17.

( Formerly 17.80.130; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.090 Nonjudicial appeals of SEPA determinations.

Appeals on SEPA procedural determinations are limited to review of a final threshold determination and final EIS. Appeals on intermediate procedural determinations under SEPA including, but not limited to, lead agency determination, scoping, and draft EIS adequacy are not allowed.

Except as provided in subsection (D) of this section, an allowed appeal of a procedural or substantive determination under SEPA shall be consolidated with the hearing or appeal on the underlying action in a single simultaneous hearing before a single city hearing body as determined by the land use decision type.

Where a SEPA administrative appeal is consolidated with an open record hearing or appeal on the underlying action and the decision of the city hearing body presiding over the open record hearing will be in the form of a recommendation to the city council for final decision by the city council at a closed record hearing, the hearing body presiding at the open record hearing shall create a record and prepare findings and a separate recommendation for the closed record SEPA administrative appeal to city council in addition to its findings and recommendation on the underlying action.

Appeals of the following SEPA procedural or substantive determinations are permitted separately from a hearing or appeal on the underlying city action:

An appeal of a determination of significance;

An appeal of a procedural determination made by a department when the department is a project proponent, or is funding a project, and chooses to conduct its review under SEPA, including any appeals of its procedural determinations, prior to submitting an application for a project permit. Subsequent appeals of substantive determinations by an agency with jurisdiction over the proposed project shall be allowed under the SEPA appeal procedures of the agency with jurisdiction;

An appeal of a procedural determination made by an agency on a nonproject action.

Except for permits and variances issued pursuant to Chapter 17.81 BMC, if the SEPA determination is for a proposal reviewed as a Type I land use decision, the appeal shall be an open record appeal as provided in Chapter 17.06 BMC. If the SEPA determination is for a proposal reviewed as a Type II-HE decision, the appeal shall be a closed record appeal. Appeals under this subsection shall be filed in the manner provided in Chapter 17.06 BMC for the type of decision being appealed.

An appeal of a procedural or substantive determination under SEPA shall be filed within the time limits specified below:

For a procedural or substantive determination under SEPA issued at the same time as the decision on a project action, an appeal of the SEPA decisions must be filed within 14 days after a notice of decision under RCW 36.70B.130 or after other notice that the decision has been made and is appealable; provided, that if a DNS for which a public comment period is required under SEPA is issued at the same time as the decision, the appeal period for the DNS shall be extended an additional seven days beyond the 14-day period allowed for other procedural or substantive determinations.

For a threshold determination issued prior to a decision on the project, an administrative appeal must be filed within 14 days after the notice of determination has been issued.

Procedural determinations by the responsible official shall be entitled to substantial weight by the city hearing body when such determination is under review.

Administrative appeal procedures, if available, must be used before anyone may initiate judicial review of any SEPA issue that could have been reviewed under city review procedures.

Filing Requirements. All procedural and substantive SEPA appeals provided under this section shall be initiated by filing a written notice of SEPA administrative appeal with the director, accompanied with the applicable appeal fee, pursuant to the city's unified fee schedule; provided, that no additional appellate fee shall be charged in conjunction with an available hearing on the underlying permit or approval.

The notice of appeal required by this section shall include, at a minimum:

The name and address of the party or agency filing the appeal;

An identification of the specific proposal and specific SEPA actions, omissions, conditions or determinations for which appeal is sought;

A statement of the particular grounds or reasons for the appeal.

( Formerly 17.80.140; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013; Ord. 2970 § 1 (Exh. A), 2021)

§ 17.80.100 Judicial appeals under SEPA.

A judicial appeal of a final SEPA procedural or substantive determination shall be filed within the same appeal timeline and in the same manner as required for a judicial appeal of the underlying action.

If there is no timeline or procedure established for a judicial appeal of the underlying action, then the appeal shall be filed with the Whatcom County superior court within 10 days of the date the city takes final action; provided, that if a notice of action has been issued, pursuant to RCW 43.21C.080, the time limits for judicial appeal specified in RCW 43.21C.080 shall apply.

No SEPA determination shall be deemed a final determination by the city and subject to judicial appeal until all available administrative appeals of the determination allowed by city code have been completed. Failure of a person to timely file an administrative appeal, if such is available, of a SEPA procedural or substantive determination shall preclude further administrative or judicial review of the determination.

When not otherwise provided by the procedures governing approval of the underlying action, official notice of the date and place for commencing a judicial appeal of a SEPA procedural or substantive determination shall be provided. Such notice shall:

State the time limit for commencing appeal of the underlying governmental action and SEPA issues citing subsection (B) of this section as the authority for the time limit; and

Identify where an appeal may be filed.

Notice provided under subsection (D) of this section shall be given by delivery of written notice to the applicant, all parties to any administrative appeal, and all persons who have requested notice of decisions with respect to the particular proposal in question. Written notice containing the information required hereunder may be appended to the permit, decision documents, or SEPA compliance documents or may be printed separately.

Official notice required in subsection (D) of this section shall not be given prior to final agency action.

( Formerly 17.80.150; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.110 Responsibility of agencies – SEPA public information.

(WAC 173-806-190)

The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW.

( Formerly 17.80.160; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.120 Fees.

(WAC 173-806-200)

Threshold Determination. For every environmental checklist the city shall review when it is lead agency, the city shall collect a fee as established by resolution from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.

Environmental Impact Statement.

When the city is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of the city, the city may charge and collect a reasonable fee from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

The responsible official may determine that the city will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the city and may bill such costs and expenses directly to the applicant. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals. The city may require the applicant to post bond or otherwise ensure payment of such costs. Such consultants shall work at the direction of the city, not the applicant.

If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (B)(1) or (2) of this section which remain after incurred costs are paid.

The city may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant's proposal.

The city shall not collect a fee for performing its duties as a consulted agency.

The city may charge any person for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by Chapter 42.17 RCW.

( Formerly 17.80.170; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.130 Severability.

(WAC 173-806-220)

If any provision of this chapter or its application to any person or circumstances is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected.

( Formerly 17.80.180; Ord. 2554 § 3, 2003; Ord. 2587 § 2, 2004; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.80.140 SEPA rules, WAC 197-11-800(1), amended.

The flexible SEPA rules defined under WAC 197-11-800(1)(b), referred to in BMC § 17.80.010, are amended as follows:

The following types of construction shall be exempt, except when undertaken wholly or partly on lands covered by water:

A. The construction or location of 10 or fewer detached single family residential units.

B. The construction or location of 20 or fewer multifamily residential units.

C. The construction of an office, school, commercial, recreational, service or storage building with 30,000 square feet or less of gross floor area, and with associated parking facilities designed for sixty or fewer automobiles. This exemption includes stand-alone parking lots.

D. Any independent landfill or excavation project which does not exceed 250 cubic yards of combined material throughout the total lifetime of the project.

( Formerly 17.80.190; Ord. 2551 § 2, 2003; Ord. 2587 § 2, 2004; Ord. 2728 § 2 (Exh. A), 2009; Ord. 2840 § 2 (Exh. A), 2013)

§ 17.81.010 Authority.

This chapter contains the shoreline master program administrative procedures of the city of Blaine as adopted pursuant to and under the authority of the Shoreline Management Act, Chapter 90.58 RCW and Chapter 173-26 (Part IV) WAC.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.020 Purpose.

The purposes for which this chapter has been developed include the following:

To further the goals of the Shoreline Management Act.

To provide administrative procedures of the processing of exemptions, permits, conditional permits, variances and appeals under the shoreline master program.

To adopt the shoreline master program by reference.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.030 Permit procedure.

The hearing examiner is vested with the authority to hold public hearings, make final decisions on permit applications and establish permit conditions related to shoreline management within the city of Blaine pursuant to this chapter. The hearing examiner shall hear and decide on substantial development permits, conditional use permits, and variances regulated under the program.

The community development director of the city of Blaine, or his or her designee, shall be the administrator of rules and regulations pertaining to shoreline management contained in or referenced in this chapter and the program and may prepare and require the use of such forms as are essential to its administration.

The city council shall make final decisions on all shoreline permits that are directly related to a permit for which the city council is the final review authority, such as but not limited to preliminary plats and planned unit developments. In these instances the hearing examiner shall hold a public hearing and make a recommendation to the city council pursuant to the consolidated review process contained in Chapter 17.06 BMC.

A shoreline permit shall be applied for on forms provided by the administrator. At a minimum, such applications shall include the following information:

The name, address and phone number of the applicant;

The name, address and phone number of the applicant's representative;

The name, address and phone number of the property owner, if different than the applicant;

The address, location and legal description of the property that is the subject of the proposed development;

The name of the shoreline (water body) that the site of the proposed development is associated with;

A general description of the subject property as it now exists including its use, physical and ecological characteristics, improvements and structures;

A general description of the vicinity of the proposed project including identification of the adjacent uses, structures and improvements, intensity of development and physical and ecological characteristics;

A vicinity map showing the relationship of the property and proposed development or use to roads, utilities, existing developments and uses on adjacent properties;

A description of the proposed development, including a description of anticipated impacts to on-site vegetation, topography and natural systems and processes;

10.

A site plan or plans showing the existing and proposed conditions of the property, including showing the locations of the property boundary, the ordinary high water mark, any critical areas, existing and proposed development, existing vegetation, proposed vegetation alterations and landscaping, existing and proposed site contours, and existing and proposed structures;

11.

A statement describing the anticipated impacts of the proposed development on views, critical areas, and shoreline functions and processes;

12.

A statement explaining how the proposed development is consistent with the policies of the Shoreline Management Act, and the applicable goals, policies and regulations of the shoreline master program;

13.

The signature of the applicant and the property owner;

14.

Additional information as determined necessary by the administrator;

15.

The administrator may waive components of the above permit requirements with the issuance of a waiver letter based upon a written request by the applicant;

16.

On all variance applications, the plans shall clearly indicate where development could occur without approval of a variance, the physical features and circumstances on the property that provide a basis for the request, and the location of adjacent structures and uses.

The applicant shall complete the application form and return the application to the community development services department along with the following:

A listing of the names and addresses of owners of property within 300 feet from the proposed development;

A completed SEPA environmental checklist, if required; and

Payment of the appropriate fees.

Upon receipt of a properly completed application, the administrator shall provide for permit processing and notification consistent with WAC 173-27-110 and pursuant to the permit administration procedures contained in Chapter 17.06 BMC.

At a minimum, a 30-day comment period shall be provided following notification prior to consideration of the matter and final action by the hearing examiner.

Notice of the final action on a permit application, whether it is an approval, a denial or a revision, shall be provided to the applicant and all parties of record and shall be filed with the Department of Ecology in the manner set forth in WAC 173-27-120.

(Ord. 2930 § 1 (Exh. B), 2019; Ord. 2970 § 1 (Exh. A), 2021)

§ 17.81.040 Substantial development permit criteria.

A shoreline substantial development permit shall be granted only if the development is consistent with the intent of the Shoreline Management Act and determined consistent with the Blaine shoreline master program.

Consistency with the Blaine shoreline master program shall include consistency with the applicable goals, policies and regulations contained in the shoreline master program and compliance with all applicable provisions of this chapter.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.045 Special procedures for WSDOT projects.

Pursuant to RCW 47.01.485, the Legislature established a target of 90 days review time for local governments pertaining to Washington State Department of Transportation applications.

Optional Process Allowing Construction to Commence 21 Days after Date of Filing. Pursuant to RCW 90.58.140, Washington State Department of Transportation projects that address significant public safety risks may begin 21 days after the date of filing if all components of the project will achieve no net loss of shoreline ecological functions.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.050 Conditional use permit criteria.

The purpose of a conditional use permit is to allow greater flexibility in varying the application of the use regulations of the program in a manner consistent with the policies of RCW 90.58.020. In authorizing a conditional use, special conditions may be attached by the city or the Department of Ecology to prevent undesirable effects of the proposed use.

Uses which are classified or set forth in the program as conditional uses may be authorized provided the applicant can demonstrate all of the following:

That the proposed use is consistent with the policies of RCW 90.58.020 and the provisions of the program;

That the proposed use will not interfere with the normal public use of public shorelines;

That the proposed use of the site and design of the project is compatible with other permitted uses within the area;

That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and

That the public interest suffers no substantial detrimental effect.

Other uses which are not classified or set forth in the program may be authorized as conditional uses provided the applicant can demonstrate, in addition to the criteria set forth in subsection (B) of this section, that extraordinary circumstances preclude reasonable use of the property in a manner consistent with the use regulations of the program.

Uses which are specifically prohibited and named by the program may not be authorized as a conditional use.

In the granting of any conditional use permits, consideration shall be given to the cumulative impact of additional requests for like action in the area such that if conditional use permits were granted for other developments in the area where similar circumstances exist, the total of the conditional uses shall remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.060 Variance permit criteria.

The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in the program where there are extraordinary or unique circumstances relating to the property such that the strict implementation of the program will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020.

Variance permits shall be granted only in a circumstance where denial of the permit will result in a thwarting of the policy enumerated in RCW 90.58.020, and where extraordinary circumstances are shown and where the public interest suffers no substantial detrimental effect.

Variance permits may be authorized provided the applicant demonstrates all of the following:

That the hardship described above is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of program, and not from deed restrictions, the actions of the applicant or other similar circumstance;

That the design of the project is compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the shoreline environment;

That the requested variance permit does not constitute a grant of special privilege not enjoyed by other properties in the area, and is the minimum necessary to afford relief;

That the public rights of navigation and use of the shorelines will not be adversely affected;

That the public interest will suffer no substantial detrimental effect; and

For developments and/or uses located landward of the OHWM or outside of a wetland, that the strict application of the bulk, dimensional or performance standards set forth in the program creates a hardship and precludes or significantly interferes with a reasonable use of the property not otherwise specifically prohibited by the program; or

For developments and/or uses located waterward of the OHWM or within a wetland, that the strict application of the bulk, dimensional or performance standards set forth in the program creates a hardship and precludes all reasonable use of the property not otherwise specifically prohibited by the program.

In the granting of any variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area such that if variances were granted to other developments in the area where similar circumstances exist the total of the variances shall remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects on the shoreline environment.

Variances from the use regulations of this program are prohibited.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.070 Permit conditions.

In granting, revising or extending a shoreline permit or shoreline exemption, the city may attach such conditions, modifications, or restrictions thereto regarding the location, character, and other features of the proposed development deemed necessary to assure that the development will be consistent with the permit criteria set forth in BMC § 17.81.040, 17.81.050 and 17.81.060, with the provisions of the State Environmental Policy Act, Chapter 43.21C RCW, with the applicable goals, policies and regulations of the Blaine shoreline master program and to meet the intent of RCW 90.58.020.

Development pursuant to a shoreline permit of any type shall not be authorized nor commenced until 21 days from the "date of filing" or until all review proceedings initiated within the 21 days from the date of such filing have terminated.

Construction authorized pursuant to a shoreline permit of any type shall be commenced or, where no construction is involved, the use or activity shall be commenced within two years from the effective date of the permit as defined in WAC 173-27-090(4) and shall be completed within five years from the effective date; provided, the city council may authorize a one-year extension to either or both of these timing requirements based on reasonable factors, and if the request for extension has been filed before the expiration date, and notice of the proposed extension is given to parties of record on the permit and to the Department of Ecology.

Date of Filing.

After all local permit administrative appeals or reconsideration periods are complete and the permit documents are amended to incorporate any resulting changes, the city of Blaine will mail the permit using return receipt requested mail to the Department of Ecology regional office and the Office of the Attorney General. Projects that require both conditional use permits and or variances shall be mailed simultaneously with any substantial development permits for the project.

The permit and documentation of the final local decision will be mailed together with the complete permit application; a findings and conclusions letter; a permit data form (cover sheet); and applicable SEPA documents.

Consistent with RCW 90.58.140(6), the state's Shorelines Hearings Board 21-day appeal period starts with the date of filing, which is defined below:

For projects that only require a substantial development permit: the date that Ecology receives the city of Blaine decision.

ii.

For a conditional use permit or variance: the date that Ecology's decision on the conditional use or variance is transmitted to the applicant and city of Blaine.

iii.

For a substantial development permit simultaneously mailed with a conditional use or variance to Ecology: the date that Ecology's decision on the conditional use or variance is transmitted to the applicant and the city of Blaine.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.080 Appeals.

Any person aggrieved by the granting, denying or rescinding by the city of Blaine of a shoreline substantial development permit, shoreline conditional use permit or shoreline variance permit may appeal the action of the city to the State Shoreline Hearings Board by filing a request for review within 21 days of the date of filing of the permit. The date of filing is defined in RCW 90.58.140(6). The procedure for filing a request for review is set forth in RCW 90.58.180.

Appeals of decisions and determinations made by the administrator in the administration of the program shall be filed and processed consistent with the procedures established under BMC § 17.06.180; provided, that the hearing examiner shall make the final decision on any such administrative appeal.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.090 Enforcement.

The enforcement provisions of Chapter 90.58 RCW and WAC 173-27-240 through 173-27-310 shall apply.

The shoreline administrator and/or a designated representative shall enforce all provisions of the master program. The Shoreline Management Act calls for a cooperative enforcement program between local and state government. It provides for both civil and criminal penalties, orders to cease and desist, orders to take corrective action and permit rescission. The choice of enforcement action and the severity of any penalty should be based on the nature of the violation and the damage or risk to the public or to public resources. The existence or degree of bad faith of the persons subject to the enforcement action, the benefits that accrue to the violator, and the cost of obtaining compliance may also be considered.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.100 Penalties.

Any person found to have willfully engaged in activities on the city's shorelines in violation of the Shoreline Management Act of 1971 or in violation of the city's shoreline master program, rules or regulations adopted pursuant thereto shall be subject to the penalty provisions of the BMC.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.110 Violations and subsequent development and building permits.

No building permit or other development permit shall be issued for any parcel of land developed or divided in violation of this master program. All purchasers or transferees of property shall comply with provisions of the Act and this master program and each purchaser or transferee may recover damages from any person, firm, corporation, or agent selling, transferring, or leasing land in violation of the Act or this master program including any amount reasonably spent as a result of inability to obtain any development permit and spent to conform to the requirements of the Act or this master program as well as costs of investigation, suit, and reasonable attorney's fees occasioned thereby. Such purchaser, transferee, or lessor, as an alternative to conforming their property to these requirements, may rescind the sale, transfer, or lease and recover costs of investigation, litigation and reasonable attorney's fees occasioned thereby from the violator.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.120 Public and private redress.

Any person subject to the regulatory program of the master program who violates any provision of the master program or the provisions of a permit issued pursuant thereto shall be liable for all damages to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to such violation.

The city attorney may bring suit for damages under this section on behalf of the city. Nothing in this section precludes private persons from bringing suit for damages on their own behalf. If liability has been established for the cost of restoring an area affected by violation, the court shall make provisions to assure that restoration will be accomplished within a reasonable time at the expense of the violator.

In addition to such relief, including monetary damages, the court, in its discretion, may award attorneys' fees and costs of the suit to the prevailing party.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.81.130 Fees for permits obtained after development.

Triple Fees for Permits Obtained after Development. Permits obtained following, rather than prior to, the establishment of a development or use shall be three times the normal amount. This provision is in addition to the enforcement measures contained in this chapter and in the BMC.

Delinquent permit penalties shall be paid in full prior to resuming the use or activity.

(Ord. 2930 § 1 (Exh. B), 2019)

§ 17.84.010 Purpose.

This chapter has been created for the following purposes:

To protect and preserve the public interest by establishing standards for regulating land alterations;

To control land-disturbing activities to minimize erosion, sedimentation, water pollution, and landslides;

To protect environmentally sensitive areas from degradation and damage;

To promote building and site planning practices that are consistent with the city's natural topography as well as the city's comprehensive plan and the Washington State Environmental Policy Act.

