As used in this chapter:

(1)

"Applicant" means a person who files an application for permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a lessee of the land, the person who would actually control and direct the proposed activity or the authorized agent of such a person.

(A)

Allowed activity. An "allowed activity" is a use that due to other regulations or previous reviews is unlikely to result in a critical areas impact. These activities are subject to review by the city, but do not require a separate critical areas review or report. Since these activities are not "exempt," the critical areas standards continue to apply and the underlying permit could be conditioned to ensure that the activity complies with critical areas protection.

(2)

"Buffer zone" means an area required by this chapter that provides a natural vegetated zone surrounding a natural, restored or newly created critical area which serves as a buffer between the critical area and its associated upland areas and as an integral part of the habitat ecosystem.

(3)

"Compensation" means replacement by creation, enhancement or restoration of a wetland equivalent in size, function and value to the one being altered or lost due to development. Compensation may also include the use of monetary contributions to a mitigation fund.

(4)

"Creation" means bringing a wetland or stream corridor into existence at a site in which a wetland or stream corridor did not formerly exist.

(5)

"Critical areas" means and includes the following ecosystems: areas with a critical recharging effect on aquifers used for drinking water, fish and wildlife habitat, frequently flooded areas, geological hazardous areas and wetlands and streams.

(6)

"Critical habitat" means habitat necessary for the survival of endangered, threatened, rare, sensitive or monitor species.

(7)

"Enhancement" means actions performed to improve the condition of existing wetlands or other critical areas so that the functions they provide are of a higher quality. Activities typically consist of planting vegetation, controlling non-native or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities.

(A)

Exemption. An "exemption" is an administrative determination to waive the critical areas regulations of this chapter for certain uses based on criteria and conditions described in this chapter.

(B)

Exception. An "exception" is an approval based on the property owner's demonstration that application of the standards of this chapter would deny all reasonable use of the property.

(8)

"Erosion" means the wearing away of the ground surface as a result of mass wasting or the movement of wind, water, soil and/or ice.

(9)

"Exotic" means any species of plants or animals that are foreign to the planning area.

(10)

"Federal Wetland Delineation Manual and Regional Supplement" means technical manuals that describe technical criteria, field indicators and other sources of information, and methods for identifying and delineating jurisdictional wetlands in the United States. When referenced in this chapter these refer to the approved federal wetland delineation manual and applicable regional supplement. This includes the 1987 USACE Manual and Arid West supplement (2008).

(11)

"Flood hazard area" means lands listed in the floodplain which is an area adjacent to a lake, stream or other body of water lying outside the ordinary bank of the water body and periodically inundated by flood flow subject to one percent or greater expectancy of flooding in any given year.

(12)

"Function" means the beneficial role critical areas serve including, but not limited to, fish and wildlife habitat, storage, conveyance, floodwater and stormwater retention and provision of erosion, landslide and sediment control and groundwater recharge.

(13)

"Geologically hazardous areas" means areas that, because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to siting commercial, residential, or industrial development consistent with public health or safety concerns.

(14)

"Grading" means excavation or fill or any combination thereof, including, but not limited to, the establishment of a grade following the demolition of a structure or preparation of a site for construction or development, without approved engineering design and mitigation.

(15)

"Habitat" means the specific area or environment in which a particular type of plant or animal lives.

(16)

"High intensity land use" includes the following uses and development:

a.

Commercial;

b.

Urban;

c.

Industrial;

d.

Institutional;

e.

Retail sales;

f.

Residential (more than one unit per acre);

g.

Conversion to high-intensity agriculture (dairies, nurseries, greenhouses, growing and harvesting crops requiring annual tilling and raising and maintaining animals, etc.);

h.

High-intensity recreation (golf courses, ball fields, etc.);

i.

Hobby farms.

(17)

"Hydric soils" means a soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined by following the methods described in the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands."

(18)

"In-kind compensation" means to replace wetlands with substitute wetlands whose characteristics closely approximate those destroyed or degraded by a regulatory activity. The replacement must be equal to or greater than the wetland destroyed or degraded.

(19)

"Isolated wetland" means those regulated wetlands which:

a.

Are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream;

b.

Have no contiguous hydric soils or aquatic plant between the wetland and any surface water; and

c.

Have no surface water connection to a lake, river or stream.

(20)

"Low intensity land use" includes the following uses and development:

a.

Forestry (cutting of trees only);

b.

Low-intensity open space (hiking, bird-watching, preservation of natural resources, etc.);

c.

Unpaved trails and gravel driveways;

d.

Utility corridor without a maintenance road and little or no vegetation management.

(21)

"Mitigation sequencing" means a negotiated action involving the avoidance, reduction or compensation for possible adverse impacts. In the following order of preference this includes:

a.

Avoiding the impacts altogether by not taking action;

b.

Reducing or eliminating impacts by preservation or maintenance;

c.

Minimizing impacts by limiting degree or magnitude;

d.

Rectifying impacts by repairing, rehabilitating or restoring;

e.

Compensating for impacts by in-kind replacement; or

f.

Monitoring impacts by a planned evaluation process.

(22)

"Moderate intensity land use" includes the following uses and development:

a.

Residential (one unit per acre or less);

b.

Moderate-intensity open space (parks with biking, jogging, etc.);

c.

Conversion to moderate-intensity agriculture (orchards, hay fields, etc.);

d.

Paved trails and paved driveways;

e.

Building of logging roads;

f.

Utility corridor or right-of-way shared by several utilities and including access/maintenance road.

(23)

"Non-scientific information" means information which may supplement scientific information, but it is not an adequate substitute for valid and available scientific information.

(24)

"Noxious weeds" means those plants which are non-native, highly destructive and competitive as defined by RCW 17.10, or as amended.

(25)

"Open space area" means land of varied size which contain distinctive geologic, botanic, zoologic, historic, scenic or other critical area features. These areas are often undeveloped and serve as greenbelts and wildlife habitats. Specific types of open space include gulches, steep slopes and wetlands.

(26)

"Qualified geologist" means a Washington State licensed geologist, licensed engineering geologist, or licensed hydrogeologist.

(27)

"Qualified professional" means a professional wetland scientist with at least two years of full-time work experience as a wetlands professional, including delineating wetlands using federal manuals, preparing wetland reports, conducting function assessments, and developing and implementing mitigation plans.

(28)

"Rare, threatened and endangered species" means plant or animal species that are regionally relatively uncommon, and nearing endangered status, or whose existence is in immediate jeopardy and that are usually restricted to highly specific habitats.

(29)

"Re-establishment" means actions performed to restore processes and functions to an area that was formerly a wetland or other critical area, where the former critical area was lost by past alterations and activities.

(30)

"Rehabilitation" means improving or repairing processes and functions to an area that is an existing wetland or other critical area that is highly degraded because one or more environmental processes supporting the wetland area have been disrupted.

(31)

"Restoration" means improving, enhancing and reestablishing a once viable and now degraded wetland or stream to a state in which its stability, functions and values approach its unaltered state.

(32)

"Unavoidable and necessary impact" means impacts to a regulated wetland or stream and its associated buffer that will remain after it has been demonstrated that no practical alternative exists.