(Ord. 2554 § 3, 2003)

§ 17.84.020 Definitions.

"Best management practices (BMPs)"

means physical, structural, and/or managerial practices that, when used singly or in combination, prevent or reduce pollution of water.

"Buffer zone"

means a parcel or strip of land that is required to remain permanently in a natural condition.

"Canopy"

means the circle that can be drawn around a tree surrounding its outermost branches.

"Public works director"

means the public works director or his/her designee.

"Clearing, grading and fill permit"

means the signed and approved written permission of the community development services department to the permittee to proceed with the act of clearing, grading and filling within the provisions of this chapter.

"Clearing"

means the removal of timber, brush, grass, ground cover, or other vegetative matter from a site which exposes soil or results in the loss of forested areas. Clearing does not include selective removal of individual trees; provided, that no more than one tree is removed for every three trees remaining.

"Critical area"

means the following areas and their adjacent buffers as required in this chapter shall be regarded as critical areas: geologically hazardous areas, frequently flooded areas, aquifer recharge areas, fish and wildlife habitat conservation areas, and natural resource lands (see Chapter 17.82 BMC for definitions).

"Drip line boundary"

means the circle that can be drawn on the ground below a tree directly under its outermost branch tips.

"Dry season"

means, generally, the months of May through October.

"Erosion"

means the wearing away of the land or ground surface by the action of wind, water, ice, chemicals, gravity, or any of these combined.

"Filling"

means the act of placing fill material on any soil surface, natural vegetative covering, or other fill material.

"Grading"

means any excavating or filling or combination thereof, including the addition of asphalt, concrete or other similar impervious paving products.

"Major clearing permit"

means a permit allowing the clearing of more than one acre of property.

"Major grading/fill permit"

means a permit allowing the removal, placement or disturbance of a combined total of 500 or more cubic yards of material on one site.

"Minor clearing permit"

means a permit allowing the clearing of more than 8,000 square feet of property, but less than one acre.

"Minor grading/fill permit"

means a permit allowing the removal, placement or disturbance of a combined total of 100 to less than 500 cubic yards of material on one site.

"Permittee"

means the person, agent or entity to whom the clearing, grading and fill permit is issued.

"Protected trees"

means trees that have been noted to remain as part of the finished landscape.

"Rainy season"

means, generally, the months of November through April.

"Sedimentation"

means the process of deposition of soil and organic particles displaced, transported, and deposited by erosive processes.

"Significant tree"

means a healthy tree, evergreen or deciduous, six inches in diameter or greater, measured four feet above existing grade.

"Site"

means a lot or group of contiguous lots associated with a certain application, building or buildings, or other development.

"Soil"

means unaggregated or uncemented deposits of mineral and/or organic particles or fragments derived from the breakdown of massive rocks or decay of living matter.

"Stand"

means a homogeneous grouping of tree species or a group of trees that contain a large proportion of the same species.

"Wetland"

means a wetland as defined and regulated in Chapter 17.82 BMC.

(Ord. 2554 § 3, 2003; Ord. 2728 § 2 (Exh. A), 2009; Ord. 2811 § 2 (Exh. A), 2012)

§ 17.84.030 Clearing, grading and fill permit requirements.

A clearing, grading and fill permit is required for any project involving any of the following:

Any clearing, filling, or excavation in a wetland, critical area or critical area buffer.

Unless specifically exempted at BMC § 17.84.040, fill and/or excavation totaling over 100 cubic yards. Quantities of fill and excavation are separately calculated and then added together, even if excavated material is used as fill on the same site.

An excavation which is more than five feet in depth, or which creates a cut slope greater than five feet in height and steeper than one and one-half units horizontal in one unit vertical (1.5:1).

Over 8,000 square feet of clearing or grading, as measured at the ground level.

Any regrading or paving of an area used for storm water detention or as an existing drainage course.

(Ord. 2554 § 3, 2003; Ord. 2811 § 2 (Exh. A), 2012)

§ 17.84.040 Exemptions from permit.

The following activities are exempt from the requirements for a clearing, grading and fill permit:

Structural fill, including foundation and retaining wall preparation for structures requiring a building permit, where such work is specifically addressed within the permit.

Land clearing, grading, filling, sandbagging, diking, ditching, or similar work during or after periods of extreme weather or other emergency conditions which have created situations such as flooding or high fire danger that present an immediate danger to life or property.

Excavation and related filling for graves.

Clearing of an area measuring less than 8,000 square feet.

Mining, quarrying, excavating, processing, stockpiling of rock, sand, gravel, aggregate or clay where regulated by the state; and provided further, that there is no impact on ground water or surface water quality, quantity or routing.

Exploratory excavations under the direction of soil engineers or engineering geologists.

An exemption from a clearing, grading and fill permit does not exempt the person doing the work from meeting the requirement that sediment and other pollutants be prevented from entering the ground water system, drainage systems and streams, nor does it exempt the applicant from the permit requirements imposed by the Department of Natural Resources.

(Ord. 2554 § 3, 2003; Ord. 2704 § 2, 2008)

§ 17.84.050 Mandatory standards.

Unless otherwise stipulated, all land disturbance shall be undertaken in a manner that is consistent with the best management practices (BMPs) contained in the current edition of the Washington State Department of Ecology, Stormwater Management Manual for Western Washington.

Clearing.

Where possible, maintain natural vegetation for erosion and sedimentation control and water quality and quantity control.

Retain canopy cover; at project completion, the site shall have a vegetation canopy, dominated by trees, which meets the following minimum requirements:

For sites with an existing canopy cover of 20 percent or greater of the site area, canopy cover shall be a minimum of 20 percent of the site area;

ii.

For sites with an existing canopy cover of less than 20 percent of the site area, the canopy cover shall be the same as the existing canopy cover;

iii.

To meet the requirements for canopy cover, or to otherwise mitigate the effects of vegetation removal, canopy cover may consist of any combination of existing trees and replacement trees.

In meeting the minimum requirements for canopy coverage, priority shall be given to retention of existing stands of significant evergreen trees, trees in landscape buffer areas, trees along the shoreline, and healthy mature trees.

To maximize protection of existing trees, the clearing and grading proposal shall include sufficient protection measures to ensure viability of protected trees and other vegetation identified for retention and to protect any critical area and its buffer. Damaged or dead trees will be replaced.

Soil Stabilization. All exposed and unworked soils shall be stabilized using a suitable best management practice contained in the current edition of the Washington State Department of Ecology Stormwater Management Manual for Western Washington.

Grading.

Grading shall not contribute to or create landslides, accelerated soil creep, or settlement of soils.

Natural land and water features, vegetation, drainage and other natural features of the site shall be reasonably preserved.

Grading shall not create or contribute to flooding, erosion, increased turbidity, or siltation of a watercourse or water body.

Protect adjacent property, including, but not limited to, public rights-of-way and drainage systems from damage.

Erosion and Sediment Control.

Construction access shall be limited to one route, if practicable, and a construction access pad shall be used to minimize deposit of sediments on adjacent roadways. Sediment deposited on the paved right-of-way shall be removed in a manner that prevents it from entering the drainage, creating muddy streets or becoming a public hazard or nuisance.

Where potential impacts to soil stability, erosion or environmental damage have been identified, exposed and unworked soils shall be stabilized using BMPs as indicated in subsection (A) of this section.

Adjacent and downstream properties, storm drain inlets, and the downstream drainage shall be protected from sediment deposition using BMPs as indicated in subsection A of this section. If protection is inadequate and deposition occurs on adjoining property, public right-of-way or the drainage system, the permittee shall immediately remove the deposited sediment and restore the affected area to original conditions.

Water pumping devices shall be discharged where sediment and/or other pollutants will not enter the drainage system. Sediment ponds or traps shall be used for this purpose.

Downstream properties and waterways shall be protected from erosion and sedimentation during construction due to temporary increases in the volume, velocity, and peak flow rate of overland flow and runoff from the site.

The permittee must install temporary erosion and sedimentation control devices consistent with the BMP specifications as indicated in subsection (A) of this section prior to all other clearing, grading, filling or construction projects.

The permittee must remove all temporary erosion and sediment control devices within 30 days after final site stabilization or after the devices are no longer needed, on approval of the public works director. Before removing such devices, the permittee must remove trapped sediment or stabilize it on-site. Any soils disturbed during sediment removal must be permanently stabilized.

The permittee must complete the required permanent erosion control within seven days of completed grading unless the weather is unsuitable for transplanting. In that case, the permittee must maintain temporary erosion control until permanent restoration can be completed. The period between work completion and final planting shall not exceed one year without written authorization from the public works director.

Cutting and Filling Slopes. (See Chapter 17.82 BMC for critical areas.) The following are the minimum standards for cutting and filling slopes. These provisions may be waived by the public works director for minor grading permits:

Minimize clearing and grading on slopes 15 percent or greater, except where approved retaining walls are to be installed.

Filling should only occur where the ground surface has been prepared by removal of vegetation and other unsuitable materials or preparation of steps where natural slopes are steeper than five horizontal to one vertical (5:1). Fill slopes should not be constructed on natural slopes greater than two horizontal to one vertical (2:1).

Limit the maximum gradient of artificial slopes to no steeper than two horizontal to one vertical (2:1) unless a geotechnical engineering report and slope stability analysis is provided and shows acceptable safety factors.

Clearing, excavation, stockpiling or filling on any unstable or potentially unstable areas unless it is demonstrated to the public works director that the activity would not increase the risk of injury to persons or damage to adjacent property or natural resources.

Provide evacuation of any ground water, subsurface, or surface water drainage encountered on a cut slope and discharge it at a location approved by the public works director.

(Ord. 2554 § 3, 2003)

§ 17.84.060 Permit application.

An application for a clearing, grading and fill permit identifying the property and owner shall be submitted on a form provided by the city.

Application Requirements for All Major and Minor Permits. All applications for major (more than an acre) or minor (8,000 square feet to one acre) clearing, or for major (500 cubic yards plus) or minor (100 to 500 cubic yards) grading and/or fill shall be accompanied by three sets of plans and specifications, including calculations. For grading and/or fill in steeply sloped areas, on unstable soils or in other critical areas, the public works director may require that the plans and specifications be prepared by a geologist or engineer who shall have his/her signature and stamp affixed to each set. The plans shall include the following information:

An accurate plan of the entire site as it exists at the time of the application, which includes:

Delineation of all critical areas and wetlands with any required buffer located in or adjacent to the site as required by the critical areas ordinance;

All property lines;

Contours over the entire site at five-foot intervals. For sites with minimal slopes where five-foot contours would not be useful, contours shall be shown at two-foot intervals;

The location of all existing drainage facilities, natural and manmade, as well as the location of all springs, wells and stream channels;

The location of all structures and utilities;

Date of plan preparation, north arrow, and adequate scale.

Additional Application Requirements for Major Permits Only. For major clearing, grading and fill permits, the following additional items shall be included in the application:

Additional site plan items:

The date, basis and datum of the contours;

A description of existing vegetation on the site designated by its common names, the amount of bare ground, and the amount of impervious material. A survey of significant trees may be required;

Location and estimated capacity of any areas which impound surface water;

Identification of, and mitigation measures for, on-site areas which are subject to severe erosion, and off-site areas which are especially vulnerable to damage from erosion and/or sedimentation.

The proposed work plan, which details the following:

Sequence for clearing, grading, filling, drainage alteration, and other land-disturbing activities;

On-site soil or earth material storage locations and sources of import materials, and location of the site where spoils will be disposed;

Location of and schedule for installation and removal of all interim and permanent erosion and sediment control measures, including vegetative measures.

An accurate finished grading plan of the entire site as it would appear on completion of work covered by the permit, showing the following:

The finished contours achieved by grading at five-foot intervals. For sites with minimal slopes where five-foot contours would not be useful, contours shall be shown at two-foot intervals;

The boundaries of all areas to remain undisturbed;

Boundaries of all areas where surface water runoff will be retained, detained, or infiltrated;

The method for discharging surface water off-site, including provisions required to control the velocity and direction of discharge to protect downstream riparian corridors and properties;

Location and dimensions of buffer zones and other areas to be maintained or established;

The location of building setback lines, and approximate limits of cuts and fills, including, but not limited to, foundations, retaining walls, and driveways;

The location and description of proposed permanent erosion and sedimentation control devices or structures and entity responsible for maintenance.

The public works director may require additional information including but not limited to the following:

Hydrologic and hydraulic computations of expected storm runoff entering and leaving the site for pre- and post-development conditions;

Engineering, geological and soils reports as needed for hydrology, hydraulics, and erosion control design;

Erosion and sediment control plan and supporting calculations;

A copy of the hydraulic permit application issued by the Washington State Department of Fisheries, if one is required.

(Ord. 2554 § 3, 2003)

§ 17.84.070 Permit issuance.

Issuance in Conjunction with Other Permits. Unless the proposed work is otherwise exempt from permit requirements, a clearing, grading and fill permit shall be issued in conjunction with the following permits or approvals:

A valid building permit application. The clearing, grading and fill permit shall not be issued until land use approval is received;

An approved conditional use permit or planned unit development approval;

A demolition permit;

Completion of environmental (SEPA) review for surcharging a site or for environmental or toxic cleanup at a site;

A right-of-way use permit.

Issuance of Clearing, Grading and Fill Permits without Other Permits. A clearing, grading and fill permit may be issued without an accompanying permit if:

The proposed clearing and grading is not related to a project for which one or more of the approvals listed in subsection A of this section is required, but is necessary for the maintenance of the property.

Approval of the proposal will not pose a threat to, or be detrimental to, the public health, safety, and welfare, nor be materially detrimental to fish and wildlife habitat and/or water resources.

The proper permits issued by the Department of Natural Resources for logging or resource extraction are submitted.

Construction Easement or Right-of-Way Entry Requirements. If construction necessitates access, construction, or intrusion onto or across property not under the applicant's control, then the applicant must provide the city with a copy of a valid construction easement or right of entry before the permit can be issued.

(Ord. 2554 § 3, 2003)

§ 17.84.080 Expiration of permits and applications.

An application for a clearing, grading and fill permit will be canceled if an applicant fails, without reasonable justification, to respond to the city's written request for revisions or corrections within 14 days. The public works director may extend the response period beyond 14 days if the applicant provides and adheres to a reasonable schedule for submitting the full revisions.

When a permit is ready to be issued, the applicant shall be notified and must pick up the permit within 60 days of notification or it shall be canceled.

Clearing, grading and fill permits expire as follows:

If a building permit is issued for the same site, the clearing, grading and fill permit shall automatically expire or be extended when the building permit expires or is extended.

If a building permit is not issued for the same site, the clearing, grading and fill permit shall expire as follows:

The permit shall expire if the authorized work is not begun within six months from the date of permit issuance, or if work is abandoned for over 180 days.

If the authorized work is continually performed, the permit shall expire one year from the date of issuance unless a different time frame is specified on the permit or an extension is granted.

(Ord. 2554 § 3, 2003)

§ 17.84.090 Conditions of approval/project denial.

The city may impose conditions on permit approval as needed to mitigate identified project impacts and shall deny permit applications that are inconsistent with the provisions of this chapter. In addition, the following shall be conditions of all permits:

Prior written permission from the public works director, for modification of any plan;

Maintenance of an up-to-date, approved copy of the plans on the site.

For major clearing, grading and fill permits, the following additional conditions shall also apply:

Inspection of erosion construction control measures at least once a week during construction, and after each rain of 0.5 inches or more, and immediate repairs, when necessary;

Permission for the city to enter the site for purposes of inspecting compliance with the plans or for performing any work necessary to bring the site into compliance with the plans.

(Ord. 2554 § 3, 2003)

§ 17.84.100 Security.

For those proposals where the city has identified potential impacts to soil stability, erosion or environmental damage, the city may require the applicant to furnish security in the form of a bond, assigned savings account, letter of credit, or other security which may be acceptable to the city. The amount of the security, to be determined by the city, shall be sufficient to reimburse the city if it should become necessary for the city to enter the property to correct hazardous conditions relating to soil stability, erosion, or environmental damage caused by failure to complete the work or improper action.

(Ord. 2554 § 3, 2003)

§ 17.84.110 Temporary restrictions.

General.

Rainy season (generally defined as the months of November through April) construction generally will be approved for smaller-scale clearing and grading proposals that have limited shallow utility installation and are on sites with less than 15 percent slopes, predominant soils that have low runoff potential, and are not hydraulically connected to sediment/erosion-sensitive features.

Rainy season construction may be approved if adequate measures to control erosion/sedimentation and safeguard slope stability are proposed. If the permit was issued in the dry season (generally defined as the months of May through October), and work is allowed to continue in the rainy season, the city may require additional measures for erosion/sedimentation and/or slope stability.

However, the city may prohibit clearing and grading during the rainy season; determinations shall be made on a site-specific basis and evaluation of the following:

Average existing slope of the site;

Quantity of proposed cut and/or fill;

Classification of the predominant soils and their erosion and runoff potential;

Hydraulic connection of the site to features that are sensitive to the impacts of erosion;

Storm events and periods of heavy precipitation.

If a clearing, grading and fill permit is issued for work during the rainy season, and the city subsequently issues a "stop work" order or correction notice for insufficient erosion and sedimentation control, the permit will be suspended until the dry season, or until the public works director determines that weather conditions are favorable and effective erosion and sedimentation control is in place.

(Ord. 2554 § 3, 2003)

§ 17.84.120 Maintenance.

The permittee shall maintain all temporary and permanent erosion and sedimentation devices so that they function as intended until the site has been permanently stabilized, and the potential for on-site erosion has passed.

The permittee shall submit a schedule for operation and maintenance of all construction-related BMPs if the project involves more than 8,000 square feet of clearing and/or more than 100 cubic yards of excavation and/or fill.

Erosion control devices that are damaged or not working properly shall be returned to operating condition as directed by the field inspector or within 24 hours of receiving notice from the city.

(Ord. 2554 § 3, 2003)

§ 17.84.130 Project inspections.

All projects which include clearing, grading, filling, or drainage shall be subject to inspection by the public works director, who shall be granted reasonable right of entry to the worksite by permittee.

When required by the public works director, special inspection of the grading operations and special testing shall be performed by qualified professionals employed by the permittee.

Each site must be inspected as necessary to ensure that required sediment control measures are installed and effectively maintained in compliance with the approved plan and permit requirements. Where applicable, the permittee must obtain inspection by the city at the following stages:

Following the installation of sediment control measures or practices and prior to any other land-disturbing activity;

During the construction of sediment basins or storm water management structures;

During rough grading, including hauling of imported or wasted materials;

Prior to the removal or modification of any sediment control measure or facility;

Upon completion of final grading, including the establishment of ground covers and planting, and installation of all landscaping.

On approval by the public works director, the permittee may secure the services of a qualified engineer or consultant to inspect the construction of the facilities and provide the city with a fully documented certification that all construction is done in accordance with the provisions of an approved grading, erosion, and sedimentation control or other required plan, applicable rules, regulations, permit conditions, and specifications. If private inspection services are provided, the city shall be notified at the required inspection points and may make spot inspections.

(Ord. 2554 § 3, 2003)

§ 17.84.140 Violations.

A person or business that violates the requirements of this chapter shall be guilty of a civil infraction. The offender shall be subject to the penalties set forth in Chapter 17.08 BMC.

The following clearing, grading and/or fill actions shall be considered violations of this chapter:

Clearing and/or grading not authorized under a clearing, grading and fill permit where such a permit is required by this chapter;

Clearing and/or grading not in accordance with the plans, conditions, or other requirements in an approved clearing, grading and fill permit.