(33)

"Utilities" means enterprises or facilities serving the public by means of an integrated system of collection, transmission, distribution, and processing facilities through more or less permanent physical connections between the plant of the serving entity and the premises of the customer. Included are systems for the delivery of natural gas, electricity, telecommunications services, and water, and for the disposal of sewage.

(34)

"Water typing system" (per WAC 222-16-030/031 or as amended):

a.

"Type S Water" means all waters, within their bankfull width, as inventoried as "shorelines of the state" under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW including periodically inundated areas of their associated wetlands.

b.

"Type F Water" means segments of natural waters other than Type S Waters, which are within the bankfull widths of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water and which in any case contain fish habitat or are described by one of the following four categories:

1.

Waters, which are diverted for domestic use by more than ten residential or camping units or by a public accommodation facility licensed to serve more than ten persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type F Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

2.

Waters, which are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type F Water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The department may allow additional harvest beyond the requirements of Type F Water designation provided the department determines after a landowner-requested on-site assessment by the department of fish and wildlife, department of ecology, the affected tribes and interested parties that:

(i)

The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and

(ii)

Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery;

3.

Waters, which are within a federal, state, local, or private campground having more than ten camping units: Provided, That the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement;

4.

Riverine ponds, wall-based channels, and other channel features that are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria:

(i)

The site must be connected to a fish habitat stream and accessible during some period of the year; and

(ii)

The off-channel water must be accessible to fish.

c.

"Type Np Water" means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow.

d.

"Type Ns Water" means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np Waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np Water. Ns Waters must be physically connected by an above-ground channel system to Type S, F, or Np Waters.

(35)

"Wetlands, regulatory," means areas that are inundated or saturated by surface water or groundwater at a frequency or duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, bogs, marshes and similar areas. Wetlands do not include those artificial wetlands intentionally created from non-wetland 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 intentionally created from non-wetland areas to mitigate conversion of wetlands.

(Ord. No. Y-49, § 1, 10-10-2023; Ord. No. X-30, § 1, 7-10-2018; Ord. No. U-97, §§ 284—286, 1-27-2009; Ord. No. U-59, §§ 17—20, 2008; Ord. No. T-03, § 1(part), 2002)

The following standards and criteria are established in order to ensure maximum protection for critical areas by discouraging and/or mitigating development activities in identified wetlands, wildlife habitat and frequently flooded areas. Furthermore, these standards are also established to afford the necessary preservation and protection assurances that will guarantee the unnecessary degradation of the functions and values of identified critical areas.

(Ord. No. T-03, § 1(part), 2002)

The purpose of this chapter is to:

(1)

Maintain the character of the city and to safeguard the public interest in the preservation and conservation of natural areas.

(2)

Designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

(3)

Implement the goals, policies, guidelines, and requirements of the City of Cheney Comprehensive Plan and the Growth Management Act (GMA).

(Ord. No. T-03, § 1(part), 2002)

The City of Cheney finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, wildlife habitat, food chain support, flood storage, ground water recharge and discharge, and aesthetic value protection.

(Ord. No. T-03, § 1(part), 2002)

All development in the City of Cheney, which affects critical areas, as defined herein shall be subject to the provisions of this chapter. The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

(Ord. No. T-03, § 1(part), 2002)

The proponent of the activity may submit a written request for exemption to the community development director or his designee that describes the activity and states the exemption listed in this section that applies. The community development director or his designee shall review the exemption request to verify that it complies with this chapter and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the community development department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.

(1)

All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area. Any incidental damage to, or alteration of, an activity shall be restored, rehabilitated, or replaced at the responsible party's expense.

(2)

The following development, activities, and associated uses shall be exempt from the provisions of this chapter, provided that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

a.

Emergencies. Emergencies are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this title;

b.

Operation, maintenance, or repair of existing structures, infrastructure, utilities, and public roads that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer; and

c.

Passive outdoor activities to include recreation, education, and scientific research activities that do not degrade the critical area.

(Ord. No. U-97, § 287, 1-27-2009; Ord. No. T-03, § 1(part), 2002; Ord. No. U-59, § 27, 2008)

(1)

Reasonable use. If an applicant for a development proposal demonstrates to the satisfaction of the planning commission that application of the standards of this chapter would deny all reasonable use of the property, development as conditioned may be allowed. The applicant shall pay a fee as determined by the city council, which may cover mailing and processing and submit documentation demonstrating all of the following:

(a)

Application of this chapter would deny all reasonable use of this property;

(b)

There is no reasonable use with less impact on the wetland or wildlife habitat area;

(c)

The requested use or activity will not result in any damage to other property and will not threaten the public health, safety, or welfare on or off the property;

(d)

Any alteration to the wetland, or wildlife habitat area is the minimum necessary to allow for the reasonable use of the property;

(e)

Impacts to critical areas and buffers are mitigated consistent with the purpose and standards of this chapter to the greatest extent feasible;

(f)

The inability to derive reasonable economic use is not the result of the applicant's actions or that of a previous property owner, such as by segregating or dividing the property and creating an undevelopable condition.

(Ord. No. X-30, § 2, 7-10-2018; Ord. No. U-97, § 288, 1-27-2009; Ord. No. U-59, § 28, 2008)

The community development director or planning commission, as applicable, shall include findings on each of the evaluation criteria listed above in a written decision. The written decision shall be mailed to the applicant and adjacent property owners. The written decision shall include conditions necessary to serve the purpose of the ordinance and shall provide an appeal procedure as contained in section 21.70.175 of this chapter.

(Ord. No. 97, § 289, 1-27-2009; Ord. No. U-59, § 29, 2008)

As provided herein, the community development director or his designee or the planning commission, as set forth in this title, are given the authority to interpret and apply, and the responsibility to enforce this chapter to accomplish the stated purpose. The community development director has the authority to make administrative determinations on exemptions, exceptions and similar decisions. The planning commission has the authority to approve mitigation plans and to consider appeals of the community development director's decisions. The City of Cheney may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter.

(Ord/ Mp/ U-97, § 290, 1-27-2009; Ord. No. U-59, § 30, 2008; Ord. No. T-03, § 1(part), 2002)

(1)

These critical area regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.

(2)

They shall apply concurrently with review under the State Environmental Policy Act (SEPA) as locally adopted.

(3)

Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.

(4)

Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved.

(5)

When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

(6)

Compliance with the provisions of this chapter does not constitute compliance with other federal, state, or local regulations and permit requirements that may be required.

(7)

The applicant is responsible for complying with these requirements, apart from the requirements of this chapter.

(Ord. No. X-30, § 3, 7-10-2018; Ord. No. U-97, § 291, 1-27-2009; Ord. No. T-03, § 1(part), 2002)

Critical areas shall be reviewed according to the procedures of 23.030, Land Use Reviews.

(Ord. No. U-97, § 293(21.70.052), 1-27-2009)

The critical area review shall be approved if the following criterion is met:

(1)

The proposal adequately mitigates the impacts of the proposal on the critical area(s).

(Ord. No. U-97, § 295(21.70.057), 1-27-2009)

(1)

Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation and protection measures necessary to preserve or enhance their functions and values.

(2)

The best available science is that scientific information applicable to the critical area. These data must be prepared by local, state, or federal natural resource agencies, a qualified scientific professional or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through WAC 265-195-925.

(3)

In the context of critical area protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government's regulatory decisions, and in developing critical area policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the community development director or his designee shall determine whether the source of the information displays the characteristics of a valid scientific process. Such characteristics are as follows:

(a)

Peer review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The proponents of the information have addressed the criticism of the peer reviewers. Publication in a referred scientific journal usually indicates that the information has been appropriately peer reviewed.

(b)

Methods. The methods used to obtain the information are clearly stated and reproducible. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer reviewed to assure their reliability and validity.

(c)

Logical conclusions and reasonable inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained.

(d)

Quantitative analysis. The data has been analyzed using appropriate statistical or quantitative methods.

(e)

Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent existing information.

(f)

References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

(Ord. No. X-30, § 4, 7-10-2018; Ord. No. U-97, § 296, 1-27-2009; Ord. No. T-03, § 1(part), 2002)

(1)

Preparation by qualified professional. If required by this chapter, the applicant shall submit a critical area report prepared by a qualified professional as defined herein.

(2)

Incorporation of best available science. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical area report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

(3)

Minimum report contents. At a minimum, the report shall contain the following:

a.

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

b.

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

i.

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

ii.

A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations;

c.

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

d.

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

e.

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

f.

An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

g.

A description of reasonable efforts made to apply mitigation sequencing to avoid, minimize, and mitigate impacts to critical areas;

h.

Plans for adequate mitigation, as needed, to offset any impacts, including, but not limited to:

i.

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

ii.

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

i.

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

j.

Financial guarantees to ensure compliance (if applicable); and

k.

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

(4)

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

(Ord. No. X-30, § 5, 7-10-2018)

The following wetland classification system is adopted for categorizing wetlands for the City of Cheney. Wetlands shall be defined according to the Washington State Wetland Rating System for Eastern Washington: 2014 Update (Ecology Publication # 14-06-030) or as amended. The criteria for the wetland categories are given below:

(1)

Wetland rating categories.

(A)

Category I. Category I wetlands are: 1) represent a unique or rare wetland type; or 2) are more sensitive to disturbance than most wetlands; or 3) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or 4) provide a high level of functions.

We cannot afford the risk of any degradation to these wetlands because their functions and values are too difficult to replace. Generally, these wetlands are not common and make up a small percentage of the wetlands in the region (scores 22—27).

(B)

Category II. Category II wetlands are difficult, though not impossible, to replace, and provide high levels of some functions. These wetlands occur more commonly than Category I wetlands, but still need a relatively high level of protection (scores 19—21).

(C)

Category III. Category III wetlands are wetlands with a moderate level of functions and can often be adequately replaced with a well-planned mitigation project. Wetlands scoring between 16—18 points generally have been disturbed in some ways, and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.

(D)

Category IV. Category IV wetlands have the lowest level of functions (scores less than 16 points) and are often heavily disturbed. These are wetlands that we should be able to replace, and in some cases be able to improve. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions and also need to be protected.

(2)

Date of wetland rating. Wetland rating categories shall be applied to projects which are submitted on or after the date of adoption of the ordinance codified in this section. The wetlands shall be rated as they exist on the date of project application submission, as the wetland naturally changes thereafter, or as the wetland changes in accordance with permitted activities. Wetland rating categories shall not be altered to recognize illegal modifications.

(Ord. No. X-30, § 6, 7-10-2018; Ord. No. U-59, § 21, 2008; Ord. No. T-03, § 1(part), 2002)

The approximate location and extent of wetlands are shown on the adopted critical area maps. The following are additional resources available to indicate the probable location of wetlands and associated soil series:

(1)

National wetlands inventory maps (NWI);

(2)

USDA soil conservation county soil survey; and

(3)

USDA, county hydric soil list.

(Ord. No. X-30, § 7, 7-10-2018)

The exact location of a wetland's boundary shall be determined through the performance of a field investigation by a wetland qualified professional applying the federal wetland delineation manual and regional supplement. This includes the use of professional surveying methods to record delineated wetland boundaries. The presence of wetland area and jurisdictional shoreline areas or associated buffers on a parcel triggers the requirements of this chapter, regardless of whether or not a wetland or buffer is depicted on an official map.

(Ord. No. X-30, § 8, 7-10-2018)

The following rating system is hereby adopted as the rating system for classifying wildlife conservation areas for the City of Cheney.

(1)

Class 1 wildlife conservation area. Class 1 wildlife conservation areas are lands including the following:

(A)

All seasonal ranges and habitat elements with which federal and state listed endangered, threatened and sensitive species have primary association and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

(B)

Areas targeted for preservation by federal, state and/or local governments which provide fish and wildlife benefits, such as important waterfowl areas identified by the U.S. Fish and Wildlife Service and state conservation areas identified by Washington State.

(2)

Class 2 wildlife conservation areas. Class 2 wildlife conservation areas are all season ranges and habitat elements with which state listed candidate and monitored species or priority game species have a primary association and which, if altered, may produce a likelihood that the species will maintain and reproduce over the long term.

(3)

Class 3 wildlife conservation areas. Class 3 wildlife conservation areas are habitats which include attributes such as comparatively high wildlife density, high wildlife species richness, significant wildlife breeding habitat, seasonal ranges or movement corridors of limited availability and/or high vulnerability. These habitats may include caves, islands, meadows, mature forests, snag-rich areas, talus slopes and urban natural open space.

(Ord. No. T-03, § 1(part), 2002)

In addition to the general critical area report requirements, critical area reports for habitat conservation areas must meet the requirements for this section.

(1)

Prepared by a qualified professional. A critical areas report for a habitat conservation area shall be prepared by a qualified professional who has professional course work and training and has prepared reports for the relevant type of habitat.

(2)

Area addressed in the critical area report.

a.

The project area of the proposed activity.

b.

All habitat conservation area within 200 feet of the project area.

c.

All shorelines, flood plains, and other critical areas and related buffers within 200 feet of the project area.

(3)

Habitat assessment. A habitat assessment is an investigation of the project area to evaluate the presence or absence of potential critical wildlife species habitat. A critical area habitat report shall contain the following:

a.

Detailed description of vegetation on and adjacent to the project area.

b.

Identification of any species of local importance, priority species, or endangered, threatened, or sensitive species that have primary association with the habitat on or adjacent to the project area, and assessment of potential impacts to the use of the site by the species.

c.

A discussion of any federal, state, or local special management recommendations.

d.

A detailed discussion of potential impacts on habitat by the project, including impacts to water quality.

e.

A discussion of measures including avoidance, minimization and mitigation, proposed to preserve existing habitats in accordance with the following:

1.

The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a developing proposal or alteration shall be mitigated in accordance with an approved critical area report and SEPA documents.

2.

Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

3.

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

f.

A discussion of ongoing management practices that will protect the habitat after the project site has been developed, including monitoring and maintenance.

(4)

When appropriate the community development director may request additional information relevant to the habitat characteristics and management of the site.

(Ord. No. U-97, § 297, 1-27-2009; Ord. No. T-03, § 1(part), 2002)

(1)

Alterations shall not degrade the functions and values of the habitat. A habitat conservation area may be altered only if the proposed alterations of the habitat or the mitigation proposed do not degrade the functions and values of the habitat.

(2)

Non-indigenous species shall not be introduced. No non-indigenous plant, wildlife, or fish species shall be introduced into a habitat conservation area unless authorized by a federal or state permit or approval.