(Ord. 2554 § 3, 2003; Ord. 2704 § 2, 2008)

§ 17.84.150 Notice of civil infraction and required corrective action.

Upon verification of a violation based on a visual inspection of the site, the city shall jointly issue a notice of civil infraction and a notice of corrective action. The community development services director shall have the discretion to issue a verbal warning 48 hours prior to issuance of any notice of civil infraction and notice of corrective action.

A notice of civil infraction shall be processed in compliance with Chapter 17.08 BMC.

A notice of corrective action shall be prepared by a state-certified erosion and sedimentation control lead (CESCL) or state-licensed engineer. The notice of corrective action shall be issued to the property owner and shall include the following corrective action:

Installation of required emergency BMPs (best management practices) pursuant to the Western Washington Manual for Stormwater Management, current edition, within 72 hours; and

Submission of contact information for an owner-contracted engineer or CESCL to the city within 72 hours; and

The submission of a land disturbance permit application within seven days of the notice.

Both the notice of corrective action and the notice of civil infraction shall be considered final administrative decisions.

(Ord. 2673 § 2, 2007; Ord. 2704 § 2, 2008)

§ 17.86.010 Purpose.

It is the purpose of this chapter to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by methods and provisions designed for:

Restricting or prohibiting uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;

Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

Controlling the alteration of natural floodplains, stream channels and natural protective barriers, which help accommodate or channel floodwaters;

Controlling filling, grading, dredging and other development which may increase flood damage; and

Preventing or regulating the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.020 Definitions.

Unless specifically defined below in this section, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application:

"Area of special flood hazard"

means the land in the floodplain within a given community subject to a one percent or greater chance of flooding in any given year.

"Base flood"

means the flood having a one percent chance of being equaled or exceeded in any given year.

"Basement"

means any area of the building having its floor subgrade (below ground level) on all sides.

"Breakaway wall"

means a wall that is not part of the structural support of a structure and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

"Coastal high hazard area"

means an area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. The area is designated on the FIRM as Zone VE or V.

"Critical facility"

means a facility for which even a slight chance of flooding might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency response installations, and installations which produce, use or store hazardous materials or hazardous waste.

"Development"

means any manmade change to improved or unimproved real estate in the regulatory floodplain, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, storage of equipment or materials, subdivision of land, removal of substantial amounts of native vegetation on the property, or alteration of natural site characteristics.

"Flood" or "flooding"

means:

A general and temporary condition of partial or complete inundation of normally dry land areas from:

The overflow of inland or tidal waters;

The unusual and rapid accumulation of runoff of surface waters from any source; and/or

Mudslides (i.e., mudflows) which are proximately caused by flooding as defined by this definition and are akin to a river of liquid and flowing mud on the surfaces of normally dry land areas, as when earth is carried by a current of water and deposited along the path of the current.

The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in subsection (H)(1) of this section.

"Flood insurance rate map (FIRM)"

means the official map on which the Federal Insurance Administrator has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

"Flood insurance study"

means the official report provided by the Federal Insurance Administrator that includes flood profiles, the flood insurance rate maps, and the water surface elevation of the base flood.

"Floodway"

means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.

"Impervious surface"

means a hard surface area which causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled, macadam or other surfaces which similarly impede the natural infiltration of stormwater.

"Lowest floor"

means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this chapter.

"Manufactured home"

means as defined in BMC § 17.112.020(A).

"Native vegetation"

means any mix of grass, forbs, shrubs, and trees commonly found in Western Washington lowland areas, but does not mean lawn, landscaped areas, or incidental vegetation that has been introduced on or invaded an otherwise developed site.

"New construction"

means, for the purposes of determining insurance rates, structures for which the "start of construction" commenced on or after July 16, 1979, and includes any subsequent improvements to such structures. For floodplain management purposes, "new construction" means structures for which the start of construction commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

"Protected area"

means the lands that lie within the boundaries of the floodway, the riparian habitat zone, and the channel migration area.

"Recreational vehicle"

means a vehicle:

Built on a single chassis;

Four hundred square feet or less when measured at the largest horizontal projection;

Designed to be self-propelled or permanently towable by a light duty truck; and

Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

"Regulatory floodplain"

means the area of the special flood hazard area.

"Start of construction"

includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, or placement of other improvements was within 180 days of the permit date. The "actual start" means the first placement or permanent construction of a structure on a site, such as the pouring of slabs or footings, the installation of pilings, or any work beyond the stage of excavation. Permanent construction does not include land preparation such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not as part of the main structure. For a substantial improvement, the "actual start of construction" means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

"Structure"

means a walled and roofed building including a liquid or gas storage tank that is principally above ground as well as a manufactured home.

"Substantial damage"

means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

"Substantial improvement"

means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the start of construction of the improvement. This term includes structures which have incurred substantial damage, regardless of the actual repair work performed. The term does not, however, include either:

Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or

Any alteration of a historic structure; provided, that the alteration will not preclude the structure's continued designation as a historic structure.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.030 Applicability.

This chapter shall apply to all areas of special flood hazard within the jurisdiction of the city.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.040 Areas of flood hazard – Study adopted.

The areas of special flood hazard identified by the Federal Insurance Administrator in a scientific and engineering report entitled The Flood Insurance Study for Whatcom County and Incorporated Areas, dated January 18, 2019, with accompanying flood insurance rate maps (FIRM), dated January 18, 2019. This flood insurance study, or any revisions thereto adopted by the Federal Insurance Administrator, is automatically adopted by reference and declared to be a part of this chapter. The flood insurance study is on file at the community development services department, Blaine City Hall, 435 Martin Street, Suite 3000, Blaine, Washington.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2686 § 1, 2007; Ord. 2728 § 2 (Exh. A), 2009; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.045 Protected area zones.

The protected area includes the following zones within the project site where a floodplain development permit is requested:

The riparian habitat zone is the zone of native vegetation extending landward a distance of up to 200 feet from the ordinary high water mark within the regulatory floodplain, also including those aquatic areas that support vegetation below the ordinary high water mark, or such area as defined by a detailed study of the project site.

The channel migration area is the area over which a dynamic river moves during the normal course of erosion, sedimentation and flooding events.

The floodway is the channel of a stream or other water course in order to discharge the base flood without cumulatively increasing the surface water elevation more than one foot at any point.

(Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.050 Development permit – Required.

A development permit shall be obtained before construction or development begins within any area of special flood hazard established in BMC § 17.86.040. The permit shall be for all structures, including manufactured homes, as defined in BMC § 17.86.020, and for all other developments including fill and other activities, also set forth in BMC § 17.86.020.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.060 Development permit – Grant or denial.

The director is appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.070 Duties of the director.

Duties of the director shall include, but not be limited to:

Permit Review.

Reviewing all development permits to determine that the permit requirements of this chapter have been satisfied;

Reviewing all development permits to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.

When base flood elevation data and floodway data has not been provided in accordance with BMC § 17.86.040, the director shall obtain, review and reasonably utilize any base flood elevation data and floodway data available from a federal, state or other source, in order to administer BMC § 17.86.150 and 17.86.160.

Notice on Title. The director shall ensure that, prior to the issuance of a floodplain development permit, the applicant records a notice on the title that the property contains land within the 100-year floodplain.

Obtaining and Maintaining Information.

Obtaining and recording the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement;

For all new or floodproofed structures:

Verifying and recording the actual elevation (in relation to mean sea level) to which the structure was floodproofed; and

Maintaining the floodproofing certifications required in BMC § 17.86.160(C).

Maintain for public inspection all records pertaining to the provision of this chapter.

Alteration of Watercourses.

Notifying adjacent communities, the Department of Ecology and the Department of Natural Resources prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration;

Requiring that maintenance is provided within the altered or relocated portion of the watercourse so that the flood-carrying capacity is not diminished.

Making interpretations, where needed, as to the exact location of the boundaries of the areas of special flood hazards. For example, where there appears to be a conflict between a mapped boundary and actual field conditions, the director shall make a determination. Any person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation. Such appeals shall be granted consistent with the standards of 44 CFR 60.6 of the rules and regulations of the National Flood Insurance Program (24 CFR 1909 et seq.).

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2602 § 2, 2005; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.075 Permit application requirements.

Application for a floodplain development permit shall be made on forms furnished by the director and shall include, but not be limited to:

Three site plans, drawn to scale, showing:

The nature, location, dimensions, and elevations of the property in question;

Names and location of all water bodies within 300 feet of the site;

The elevations of the 10-, 50-, 100-, and 500-year floods, where the data are available;

The boundaries of the regulatory floodplain, SFHA, floodway, riparian habitat zone, and channel migration area;

The proposed drainage system including but not limited to storm sewers, overland flow paths, detention facilities and roads;

Existing and proposed structures, fill, pavement and other impervious surfaces, and sites for storage of materials;

All wetlands;

Designated fish and wildlife habitat conservation areas, and habitat areas identified for conservation or protection under state or federal or local laws or regulations (e.g., Endangered Species Act, Magnuson-Stevens Fishery Conservation and Management Act, Growth Management Act, Shorelines Management Act, Priority Habitat and Species List);

Existing native vegetation and proposed revegetation.

If the proposed project involves grading, excavation, or filling, the site plan shall include proposed post-development terrain at one-foot contour intervals.

If the proposed project includes a new structure, substantial improvement, or repairs to a substantially damaged structure that will be elevated, the application shall include the flood protection elevation for the building site and the proposed elevations of the following:

The top of bottom floor (including basement, crawlspace, or enclosure floor);

The top of the next higher floor;

The bottom of the lowest horizontal structural member (in V Zones only);

The top of the slab of an attached garage;

The lowest elevation of machinery or equipment servicing the structure;

The lowest adjacent (finished) grade next to structure;

The highest adjacent (finished) grade next to structure;

The lowest adjacent grade at the lowest elevation of a deck or stairs, including structural support.

If the proposed project includes a new structure, substantial improvement, or repairs to a substantially damaged nonresidential structure that will be dry floodproofed, the application shall include the FPE for the building site and the elevation in relation to the datum of the effective FIRM to which the structure will be dry floodproofed and a certification by a registered professional engineer or licensed architect that the dry floodproofing methods meet the floodproofing criteria in BMC § 17.86.160.

The proposed project must be designed and located so that new structural flood protection is not needed.

The application shall include a description of the extent to which a stream or other water body, including its shoreline, will be altered or relocated as a result of the proposed development.

The application shall include documentation that the applicant will apply for all necessary permits required by federal, state, or local law. The application shall include written acknowledgment that the applicant understands that the final certification of use or certificate of occupancy will be issued only if the applicant provides copies of the required federal, state, and local permits or letters stating that a permit is not required. The floodplain permit is not valid if those other permits and approvals are not obtained prior to any ground disturbing work or structural improvements.

The application shall include acknowledgment by the applicant that representatives of any federal, state or local unit of government with regulatory authority over the project are authorized to enter upon the property to inspect the development.

(Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.080 General standards for all areas of special flood hazard.

If a lot has a buildable site outside the special flood hazard area or above the BFE, all new structures shall be located there, when feasible. If the lot is fully in the floodplain, structures must be located to have the least impact on salmon.

Storm water and drainage features shall incorporate low impact development techniques, when technically feasible, and shall at a minimum comply with the Western Washington Manual for Stormwater Management (current edition).

Creation of new impervious surfaces shall not exceed 10 percent of the surface area of the portion of the lot within the floodplain unless mitigation is provided.

Any loss of floodplain storage shall be avoided, rectified, or compensated for. Any compensation site must be in a priority floodplain restoration area in the ESU recovery plan for the listed species.

Uses that are not permitted in the protected area unless shown not to affect water quality and habitat include septic tanks and drain fields, dumping of any materials, hazardous or sanitary waste landfills, receiving areas for toxic or hazardous waste or other contaminants.

In all areas of special flood hazard, the standards set out through BMC § 17.86.130 are also required.

Manufactured homes, as defined in Chapter 17.112 BMC or Chapter 296-150M WAC, are prohibited in all areas of special flood hazards.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.085 Habitat protection standards.

Nondevelopment Activities. Activities that do not meet the definition of "development" are allowed in the regulatory floodplain without the need for a floodplain development permit under this chapter, provided all other federal, state, and local requirements are met. The following are examples of activities not considered development or manmade changes to improved or unimproved real estate:

Routine maintenance of landscaping that does not involve grading, excavation, or filling;

Removal of noxious weeds and hazard trees and replacement of nonnative vegetation with native vegetation;

Normal maintenance of structures, such as re-roofing and replacing siding, provided such work does not qualify as a substantial improvement;

Normal maintenance of above ground utilities and facilities, such as replacing downed power lines and utility poles;

Normal street and road maintenance, including filling potholes, repaving, and installing signs and traffic signals, but not including expansion of paved areas.

Activities Allowed with a Floodplain Permit. The following activities are allowed in the regulatory floodplain without a habitat impact assessment, providing all other requirements of this chapter are met, including obtaining a floodplain development permit:

Repairs or remodeling of an existing structure; provided, that the repairs or remodeling are not a substantial improvement or a repair of substantial damage.

Expansion of an existing structure that is no greater than 10 percent beyond its existing footprint, provided that the repairs or remodeling are not a substantial improvement or a repair of substantial damage. This measurement is counted cumulatively from the effective date of the ordinance codified in this section or September 22, 2011, whichever is earlier. If the structure is in the floodway, there shall be no change in the dimensions perpendicular to flow.

Activities with the sole purpose of creating, restoring or enhancing natural functions associated with floodplains, streams, lakes, estuaries, marine areas, habitat, and riparian areas that meet federal and state standards, provided the activities do not include structures, grading, fill, or impervious surfaces.

Development of open space and recreational facilities, such as parks, trails, and hunting grounds, that do not include structures, fill, impervious surfaces or removal of more than five percent of the native vegetation on that portion of the property in the regulatory floodplain.

Repair to on-site septic systems, provided the ground disturbance is the minimal necessary.

Other Activities. All other activities not listed in subsections (A) and (B) of this section that are allowed by the city of Blaine are allowed, provided they meet all the other requirements of this chapter and a floodplain development permit is issued.

Native Vegetation Protection. The site plan required in BMC § 17.86.075(A) shall show existing native vegetation.

In the riparian habitat zone, native vegetation shall be left undisturbed, except as provided in subsections (A) and (B)(3) of this section.

For areas within the regulatory floodplain, but outside the riparian habitat zone, removal of native vegetation shall not exceed 35 percent of the surface area of the portion of the site in the regulatory floodplain. Native vegetation in the riparian habitat zone portion of the property can be counted toward this requirement.

If the proposed project does not meet the criteria of subsections (D)(1) and (2) of this section, a habitat impact assessment shall be conducted and, if necessary, a habitat mitigation plan shall be prepared and implemented consistent with the habitat conservation areas detailed study requirements included in BMC § 17.82.400. The purpose of this assessment and mitigation plan shall be to avoid a "take" of an endangered species as defined in the Endangered Species Act, but not necessarily to avoid all impacts on all species.

(Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.090 Anchoring.

The following applies in all areas of special flood hazard:

All new construction and substantial development shall be anchored to prevent flotation, collapse or lateral movement of the structure.

All manufactured homes shall be anchored to resist flotation, collapse or lateral movement, and shall be installed using methods and best installation practices available that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors. Additional methods and practices are found in FEMA's latest edition of Guidebook FEMA-85, "Manufactured Home Installation in Flood Hazard Areas."

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.100 Construction materials and methods.

The following applies in all areas of special flood hazard:

All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

Electrical, heating, ventilation, plumbing and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.110 Utilities.

The following applies in all areas of special flood hazard:

All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.

New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the systems into floodwaters.

On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

Water wells shall be located on high ground that is not in the floodway in accordance with WAC 173-160-171.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.120 Subdivision proposals.

In all areas of special flood hazards:

All subdivision proposals shall be consistent with the need to minimize flood damage.

All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage.

All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage.

Base flood elevation data shall be provided for subdivision proposals and other proposed developments which contain at least 50 lots or five acres, whichever is less.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.130 Review of building permits.

In all areas of special flood hazards, where elevation data is not available, applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high-water marks, photographs of past flooding, etc., where available.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.150 Elevation of residential construction.

In areas described in BMC § 17.86.040, new construction and substantial development of any residential structure shall have the lowest floor, including basement, elevated one foot above the base flood elevation.

Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

A minimum of two openings having a total net area of no less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

The bottom of all openings shall be no higher than one foot above grade.

Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters.

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.160 Nonresidential construction and substantial improvement.

In areas described in BMC § 17.86.040, new construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated to the level of the base flood elevation, or, together with attendant utility and sanitary facilities, shall:

Be floodproofed so that below the base flood level the structure is watertight, with walls substantially impermeable to the passage of water;

Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this section based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the director as set forth in BMC § 17.86.070(D)(2).

Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in BMC § 17.86.150(B).

Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g., a building floodproofed to the base flood level will be rated as one foot below the base flood level).

(Ord. 2565 § 4, 2004; Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.180 Recreational vehicles.

Recreational vehicles placed on sites are required to either:

Be on the site for fewer than 180 consecutive days;

Be fully licensed and ready for highway use, on their wheels or jacking systems, be attached to the site only by quick disconnect type utilities and security devices, and have no permanently attached additions; or

Meet the requirements of BMC § 17.86.090 and the elevation and anchoring requirements for manufactured homes.

(Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.190 Designated regulatory floodway.

Located within areas of special flood hazard established in BMC § 17.86.040 are areas designated as floodways. Since the floodway is an extremely hazardous area due to velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:

Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless certification by a registered professional engineer is provided demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels during the occurrence of the base flood discharge.

Construction or reconstruction of residential structures is prohibited within designated floodways, except for: (1) repairs, reconstruction, or improvements to a structure which do not increase the ground floor area; and (2) repairs, reconstruction or improvements to a structure, the cost of which does not exceed 50 percent of the market value of the structure either (a) before the repair or reconstruction is started, or (b) if the structure has been damaged, and is being restored, before the damage occurred. Any project for improvement of a structure to correct existing violations or state or local health, sanitary, or safety code specifications which have been identified by the director and which are the minimum necessary to assure safe living conditions or to structures identified as historic places shall not be included in the 50 percent.

If subsection (A) of this section is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions, BMC § 17.86.090 through 17.86.190.

(Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.200 Coastal high hazard areas.

Located within areas of special flood hazard established in BMC § 17.86.040 are coastal high hazard areas, designated as Zones VE and/or V. These areas have special flood hazards associated with high velocity waters from surges and, therefore, in addition to meeting all provisions in this chapter, the following provisions shall also apply:

All new construction and substantial improvements in Zones VE and V, if base flood elevation data is available on the city's FIRM, shall be elevated on pilings and columns so that:

The bottom of the lowest horizontal structural member of the lowest floor (excluding the pilings or columns) is elevated one foot or more above the base flood elevation; and

The pile or column foundation and structure attached thereto is anchored to resist flotation, collapse and lateral movement due to the effects of wind and water loads acting simultaneously on all building components. Wind and water loading values shall each have a one percent chance of being equaled or exceeded in any given year (100-year mean recurrence interval).

A registered professional engineer or architect shall develop or review the structural design, specifications and plans for the construction, and shall certify that the design and methods of construction to be used are in accordance with accepted standards of practice for meeting the provisions of subsection (A) of this section.

Obtain the elevation (in relation to mean sea level) of the bottom of the lowest structural member of the lowest floor (excluding pilings and columns) of all new and substantially improved structures in Zones VE and V on the city's FIRM and whether or not such structures contain a basement. The director shall maintain a record of all such information.

All new construction within Zones VE and V on the city's FIRM shall be located landward of the reach of mean high tide.

Provide that all new construction and substantial improvements within Zones VE and V on the city's FIRM have the space below the lowest floor either free of obstruction or constructed with nonsupporting breakaway walls, intended to collapse under wind and water loads without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system. For the purposes of this section, a breakaway wall shall have a design safe loading resistance of not less than 10 or no more than 20 pounds per square foot. Use of breakaway walls which exceed a design safe loading resistance of 20 pounds per square foot (either by design or when so required by local or state codes) may be permitted only if a registered professional engineer or architect certifies that the designs proposed meet the following conditions:

Breakaway wall collapse shall result from water load less than that which would occur during the base flood; and

The elevated portion of the building and supporting foundation system shall not be subject to collapse, displacement, or other structural damage due to the effects of wind and water loads acting simultaneously on all building components (structural and nonstructural). Maximum wind and water loading values to be used in this determination shall each have a one percent chance of being equaled or exceeded in any given year (100-year mean recurrence interval).

If breakaway walls are utilized, such enclosed space shall be useable solely for parking of vehicles, building access, or storage. Such space shall not be used for human habitation.

Prohibit the use of fill for structural support of buildings within Zones VE and V on the city's FIRM.

Prohibit manmade alteration of sand dunes within Zones VE and V on the city's FIRM which would increase potential flood damage.

Recreational vehicles placed on sites within Zones VE and V on the city's FIRM shall either:

Be on the site for fewer than 180 consecutive days;

Be fully licensed and ready for highway use, on their wheels or jacking systems, attached to the site only by quick disconnect type utilities and security devices, and have no permanently attached additions; or

Meet the requirements of BMC § 17.86.050 and subsections (A) through (H) of this section.

(Ord. 2578 § 2, 2004; Ord. 2602 § 2, 2005; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.210 Critical facility.

Construction of new critical facilities shall be, to the extent possible, located outside the limits of the special flood hazard area. Construction of new critical facilities shall be permissible within the special flood hazard area if no feasible alternative site is available. Critical facilities constructed within the special flood hazard area shall have the lowest floor elevated three feet or to the height of the 500-year flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the base flood elevation shall be provided to all critical facilities to the extent possible.

(Ord. 2578 § 2, 2004; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.220 Severability.

If any section, clause, sentence, or phrase of the ordinance codified in this chapter is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of the ordinance codified in this chapter.

(Ord. 2923 § 1 (Exh. A), 2019)

§ 17.86.230 Appeals.

Appeals of a final decision shall be submitted pursuant to BMC § 17.06.180, Appeals.

( Formerly 17.86.220; Ord. 2673 § 2, 2007; Ord. 2812 § 2 (Exh. A), 2012; Ord. 2923 § 1 (Exh. A), 2019)

§ 17.82.010 Purpose and intent.

A fundamental principle of the Growth Management Act is to reduce urban sprawl through the identification of urban growth areas (UGA) and the containment of growth and development within these urban boundaries. This chapter is not intended to hinder the city's requirement to implement this state mandate or to reduce the lawful right of property owners to use their property as they choose.

The purpose of this chapter is to carry out the goals of the city of Blaine comprehensive plan and the state of Washington Growth Management Act (Chapter 36.70A RCW) and its implementing rules by designating and classifying critical areas and establishing development regulations to protect the functions and values of critical areas and the ecological processes that sustain them while allowing for appropriate economically beneficial or productive use of land and property.

Critical areas addressed in this chapter include:

Wetlands;

Geologically hazardous areas;

Fish and wildlife habitat conservation areas;

Critical aquifer recharge areas; and

Frequently flooded areas.

The regulations set forth herein are adopted in order to:

Minimize development impacts to critical areas and protect the beneficial uses, natural functions and values of critical areas;

Protect the quality and quantity of water resources and the species inhabiting local waterways, marine waters and wetlands;

Protect species listed as threatened or endangered and their habitats;

Protect unique, fragile and/or valuable elements of the environment, including ground and surface waters, wetlands, anadromous fish species, shellfish, and other fish and wildlife and their habitats;

Prevent erosion and loss of slope and soil stability caused by removal of trees, shrubs and root systems of vegetative cover;

Protect the public against potentially avoidable losses from landslide, subsidence, erosion, flooding and other natural hazards;

Avoid or minimize adverse environmental impacts to critical areas and mitigate unavoidable impacts;

Establish critical area protection standards and procedures that are consistent with state and federal regulations pertaining to critical areas.

It is not the intent of this chapter to make a parcel of property unusable by its owner, nor is it intended to prevent the provision of public facilities and services necessary to support existing and planned development. To that end, the following guidelines shall be applied in the administration of this chapter:

Build an increasingly accurate database and use it to educate and alert owners, potential purchasers, real estate agents, appraisers, lenders, builders, developers and other members of the public to natural conditions that pose a hazard, are environmentally sensitive, or otherwise limit development.

Develop compliance review procedures and development options that can further minimize the impacts of this chapter on property owners and their lawful development projects.

Administer this chapter with flexibility. Administratively provide the applicant with the full range of opportunities available to achieve compliance with this chapter.

Every site is unique. Focus compliance review on the site-specific characteristics of the critical area within the context of the proposed land use and the long-term viability of the ecological process that sustains it.

Streamline the critical areas compliance review process to be short, simple and economical.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.020 Authority.

This chapter is adopted under the authority of Chapters 36.70 and 36.70A RCW and Article 11 of the Washington State Constitution.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.030 Applicability and severability.

This chapter shall apply to:

All land and water areas within the corporate limits of the city of Blaine;

All land uses and development, all construction of structures and other facilities;

All alterations to land or vegetation in critical areas and their buffers.

All land and water areas within the corporate limits of the city of Blaine, and shall be consistently applied to all land uses and development, all construction of structures and other facilities, and all alterations to land or vegetation in areas meeting the definition and criteria for critical areas and critical area buffers as set forth in this chapter, except as specifically exempted under BMC § 17.82.100.

This chapter shall not apply to those areas coming under the jurisdiction of the city of Blaine shoreline master program under the following conditions:

Prior to final approval by the Washington State Department of Ecology of an updated shoreline master program consistent with Chapter 90.58 RCW and Chapter 173-26 WAC, this chapter shall not apply to areas coming under the jurisdiction of the city of Blaine shoreline master program;

Following final approval by the Washington State Department of Ecology of an updated shoreline master program consistent with Chapter 90.58 RCW and Chapter 173-26 WAC, this chapter shall not apply to areas coming under the jurisdiction of the city of Blaine shoreline master program, except to the extent that provisions set forth in this chapter are specifically incorporated by reference into the updated shoreline master program.

Should any section or provision of this chapter be declared invalid, such determination shall not affect the validity of this chapter as a whole, nor the validity of the remaining sections and provisions contained herein.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.040 Interpretation.

In the interpretation and application of this chapter, all provisions shall be considered to be the minimum necessary and shall be liberally construed to serve the purpose of this chapter.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.050 Relationship to other regulations.

The regulations contained in this chapter are intended to implement the guidance in the Blaine comprehensive plan.

These regulations are additional to, and coordinate with, the Blaine shoreline master program, and other applicable regulations adopted by the city of Blaine.

This chapter shall apply as an overlay to other regulations established by the city. In the event of any conflict between these regulations and any other regulations, the more restrictive shall apply.

Compliance with the provisions of this chapter shall not be construed as constituting compliance with any other applicable regulation.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.055 Best available science.

The Growth Management Act requires jurisdictions to include the best available science when designating and protecting critical areas. The "best available science" is that scientific information applicable to this chapter that is prepared by local, state or federal natural resource agencies, scientifically based peer reviewed literature, a qualified scientific professional or a team of qualified scientific professionals, that is consistent with the criteria established in WAC 365-195-900 through 365-195-925.

The Growth Management Act also requires the implementation of "conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat (WAC 365-195-900 through 365-195-925)." Anadromous fish are those that spawn and rear in freshwater and mature in the marine environment, including salmon and char (bull trout). These measures are primarily addressed in the city of Blaine shoreline management program. However, habitat and water quality measures have been incorporated into the regulatory provisions of this chapter.

Best available science shall be used in developing policy and regulations to protect the functions and values of critical areas.

The city shall require the use of best available science in all site-specific critical area reports and related decisions to protect the functions and values of critical areas.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.060 Critical area maps.

The city has prepared maps indicating the general locations of known or potential critical areas within the city of Blaine. The maps are based on the best available scientific information and include natural resource information gathered through field inventory, as well as information prepared by state and federal natural resource agencies. These maps shall be hereafter referred to as the critical area maps of the city of Blaine.

The critical area maps do not have regulatory authority. However, they shall be used to assist both the city and the property owner in achieving compliance with this chapter.

The critical area maps are based on the best available scientific information and summarize natural resource information gathered through field inventory by local officials, as well as information gathered and prepared by state and federal natural resource agencies. Source data publications include but are not limited to:

City of Blaine Shoreline Inventory, 2005.

City of Blaine Wetlands Inventory, 2004.

City of Blaine Planning Department. Data compiled from GIS data including: zoning, area (acres), impervious surface, transportation, slope, FEMA, bulkheads and jetties, and stormwater facilities, 2006.

City of Blaine Community Development, Geological Hazard Areas and Steep Slopes, 2003.

City of Blaine, Comprehensive Parks and Recreation Plan, 2004.

Reid, Alfred, Blaine Shoreline Cultural Resources, 2006.

United States Department of Agriculture, National Resources Conservation Service (NRCS), Soil Survey of Whatcom County, http://ice.or.nrcs.usda.gov/website/whatcom/ viewer.htm.

Washington State Department of Archaeology and Historic Preservation, The Washington Information System for Architectural and Archaeological Records Data (WISAARD), www.oahp.wa.gov/pages/wisaardIntro.htm, 2006.

Washington State Department of Ecology, Digital Coastal Atlas, 2006.

10.

Washington State Department of Ecology, Shoreline Aerial Photos, 2006.

11.

Washington State Department of Ecology, Confirmed and Suspected Contaminated Sites Report, 2006.

12.

Washington State Department of Ecology, Oblique Aerial Photographs, 2003.

13.

Washington State Department of Ecology, Washington State Water Quality Assessment 303(d) Listed Water for 1998, 2006.

14.

Washington State Department of Fish and Wildlife, Priority Habitats and Species, 2006.

15.

Schmalz, Dave, Drayton Harbor Avian Survey Maps, 2005.

16.

Washington State Department of Fish and Wildlife, Priority Habitats and Species Data Maps, May 3, 2006.

17.

Washington State Department of Fish and Wildlife, SalmonScape, 2006.

18.

Washington State Department of Fish and Wildlife, Species of Concern in Washington State, 2006.

19.

Whatcom County Marine Resources, http://www.whatcom-mrc.wsu.edu/MRC/ index.htm, 2006.

20.

Whatcom County Planning Department and Development Services, Draft Shoreline Management Program Update 2006.

21.

Whatcom County Planning and Development Services, Critical Areas Maps, 2005.

The community development director or designee shall update the critical area maps to reflect new information and best available science as it becomes available. The city shall make the maps available to the public upon request.

The critical area maps shall be utilized as a source of generalized information and shall not be used to determine the absolute presence, absence, or boundaries of a critical area or as substitute for site-specific assessment. Critical area locations and boundaries shown on the critical area maps are approximate and do not include buffers that may be associated with critical areas. With the exception of frequently flooded areas whose locations are identified on maps prepared by the Federal Emergency Management Agency, the actual type, extent, and boundaries of critical areas shall be determined by a qualified consultant and confirmed by the administrator on a site-specific basis, consistent with the best available science and the provisions established in this chapter.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.062 City-approved consultants.

The director shall maintain a list of consultants qualified to perform professional work required in this chapter including critical area identification, delineation, management recommendations, restoration, mitigation and long-term management plans.

Consultant Eligibility. Wetland, geotechnical, stream, and wildlife consultants become eligible for inclusion on the city-approved consultant list by complying with specific criteria administratively established by the director after consultation with professionals in each field of science.

Removal. A consultant will be removed from the list if any of the criteria for inclusion on the city-approved consultant list are not met during the course of any single project review.

If, during the course of a project review, it is determined that a third-party professional evaluation of the consultant's report is required, the costs associated with the third party shall be shared equally between the city and the applicant.

Prior to removal from the city-approved list, the city shall provide written notice of the city's removal, and the consultant shall have 30 days from the date of mailing of the city's letter advising of the removal to provide any information to the city administrator why the consultant shall not be removed. If no response is received from the consultant, the removal shall become final with no further action required.

If the consultant does provide information supporting remaining on the approved list, the city shall review that information and attempt to respond within 10 business days.

No further reports from a consultant shall be accepted by the city, upon issuance of a letter notifying the consultant of their removal, until such time as the consultant is re-instated on the list.

A decision to add or remove a consultant from the approved consultant list shall be made in writing and regarded as a final administrative decision appealable under the provisions of BMC § 17.06.080.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.065 Authorizations required.

No proposed development or other activity requiring development permit approval or building permit approval, or any other alteration of land, water, or vegetation within a critical area or its standard buffer, except as specifically allowed under BMC § 17.82.100, shall be permitted without prior authorization from the administrator unless otherwise authorized in specific sections of this chapter.

Authorizations by permit shall be provided in the context of the permit approval. The city of Blaine shall ensure that the provisions of this chapter are met in conjunction with review of all applications subject to review under BMC Titles 15 and 17, and any other permit or approval required by the Blaine Municipal Code, as amended, that is not expressly exempted by this chapter.

Authorizations without associated development or building permits shall be provided as a final critical areas determination by the director. The following activities shall be subject to the provisions of this chapter when they occur within critical areas, or their buffers, regardless of whether or not another permit or approval from the city is required:

Clearing or alteration of vegetation, grading, dumping, excavating, discharging, or filling with any material, including the creation of new impervious surfaces; and

Constructing, reconstructing, demolishing or altering the size of any building, structure, infrastructure or facility.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.070 Administrative procedures.

The community development director or designee shall be the administrator of the provisions set forth in this chapter.

Critical areas review is an administrative action not subject to the project permit review procedures, pursuant to BMC § 17.06.030(A)(8)(g). The review time limits are defined by BMC § 17.06.030(B).

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.075 Appeals.

Appeals of a final decision shall be submitted pursuant to BMC § 17.06.180, Appeals.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.080 Fees.

The fees for processing of applications and approvals required pursuant to this chapter shall be as set forth in the city's unified fee schedule. These fees shall be established based on the anticipated direct costs to the city for review of any given application. In addition to the fees set forth in the city's unified fee schedule, the applicant shall be responsible for paying all costs to the city for services provided by a qualified consultant retained by the city to perform critical areas review.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.085 Site inspections.

Applications for permits and approvals required pursuant to this chapter shall include a certification signed by the property owner granting the city the right to enter upon and access the property for the purpose of completing reasonably necessary site inspections. The administrator is authorized to make site inspections and take such actions as necessary to administer and enforce this chapter. City representatives shall make a reasonable effort to contact the property owner before entering onto private property.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.090 Violations and enforcement.

Violations of this chapter shall be enforced pursuant to Chapter 17.08 BMC, Violations and Enforcement.

In addition to those provisions contained in Chapter 17.08 BMC, any activity found to be not in compliance with this chapter or any applicable performance requirements or any condition established through the critical areas review and approval process, such as required mitigation, shall be subject to those enforcement actions necessary to bring the activity into compliance. In this enforcement function, the city shall have the authority to require restoration, rehabilitation or replacement measures to compensate for violations of this chapter, which result in destruction or degradation of the functions and values of critical areas or required buffer areas.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.095 Intention of article.

There exist a number of specific situations under which the strict application of these regulations may create unanticipated and disproportionate obstruction to the reasonable and rational use of property. This article is intended to add a range of flexible alternatives for those property owners.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.100 Exemption from standard critical area review requirements.

Subject to the limitations established in subsection (B) of this section, the following development activity and associated uses and activities shall be exempt from the standard critical area review procedures and regulatory requirements established in this chapter and the activity may proceed without action by the administrator:

Class I, II, III and IV special forest practices conducted in accordance with the applicable standards of the Washington State Forest Practices Act, Chapter 76.09 RCW, and Chapter 222-16 WAC, except where any of the following applies:

The land is being converted to a use other than commercial forest product production; or

The land is proposed to be converted under a conversion option harvest plan to a use other than commercial forest product production as provided in RCW 76.09.050 and 76.09.240; or

The land has been platted after January 1, 1960, as provided in RCW 76.09.050 and 76.09.240.

Emergency activities necessary to reduce or prevent an immediate threat to public health, safety and welfare. An "emergency" is an unanticipated and imminent threat to the public health or safety or to the environment which requires immediate action within a period of time too short to allow full compliance with this chapter. The person or agency undertaking such emergency action shall notify the administrator within one working day, or as soon as practical following commencement of the emergency activity. Following such notification, the administrator shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. Once the immediate threat has been addressed, any adverse impacts on the critical areas shall be minimized and mitigated. If the administrator determines that the action taken or any part of the action taken was beyond the scope of allowed emergency actions, then the enforcement provisions of BMC § 17.82.090 shall apply.

Normal and routine maintenance or repair of existing structures, utilities, sewage disposal systems, potable water systems, drainage facilities, ponds, or public and private roads and driveways associated with existing residential or commercial development.

Normal maintenance, repair, or operation of existing structures, facilities, and improved areas accessory to a single-family residential use provided no expansion of these operations takes place within a critical area or associated buffers.

Modification of any existing residence that does not add to or alter the existing use and does not expand the building footprint or increase septic effluent.

Activities, outside of a critical area or its buffer, involving artificially created wetlands or artificial watercourses intentionally created from nonwetland sites, including, but not limited to, grass-lined swales, irrigation and drainage ditches, stormwater detention facilities, and landscape features, except those features that provide critical habitat for anadromous fish and those features which were created as mitigation required pursuant to the provisions of this chapter.

Outdoor recreational activities which do not adversely impact critical areas or their buffers.

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 soil, planting crops, or changing existing topography, water conditions or water sources.

The lawful operation and maintenance of public and private diking and drainage systems which protect life and property.

10.

Education and scientific research activities which do not adversely impact critical areas or their buffers.

11.

Site investigation work necessary for land use applications such as surveys, soil logs, percolation tests and other related activities which do not adversely impact critical areas or their buffers. In every case, critical area impacts shall be minimized and disturbed areas shall be immediately restored.

12.

Maintenance activities such as mowing and normal pruning; provided, that such maintenance activities are limited to existing landscaping improvements and do not expand into critical areas or associated buffers, do not expose soils, do not alter topography, do not destroy or clear native vegetation, and do not diminish water quality or quantity.

13.

The cutting or pruning of hazard trees in a critical area or associated buffer by the landowner.

14.

Fish, wildlife, wetland and/or riparian enhancement activities not required as mitigation; provided, that the project is approved by the U.S. Department of Fish and Wildlife, the Washington State Department of Fish and Wildlife, or the Washington State Department of Ecology.

15.

All activities and land uses within areas subject to the city of Blaine shoreline management program pursuant to BMC § 17.82.030(C).

Exempt activities shall use reasonable methods or accepted best management practices to reduce potential impacts to critical areas and/or to restore impacted critical areas to the extent feasible following completion of exempt activities. To be exempt does not give permission to destroy a critical area or to ignore risk from a natural hazard.

If all or any portion of a proposed development activity meets any of the listed exemption criteria, then exemption from standard critical areas review shall be established through the following procedure:

The applicant shall submit an exemption request to the administrator. The request shall describe the proposed project (or portion thereof) in writing and state the criteria listed in this section which apply;

The administrator shall review the exemption request for compliance with this chapter and make a determination, in writing, either certifying or rejecting the exemption;

A copy of the exemption request and subsequent determination shall be included in the file for the proposed development activity.