(3)

Mitigation shall attempt to preserve contiguous corridors. Where wildlife corridors exist such as along stream corridors mitigation shall preserve those corridors by appropriate buffer widths.

(4)

Approvals of activities may be conditioned. The planning commission may condition approval of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary to minimize or mitigate adverse impacts.

(5)

Mitigation shall achieve equivalent or greater biological function. Mitigation alterations to habitat conservation areas shall achieve equivalent or greater biological function. Mitigation shall address each function affected by alteration to the habitat.

(6)

Buffers, establishment of buffers.

a.

Buffers are required for activities in or adjacent to habitat conservation areas when needed to protect habitat functions and values. Wildlife habitat buffer widths shall reflect the sensitivity of the habitat type and intensity of human activity proposed to be conducted nearby and shall be consistent with recommendations issued by the Washington Department of Fish and Wildlife. Riparian buffer widths shall be established as specified in section 21.70.90 of this chapter.

b.

The planning commission may allow the recommended habitat area buffer width to be reduced in accordance with a critical areas report, the best available science, and the management recommendations issued by the Washington Department of Fish and Wildlife, only if:

1.

It will not reduce habitat functions and values.

2.

It will provide additional resource protection, such as buffer enhancement.

3.

The total area contained in a buffer area after averaging is no less than the area that would have been contained in the standard buffer.

4.

Maximum buffer width is not reduced by more than 50 percent in any location.

(7)

Signs and fencing of habitat conservation areas. The outer perimeter of the habitat conservation area or buffer shall be marked in the field by appropriate temporary markers during construction and if necessary shall be delineated by a permanent marker after completion of the activity at the discretion of the community development director. Fencing may be required at the discretion of the community development director to exclude harmful disturbances such as grazing animals.

(Ord. No. X-30, § 9, 7-10-2018; Ord. No. U-97, §§ 298—300, 1-27-2009; Ord. No. T-84, § 14, 2005; Ord. No. T-03, § 1(part), 2002)

Wetland habitats. All proposed activities within or adjacent to habitat conservation areas containing wetlands, conform to wetland development performance standards set forth in this chapter. Whichever critical area has the greater protection shall apply.

(Ord. No. T-03, § 1(part), 2002)

Riparian habitat areas. Unless otherwise allowed in this title, all structures and activities shall be located outside the riparian habitat area.

(1)

Riparian habitat areas shall be established for habitats that include aquatic and terrestrial ecosystems that mutually benefit each other, and are located adjacent to rivers, perennial, and some intermittent streams.

(2)

Riparian habitat widths are indicated in the table below. The width shall be measured outward from both sides of the stream from the ordinary high water mark or from the top of the stream bank.

(3)

Increased riparian habitat area widths. The recommended riparian habitat area widths shall be increased at the discretion of the planning commission if the recommended width is insufficient to prevent habitat degradation and/or deterioration of riparian functions and values.

(4)

Riparian habitat mitigation. Mitigation of adverse impacts to riparian habit areas shall result in equivalent functions and values, be located as near the alteration as feasible, and be located in the same sub drainage basin as the habitat impacted. Mitigation requirements shall be the same as outlined in subsection 21.70.075(3)e. Mitigation requirements may be modified at the discretion of the planning commission if it is demonstrated that alternative mitigation measure will result in no net loss of habitat functions and values.

(Ord. No. X-30, § 10, 7-10-2018; Ord. No. T-84, § 15, 2005; Ord. No. T-03, § 1(part), 2002)

Development criteria and guidelines for effectively managing frequently flooded areas under the City of Cheney's jurisdiction will adhere to the established criteria set forth under Chapter 19.20 of the Cheney Municipal Code.

(Ord. No. T-03, § 1(part), 2002)

Applications for subdivisions and other development under this chapter shall include:

(1)

A description and map(s) showing the entire parcel of land owned by the applicant and the exact boundaries of critical areas on the parcel. Wetland boundaries must be delineated in accordance with the approved federal wetland delineation manual and regional supplement.

(2)

A site plan for the proposed activity showing the location, width, depth and length of all existing and proposed structures, roads and equipment within the critical area and its buffer;

(3)

Elevations of the site and adjacent lands within the critical area and its buffer at contour intervals of no greater than five feet;

(4)

North arrow and scale at one of the following: One inch = 10 feet, one inch = 20 feet, one inch = 30 feet, one inch = 40 feet, one inch = 50 feet or one inch = 100 feet;

(5)

Critical area report prepared by a qualified professional. The critical area report shall use valid scientific methods in the analysis of the field data and resource data and reference the source of science used. The report should contain the following:

(A)

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

(B)

A copy of the site plan for the development proposal showing:

(i)

Identified critical areas, buffers, and the developmental proposal dimensions. Map scale and N arrow will be included.

(ii)

Any stormwater or drainage alterations that would impact the wetland or its buffers.

(iii)

A statement of the resources and methodology used in the report reflecting "best available science."

(iv)

An assessment of the probable cumulative impacts to the critical areas resulting from the proposed development of the site.

(v)

Recommended site development alternatives to minimize any impacts on the functions and values of the critical areas and their buffers.

(vi)

Recommendations for adequate mitigation, as needed, to offset any unavoidable impacts on the critical area and its buffer. Mitigation will require the submission of a mitigation plan in accordance with requirements in section 21.70.120.

(vii)

Any additional information required for the critical area as specified by the planning commission that reflect unique characteristics of the site or portions of other reports required by other laws and regulations pertaining to the site.

(Ord. No. X-30, § 9, 7-10-2018; Ord. No. U-59, § 31, 2008; Ord. No. T-84, § 16, 2005; Ord. No. T-03, § 1(part), 2002)

(1)

Buffer zones shall be required for all regulated activities adjacent to a regulated critical area. Required standard wetland buffer widths are as follows:

(2)

Measurement of wetland buffers. All buffers shall be measured from the wetland boundary as surveyed in the field. The width of the buffer shall be determined according to the wetland category and land use.

(A)

The planning commission shall require increased buffer widths in accordance of the recommendation of a wetland professional and the best available science on a case-by-case basis when a larger buffer is necessary to protect the wetland function and values. The determination shall be based on one or more of the following criteria:

(i)

A larger buffer is needed to protect other critical areas;

(ii)

The buffer or slope of adjacent uplands is greater than 15 percent or is susceptible to erosion that will adversely impact the wetland, or

(iii)

The buffer has minimal vegetation cover for its habitat class (forested, scrub-shrub, emergent) to ensure the protection of its functions and values. A vegetation planting and enhancement plan may substitute for the increased buffer width if the plan is monitored to ensure success.

(3)

Increased standard buffer zone width. The planning commission shall require increased standard buffer zone widths on a case-by-case basis when a large buffer is necessary to protect critical area functions and values based on local conditions. Such determination shall be attached as a permit condition and shall demonstrate:

(A)

A larger buffer is necessary to maintain viable populations of existing species;

(B)

The wetlands are used by species proposed or listed by the federal government or the state as endangered, threatened, rare, sensitive or being monitored as being critical or having outstanding potential as habitat for those species or has unusual nesting or resting sites;

(C)

The adjacent land is susceptible to severe erosion and erosion control measures will not effectively prevent adverse wetland impacts; or

(D)

The adjacent land has minimal vegetative cover or slopes greater than 25 percent.