(Ord. 2729 § 2 (Exh. A), 2009; Ord. 2811 § 2 (Exh. A), 2012)

§ 17.82.110 Nonconforming development.

Any established use or existing structure that was lawfully permitted prior to adoption of the ordinance codified in this chapter, but which is not in compliance with the standards established in this chapter, may continue subject to the regulatory provisions contained in Chapter 17.94 BMC, Nonconforming Uses.

Nonconforming structures destroyed by fire, explosion, flood, or other casualty may be replaced or restored in-kind, provided:

Any reconstruction allowed pursuant to this section must be commenced within one year of the time of the damage, consistent with a police or fire district report; provided, a one-year extension may be granted upon compelling evidence that the reconstruction is substantially progressing and the delay is not solely the result of the owner's action;

Upon approval of occupancy, the city shall certify in writing that the restored building or structure is in compliance with this chapter;

Any such restoration shall not expand, enlarge, or otherwise increase the structure's nonconformity or impact on critical areas.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.120 Critical areas exception for minor additions and remodels.

Structural modification of, addition to, or replacement of an existing legally constructed structure that does not further adversely alter or increase the 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 acts of nature must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit and diligently pursued to completion. This one-year deadline may be extended for up to one year by the administrator upon request of the applicant or property owner and payment by the applicant or property owner of the applicable fee established in the city's unified fee schedule. Structural modification of, addition to, or replacement of an existing legally constructed structure allowed under this section must relate to an existing legally established structure or impervious area. Structural modification of, addition to, or replacement of an existing legally constructed structure shall be administratively permitted as a Type I-ADM approval pursuant to Chapter 17.06 BMC.

The requirement that the structural modification, addition or replacement shall not alter or increase its impact to a critical area is intended to implement and achieve a standard of no net loss to functions and values of the critical area and its buffer as established in a critical area detailed study that is based upon the best available science approved by the administrator.

(Ord. 2729 § 2 (Exh. A), 2009; Ord. 2762 § 2(1), 2010)

§ 17.82.130 Critical areas variances.

A variance from the dimensional requirements established in this chapter may be granted through approval of a critical areas variance in accordance with the procedural requirements established in this title.

The hearing examiner shall grant a variance only when they find that the applicant has demonstrated that the request is consistent with all of the following criteria:

Special circumstances and conditions exist which are peculiar to the land or lot (including the affected critical area), and which are not applicable to other lands or lots; and

The special conditions or circumstances are not the result of actions taken by the applicant; and

The granting of the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, buildings, or structures under similar circumstances; and

The granting of the variance will not create significant adverse impacts to the identified critical areas and will not be detrimental to public safety or welfare; and

The proposed design and use of the property results in the least amount of impact to critical areas necessary to allow the use or the development to occur; and

Where applicable, the proposed activity mitigates all impacts to functions and values of the affected critical area and the affected critical area buffers consistent with the requirements set forth in this chapter.

In granting any variance, the hearing examiner may establish such conditions and safeguards as are deemed necessary to secure adequate protection of critical areas and public health, safety and welfare, and to ensure conformity with this chapter.

Approval of a variance shall be accompanied by findings that justify the granting of the variance, and findings that the variance granted is the minimum necessary to allow reasonable use of the land, building or structure.

(Ord. 2729 § 2 (Exh. A), 2009; Ord. 2970 § 1 (Exh. A), 2021)

§ 17.82.140 Reasonable use exceptions.

Nothing in this chapter is intended to preclude all reasonable economic use of property. If the application of this chapter would deny all reasonable and economically viable use of the subject property, then the property owner may make application for a reasonable use exception pursuant to this section. This reasonable use exception process is intended to apply where a proposal does not meet the criteria for a critical area variance under BMC § 17.82.130.

An application for a reasonable use exception shall be submitted to the administrator on forms prepared by the city and shall be accompanied by a critical area detailed study including a mitigation plan based upon the best available science prepared pursuant to BMC § 17.82.360, 17.82.430, 17.82.480 or 17.82.510, a fee as established in the city's unified fee schedule, and any other related project documents, such as permit applications to other agencies, and SEPA documents. The city shall process an application for a reasonable use exception as a Type II-HE action pursuant to the provisions of Chapter 17.06 BMC, which in all circumstances shall include an open record hearing on the application for a reasonable use exception conducted by the hearing examiner as set forth in Chapter 17.06 BMC for a Type II-HE action.

The burden of proof shall be on the applicant to present evidence in support of the application and to provide sufficient information upon which the decision on the application can be made.

The administrator shall prepare a recommendation to the hearing examiner based upon review of the submitted information, a site inspection, and the proposal's ability to comply with the reasonable use exception criteria in this section.

The hearing examiner shall approve, or approve with modifications and/or conditions, or deny the request for a reasonable use exception based upon the proposal's ability to meet the reasonable use criteria in subsection (E) of this section, and shall base its decision only upon information in the record.

Criteria for Review, Approval and/or Denial of a Reasonable Use Exception. An applicant for a reasonable use exception shall satisfy all of the criteria set forth below. For the purposes of this subsection, the term "minimum" refers to the least amount of alteration or impact to the critical area or its buffer as established in a detailed study without denying all reasonable and economically viable use of the property:

The application of this chapter would deny all reasonable and economically viable use of the property.

There is no other feasible and economically viable alternative use of the property with less of an impact on the critical area(s) and/or the critical area buffers than the proposed use. Feasible alternatives to be evaluated by the hearing examiner may include, but are not limited to:

Change in use;

Reduction in size of use;

Change in timing of activity; and

Revision of project design.

The proposed impact to the critical area is the minimum impact necessary to allow for reasonable and economically viable use of the property.

The proposal is limited to the minimum encroachment into the critical area and/or its buffer necessary to prevent the denial of all reasonable and economically viable use of the property.

The proposed action will result in minimal alteration of existing contours, with a minimum impact on vegetation, fish and wildlife resources, hydrological conditions, and geologic conditions.

The proposal will result in no net loss of the critical area's functions and values consistent with the best available science. In order to satisfy this criteria, the proposal shall include a mitigation plan developed as part of a critical area detailed study that is based upon the best available science to assure that any impact to the critical area and its buffer is mitigated consistent with the requirements of BMC § 17.82.360, 17.82.430, 17.82.480 or 17.82.510 such that there is no net loss to the functions and values of the affected critical area(s) and to mitigate for unavoidable impacts. Such mitigation measures may occur on-site or off-site where necessary to ensure that the measures are capable of being implemented to achieve their purpose as established in the critical area detailed study approved by the administrator.

The proposal is otherwise consistent with the purpose and intent of this chapter.

The proposed development does not pose a threat to public health and safety.

The proposed activity will not result in unmitigated adverse effects to species listed as threatened or endangered by the federal government or the state of Washington.

10.

The proposed activity complies with all other federal, state, and local laws, including those related to erosion and sediment control.

11.

The inability to derive reasonable economic use of the property is not the result of the actions of the applicant or the segregating or dividing of the property after the effective date of the ordinance codified in this chapter.

In granting any reasonable use exception, the hearing examiner may establish such conditions and safeguards as are deemed necessary to ensure that the proposal is consistent with the intent of this section and chapter; provided, at a minimum, they do not conflict with or compromise permit decisions or conditions of permit approval.

The hearing examiner shall make written findings of fact and conclusions of law as to each criterion for approval that establishes the factual basis and rationale for its decision to approve, modify, condition, or deny the application for a reasonable use exception.

In granting any reasonable use exception, the hearing examiner may prescribe time limits within which the action for which the reasonable use exception is requested shall commence or be completed or both. Failure to conform to any such time limits shall void the reasonable use exception unless the applicant has received an extension from the administrator.

The administrator may extend a timeline established by the hearing examiner for a period not to exceed one year if:

A written request is filed with the administrator prior to the expiration of the reasonable use exception; and

Unforeseen circumstances or conditions necessitate the extension of the reasonable use exception; and

Termination of the reasonable use exception would result in unreasonable hardship to the applicant, and the applicant is not responsible for the delay; and

The extension of the reasonable use exception will not cause adverse impacts to critical areas.

(Ord. 2729 § 2 (Exh. A), 2009; Ord. 2762 § 2(2), 2010; Ord. 2970 § 1 (Exh. A), 2021)

§ 17.82.150 On-site density transfer.

Purpose. The purpose of on-site density transfer regulations is to provide an incentive to property owners for encouraging the protection, preservation and enhancement of significant critical area and cultural resources, while maintaining the overall density of the zoning district overlaying the property. The provisions of this chapter provide that critical areas may be set aside from development, while allowing a portion of the density, otherwise allowed upon the critical area, to be transferred to the developable (nonsensitive) portion of the site.

Density potential on property overlain by a wetland and its buffer, wildlife habitat conservation area and its buffer, or a geologically hazardous area may be transferred to a legally buildable area on the same residential property subject to the following conditions:

The basis for the on-site residential density transfer shall be determined using the densities allowed in the zoning district overlaying the property.

Lot size dimensions and setbacks may be reduced for those lots proposed on the developable area subject to the following conditions:

Minimum Lot Size Reduction. The resulting lot shall be reduced by no more than 40 percent of the minimum lot size allowed in the zoning district overlaying the property. For example, proposed lots in the residential low density zoning district, where the minimum lot size is 7,200 square feet, could be reduced to 4,320 square feet.

Rear Yard Setback Abutting a Critical Area. When the rear yard abuts the reserve tract, the setback shall be 15 feet.

Other Yard Setbacks. Front, side and rear yard setbacks may be reduced by no more than 25 percent when the side yard does not abut the exterior boundaries of the property.

The buildable portion of the site shall be regulated under the same zoning district overlaying the property and related regulations.

The nonbuildable critical area and its buffer shall be legally segregated from the buildable property and identified as a reserve, open-space and nonbuildable parcel.

In addition to conditions in this section, the development proposal must be determined to be compliant with this Division 4, Land Division and Major Developments.

Density Calculation.

The gross density of the site's critical area and its buffer may be transferred to the developable portion of the property.

The total acreage of the subject property shall be divided by the minimum lot size of the zoning district overlaying the property, and the result shall be the gross density. The gross density figure shall then be rounded to the nearest whole number. The rounded gross density calculation shall be the maximum number of lots that may be located on the developable area, except as limited by the reduction in lot area as described above.

The number of lots allowed on the developable area of the property that result from the on-site density transfer may not be increased above the gross density.

Example: Calculation of a Two-Acre Developable Area
Total acreage of parcel:	Two acres or 87,120 sq. ft. (43,560 sq. ft./acre)
Critical area and buffer:	20,000 sq. ft.
Zoning designation: Res-Low density:	RL (7,200 sq. ft. minimum lot size)
Gross density of total area:	11.62 lots
Total acreage of parcel:	87,120 sq. ft.
Critical area and buffer	- 20,000 sq. ft.
Equals total developable area	67,120 sq. ft.
Roads and utilities 25%	- 16,780 sq. ft.
Lot development area	50,340 sq. ft.
Developable area density: 50,340 sq. ft./ 4,320 sq. ft. (60% of 7,200 sq. ft.) = 11.6 lots

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.200 Critical area review requirements.

Unless otherwise provided in this chapter, the city of Blaine shall complete a critical areas review prior to granting any permit or approval for a development activity or other alteration which is found likely to include, or adversely impact, one or more critical areas or critical area buffers.

As part of this review, the administrator shall:

Verify the information provided by the applicant;

Confirm the nature, extent, and type of any critical area identified;

Evaluate any required detailed studies;

Assess the impacts to critical areas and critical area buffers likely to result from the proposed activity;

Determine whether the proposed activity is consistent with the purposes of this chapter;

Determine whether the proposed activity conforms to the applicable performance requirements included in this chapter; and

Determine whether the mitigation proposed by the applicant is sufficient to protect critical areas functions and values and address public health, safety, and welfare concerns consistent with the purpose and intent of this chapter.

Unless otherwise indicated, the applicant shall be responsible for the preparation, submission, and expense of any required assessments, reconnaissance, studies, plans, and all other work in support of the application.

Any proposed activity requiring critical area review shall be conditioned as necessary to mitigate impacts to critical areas and conform to the applicable performance requirements.

Any project that cannot adequately mitigate its impacts to critical areas or critical area buffers shall be denied.

In circumstances where the protective provisions for more than one critical area apply to a specific location, such as where a wetland is adjacent to fish-bearing stream, the most restrictive regulations shall apply.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.205 Pre-application meeting.

Any person preparing to initiate the permitting of an activity that may be regulated by the provisions of this chapter is encouraged to request a pre-application meeting with the administrator prior to submitting an application. At this meeting, the administrator shall outline the review process, discuss the requirements of this chapter, and identify, on a preliminary basis, any potential concerns that may arise during the review process.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.210 Application.

For any proposed activity not found to be exempt pursuant to BMC § 17.82.100, the applicant shall provide critical areas information at the time of permit application. For nonexempt activities not requiring other permits, the applicant shall provide critical areas information as part of a stand-alone critical areas review application for critical areas approval. Such information shall be submitted on forms provided by the city.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.220 Initial critical areas determination.

Upon receipt and review of a properly completed application, the administrator shall visit the subject property and make the initial critical areas determination. The administrator shall have the discretion to require an assessment by a qualified professional if the initial determination is inconclusive.

If the administrator determines either that the project site includes or abuts a known or potential critical area, or that the project could have adverse impacts on a critical area or critical area buffer, than the administrator shall notify the applicant that a critical area detailed study is required for each of the critical areas indicated.

The administrator may waive the requirement for preparation of a critical area detailed study if there is substantial evidence that:

There will be no alteration of a critical area or its standard buffer; and

The development proposal and its likely impacts are consistent with the purpose, intent and requirements of this chapter; and

The performance requirements established by this chapter will be met.

Notice of the findings substantiating the determination regarding such a waiver shall be provided to the applicant and included in the project file. Such a determination shall fulfill the critical areas review requirements of this chapter and the critical areas review process shall be considered complete.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.230 Critical area detailed studies.

If a critical area detailed study is determined to be necessary, then the applicant shall be responsible for making arrangements for preparation of such study by a qualified consultant for the type(s) of critical area(s) involved. At the applicant's discretion, the detailed study may be prepared in two steps.

Step one of the detailed study includes data review and field reconnaissance sufficient to determine whether a critical area is or is not actually present.

If the reconnaissance reveals that no critical area is actually present, then a statement of this finding along with appropriate supporting documentation shall be prepared by the consultant and submitted to the administrator. If, after review of such statement, the administrator confirms that the finding is accurate, then the detailed study requirements shall be satisfied and the critical area review process shall be considered complete.

If the reconnaissance reveals that a critical area is present, then a statement of this finding along with appropriate supporting documentation shall be prepared by the consultant and submitted to the administrator, and the review process continues to Step Two.

Step two of the detailed study shall include a thorough investigation of the identified critical area(s) by a qualified consultant and shall result in the submission of a report which, at a minimum, shall include the following:

The boundary and extent of the critical area, impact area, and proposed mitigation area shown on a site plan drawn at an appropriate scale;

Detailed description of the critical area, its functions, values and/or associated hazard;

Discussion of the impacts likely to result from the project, including probable impact on the function, value, or hazard associated with the critical area resulting from the proposal;

Proposed mitigation measures or mitigation plan; and

The training and experience of the qualified consultant who prepared the detailed study.

The consultant shall incorporate the best available science into the detailed study to ensure that the functions and values of critical areas will be adequately protected or mitigated.

The qualified consultant may consult with the administrator prior to or during preparation of the detailed study to obtain approval for modifications to the content requirements of the study where more or less information is deemed necessary to adequately address the critical area, the project's potential impacts and proposed mitigation.

It is recommended that the applicant discuss the project, its likely impacts, and any proposed mitigation with the administrator prior to submission of the detailed study to facilitate inclusion of appropriate mitigation measures.

Upon receipt of a detailed study that is both complete and accurate, the critical areas review process shall move forward to the final critical areas determination.

All detailed studies shall be provided in printed and electronic format acceptable to the city.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.240 Final critical areas determination.

Following submission of a detailed study that is both complete and accurate, the administrator shall make a final determination of adequacy.

The final determination shall address the adequacy of the proposed project, the use of best available science to mitigate potential impacts to the critical areas in question and compliance with applicable performance requirements.

A determination of adequacy shall be issued only if the proposed project is found to adequately mitigate its impacts on the critical areas and to comply with applicable performance requirements. Notice of such determination shall indicate that the proposed project complies with the provisions of this chapter. Such notice shall be prepared in writing and be included in the project file.

A determination of inadequacy shall be issued if it is found that the proposed project does not adequately mitigate its impacts to critical areas and/or does not comply with applicable performance requirements.

The administrator shall prepare written notice of such a determination. Said notice shall indicate the reasons for the finding and areas of noncompliance. This notice shall include recommendations for bringing the proposal into compliance.

Following a determination of inadequacy, the applicant may submit a revised mitigation plan for review.

Such submittal must occur within a period of 180 days from the date of issuance of the unfavorable determination, or the critical areas review shall expire.

If the revisions are found to be substantial and relevant to the critical areas review, the administrator may reopen the review and make a new determination.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.250 Completion of critical area review.

If, at any time prior to issuance of a final critical areas determination, the administrator receives relevant and reliable new information, then the administrator may require that the study be revised to incorporate, consider and revise its recommendations.

If after a final determination of adequacy but prior to issuance of an associated permit or land use approval, the administrator determines that the study is materially in error, used flawed protocol/scientific methodology, or misrepresents the facts, then the administrator may withdraw the final determination and require that the study be reopened.

A final critical areas determination shall be considered final upon receipt of a written final determination by the administrator, unless appealed pursuant to BMC § 17.06.180.

When issued in conjunction with a building or development permit, a final critical areas determination shall become void at the time that the associated building or development permit is invalidated.

When not associated with a building or development permit, a final critical areas determination shall be valid for a period of five years.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.260 Critical area mitigation – Generally.

Except as otherwise directed in this chapter, all proposed alterations of critical areas shall include mitigation, including off-site mitigation, sufficient to maintain the functions and values of the critical area, or to prevent or reduce risk from a hazard posed by a critical area.

"Mitigation" shall include avoiding, minimizing and/or compensating for adverse impacts to regulated critical areas through the following, and in the following order of priority:

Avoiding the impact altogether by not taking a certain action;

Minimizing the impacts by limiting the degree or magnitude of an action or by otherwise adjusting the action so as to reduce or avoid impacts;

Rectifying the impact by repairing, rehabilitating, or restoring the affected area;

Reducing or eliminating the impact over time through preservation and/or maintenance through the course of the action;

Compensating for the adverse impact by replacing, enhancing, or providing similar substitute resources or environments and monitoring the adverse impact and the mitigation project and taking appropriate corrective measures.

All proposed mitigation shall be contained in a proposed mitigation plan which shall be included as part of the critical area detailed study. The mitigation plan shall describe the following:

What mitigation is proposed;

How the proposed mitigation will maintain, or compensate for, the functions and values of the critical area or reduce potential risks posed by the critical area;

Any monitoring, maintenance and/or inspections that are deemed necessary to ensure the adequacy of the proposed mitigation;

Remedial measures that may be necessary based on the results of monitoring and/or inspection;

Professional expertise necessary to install, maintain, monitor or inspect proposed mitigation measures; and

Any bonding deemed necessary by the city to ensure performance and/or maintenance of the proposed mitigation.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.270 Buffer alterations.

For wetlands and fish and wildlife habitat conservation areas, buffers have been identified as the primary mechanism for providing adequate protection. In these cases, the buffers that have been established shall be considered standard or required, unless provision of adequate mitigation consistent with the applicable mitigation requirements found in BMC § 17.82.360 and 17.82.430, respectively, have otherwise been demonstrated by the applicant.

Except as otherwise allowed in this chapter, standard buffers shall be retained in their pre-existing condition.

If the proposed activity does not involve alteration of a critical area or its standard buffer and the administrator finds that the activity is not likely to have an adverse impact on the critical area, then no mitigation shall be required. If, however, the administrator finds that, due to site-specific conditions, the standard buffer will not provide adequate protection, then increased buffers and/or other mitigation measures consistent with the applicable mitigation requirements found in BMC § 17.82.360, and 17.82.430, 17.82.480 or 17.82.510, shall be required.

If the applicant proposes to in any way alter any portion of the standard buffer, then the applicant shall submit a critical area detailed study, pursuant to BMC § 17.82.230 (and BMC § 17.82.330, 17.82.400, 17.82.470 or 17.82.500, as applicable) that demonstrates how the reduced buffer along with any other proposed mitigation consistent with the applicable mitigation requirements found in BMC § 17.82.360, 17.82.430, 17.82.480 or 17.82.510 will be sufficient to adequately protect and/or replace the critical area functions and values.

Proposed mitigation shall be based on and incorporated into a mitigation plan prepared by a qualified scientist consistent with the requirements established in BMC § 17.82.360, 17.82.430, 17.82.480 or 17.82.510, as applicable.

Increased Buffers. If the standard buffer is not comprised of a relatively intact native vegetation community, the administrator shall increase the standard buffer to protect the functions and values of the resource and buffer areas or the applicant may choose to enhance the standard buffer to meet the above standard. Any such buffer enhancement shall be undertaken at the sole expense of the applicant. The administrator shall also increase the required buffer above the standard buffer width if it is determined that unique circumstances exist, either in terms of the sensitivity of the habitat or the intensity of the proposed land use, such that an increased buffer is necessary to protect the functions and values of the resource.

Buffer Reductions.

Buffer Reduction Based on Mitigation. Where compensatory mitigation is provided, standard buffers may be reduced; provided, that the standard buffer is not reduced by more than 25 percent for habitat conservation areas (HCA) and Category II, Category III and Category IV wetlands. Buffer reductions shall only be permitted when all anticipated impacts to the habitat and their required buffers are identified pursuant to subsection (D) of this section and mitigated pursuant to subsection (E) of this section.

Except as otherwise allowed pursuant to this chapter, reduction of a wetland or HCA buffer below the allowed percentage shall require approval of a critical areas variance or a reasonable use exception.

Buffer Averaging. Standard buffers may be reduced through the use of buffer averaging; provided, that the total buffer area is not reduced below the area that would result from use of the standard buffer; and provided further, that the standard buffer is not reduced by more than 25 percent for habitat conservation areas (HCA) and Category II, Category III and Category IV wetlands, and the use of buffer averaging will improve the overall protection of the resource. Buffer averaging shall only be permitted when all anticipated impacts to the habitat and their required buffers are identified pursuant to subsection (D) of this section and mitigated pursuant to subsection (E) of this section.

(Ord. 2729 § 2 (Exh. A), 2009; Ord. 2762 § 2(3), 2010)

§ 17.82.280 Long-term protective measures.

In conjunction with granting critical areas approval, the administrator may, at his or her sole discretion, require any of the following protective measures, singly or in combination, that are deemed necessary and appropriate to ensure the long-term protection of the resource:

Building Setback Line.

A building setback line of 10 feet shall be required from the edge of a buffer for any building or structure to ensure that the exteriors of the building or structure can be improved, maintained or repaired without encroaching into the buffer.

The following activities are allowed within the building setback; provided, that construction equipment associated with such activity will not enter into the critical area or buffer:

Landscaping;

Building overhangs;

Uncovered decks;

Clearing and grading;

Stormwater facilities;

Impervious surfaces where resultant runoff meets required water quality standards; and

Utility improvements when there is no other reasonable location and the improvement has been approved by the city.

Signage. Signage demarcating the outer boundaries of critical areas or associated buffers may be required to reduce intrusions from neighboring land uses or alert citizens regarding potential hazards. The administrator shall specify the type, size and spacing of such signage prior to issuance of the approval.

Fencing. Protective fencing demarcating the outer boundaries of critical areas or associated buffers may be required to reduce intrusions from neighboring land uses or alert citizens regarding potential hazards. The administrator shall specify the location and type of fencing prior to issuance of the approval.

Separate Legal Lots or Tracts. Prior to or in conjunction with final recording of any long subdivision, short subdivision or binding site plan, those portions of the property containing critical areas may be required to be placed in separate lots or tracts with applicable development limitations stated on the face of the final recorded document.

Notice on Title. Notification filed with the Whatcom County auditor's office may be required that states the general presence of one or more critical areas and/or associated buffers on the subject property, and that limitations on activities potentially affecting these areas exist.

Protective Covenant. The recording of a protective covenant addressing those portions of the subject property containing critical areas and associated buffers may be required. Such long-term protection may also be provided through the granting of a conservation easement or dedication to a public or private land trust.

Ingress/Egress. The granting of ingress and egress to the administrator may be required for monitoring and evaluation of compliance with required mitigation and conditions of approval.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.290 Bonding.

A bond may be required by the city in cases where components of the mitigation plan, such as restoration, monitoring, or maintenance, are likely to take place after issuance of the associated permit or approval by the city.

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 and in a form acceptable to the city attorney.

The bond shall be in the amount of 125 percent of either the estimated cost of the uncompleted mitigation measures or the estimated cost of restoring the functions and values of the critical areas at risk, whichever is greater.

The period of the bond shall be up to three years, or until the city has determined that the mitigation site has achieved long-term viability and no longer requires substantial annual maintenance.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.295 Regional mitigation.

The city of Blaine may authorize the development of a regional mitigation program in compliance with Chapter 90.84 RCW and approval from the U.S. Army Corps of Engineers and Department of Ecology.

The regional mitigation program shall service legal development located within the city limits.

Location. Site selection for mitigation shall be based on a location that will provide the greatest ecological benefit and have the greatest likelihood of success. Where feasible, mitigation shall occur in the Cain Creek basin. However, if it can be demonstrated that a mitigation site in an alternative sub-basin or watershed would provide a greater ecological benefit and offer a more successful replacement of wetland functions and values, a mitigation site can be located in an alternative sub-basin or watershed.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.297 Mitigation banking.

This chapter does not expressly regulate mitigation banking. However, the city supports mitigation banking when it provides greater ecological benefit and provides a more successful replacement of wetland functions and values.

A proposal to develop a mitigation bank in Blaine will be reviewed by city staff through SEPA review and any other permits necessary to receive city approval of such a project. Additionally, city staff will work with state and federal officials to ensure compliance with state and federal regulatory guidelines for the proposed mitigation bank.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.300 Wetland designation.

Wetlands shall be designated based on the Washington State Wetlands Identification and Delineation Manual (Washington State Department of Ecology, March 1997, Ecology Publication No. 96-94) as updated. This manual is consistent with the U.S. Army Corps of Engineers Wetlands Delineation Manual (January 1987).

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.310 Wetland rating (classification).

Wetlands shall be rated (classified) as Category I, Category II, Category III, or Category IV based upon the Washington State Department of Ecology's Washington State Wetlands Rating System for Western Washington (2006) or most recent update.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.320 Wetland indicators.

The administrator shall use the following as indicators of the potential presence of a wetland and the need for a wetland detailed study:

The proposed development site abuts or is located within a wetland and its largest estimated buffer as indicated in the city critical area maps;

Documentation through any public resource information source that a wetland and its largest estimated buffer exist within or abut the proposed development site;

A finding by a qualified wetland biologist based on site-specific soils, vegetation and hydrology that the presence of a wetland and its largest estimated buffer are likely within or abut the proposed development site.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.330 Wetland detailed study requirements.

A wetland detailed study, if required, shall be completed by a qualified wetland biologist and shall include the following:

Project description.

Site plan identifying the extent and boundaries of all wetlands as determined according to the methodology identified in BMC § 17.82.300 and identifying the location of the proposed activity. The administrator may require that the delineated wetland boundaries be surveyed by a professional land surveyor and the results of said survey be provided to the city in a digital format acceptable to the city.

A wetland community description and classification (rating) prepared according to the classification system identified in BMC § 17.82.310.

An assessment of wetland functions and values which addresses the following: soils, vegetation, hydrology, fish and wildlife habitat, water quality, and aesthetics.

Mitigation plan demonstrating how the proposed project (including any proposed mitigation) is able to mitigate impacts to wetlands in conformance with the mitigation sequence outlined in BMC § 17.82.260, the performance requirements set forth in BMC § 17.82.340 and the mitigation requirements set forth at BMC § 17.82.360.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.340 Wetland performance requirements.

Basic Requirement. Except as otherwise allowed pursuant to this chapter, development or other regulated activities are prohibited within a regulated wetland or its standard buffer unless the detailed study demonstrates that the proposal will not degrade the functions and values of the subject wetland and buffer or that all impacts to these areas will be fully mitigated. Mitigation shall include avoiding, minimizing and/or compensating for adverse impacts to regulated critical areas pursuant to BMC § 17.82.260(B). The following requirements shall apply:

Regulated Activities
Category I Wetlands	•	Buffer reduction or averaging is prohibited unless determined to be substantially in the public interest and no other viable alternatives exist.
Category II Wetlands	•	Regulated activities are prohibited within this wetland and its standard buffer, except as indicated in BMC § 17.82.100 through 17.82.150 and 17.82.350.
	•	Buffer width alteration is only permitted pursuant to subsection (D) of this section and BMC § 17.82.360.
	•	Filling of a Category II wetland is only permitted when all impacts are compensated through implementation of a mitigation plan consistent with the requirements for a Category II wetland as set forth in BMC § 17.82.360.
Category III Wetlands	•	Regulated activities are prohibited within this wetland and its standard buffer, except as indicated in BMC § 17.82.100 through 17.82.150 and 17.82.350.
	•	Buffer width alteration is only permitted pursuant to subsection (D) of this section and BMC § 17.82.360.
	•	Filling of a Category III wetland is permitted when all impacts are compensated at the expense of the developer through implementation of a mitigation plan consistent with the requirements for a Category III wetland as set forth in BMC § 17.82.360.
Category IV Wetlands	•	Regulated activities are prohibited within a Category IV wetland and its standard buffer, except as indicated in BMC § 17.82.100 through 17.82.150 and 17.82.350.
	•	Buffer width alteration is only permitted pursuant to subsection (D) of this section and BMC § 17.82.360.
	•	Filling of a Category IV wetland is permitted when all impacts are compensated at the expense of the developer through implementation of a mitigation plan consistent with the requirements set forth in BMC § 17.82.360.
	•	Fill or disturbance of a documented Category IV wetland under 2,500 sq. ft. shall be mitigated using an approved stormwater system. Under this condition, the requirements set forth in BMC § 17.82.360 do not apply.

Standard Buffers. The following standard buffers shall be established for all wetlands based on classification (rating) and level of function for wildlife habitat. Standard buffers are assumed to be comprised of a relatively intact native vegetation community that is adequate to protect the functions and values of the wetland at the time of the proposed activity.

High level of function for wildlife habitat (wetlands with habitat function scores of 29 or greater on the wetland rating form).
Wetland Category	Standard Buffer Width
Category I	250 feet
Category II	150 feet
Category III	100 feet
Category IV	50 feet

Moderate level of function for wildlife habitat (wetlands with habitat function scores of 20 to 28 on the wetland rating form).
Wetland Category	Standard Buffer Width
Category I	150 feet
Category II	125 feet
Category III	75 feet
Category IV	50 feet

Low level of function for wildlife habitat (wetlands with habitat function scores of 19 or less on the wetland rating form).
Wetland Category	Standard Buffer Width
Category I	100 feet
Category II	75 feet
Category III	50 feet
Category IV	25 feet

Wetland Buffers. Wetland buffers are upland areas adjacent to wetlands that are intended to provide sufficient separation between the aquatic feature and the surrounding areas and uses to protect the wetlands from disturbance from human activities. Buffers also provide vital upland habitat for wildlife species that require wetlands as part of their life cycle. Buffers shall be measured horizontally in a landward direction from the delineated wetland edge.

Buffer Averaging or Reduction (See BMC § 17.82.270).

If the applicant proposes to in any way alter any portion of the standard buffer, then the applicant shall submit a critical area detailed study, pursuant to BMC § 17.82.230 and 17.82.330, that demonstrates how the reduced buffer along with any proposed mitigation will be sufficient to adequately protect the critical area functions and values.

Proposed mitigation shall be based on and incorporated into a mitigation plan prepared by a qualified biologist consistent with the requirements established in BMC § 17.82.360.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.350 Activities allowed in wetlands and wetland buffers.

The following activities may be permitted in wetlands and/or wetland buffers as specified without the issuance of a critical areas variance or reasonable use exception when all reasonable measures have been taken to avoid adverse effects on wetland functions and values, compensatory mitigation is provided for all unavoidable adverse impacts to wetlands, and the amount and degree of alteration are limited to the minimum needed to accomplish the project purpose:

Surface water discharge into Category II, III, and IV wetlands and their buffers and/or Category I wetland buffers when no other alternatives for discharge are feasible and the discharge is designed to minimize physical, hydrologic and ecological impacts to the wetland and its water quality.

Utility lines in Category II, III, and IV wetlands and their buffers and/or Category I wetland buffers when the following criteria are met:

No feasible conveyance alternative is available;

The project is designed and constructed to minimize physical, hydrologic and ecological impacts to the wetland and wetland buffer;

The utility line is located as far from the wetland edge as possible and in a manner that minimizes disturbance of soils and vegetation;

Clearing, grading, and excavation activities are limited to the minimum necessary to install the utility line, and the area is restored following utility installation; and

Buried utility lines are constructed in a manner that prevents adverse impacts to subsurface drainage, such as through the use of trench plugs.

Public roads, bridges, and trails in Category II, III, and IV wetlands and their buffers and/or Category I wetland buffers when no feasible alternative alignment is available and the facility is designed and constructed to minimize physical, hydrologic and ecological impacts to the wetland, including placement on elevated structures as an alternative to fill, where feasible.

Stormwater management facilities such as rain gardens, biofiltration swales or infiltration basins, within a Category III or IV wetland buffer where the criteria in subsections (D)(1) through (D)(6) of this section are met, and within a Category II wetland buffer only where the criteria in subsections (D)(1) through (D)(7) of this section are met.

No other feasible alternative location exists;

The facility is located within the outer 25 percent of the buffer;

The proposal, with mitigation, will have no net loss of the functions and values of the critical area and its buffer based upon a mitigation plan developed as part of a critical area detailed study based upon the best available science;

The facility is located, constructed, and maintained in a manner that minimizes adverse effects on the buffer and adjacent wetland;

The stormwater facility is the type of stormwater facility identified in the applicable city and state guidelines for uses within a wetland buffer. (Interpreter's Note: these guidelines are intended to include the following documents: the Department of Ecology's Wetlands in Washington, Volume 2, including Appendix 8-B; and the Department of Ecology's Stormwater Management Manual for Western Washington, Washington State Department of Ecology, 2005, all volumes);

Low impact development approaches have been considered and implemented to the maximum extent feasible; and

Notwithstanding the foregoing, such stormwater management facilities are allowed in the buffer of a Category II wetland only where, in addition to criteria in subsections (D)(1) through (D)(6) of this section, the above facilities: (a) are part of a regional stormwater management system owned and operated by the city of Blaine and located within the Cain Creek watershed; (b) have obtained approval from all regulatory agencies; and (c) where, after mitigation on or off site, there is no net loss to the functions and values of the critical area and its buffer as established in an approved critical area detailed study and mitigation plan based upon the best available science, consistent with BMC § 17.82.360.

Stormwater conveyance or discharge facilities such as dispersion trenches, level spreaders, and outfalls within a Category II, III, or IV wetland buffer where the following criteria are met:

Due to topographic or other physical constraints, there is no feasible location for the facility outside the buffer;

The discharge facility is located as far from the wetland edge as possible and is designed and constructed in a manner that minimizes disturbance of soils and vegetation;

The discharge outlet is designed to prevent erosion and promote infiltration where feasible;

The discharge water meets state water quality standards; and

Low impact development approaches have been considered and implemented to the maximum extent feasible.

Passive recreation facilities that are part of a nonmotorized trail system or environmental education program including walkways, wildlife viewing structures, and trails, in wetland buffers; provided, that all of the following criteria are met:

Trails shall not exceed 10 feet in width and shall be made of pervious material where feasible;

A minimum buffer of 15 feet is maintained between the trail or facility and the wetland edge;

The trail or facility is constructed and will be maintained in a manner that minimizes disturbance of the buffer and the adjacent wetland.

(Ord. 2729 § 2 (Exh. A), 2009; Ord. 2762 § 2(4), 2010)

§ 17.82.360 Wetland mitigation requirements.

When a regulated activity is proposed within a wetland or wetland buffer, the applicant shall demonstrate to the satisfaction of the administrator that all reasonable efforts have been made to avoid, minimize and/or compensate for potential impacts consistent with the mitigation sequence established at BMC § 17.82.260(B). (Use the state-approved manual, Wetland Mitigation in Washington State, Part 1: Agency Policies and Guidance (DOE 3/12).)

Except as otherwise directed in this chapter, all projects that result in permanent loss or degradation of wetland functions and values due to a proposed reduction in wetland area shall provide compensatory mitigation to offset proposed actions.

Mitigation Ratios. The following ratios shall be used as a guide to determine the acreage of wetland to be created, restored or enhanced in relation to the acreage of wetland area lost:

Wetland Category	Area Created : Area Lost				Area Enhanced : Area Lost
Wetland Category	Cat. IV	Cat. III	Cat. II	Cat. I	Cat. IV	Cat. III	Cat. II	Cat. I
Category I				6:1				12:1
Category II – forested			3:1				6:1
Category II – scrub/shrub or emergent			2:1				4:1
Category III		2:1	1.5:1			3:1	2:1
Category IV		1:1				2:1	1:1

Compensatory mitigation in a location within the Cain Creek basin may be used as an alternative to on-site or same-watershed compensatory mitigation.

All wetlands created, restored or enhanced as part of compensatory mitigation required pursuant to this chapter shall be provided with buffers of sufficient size to protect their functions and values.

All mitigation areas shall be protected and managed to prevent degradation and ensure long-term protection of critical area functions and values. Permanent protection shall be achieved through deed restriction, protective covenant or other protective measure pursuant to BMC § 17.82.290.

Mitigation Plan. Where preparation of a mitigation plan is required (see BMC § 17.82.230), said plan shall be prepared by a qualified wetland biologist consistent with the Department of Ecology guidance document, Guidance on Wetland Mitigation in Washington State, and shall be approved by the administrator. The mitigation plan shall be prepared based on the best available science and shall address the following:

The characteristics of the wetland;

The characteristics of the watershed contributing to the wetland;

The functions and values of the wetland to be protected by the buffer;

The characteristics of the buffer;

The intensity of the proposed adjacent land use;

The functions that the standard buffer is intended to provide at the specific location;

Proposed measures to reduce the adverse effects of adjacent land uses, such as lighting and noise restrictions, buffer fencing and signage, conservation easements, use of integrated pest management and limitations on application of pesticides, and use of low impact development techniques;

Proposed mitigation measures together with an analysis of the anticipated effectiveness of the proposed mitigation measures to protect the functions and values of the affected wetland and wetland buffer;

Proposed monitoring, maintenance and reporting necessary to ensure the effectiveness of the proposed mitigation; and

10.

Proposed bonding to ensure the completion and effectiveness of the proposed mitigation including monitoring, maintenance, and reporting.