(4)

Wetland buffer width averaging. The planning commission may allow modification of the standard wetland buffer width in accordance with an approved critical area report on a case-by-case basis by averaging buffer widths. Averaging of buffer widths may only be allowed where a qualified wetlands professional demonstrates that:

(A)

It will not reduce wetland functions or values.

(B)

The wetland has variations in sensitivity due to existing characteristics of slope, soils, and vegetation and the wetland would benefit from a wider buffer in places and not be adversely impacted by a narrower buffer in other places.

(C)

The total area contained in the buffer area after averaging is no less than the area contained in the standard buffer.

(D)

In no case shall the standard buffer width be reduced by more than 25 percent.

(E)

Except as otherwise specified in this title, buffers shall be maintained in a natural vegetation cover.

(5)

Maintenance of buffer zones. Except where otherwise specified, critical area buffer zones shall be retained in their natural condition. Where buffer disturbance has occurred during construction, re-vegetation with approved vegetation shall be required.

(6)

Permitted uses in a critical area buffer zone. Regulated activities shall not be allowed in a buffer zone except for the following:

(A)

Activities having minimal adverse impacts on regulated critical areas. These will include low intensity, passive recreational activities, short-term scientific educational activities, trails, conservation, and restoration activities.

(B)

Stormwater management facilities may only be allowed in the outer 25 percent of Category III and IV wetland buffers, if no other location is feasible and the location of such facilities will not degrade the functions and values of the wetland.

(7)

A minimum building setback line of 15 feet is required from the edge of any wetland buffer or the setback of the appropriate zone in which the building is located, whichever is greater. The setback shall be identified on the site plan that is filed as part of the application.

(8)

Signs and demarcation of wetlands.

(A)

Temporary markers. The outer perimeter of a wetland and buffer shall be marked in the field pursuant to an approved permit so that no unauthorized intrusion into the buffer or wetland occurs prior to and during construction. The marker (stakes, flagging, tape, etc.) shall be at the discretion of the community development director and the director shall inspect the site before construction begins.

(B)

Permanent signs. As a condition of any permit or authorization issued pursuant to this chapter, the community development director may require the applicant to install permanent signs along the boundary of the wetland or buffer. The design, spacing, and wording of the signs are left to the discretion of the community development director.

(9)

Buffers on mitigation sites. All mitigation sites shall have buffers consistent with the buffer requirements of this chapter. Wetland buffers shall be based on the expected or target category of the proposed wetland mitigation site.

(10)

Mitigation actions shall be conducted within the same sub-drainage basin and on the site of the wetland impacted except:

(A)

There are no reasonable on-site or sub-basin opportunities or the opportunities have a poor chance of success.

(B)

Off-site mitigation has a greater likelihood of providing equal or improved wetland functions and values (including mitigation banking).

(Ord. No. X-30, § 12, 7-10-2018; Ord. No. U-97, §§ 302, 303, 1-27-2009; Ord. No. U-59, §§ 22, 23, 2008; Ord. No. T-84, § 17, 2005; Ord. No. T-03, § 1(part), 2002)

It is the short-term goal of the ordinance codified in this chapter that there be no "net loss" of the acreage or functional values of all wetlands regulated by this chapter. The long term goal is a "net gain" in functional values.

(Ord. No. T-03, § 1(part), 2002)

All critical areas restoration, creation and/or enhancement projects required pursuant to this chapter either as a permit condition or as a result of an enforcement action shall follow a mitigation plan prepared by a qualified professional. Wetland mitigation plans shall follow the following Washington Department of Ecology accepted guidance: Wetland Mitigation in Washington State - Part 2: Developing Mitigation Plans (Ecology, 2006); and Selecting Wetland Mitigation Sites Using a Watershed Approach (Ecology, 2009) as amended. Riparian and wildlife habitat mitigation plans shall be prepared by a qualified professional using accepted methodologies. The applicant, or violator in the case of an enforcement action, shall receive written approval of the mitigation plan by the planning commission prior to commencement of any critical area mitigation activity. The city will use the following methods of critical areas mitigation in order of preference:

(1)

The applicant shall avoid all impacts that degrade the functions and values of a critical area. Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to a critical area and associated buffer resulting from a development proposal shall be mitigated in accordance with an approved critical area report, an approved mitigation plan, and SEPA documents.

(2)

Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area.

(3)

Mitigation shall not be implemented until after the planning commission or designated authority has approved the appropriate critical area report and mitigation plan.

(4)

Mitigation measures. Mitigation shall achieve equivalent or greater biological and habitat functions as existed in the wetland prior to mitigation. Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to the critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following order of preference:

(A)

Avoid impact altogether by not taking a certain action or parts of an action;

(B)

Minimize impact by limiting the degree or magnitude of the action by project redesign, relocation, timing changes, or technological applications;

(C)

Rectifying the impacts to wetlands, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to conditions equal to or higher quality than at the time of initiation of the project;

(D)

Restoring, replacing, or enhancing the wetland on the site of the project;

(E)

Restoring, replacing, or enhancing degraded wetlands in the same sub-basin;

(F)

Creating wetlands on upland sites that were former wetlands, or are disturbed upland sites;

(G)

Preserving high quality wetlands that are under eminent threat;

(H)

Reduce or eliminate the impact over time by prevention and maintenance operations during the life of the actions;

(I)

Compensate for the impact by replacing, enhancing or providing substitute resources or environments;

(J)

All mitigation efforts will be monitored and remedial action taken if necessary. Mitigation can include a combination of the above measures.

(5)

Impacts to buffers shall be mitigated at a minimum 1:1 ratio. Compensatory buffer mitigation shall replace those buffer functions lost from development.

(Ord. No. X-30, § 13, 7-10-2018; Ord. No. U-59, § 24, 2008; Ord. No. T-84, § 18, 2005; Ord. No. T-03, § 1(part), 2002)

Editor's note— Sec. 14 of Ord. No. X-30, adopted July 10, 2018, deleted § 21.70.125, which pertained to hardships, and derived from Ord. No. T-03, 2002.

When mitigation is required, the applicant shall submit for approval by the City of Cheney and the planning commission a mitigation plan prepared by a qualified professional. The mitigation plan shall include:

(1)

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

(A)

A description and site plan map of the critical area to be mitigated and the specific mitigation actions to be taken. The mitigation actions should be described in detail and include the site selection criteria that address compensation goals. The goals and objectives shall be related to the functions and values of the impacted critical area.

(B)

A time line should be identified for beginning and completion of site compensation construction activities.

(2)

Performance standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained. These could include but are not limited to (area restored or enhanced, area excavated, functioning area and duration of hydrology, planting species numbers and survival goals, wildlife counts and plant coverage), etc.

(3)

Detailed construction plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

(A)

The proposed construction sequence, timing, and duration;

(B)

Grading and excavation specifications (grade and slope);

(C)

Erosion and sediment and water quality control features; and

(D)

A planting plan specifying plant species, quantities, location, spacing, density, and measures to protect and maintain plants until established. The written specifications shall be accompanied by detailed site diagrams, scaled cross sections, topographic maps, and final grade and slope elevations.