Completion of Mitigation. Where feasible, initial phases of mitigation projects shall be completed prior to activities that will disturb wetland or buffer areas. In all other cases, mitigation shall be completed as quickly as possible following disturbance and prior to use or occupancy of the activity or development unless such timing is found to be infeasible due to factors such as the optimal time of year or hydrologic conditions for planting. The administrator may require the posting of a performance bond or other form of surety to ensure that all required mitigation, including required monitoring and repair, is completed in a timely fashion and consistent with the approved mitigation plan.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.370 Fish and wildlife habitat conservation areas designation.

Areas that meet any of the following criteria shall be designated as fish and wildlife habitat conservation areas (HCA) and shall be subject to the provisions of this chapter:

Rivers, streams and creeks identified as waters of the state pursuant to WAC Title 222.

Areas with which federally and/or state listed species have a primary association.

State priority habitats and areas with which state priority species have a primary association.

Commercial and recreational shellfish areas, including designated shellfish habitat conservation areas.

Kelp and eelgrass beds.

Surf smelt, Pacific herring, and Pacific sand lance spawning areas.

Naturally occurring lakes over 20 acres and other waters of the state, including marine waters, and waters planted with game fish by a government or tribal entity.

Natural area preserves and natural resource conservation areas.

Habitats and species of local importance established by the city of Blaine pursuant to this chapter.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.380 Fish and wildlife habitat conservation areas (HCA) classification.

Fish and wildlife habitat conservation areas shall be classified as follows:

Class A Streams. Class A streams shall include those rivers, streams and creeks identified and regulated as shorelines of the state pursuant to Chapter 90.58 RCW, the Shoreline Management Act, and are subject to the city of Blaine shoreline management master program.

Class B Streams. Class B streams shall include all other fish-bearing streams not included in Class A streams that are known or have potential use by anadromous or resident fish species.

Class C Streams. Class C streams shall include all other streams that have no known or potential use by anadromous or resident fish species.

Marine Habitats. Marine habitats include those marine water areas identified and regulated as shorelines of the state pursuant to Chapter 90.58 RCW, the Shoreline Management Act, and subject to the city of Blaine shoreline management master program.

Upland Wildlife Habitats. Upland wildlife habitats shall include those upland areas with which threatened, endangered or sensitive species have a primary association.

Natural Area Preserves and Natural Resource Conservation Areas. Natural area preserves and natural resource conservation areas shall include areas designated as such.

Habitats of Local Importance. Habitats of local importance shall include those habitats with which species of local importance have a primary association as designated by the Blaine city council.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.390 Fish and wildlife habitat conservation area indicators.

The administrator shall use the following as indicators of the potential presence of a fish and wildlife HCA and the need for a fish and wildlife HCA detailed study:

The proposed development site is located within an area listed as a fish and wildlife HCA in the city critical area maps;

Documentation through any public resource information source that a fish and wildlife HCA exists on or adjacent to the proposed development site;

A finding by a qualified fisheries or wildlife biologist that the presence of a fish and wildlife HCA is likely.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.400 Fish and wildlife habitat conservation areas detailed study requirements.

A fish and wildlife HCA detailed study shall be prepared by a qualified fish and/or wildlife biologist and shall include the following:

Project description;

Identification of the type, location and extent of the habitat area on or abutting the project site;

A habitat description and assessment of the functions and values of the habitat area, including a discussion of the species in question and the related plant and animal species, soils and hydrology;

A regulatory analysis, including a discussion of any federal, state, tribal and/or local requirements or management recommendations that have been developed for the species and/or habitats in question;

A mitigation plan, including a discussion of how the proposal and any proposed mitigation measures are sufficient to avoid or minimize adverse impacts to identified species and habitats.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.410 Fish and wildlife habitat conservation areas (HCA) performance requirements.

Basic Requirement. A regulated fish and wildlife HCA or its standard buffer shall only be altered if the detailed study demonstrates that the proposal will not degrade the functions and values of the subject habitat and buffer or that all impacts to these areas will be mitigated.

HCA Buffers. HCA buffers are upland areas adjacent to fish and wildlife HCAs that are intended to provide sufficient separation between the habitat feature and the surrounding areas and uses to protect the habitat from disturbance from human activities. Buffers also provide vital upland habitat for wildlife species that require aquatic or riparian habitat as part of their life cycle. Buffers shall be measured horizontally in a landward direction from the ordinary high-water mark for stream and marine habitats and from the outermost edge of upland habitat areas.

Standard HCA Buffers. The following standard buffers shall be established for the following fish and wildlife HCAs based on designation and classification. Standard buffers are assumed to be comprised of a relatively intact native vegetation community that is adequate to protect the functions and values of the resource at the time of the proposed activity.

Stream Habitat Conservation Areas – Standard Buffers. The following standard buffers shall be established for all stream habitat conservation areas based on their classification:

Habitat Conservation Area	Standard Buffer from OHWM
Class A Stream	Not regulated under this chapter. See shoreline management program
Class B Stream	100 feet
Class C Stream	50 feet or the top of the defined channel plus 10 feet, whichever is greater

Nonstream Habitat Conservation Areas. The administrator shall determine the appropriate buffer widths for other habitat conservation areas based on the best available information. Buffer widths for nonstream habitat conservation areas shall be as set forth in the following table:

Habitat Conservation Area	Standard Buffer
Marine Habitats; Commercial and Recreational Shellfish Areas; Kelp and Eelgrass Beds; and Surf Smelt, Pacific Herring, and Pacific Sand Lance Spawning Areas	See shoreline management program.
Areas with which federally listed species have a primary association; and state priority habitats.	Buffers shall be based on recommendations provided by the Washington Department of Fish and Wildlife PHS Program; provided, that local and site specific factors shall be taken into consideration and the buffer width based on the best available information concerning the species/habitat(s) in question and/or the opinions and recommendations of a qualified professional with appropriate expertise.
Natural Area Preserves and Natural Resource Conservation Areas	No buffer requirement.
Habitats of Local Importance	No habitats or species of local importance have been established by the Blaine city council prior to or through the adoption of this chapter. Buffers for any habitats and species of local importance subsequently designated by the city council shall be consistent with the buffer requirements established by the city council through formal amendment of this chapter.

Residences in Developed Neighborhoods. Where established residential development currently exists, the buffer and setback requirements for a new single-family residence shall be established as that straight line between existing houses on each side of the property or, if this condition does not exist, the average setback of four existing residences within 300 feet of the proposed development site.

Limitation on Subdivision. Properties located partially or wholly within a fish and wildlife habitat conservation area or buffer shall not be subdivided in such a way that would increase the impacts to the resource that would result from development of the proposed lots or parcels.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.420 Activities allowed within fish and wildlife habitat conservation areas.

The following activities may be permitted in fish and wildlife habitat conservation areas and/or their buffers as specified without the issuance of a critical areas variance or reasonable use exception when all reasonable measures have been taken to avoid adverse effects on the functions and values of the resource, mitigation is provided for all unavoidable adverse impacts, and the amount and degree of alteration are limited to the minimum needed to accomplish the project purpose:

Surface water discharge into habitat conservation areas and their buffers when no other alternatives for discharge are feasible and the discharge is designed to minimize physical, hydrologic and ecological impacts to critical areas.

Utility lines in habitat conservation areas and their buffers when the following criteria are met:

No feasible conveyance alternative is available;

The project is designed and constructed to minimize physical, hydrologic and ecological impacts to the habitat conservation area and associated buffer;

The utility is located within an existing road or utility corridor, where available;

The utility line is located as far from the habitat conservation area edge as possible and in a manner that minimizes disturbance of soils and vegetation;

Clearing, grading, and excavation activities are limited to the minimum necessary to install the utility line and the area is restored following utility installation;

Buried utility lines are constructed in a manner that prevents adverse impacts to subsurface drainage, such as through the use of trench plugs.

Public roads and trails within habitat conservation area buffers when the following criteria are met:

No feasible alternative alignment is available that would provide less impact;

The road or trail is constructed and maintained in a manner that minimizes disturbance of the buffer and associated critical areas;

The crossing minimizes erosion and sedimentation, alteration of hydrologic processes, and disruption of natural processes such as channel migration, the downstream movement of wood and gravel, and the movement of all fish and wildlife;

Opportunities for deviations from technical standards for width or other dimensions have been fully explored and incorporated into the project design.

Public road, trail and bridge crossings when the following criteria are met:

No feasible alternative crossing location or alignment is available that would provide less impact;

The crossing is constructed and maintained in a manner that minimizes disturbance of the critical area and associated buffer;

The crossing minimizes interruption of natural processes such as channel migration, the downstream movement of wood and gravel, and the movement of all fish and wildlife;

Bridges are preferred for all stream crossings and should be designed to maintain the existing stream substrate and gradient, provide adequate horizontal clearance on each side of the ordinary high-water mark, and provide adequate vertical clearance above the ordinary high-water mark;

Culverts shall be designed according to applicable state and federal guidance criteria for fish passage as identified in Fish Passage Design at Road Culverts (WDFW March 1999), and/or the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings (2000), (and subsequent revisions);

Any existing culvert that is detrimental to fish passage is corrected or replaced;

Crossings are limited to the minimum width necessary, and joint crossings are utilized where multiple properties can be accessed by one crossing; and

Opportunities for deviations from technical standards for width or other dimensions have been fully explored and incorporated into the project design.

Stormwater management facilities, limited to detention/retention/treatment ponds, media filtration facilities, and lagoons or infiltration basins, within a habitat conservation area buffer where the following criteria are met:

No other feasible alternative location exists;

The width of the buffer between the stormwater facility and the edge of the habitat conservation area is not less than 25 feet;

The facility is located, constructed, and maintained in a manner that minimizes adverse effects on the buffer and adjacent habitat area;

The stormwater facility meets applicable city or state stormwater management standards; and

Low impact development approaches have been considered and implemented to the maximum extent feasible.

Stormwater conveyance or discharge facilities such as dispersion trenches, level spreaders, and outfalls within a habitat conservation area buffer where the following criteria are met:

Due to topographic or other physical constraints, there is no feasible location for the facility outside the buffer;

The discharge facility is located as far from the edge of the habitat conservation area as possible and is designed and constructed in a manner that minimizes disturbance of soils and vegetation;

The discharge outlet is designed to prevent erosion and promote infiltration where feasible;

The discharge water meets state water quality standards; and

Low impact development approaches have been considered and implemented to the maximum extent feasible.

Relocation of streams, or portions of streams, when there is no other feasible alternative and when the relocation will result in equal or better habitat and water quality and quantity, and will not diminish the flow capacity of the stream or other natural stream processes.

Stream bank stabilization and shoreline protection projects when the following criteria are met:

Natural shoreline processes will be maintained to the maximum extent practicable;

The activity will not result in increased erosion and will not alter the size or distribution of shoreline or stream substrate, or eliminate or reduce sediment supply from feeder bluffs;

No alteration of juvenile fish migration corridors will occur;

No net loss of intertidal or riparian habitat function will occur;

Use of nonstructural measures, such as placing or relocating the development farther from the shoreline, planting vegetation, or installing on-site drainage improvements, is not feasible or will not be sufficient;

Use of bioengineering or soft armoring techniques is preferred over use of hard bank armoring, which may occur only when the property contains an existing permanent structure(s) that is in danger from shoreline or stream bank erosion caused by wave action or riverine processes; and

Bank stabilization or shore protection will not adversely affect habitat conservation areas or mitigation will be provided to compensate for adverse effects where avoidance is not feasible.

Construction, reconstruction, repair and maintenance of docks and public or private launching ramps where the following criteria are met:

The dock or ramp is located and oriented and constructed in a manner that minimizes adverse effects on navigation, wave action, water quality, movement of aquatic and terrestrial life, ecological processes, eelgrass beds, shellfish beds, spawning habitat and wetlands;

Natural shoreline processes will be maintained to the maximum extent practicable;

The activity will not result in increased erosion and will not alter the size or distribution of shoreline or stream substrate, or eliminate or reduce sediment supply from feeder bluffs;

No alteration of juvenile fish migration corridors will occur; and

No net loss of riparian habitat function will occur.

Passive recreation facilities that are part of a nonmotorized trail system or environmental education program including walkways, wildlife viewing structures, and trails, in habitat conservation area buffers; provided, that the following criteria are met:

Trails shall not exceed 10 feet in width and shall be made of pervious material where feasible;

A minimum buffer of 15 feet is maintained between the trail or facility and the edge of the habitat conservation area; and

The trail or facility is constructed and will be maintained in a manner that minimizes disturbance of the buffer and the adjacent resource.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.430 Fish and wildlife habitat conservation area mitigation requirements.

When a regulated activity is proposed within a fish and wildlife habitat conservation area or its associated buffer, the applicant shall demonstrate to the satisfaction of the administrator that all reasonable efforts have been made to avoid, minimize and/or compensate for potential impacts consistent with the mitigation sequence established at BMC § 17.82.260(B).

All projects that result in permanent loss or degradation of habitat functions and values due to a proposed reduction in a habitat conservation area or buffer area shall provide compensatory mitigation to offset proposed actions.

Compensatory mitigation shall be provided on site or off site in the location that will provide the greatest ecological benefit and have the greatest likelihood of success; provided, that mitigation occurs as close as possible to the impact area and within the same watershed as the permitted alteration. This provision may be waived upon demonstration through a watershed- or landscape-based analysis that mitigation within an alternative sub-basin of the same basin or within an approved mitigation bank would have the greatest ecological benefit and the greatest likelihood of success.

All habitat conservation areas created, restored or enhanced as part of compensatory mitigation required pursuant to this chapter shall be provided with buffers of sufficient size to protect their functions and values.

Mitigation Plan. Where preparation of a mitigation plan is required, said plan shall be prepared by a qualified fisheries, wildlife or natural resource biologist and shall be approved by the administrator. The mitigation plan shall be prepared based on the best available science and shall address the following:

The characteristics of the habitat conservation area;

The characteristics of the watershed within which the habitat area is located;

The functions and values of the habitat conservation area to be protected by the buffer;

The characteristics of the buffer;

The functions that the standard buffer is intended to provide at the specific location;

The intensity of the proposed adjacent land use;

Proposed monitoring, maintenance and reporting necessary to ensure the effectiveness of the proposed mitigation; and

10.

Proposed bonding to ensure the completion and effectiveness of the proposed mitigation including monitoring, maintenance, and reporting.

Completion of Mitigation. Where feasible, mitigation projects shall be completed prior to activities that will disturb habitat conservation areas or buffers. In all other cases, mitigation shall be completed as quickly as possible following disturbance and prior to use or occupancy of the activity or development unless such timing is found to be infeasible due to factors such as the optimal time of year for planting or as a result of other construction or ecological constraints. The administrator may require the posting of a performance bond or other form of surety to ensure that all required mitigation, including required monitoring and repair, is completed in a timely fashion and consistent with the approved mitigation plan.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.440 Geologically hazardous areas designation.

Areas that meet any of the classification criteria established in BMC § 17.82.450 shall be designated as geologically hazardous areas and shall be subject to the provisions of this article.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.450 Geologically hazardous areas classification.

Geologically hazardous areas shall be classified as landslide hazard areas, erosion hazard areas, seismic hazard areas, and tsunami hazard areas based on the following criteria.

Landslide Hazard Areas. Landslide hazard areas shall include:

Active landslide hazard areas that meet any of the criteria specified under subsection (A)(2) of this section, that have been identified through observation by the administrator or through a detailed study prepared by a qualified consultant.

Potential landslide hazard areas that meet any of the following criteria:

Areas with a slope exceeding 15 percent that have a relatively permeable geologic unit overlying a relatively impermeable unit and have springs or groundwater seeps;

Areas with a slope inclination greater than 35 percent with a vertical relief of 10 or more feet except where comprised of competent bedrock;

Areas with a slope gradient steeper than 80 percent subject to rock fall during seismic shaking;

Potentially unstable slopes resulting from rapid river or stream incision, river or stream bank erosion, or undercutting by wave action;

Areas that show past sloughing or calving of bluff sediments, resulting in a vertical or steep bluff face with little or no vegetation;

Areas that have shown evidence of historic failure or instability, including, but not limited to, back-rotated benches on slopes; areas with structures that exhibit structural damage such as settling and cracking of building foundations; and areas that have toppling, leaning, or bowed trees caused by ground surface movement;

Areas of historical landslide movement including coastal shoreline areas mapped by the Department of Ecology Coastal Zone Atlas or the Department of Natural Resources slope stability mapping as unstable ("U" or class 3), unstable old slides ("UOS" or class 4), or unstable recent slides ("URS" or class 5).

Erosion Hazard Areas. Erosion hazard areas shall include:

Surface erosion areas, which include areas with slopes greater than 15 percent and with soils identified by the Natural Resources Conservation Service as having a severe or very severe rill and inter-rill erosion hazard because of natural characteristics, including vegetative cover, soil texture, slope, gradient, and rainfall patterns, or human-induced changes to natural characteristics; and

Coastal and riverine erosion areas, which are subject to impacts from lateral erosion related to moving water such as river channel migration and shoreline retreat. These areas include those areas mapped by the Federal Emergency Management Agency as being located in the 100-year floodplain or mapped as being within any A or V zone.

Seismic Hazard Areas. Seismic hazard areas shall include:

Areas where manmade fill or partially decomposed organic material averages at least five feet in depth;

Filled wetlands;

Alluvial deposits or fill areas subject to liquefaction during severe shaking.

Tsunami Hazard Areas. Tsunami hazard areas shall include coastal areas susceptible to flooding, inundation, debris impact, and/or mass wasting as the result of coastal wave action generated by seismic events.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.460 Geologically hazardous areas indicators.

The administrator shall use the following as indicators of the potential presence of a geologically hazardous area and the need for a geologically hazardous area detailed study:

The proposed development site is located within 50 feet of an area listed as a geologically hazardous area on the city critical area maps;

Documentation through any public resource information source that a geologically hazardous area exists on or within 50 feet of the proposed development site;

A finding by a qualified geologist or geotechnical engineer that the presence of a geologically hazardous area is likely on or within 50 feet of the proposed development site.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.470 Geologically hazardous areas detailed study requirements.

A geologically hazardous area detailed study shall be prepared by a qualified geologist or geotechnical engineer and shall include the following:

Project description.

Identification of the type, location and extent of the hazard area on the project site plan.

An assessment of the geologic and engineering characteristics of the proposed sites.

A geotechnical analysis of the project in relation to the proposed site, including discussion of potential impacts on the hazard area, the project site and adjacent properties.

A mitigation plan, including documentation of preparation or concurrence by a professional engineer, discussing how the project has been designed to avoid or minimize risks associated with the identified hazard area.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.480 Geologically hazardous areas performance requirements.

Basic Requirement. Alteration of a geologically hazardous area or a site within 50 feet of such area shall only be permitted if the detailed study indicates that the project has been designed such that the risks associated with the hazard area have been reduced to within acceptable levels. Such mitigation of risks shall be certified by a qualified geologist or geotechnical engineer. The administrator shall have the authority to have the certification provided by the qualified consultant reviewed and confirmed by the public works administrator and/or a qualified, third-party consulting engineer.

Wherever possible, proposed developments or alternations shall be located on portions of sites or parcels that are outside of areas potentially impacted by geologically hazardous areas.

The administrator shall have the authority to establish vegetated buffers and/or setbacks from a hazard area based on the findings prepared by the qualified consultant or based on other information available to the administrator. In those areas where the administrator determines that a buffer and/or setback from a geologically hazardous area is necessary, the standard vegetated buffer shall be 25 feet from the top, sides and toe of the hazard area and the standard setback shall be 25 feet from the outer edge of the buffer for a total setback from the hazard area of 50 feet, except where information supporting a lesser buffer or setback is provided in the detailed study.

Properties located partially or wholly within a geologically hazardous area shall not be subdivided in such a way that would increase the hazard posed by development of the proposed lots or parcels.