(Ord. No. T-84, § 19, 2005; Ord. No. T-03, § 1(part), 2002)

In addition to the general critical area report requirements in section 21.70.063, critical area reports for wetlands must meet the requirements of this section.

(1)

Prepared by a qualified professional. A qualified professional is a wetland scientist that by certification, or, applicable course work, or, by two or more years of successful professional experience, including field work and preparing wetland reports, has demonstrated his professional competence in wetland science.

(2)

Additional areas not addressed in the critical area report such as:

(A)

The project area of the proposed activity.

(B)

All wetlands and buffers within 300 feet (if necessary) of the proposed project area.

(C)

All shorelines, water features, floodplains, and other critical areas and buffers within 300 feet (if necessary) of the project area.

(3)

Additional wetland analysis. In addition to the minimum required contents of a critical area report, the wetland report shall address the following site and proposal related information.

(A)

A written assessment and accompanying maps of the wetlands and buffers adjoining the project area, including the following:

(i)

Wetland delineation and required buffers;

(ii)

Existing wetland acreage;

(iii)

Wetland category, vegetative, faunal, and hydrologic characteristics;

(iv)

Hydric soil characteristics; and

(v)

Topographic elevations (as available).

(Ord. No. X-30, § 15, 7-10-2018; Ord. No. T-03, § 1(part), 2002)

The mitigation plan shall include a program for monitoring construction, and for assessing a completed project by a critical area specialist. A protocol for the schedule of monitoring and reporting shall be implemented that verify the performance standards are being met. The period of monitoring shall be adequate to verify that the performance goals and objectives are being met and will vary at the discretion of the planning commission. Monitoring would never be less than three years.

(Ord. No. T-84, § 20, 2005; Ord. No. T-03, § 1(part), 2002)

The mitigation plan should identify courses of action and remedial measures if the performance standards are not being met.

(Ord. No. T-03, § 1(part), 2002)

The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. The requirement of financial guarantees is at the discretion of the planning commission based on the size, complexity, and cost of the mitigation project. If financial guarantees are required they shall be of sufficient funding to ensure mitigation, maintenance, and monitoring.

(Ord. No. T-84, § 21, 2005; Ord. No. T-03, § 1(part), 2002)

(a)

The boundary of a critical area will be delineated by survey stakes and tape at the time of the completion of the critical area report. The boundary will be maintained until completion of the project. The required buffer edge will be delineated by plastic tape, or bales, or any other effective marker to prohibit construction activities from encroaching into the critical area or the buffer.

(b)

Upon completion of the project the boundary of the critical area will be delineated at appropriate intervals by a permanent sign or marker the design of which will be left to the discretion of the planning commission.

(Ord. No. T-84, § 22, 2005; Ord. No. T-03, § 1(part), 2002)

Under certain circumstances, property owners may be permitted to fill or otherwise alter a wetland if they agree to mitigate or compensate for impacts that occur as a result of a project. Wetland creation and restoration projects are designed to create new wetlands or to restore historical wetlands, while enhancement projects aim to improve existing wetlands or add functions and values.

(1)

Compensating for wetland impacts. As a condition of any permit allowing alteration of wetlands and/or wetland buffers, or as an enforcement action pursuant to section 21.70.140, the city shall require that the applicant engage in the restoration, creation or enhancement of wetlands and their buffers in order to offset the impacts resulting from the applicant's or violator's actions. The applicant shall develop a plan that provides for land acquisition, construction, maintenance and monitoring of replacement wetlands in terms of acreage, function, geographic location and settings, and that are larger than the original wetlands. The overall goal of any compensatory project shall be no net loss of wetland function and acreage and to strive for a net resource gain in wetlands over present conditions. Compensation shall be completed or approved prior to wetland alteration.

Compensatory mitigation shall follow an approved mitigation plan pursuant to section 21.70.120 and shall meet minimum performance standards. Given the uncertainties in scientific knowledge and the need for expertise and monitoring, wetland compensatory projects may be permitted only when the city finds that the compensation project is associated with an activity or development otherwise permitted and that the restored, created or enhanced wetland will be as persistent as the wetland it replaces. In addition, applicants shall:

(A)

Demonstrate sufficient scientific expertise, supervisory capability and financial resources to carry out the project.

(B)

Demonstrate the capability of monitoring the site and to make corrections during this period if the project fails to meet projected goals.

(C)

Protect and manage or provide for the protection and management of the compensation area to avoid further development or degradation and to provide for long-term persistence of the compensation area.

(2)

Wetland restoration and creation.

(A)

Any person who alters regulated wetlands shall restore or create equivalent areas or greater areas of wetlands than those altered in order to compensate for wetland losses.

(B)

Compensation areas shall be determined according to function, acreage, type, location, time factors, ability to be self-sustaining and projected success. Wetland functions and values shall be calculated using the best professional judgment of a qualified wetland ecologist using the best available techniques. Multiple compensation projects may be proposed for one project in order to best achieve the goal of no net loss.

(3)

Acreage replacement ratio. The following ratios shall apply to mitigation that is in kind, on-site, or in the same sub-basin, and has a high probability of success. These ratios do not apply to remedial actions as a result of unauthorized actions. Greater ratios will apply in those cases. These ratios do not apply to the use of credits from a certified wetland mitigation bank or in-lieu fee program, in which the ratios would be consistent with the requirements of the banks certification. Wetland Category definitions are outlined in CMC 21.70.065.

(A)

Increased ratio replacement. The city may increase the ratios under the following circumstances:

(i)

Uncertainty as to the probable success of the proposed restoration or creation;

(ii)

A significant period of time will elapse between impact and replication of wetland functions;

(iii)

Wetland functions;

(iv)

Projected loss of wetland functional values;

(v)

The mitigation is outside the sub-basin;

(vi)

The mitigation is the result of unauthorized or illegal activities;

(vii)

Off-site compensation.

(B)

Alternatives mitigation ratios. The planning commission may decrease these ratios under the following circumstances:

(i)

Findings of special studies coordinated with agencies with expertise which demonstrate that no net loss of wetland function or value is attained under the decreased ratio;

(ii)

Documented by a qualified wetland specialist demonstrates that the proposed mitigation action will result in a wetland with significantly greater functions and values than the one being impacted;

(iii)

The proposed mitigation actions have been completed prior to the project and have demonstrated at equivalent functions and values;

(iv)

In all cases, a minimum acreage replacement ratio of 1:1 is required.

(v)

There is clear potential for success of the proposed mitigation at the proposed mitigation site;

(vi)

A wetland of a different type may be justified based on regional needs or functions and values; the replacement ratios may not be reduced or eliminated unless the reduction results in a preferred environmental alternative; and

(vii)

The city will consult with agencies with expertise and jurisdiction over the critical areas during the review to assist with analysis and identification of appropriate performance measures that adequately safeguard critical areas.

(vii)

To more fully protect functions and values, and as an alternative to the mitigation ratios found in the joint guidance "Wetland Mitigation in Washington State Parts I and II" (Ecology Publication #06-06-011a-b, Olympia, WA, March, 2006), the administrator may allow mitigation based on the "credit/debit" method developed by the Department of Ecology in "Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Eastern Washington: Final Report" (Ecology Publication #11-06-015, August 2012, or as revised).

(4)

Reserved.

(5)

Location of mitigation. Mitigation actions shall generally be conducted within the same sub-drainage basin and on the site of the alteration except when the applicant can demonstrate that off-site mitigation is ecologically preferable. The following criteria shall be evaluated when determining whether the mitigation proposal is ecologically preferable. When considering off-site mitigation, preference should be given to using alternative mitigation, such as a mitigation bank, an in-lieu-fee program, or advance mitigation.

(A)

There are no reasonable opportunities on site or within the sub-drainage basin (e.g., on-site options would require elimination of high-functioning upland habitat), or opportunities on site or within the sub-drainage basin do not have a high likelihood of success based on a determination of the capacity of the site to compensate for the impacts. Considerations should include: anticipated replacement ratios for wetland mitigation, buffer conditions and proposed widths, available water to maintain anticipated hydrogeomorphic classes of wetlands when restored, proposed flood storage capacity, and potential to mitigate riparian fish and wildlife impacts (such as connectivity);

(B)

On-site mitigation would require elimination of high-quality upland habitat.

(C)

Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the altered wetland.

(D)

Off-site locations shall be in the same sub-drainage basin unless:

(i)

Established watershed goals for water quality, flood storage or conveyance, habitat, or other wetland functions have been established by the city and strongly justify location of mitigation at another site; or

(ii)

Credits from a state-certified wetland mitigation bank are used as compensation, and the use of credits is consistent with the terms of the certified bank instrument;

(iii)

Fees are paid to an approved in-lieu fee program to compensate for the impacts.

(E)

The design for the compensatory mitigation project needs to be appropriate for its location (i.e., position in the landscape). Therefore, compensatory mitigation should not result in the creation, restoration, or enhancement of an atypical wetland.

(6)

Credits. Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:

(A)

The bank is certified under WAC chapter 173-700;

(B)

The planning commission determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

(C)

The proposed use of credits is consistent with the terms and conditions of the bank's certification.

(7)

Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the bank's certification.

(8)

Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the bank's certification. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.

(9)

In-lieu fee mitigation. Credits from an approved in-lieu fee program may be approved for use as compensation for unavoidable impacts to wetlands when:

(A)

The planning commissions determines that it would provide environmentally appropriate compensation for the proposed impacts.

(B)

The proposed use of credits is consistent with the terms and conditions of the approved in-lieu-fee program instrument.

(C)

Projects using in-lieu-fee credits shall have debits associated with the proposed impacts calculated by the applicant's qualified wetland professional using the credit assessment method specified in the approved instrument for the in-lieu-fee program.

(D)

The impacts are located within the service area specified in the approved in-lieu-fee instrument.

(Ord. No. X-30, § 16, 7-10-2018; Ord. No. T-84, § 23, 2005; Ord. No. T-03, § 1(part), 2002)

The City of Cheney may bring appropriate actions at law or equity including actions of injunctive relief, to insure that no uses are made of a regulated critical area or their buffers that are inconsistent with this chapter. The City of Cheney may serve upon a person a cease and desist order if the activity being undertaken on regulated critical areas or their buffer is in violation of these rules as described in chapter 21.70.

(Ord. No. T-03, § 1(part), 2002)

It is not intended that this chapter repeal, abrogate or impair any existing regulations, easements, covenants or deed restrictions. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail.

(Ord. No. T-03, § 1(part), 2002)

(1)

All decisions rendered by the planning official or designee, regarding this chapter shall be final unless, within 14 days of the written decision, the original applicant or another party of record to the proceedings appeals the decision in writing to the planning commission.

(2)

All decisions rendered by the hearings examiner regarding this chapter shall be final unless, within 14 days of the written decision, the original applicant or another party of record to the proceedings appeals the decision in writing to the city council.

(3)

For any appeal under this section, the city shall provide for the record that shall consist of the following:

(A)

Written findings and conclusions;

(B)

Written minutes to the proceedings;

(C)

A typed transcript of the proceedings upon request and at a fee of $5.00 per page; and

(D)

A taped recording of the proceedings upon request at a fee of $5.00 per cassette or compact disk.

(Ord. No. X-30, § 17, 7-10-2018; Ord. No. U-97, § 304, 1-27-2009; Ord. No. T-84, § 24, 2005; Ord. No. T-03, § 1(part), 2002)

Editor's note— Sec. 17 of Ord. No. X-30, adopted July 10, 2018, deleted § 21.70.180, which pertained to mitigation banking and derived from Ord. No. U-59, 2008.

Many current regulations that protect critical areas do not require a permit for the control and removal of noxious weeds in wetlands and buffers (as well as other critical areas), provided that the control is done by hand or with light equipment and does not involve the use of hazardous substances. Local governments should retain some oversight authority when more extensive control methods are proposed to make sure that wetland functions are adequately protected.

(Ord. No. U-59, § 26, 2008)

The following shall be exempt from the provisions of this section:

A.

Operation, maintenance, or repair activities that do not require construction permits and do not alter the topography or the hydrology, and do not significantly alter the vegetation so long as the activity does not further alter or increase impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance or repair.

B.

Work directly related to ending a condition that (a) is an immediate threat to the public health, safety, and welfare, or creates an immediate risk of damage to public or private property, and (b) requires remedial or preventive action in a time frame too short to allow compliance with the application provisions of CMC 21.70.210 and CMC 21.70.215 provided that the work is the minimum work necessary to end the condition and the work is consistent with the development standards of CMC Title 21 to the extent practicable. Once the director determines that the condition no longer meets these criteria, all work is subject to the provisions of chapter 21.70.200 CMC, including, but not limited to, its application requirements, its development standards, and any requirements for technical reports and reviews for work that was exempt at the time it was performed.

C.

Low impact activities such as passive recreation, scientific research, conservation practices, harvesting of wild crops, noxious weed control, and pedestrian/bike trails.

(Ord. No. Y-49, § 2, 10-10-2023)

A.

Areas susceptible to one or more of the following types of hazards shall be classified as a geologically hazardous area:

1.

Erosion hazard. Often associated with steep slopes, unconsolidated soils, severe rill, and interrill erosion potential per U.S. Department of Natural Resource Conservation Service (NRCS), sparse vegetation.

2.

Landslide hazard. Often associated with steep slopes such as 30 percent or greater with vertical relief of ten or more feet, undercut slopes, groundwater over relatively impermeable substrate, areas of historic failures, or Latah formation (sedimentary layers of clay interlain between basalt flows).

3.

Seismic hazard. Often associated with severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement or subsidence, soil liquefaction, or surface faulting. The city is not in an area of severe risk for seismic hazards; therefore, no designation of these areas is warranted at this time; or

4.

Areas subject to other geological events such as surface mine hazards, volcanic hazards, mass wasting, debris flows, rock falls, or differential settlement. Initial research and investigation has determined that these hazards do not currently exist in the city at a level warranting designation.

B.

The approximate location and extent of geologically hazardous areas are shown on the adopted critical area maps and data as obtained from pertinent agencies such as the following:

1.

U.S. Geological Survey;

2.

NRCS;

3.

Washington Department of Natural Resources;

4.

FEMA flood insurance maps; and

5.

Locally adopted maps.