Activities proposed within landslide hazard areas shall demonstrate all of the following:

The proposed alteration shall not cause any increase in surface water discharge or sedimentation to other properties;

The proposed alteration shall not decrease slope stability on or off the site;

Disturbance of trees and other vegetation shall be minimized to reduce erosion and maintain slope stability;

Structures shall conform to the natural contour of the slope, and foundations shall be designed to conform generally to the existing topography of the site;

Where allowed by the underlying zoning, structures shall be clustered to reduce impacts; and

Structures and improvements shall be located to preserve the most sensitive portion of the site and its natural landforms and vegetation.

Seismic Hazard Areas. The building of structures within a seismic hazard area shall conform to the requirements established in the International Building Code.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.490 Aquifer recharge area designation.

Aquifer recharge areas shall be designated based on meeting any one of the following criteria:

Wellhead protection areas designated per Chapter 246-290 WAC;

Sole source aquifers designated by the U.S. EPA per the Federal Safe Drinking Water Act;

Areas designated for special protection as part of a groundwater management program per Chapter 90.44, 90.48, or 90.58 RCW or Chapter 173-100 or 173-200 WAC; or

Areas overlying unprotected aquifers used as a source of potable water.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.495 Exemption from review requirements.

The following development activity and associated uses and activities shall be exempt from the review procedures and regulatory requirements established in this article:

Single-family, duplex or attached single-family construction.

Any activity exempt from SEPA review.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.500 Aquifer recharge area detailed study requirements.

All proposals within a designated aquifer recharge area with high recharge potential shall require preparation of an aquifer recharge area detailed study.

All proposals within a designated aquifer recharge area with medium recharge potential shall require preparation of an aquifer recharge area detailed study when it is determined to be a major development permit or there is reasonable evidence that indicates the activity could pose an adverse impact on the underlying aquifer system.

An aquifer recharge area detailed study shall be prepared by a qualified consultant with experience in preparing hydrogeologic site assessments. Evidence of these qualifications shall be included with the detailed study.

The detailed study shall identify the existing hydrogeologic conditions of the project site and the proposed activity's potential to result in contamination of groundwater resources.

The detailed study shall also identify proposed mitigation measures necessary to reduce potential impacts to groundwater resources.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.510 Aquifer recharge area performance requirements.

Activities requiring preparation of an aquifer recharge area detailed study shall only be permitted if the detailed study indicates that the activity does not pose a threat to the underlying aquifer system and will not adversely affect groundwater resources used as a source of potable water. The administrator shall establish mitigating conditions necessary to ensure protection of groundwater resources.

Storage of hazardous materials within the city's wellhead protection area or within adjacent areas potentially affecting this area is prohibited.

Stormwater discharge facilities, whether utilizing surface outfall or subsurface infiltration, shall be designed, constructed and maintained to ensure that such facilities do not adversely impact the city's source of potable water.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.520 Frequently flooded areas designation.

Frequently flooded areas shall include those areas identified as areas of special flood hazard by the Federal Emergency Management Agency on the flood insurance rate maps for the city of Blaine.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.530 Frequently flooded areas performance requirements.

Development and alterations within frequently flooded areas shall comply with the flood hazard regulations of the city of Blaine, Chapter 17.86 BMC.

Subdivisions of land that include frequently flooded areas shall include the following notification on all recorded documents:

The structures on this property are located in an area that may be subject to inundation by floodwaters. For further information regarding this potential hazard, please contact the Federal Emergency Management Agency, the Whatcom County Emergency Services office, or the City of Blaine.

(Ord. 2729 § 2 (Exh. A), 2009)

§ 17.82.540 Definitions.

"Abut"

means to touch or border upon. A piece of land bordering on a street or an adjoining property is said to abut such street or property.

"Administrator"

means the community development director or his or her designee.

"Agriculture" or "agricultural activities"

means those activities directly pertaining to the production of crops or livestock including but not limited to cultivation, harvest, grazing, animal waste storage and disposal, fertilization, the operation and maintenance of farm and stock ponds, drainage ditches, irrigation systems, and canals, and normal maintenance, operation and repair of existing serviceable structures, facilities, or improved areas.

"Anadromous fish"

means fish species that ascend rivers from the sea to spawn.

"Aquifer"

means any geologic formation capable of yielding a significant amount of ground water to a well, spring or other withdrawal works in sufficient quantity for beneficial use.

"Aquifer recharge areas"

means areas where the prevailing geologic conditions allow infiltration rates which contribute significantly to the replacement of groundwater and which create a high potential for contamination of groundwater resources that serve as a source of potable water supplies.

"Artificial watercourse"

means ditches and other water conveyance systems, not constructed from natural watercourses, which are artificially constructed and actively maintained for irrigation and drainage. Artificial watercourses include lateral field ditches used to drain farmland where the ditch did not replace a natural watercourse.

"Best available science"

means information gathered, analyzed and presented based on professional experience, expertise and judgment, and established scientific principles and practices. Such principles and practices include peer review, use of scientific methodology, logical analysis and reasonable inference, statistical analysis, rigorous referencing within the scientific literature, and conclusions drawn from within an accepted scientific framework and placed in an appropriate scientific context.

"Best management practices (BMP)"

means physical or structural tools and/or management practices which, when used singularly or in combination, prevent or reduce adverse impacts to critical areas or their buffers.

"Biologist"

means a person having specific relevant expertise who has a minimum of a Bachelor of Science degree in biological sciences or a related field from an accredited college or university or equivalent relevant training in fish and wildlife biology and substantial demonstrated experience as a practicing biologist.

"Buffer" or "buffer area"

means a naturally vegetated, undisturbed or revegetated zone immediately adjacent to a critical area that helps protect the critical area from adverse impacts to its functions and values or that helps provide the margin of safety necessary to minimize risk to the public.

"Compensatory mitigation"

means replacing project-induced losses or adverse impacts to critical areas and includes, but is not limited to, restoration, creation, or enhancement.

"Creation"

means actions intentionally performed to establish a critical area, or a portion of a critical area, where one did not formerly exist.

"Critical area designation"

means legal identification and specification of critical areas for regulatory purposes.

"Critical area detailed study"

means a thorough investigation of a proposed activity and the critical area(s) it may impact as required by this chapter.

"Critical area indicators"

means site-specific features such as vegetation, soils, hydrology, topography or other environmental features established through a site visit or other means that indicate that critical areas are or may be present at a particular location. For critical areas such as aquifer recharge areas, where indicators cannot be identified through a site visit, indicators may be identified through use of critical area maps or other resources.

"Critical area review"

means the administrative and investigative process for decision making by the city on authorizations required by this chapter. The process begins with the filing of an application for an activity within the jurisdiction of this chapter and concludes with the final critical areas determination.

"Critical areas"

means the following areas as required by Chapter 36.70A RCW and WAC 365-190-080, and as defined and regulated in this chapter: wetlands, geologically hazardous areas, frequently flooded areas, fish and wildlife habitat conservation areas, and aquifer recharge areas.

"Delineation"

means the precise determination of wetland boundaries in the field according to the application of specific methodology as described in the Washington State Wetlands Identification and Delineation Manual, Washington State Department of Ecology Publication No. 96-94, and the U. S. Army Corps 1987 Wetland Delineation Manual and Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region.

"Drainage"

means the collection, conveyance, containment, and/or discharge of surface and stormwater runoff.

"Drainage ditch"

means an artificial watercourse constructed to drain surface or ground water.

"Endangered species"

means a species, native to the state of Washington, which is designated by the responsible state or federal fish or wildlife agency as endangered.

"Enhancement"

means an action which improves a critical area's functions or values.

"Final critical areas determination"

means the determination by the administrator that a regulated activity, as proposed or conditioned, is or is not adequate to mitigate potential impacts to affected critical areas and comply with applicable performance requirements. The determination will be either favorable or unfavorable, indicating that the proposed activity is or is not authorized.

"Fish and wildlife habitat conservation areas"

(HCA) means:

Areas with which endangered, threatened, and sensitive species have a primary association;

Habitats and species of local importance that have been designated by the city at the time of application;

Waters of the state as defined by Chapter 222-16 WAC;

Areas with which anadromous fish species have a primary association; and

Streams and rivers planted with game fish by a governmental or tribal entity.

"Frequently flooded areas"

means areas of special flood hazard as designated and regulated pursuant to Chapter 17.86 BMC.

"Functions"

means those natural processes performed by a critical area and its components.

"Geologically hazardous areas"

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

"Geologist"

means a person who has received a degree in geology from an accredited college or university, or a person who has equivalent education and training and substantial demonstrated experience as a practicing geologist.

"Geotechnical engineer"

means a person who is licensed as a civil engineer with the state of Washington and who has recent, related experience as a professional geotechnical engineer.

"Groundwater"

means all waters that exist beneath the land surface or beneath the bed of any body of surface water, whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves.

"Habitat of local importance"

means a seasonal range or habitat element with which a designated species of local importance has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

"Hazard tree"

means a standing tree, either live or dead, having defects, singly or combined, in roots, butt, bole, or limb, which predispose it to mechanical failure in whole, or in part, and which is so located that such failure has a probability of injury and damage to persons and/or property.

"Initial critical areas determination"

means the determination by the administrator that a regulated activity as proposed potentially includes or does not include a critical area, or is or is not adjacent to a critical area, or would or would not have possible adverse impacts on a critical area.

"Mitigation"

means avoiding, minimizing, reducing, rectifying, eliminating or compensating for project-induced, adverse impacts to critical areas.

"Mitigation plan"

means a detailed plan indicating actions necessary to mitigate adverse impacts to critical areas.

"Modified natural watercourse"

means that segment of a natural watercourse that has been modified and is maintained by diking and drainage districts, and where such modification was not the result of an illegal action.

"National Wetland Inventory"

means an inventory that was developed by the U.S. Fish and Wildlife Service, which used aerial photography to map wetlands across the United States.

"Native vegetation"

means plant species which are indigenous to the area.

"Natural watercourse"

means any stream in existence prior to settlement that originated from a natural source. An example of a natural watercourse is a stream that originates in a wetland or upland area, flows through agricultural, rural and/or urban land, and ultimately empties into a saltwater bay or another watercourse.

"Off-site"

means action away from the site at which a critical area has been or may likely be adversely impacted by a regulated activity.

"On-site"

means action on or immediately adjacent to the site at which a critical area has been or will likely be adversely impacted by a regulated activity.

"Ongoing agriculture"

means the continuation of any existing agricultural activity as defined in this section including crop rotations.

"Ordinary high-water mark (OHWM)"

means the mark on the shores of all water which will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation; provided, that in any area where the ordinary high-water mark cannot be found, the ordinary high-water mark adjoining saltwater shall be the line of mean higher high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high-water. (WAC 173-22-030.)

"Performance requirements"

means specific, measurable criteria that a proposed development activity must conform to and that may be used to determine the degree to which said activity complies with the provisions of this chapter.

"Potable water"

means water which meets the quality standards for drinking purposes as established by the state of Washington.

"Qualified consultant"

means a person having relevant expertise through education, training and/or experience who is capable of providing the specified professional services at the level required by this chapter. Qualified consultants include fish and/or wildlife biologists, geologists or geotechnical engineers, and wetland specialists.

"Rehabilitation"

means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions of a degraded wetland. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres.

"Restoration"

means the return of a critical area or buffer to a state in which its functions and values approach its unaltered state as closely as possible.

"Riparian area"

means the portion of habitat extending from the ordinary high-water mark (OHWM) of a stream (i.e., a flowing body of water) to that part of the upland influenced by elevated water tables or flooding. It includes the area that directly influences the aquatic ecosystem (e.g., providing coarse woody debris to the stream, temperature attenuation, or filtering sediments); provided, riparian areas associated with an existing system of dikes and levees shall not extend beyond the toe of the slope on the landward side of the dike or levee structure.

"Sensitive species"

means a species native to the state of Washington, which is vulnerable or declining and is likely to become endangered or threatened in a significant portion of its range within the state without cooperative management or the removal of threats as designated by WAC 232-12-011.

"Shoreline master program"

means the shoreline master program of the city of Blaine.

"Site assessment"

means a site-specific analysis that identifies the presence of critical areas, classifies and designates each critical area, documents site conditions, analyzes project-generated impacts, and identifies appropriate mitigative measures. Site assessments include wetland reports, habitat assessments, habitat management plans, geotechnical reports, and hydrogeologic reports.

"Slope"

means an inclined earth surface, the inclination of which is expressed as the ratio of horizontal distance to vertical distance from the toe to the top of the surface. The slope may also be expressed as a percentage based on the quotient of the vertical distance divided by the horizontal distance.

"Species of local importance"

means those species that may not be endangered, threatened or sensitive from a statewide perspective, but are of local concern due to their population status, sensitivity to habitat manipulation, or other educational, cultural or historic attributes. A species shall only be considered as being of local importance upon official designation as such by the city.

"Threatened species"

means a species, native to the state of Washington, which is likely to become endangered in the foreseeable future throughout a significant portion of its range within the state without cooperative management or the removal of threats as designated by WAC 232-12-011.

"Values"

means the desirable attributes associated with a critical area and its components which contribute to public health, safety and welfare.

"Wetland" or "wetlands"

means areas that are inundated or saturated by surface water or groundwater 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. Wetlands generally include swamps, marshes, bogs, and similar areas. For the purposes of this chapter, those portions of a lake or naturally occurring pond that meet the definitional criteria for "wetland" shall be regulated under the wetland section of this chapter. 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, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands and ponds intentionally created from nonwetland areas created to mitigate conversion of wetlands.

"Wetland delineation"

means mapping wetlands and establishing a wetland edge or boundary in accordance with the manual adopted under RCW 36.70.A.175 pursuant to RCW 90.58.380 as updated.

"Wetland reconnaissance"

means a site assessment of wetlands in accordance with the methodologies stipulated in the manual adopted under RCW 36.70.A.175 pursuant to RCW 90.58.380 as updated.

"Wetland specialist"

means a person who has earned a bachelor's degree in science with specific or related course work in wetland ecology, hydrology or soils science from an accredited college or university and who has two years of professional experience in wetland delineation, functional assessment and mitigation or equivalent training and experience.

(Ord. 2729 § 2 (Exh. A), 2009)

Blaine City Zoning Code

Division 5

ENVIRONMENTAL AND CULTURAL RESOURCE MANAGEMENT

§ 17.80.010 State provisions adopted by reference.

(WAC 173-806-020)

The city adopts the following sections or subsections of Chapter 197-11 WAC by reference, as well as RCW 43.21C.410, Battery charging and exchange station installation.

197-11-040	Definitions.
197-11-050	Lead agency.
197-11-055	Timing of the SEPA process.
197-11-060	Content of environmental review.
197-11-070	Limitations on action during SEPA process.
197-11-080	Incomplete or unavailable information.
197-11-090	Supporting documents.
197-11-100	Information required of applicants.
197-11-300	Purpose of this part.
197-11-305	Categorical exemptions.
197-11-310	Threshold determination process.
197-11-315	Environmental checklist.
197-11-330	Threshold determination process.
197-11-335	Additional information.
197-11-340	Determination of nonsignificance (DNS).
197-11-350	Mitigated DNS.
197-11-355	Optional DNS.
197-11-360	Determination of significance (DS)/initiation of scoping.
197-11-390	Effect of threshold determination.
197-11-400	Purpose of EIS.
197-11-402	General requirements.
197-11-405	EIS types.
197-11-406	EIS timing.
197-11-408	Scoping.
197-11-410	Expanded scoping.
197-11-420	EIS preparation.
197-11-425	Style and size.
197-11-430	Format.
197-11-435	Cover letter or memo.
197-11-440	EIS contents.
197-11-442	Contents of EIS on nonproject proposals.
197-11-443	EIS contents when prior nonproject EIS.
197-11-444	Elements of the environment.
197-11-448	Relationship of EIS to other considerations.
197-11-450	Cost-benefit analysis.
197-11-455	Issuance of DEIS.
197-11-460	Issuance of FEIS.
197-11-500	Purpose of this part.
197-11-502	Inviting comment.
197-11-504	Availability and cost of environmental documents.
197-11-508	SEPA register.
197-11-535	Public hearings and meetings.
197-11-545	Effect of no comment.
197-11-550	Specificity of comments.
197-11-560	FEIS response to comments.
197-11-570	Consulted agency costs to assist lead agency.
197-11-600	When to use existing environmental documents.
197-11-610	Use of NEPA documents.
197-11-620	Supplemental environmental impact statements – Procedures.
197-11-625	Addenda – Procedures.
197-11-630	Adoption – Procedures.
197-11-635	Incorporation by reference – Procedures.
197-11-640	Combining documents.
197-11-650	Purpose of this part.
197-11-655	Implementation.
197-11-660	Substantive authority and mitigation.
197-11-680	Appeals.
197-11-700	Definitions.
197-11-702	Act.
197-11-704	Actions.
197-11-706	Addendum.
197-11-708	Adoption.
197-11-710	Affected tribe.
197-11-712	Affecting.
197-11-714	Agency.
197-11-716	Applicant.
197-11-718	Built environment.
197-11-720	Categorical exemption.
197-11-722	Consolidated appeal.
197-11-724	Consulted agency.
197-11-726	Cost-benefit analysis.
197-11-728	County/city.
197-11-730	Decisionmaker.
197-11-732	Department.
197-11-734	Determination of nonsignificance (DNS).
197-11-736	Determination of significance (DS).
197-11-738	EIS.
197-11-740	Environment.
197-11-742	Environmental checklist.
197-11-744	Environmental document.
197-11-746	Environmental review.
197-11-748	Environmentally sensitive area.
197-11-750	Expanded scoping.
197-11-752	Impacts.
197-11-754	Incorporation by reference.
197-11-756	Lands covered by water.
197-11-760	License.
197-11-762	Local agency.
197-11-764	Major action.
197-11-766	Mitigated DNS.
197-11-768	Mitigation.
197-11-770	Natural environment.
197-11-772	NEPA.
197-11-774	Nonproject.
197-11-776	Phased review.
197-11-778	Preparation.
197-11-780	Private project.
197-11-782	Probable.
197-11-784	Proposal.
197-11-786	Reasonable alternative.
197-11-788	Responsible official.
197-11-790	SEPA.
197-11-792	Scope.
197-11-793	Scoping.
197-11-794	Significant.
197-11-796	State agency.
197-11-797	Threshold determination.
197-11-799	Underlying government action.
197-11-800	Categorical exemptions.
197-11-880	Emergencies.
197-11-890	Petitioning DOE to change exemptions.
197-11-900	Purpose of this part.
197-11-916	Application to ongoing actions.
197-11-920	Agencies with environmental expertise.
197-11-922	Lead agency rules.
197-11-924	Determining the lead agency.
197-11-926	Lead agency for governmental proposals.
197-11-928	Lead agency for public and private proposals.
197-11-930	Lead agency for private projects with one agency with jurisdiction.
197-11-932	Lead agency for private projects requiring licenses from more than one agency when one of the agencies is a county/city.
197-11-934	Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.
197-11-936	Lead agency for private projects requiring licenses from more than one state agency.
197-11-938	Lead agencies for specific proposals.
197-11-940	Transfer of lead agency status to a state agency.
197-11-942	Agreements on lead agency status.
197-11-944	Agreements on division of lead agency duties.
197-11-946	DOE resolution of lead agency disputes.
197-11-948	Assumption of lead agency status.
197-11-960	Environmental checklist.
197-11-965	Adoption notice.
197-11-970	Determination of nonsignificance (DNS).
197-11-980	Determination of significance and scoping notice (DS).
197-11-985	Notice of assumption of lead agency status.
197-11-990	Notice of action.