The maps and data sources provide a general level of information and are not intended to pinpoint geologic hazards on individual sites or properties. The city shall maintain a collection of potential geologically hazardous area inventory maps and data or locations of data for purposes of providing information on the general location of geologically hazardous areas. Use of the maps and data shall be for informational purposes only. The geologically hazardous areas maps and data shall be updated as more accurate information becomes available.

C.

Areas exhibiting the characteristics of geologically hazardous areas pursuant to CMC 21.70.215(A) that are not designated on the geologic hazard inventory maps may be designated as critical areas by city staff or a qualified professional at the time of project review.

D.

Due to the uncertainties in delineating geological hazards, buffers shall be established from all edges of geologically hazardous areas.

1.

The minimum buffer shall be 50 feet and shall extend to the top of the slope above the hazard area.

2.

The buffer may be reduced to a minimum of ten feet when a qualified professional demonstrates that the reduction will adequately protect the proposed development, adjacent developments and uses, and the subject critical area.

3.

The buffer may be increased where the city determines a larger buffer is necessary to prevent risk of damage to proposed and existing development.

(Ord. No. Y-49, § 3, 10-10-2023)

A.

Unless specifically exempt above or otherwise waived by the city, the applicant of any proposed activity in a parcel with boundaries within 50 feet of a geologic hazard area and/or its buffer (if designated) or in an area determined by a qualified professional to be a potential geologic hazard, especially those activities that alter the topography, vegetation, or hydrology, shall:

1.

Attend a pre-development conference with the city on the project;

2.

If applicable, meet the requirements of the Spokane Regional Stormwater Manual (SRSM) and shall apply for and meet the requirements of an engineered grading permit pursuant to Title 19;

3.

Retain a geologist currently licensed in Washington state or a qualified geotechnical engineer (a professional engineer currently licensed by the State of Washington with geotechnical engineering as a specialty) to:

a.

Review all aspects of the project's design (topography, landscaping, stormwater, etc.), construction (clearing, grubbing, grading, erosion, phasing, etc.), operation, and maintenance; and

b.

Provide recommendations, with copies of the review comments and recommendations provided to the city. Recommendations may specify that no activity may occur or that some or all may occur. For any proposed activity that the geologist or geotechnical engineer states may occur, the recommendations shall ensure that the proposed activity both in short-term and in long-term:

i.

Minimizes impacts;

ii.

Shall not result in any damage to other property;

iii.

Shall not increase the risk or threat of the geological hazard to adjacent properties beyond pre-development conditions;

iv.

Shall not result in a need for increased buffers on neighboring properties;

v.

Shall not adversely impact other critical areas;

vi.

Is designed using best management practices and best available science;

vii.

Is designed so that the hazard is eliminated or mitigated to a level equal to or less than pre-development conditions;

viii.

Is determined to be safe as designed and under anticipated conditions; and;

ix.

Locates structures and improvements such that the most critical portion of the site and its natural landforms and vegetation are preserved.

c.

Prepare a geotechnical study that addresses the following:

i.

A detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property, and affected adjacent properties;

ii.

A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard, areas addressed in the report;

iii.

Vegetation needing to be retained or removed;

iv.

The present stability of the proposed development, stability of the proposed site during construction, stability after all development activity is completed, and a discussion of the relative risks and slide potential relating to adjacent properties during each stage of development;

v.

Proposed location of buildings, roadways, and other improvements that reflect careful consideration of geohazards and efforts to avoid or minimize impacts;

vi.

Grading and earthwork, including compaction and fill material requirements; use of site soils as fill or backfill, imported fill or backfill requirements; height and inclination of both cut and fill slopes, terracing, and erosion control; and wet weather considerations and/or limitations;

vii.

A detailed overview of the field investigations, published data, and references; data and conclusions from past assessments of the site; and site-specific measurements, tests, investigations, or studies that support the identification of geologically- hazardous areas;

viii.

A description of the vulnerability of the site to seismic and other geologic events;

ix.

Recommendations for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis;

x.

A mitigation plan addressing how the activity maintains or reduces the pre-existing level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation); specific mitigation measures for impacts to all critical areas and related buffers before, during, and after construction;

xi.

Location and methods of drainage and surface water management. A plan and schedule to monitor stormwater runoff discharges from the site shall be included if there is a significant risk of damage to downstream properties or receiving waters;

xii.

Locations and methods of erosion control, a vegetation management and/or replanting plan, and/or other means for maintaining long-term soil stability;

xiii.

Impacts of landslide run-out on downslope properties;

xiv.

Recommendations for building limitations, structural foundations, and an estimate of foundation settlement;

xv.

An analysis of proposed surface and subsurface drainage and the vulnerability of the site to erosion; and

xvi.

Documents findings, recommendations, and concerns.

d.

Observe and assess mitigation performance during monitoring period.

B.

The city shall review the proposals, recommendations, and geotechnical study and may condition the project based upon its review to ensure the applicant provides all necessary mitigation to ensure there are no remaining safety concerns associated with alteration of the geologically hazardous area. To expedite review, the city may hire a qualified professional for this review, which would be paid for at the applicant's expense.

(Ord. No. Y-49, § 3, 10-10-2023)

A.

Report Requirements. In addition to the critical area report requirements in CMC 21.70.063, geologically hazardous area reports shall include:

1.

A site plan showing the following:

a.

The location of all geologic hazard areas, springs, seeps, or other surface expressions of groundwater on or within 200 feet of the project area;

b.

Location and boundaries of all critical areas and related buffers on the site and on adjacent lands within 25 feet of the site's property lines, noting both total square footage and percentage of site covered by critical areas and related buffers;

c.

Location and identification of all riparian corridors and wetlands within 100 feet of the site's property lines;

d.

Location and boundaries of all existing and proposed site improvements on the site, on adjacent lands within 25 feet of the site's property lines, and on the full width of abutting public rights-of-way and private easements. This shall include the amount of proposed land-disturbing activities, including amounts of developmental coverage, impervious surfaces, and construction activity areas (noting total square footage and percentage of site occupied);

e.

Stormwater-flow characteristics within the site, on adjacent sites within 25 feet of the site's property lines, and on the full width of abutting public rights-of-way and private easements;

f.

Location of all grading activities in progress, and all natural and artificial drainage control facilities or systems in existence or on adjacent lands or on the site or within 25 feet of the site's property lines, and in the full width of abutting public rights-of-way and private easements;

g.

Location of all existing utilities (water, sewer, gas, electric, phone, cable, etc.), both above and below ground, on the site, on adjacent lands within 25 feet of the site's property lines, and in the full width of abutting public rights-of-way; and

h.

For a proposal potentially affecting or affected by an erosion or landslide hazard area:

i.

The height of slope, slope gradient, and cross section of the project area within the hazard area; and

ii.

Stormwater runoff disposal location and flow patterns.

B.

Geologically hazardous area reports shall be prepared by a geologist currently licensed in Washington State or a qualified geotechnical engineer (a professional engineer currently licensed by the State of Washington with geotechnical engineering as a specialty).

C.

A geotechnical report, prepared within the last five years for a nearby and applicable site, and where the proposed land use activity and surrounding site conditions are unchanged, may be incorporated into the required critical area report for reference. The applicant shall submit a geotechnical assessment detailing any changed environmental conditions associated with the site.

(Ord. No. Y-49, § 5, 10-10-2023)