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Newport City Zoning Code

CHAPTER 17

10 ENVIRONMENTALLY SENSITIVE AREAS

§ 17.10.010 Introduction.

The purpose of this chapter is to establish criteria to identify environmentally sensitive areas, also known as critical areas, and to establish standards to preserve and protect the natural environment, maintain fish and wildlife habitat, protect drinking water, and to supplement the city's development regulations governing land use.
A. 
All proposed uses and development activities on a lot, parcel, or tract that contains environmentally sensitive areas, also known as critical areas, must comply with all provisions of this chapter and this title, as well as all other applicable provisions of local, state, and federal law, unless specifically exempted, or otherwise provided. This shall include, but is not limited to:
1. 
Clearing, grading, excavating, disturbing, or dredging soil, sand, gravel, minerals, organic matter, or materials of any kind;
2. 
Dumping, discharging, or filling with any material;
3. 
Subdivisions, short subdivisions, master planned developments, mobile home parks, and RV parks;
4. 
Construction, reconstruction, demolition, or alteration of the size of any structure or infrastructure;
5. 
Construction of any new public or private road or driveway;
6. 
Other uses or development that results in an ecological impact to the physical, chemical, or biological characteristics of wetlands; or
7. 
Activities that reduce the functions of buffers.
B. 
Critical areas subject to the provisions of this chapter include:
1. 
Critical aquifer recharge areas;
2. 
Special flood hazard (frequently flooded) areas;
3. 
Geologic hazard areas;
4. 
Wetlands; and
5. 
Fish and wildlife habitat conservation areas.
C. 
Shoreline areas within 200 feet of the ordinary high water mark of the Pend Oreille River and any associated wetlands are under the jurisdiction of the Washington State Shoreline Management Act.
1. 
Proposed development activities in these areas must comply with the applicable provisions of the Pend Oreille County shoreline master program, as approved by the Washington State Department of Ecology.
2. 
Critical areas under the jurisdiction of the county's shoreline master program, as adopted by the city of Newport, are exempt from the provisions of this chapter and shall comply with the provisions of Chapter 17.11 NMC.
3. 
Please refer to the city's website or contact the Newport city clerk's office for more information about the areas under the jurisdiction of the shoreline management act.
D. 
The following activities may be determined by the city to be exempt from the provisions of this chapter:
1. 
Emergency actions necessary to prevent an immediate threat to life, or to public health, safety, or welfare, or that pose an immediate risk of damage to private structures or improvements and that require remedial or preventative action in a time frame too short to allow for compliance with the procedural requirements of this chapter.
a. 
Emergency actions that create an impact on a critical area or its buffer shall be limited to those actions that are required to address the emergency and generally are limited to the actions necessary to remove the immediate threat. Additional actions to permanently address a deficiency generally do not qualify as emergency actions and require full compliance with the procedural requirements of this chapter. Emergency actions should be carried out in a manner that has the least feasible impact on the critical area or its buffer.
b. 
The person or agency undertaking emergency action shall notify the city within five working days following commencement of the emergency activity. Within 30 days, the city shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the city determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement actions may be initiated.
c. 
After the emergency, the person or agency undertaking the action shall submit a critical area report assessing effects on critical areas and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical area report and mitigation plan. The person or agency undertaking the action shall apply for all approvals required by this chapter. Restoration and/or mitigation activities must be initiated within 180 days of the date of the emergency, unless an extension is approved by the city, and completed in a timely manner.
2. 
Maintenance, operation and/or repair of rights-of-way, trails, roads, utilities, buildings and other facilities within critical areas and buffers; provided, that the activity does not further alter, impact, or encroach upon the sensitive area or buffer or further affect the functions of sensitive areas, and there is no increased risk to life, property, or the environment, as a result of the proposed operation, maintenance, or repair.
3. 
Maintenance of existing, lawfully established landscaping and gardens within a regulated critical area or its buffer, including but not limited to mowing lawns, weeding, removal of noxious and invasive species, harvesting and replanting of garden crops, pruning and planting of ornamental vegetation or indigenous native species to maintain the condition and appearance of such areas as they existed prior to adoption of this code; provided, that native growth protection areas, mitigation sites, or other areas protected via conservation easements or similar restrictive covenants are not covered by this exception.
4. 
Maintenance, repair or replacement of an existing legal, nonconforming structure that does not immediately, or is not likely in the future to, further alter or increase the impact to the sensitive area or buffer and results in no increased risk to life, property, or the environment, as a result of the proposed modification or replacement, or reconstruction of unintentionally damaged nonconforming structures provided structures are not expanded or reconstructed for a new use.
5. 
Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the existing improved portion of the public right-of-way (road surface, shoulder, sidewalks, and slopes) or the improved portion of city-authorized private roadway; provided, that no fill or discharge occurs outside the existing improved area and with appropriate best management practices to control erosion, sedimentation and other potential impacts. Excluded is work within a water body or wetland, including but not limited to culverts or bridge replacement or construction.
6. 
Utility projects that have minor or short-duration impacts to critical areas and buffers, as determined by the city in accordance with the criteria below, and which do not significantly impact the functions or values of a sensitive area(s); provided, that such projects are constructed with best management practices and appropriate restoration measures are provided. These activities shall not result in the transport of sediment or increased storm water, or adversely affect health, property, or the environment. Such allowed minor utility projects shall meet the following criteria:
a. 
There is no practical or feasible alternative to the proposed activity with less impact on sensitive areas;
b. 
The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and
c. 
The activity involves disturbance of less than 200 square feet of the sensitive area and/or buffer, exclusive of any equipment and/or vehicles needed to perform the activity.
7. 
Low-impact activities such as hiking, canoeing, nature study, photography, fishing, education or scientific research.
8. 
Public and private pedestrian trails; provided, that:
a. 
The trail surface consists of uncompacted gravel or pervious materials, including boardwalks.
b. 
The trail meets all other city, state, and federal requirements, including state water quality standards.
9. 
The following nonaquatic vegetation removal activities:
a. 
The removal of the noxious weed species designated by Washington State or the local weed control authority with hand labor and light equipment, or other invasive species.
b. 
The removal of hazard trees from sensitive areas and buffers that are posing a threat to public safety, or an imminent risk of damage to a permanent structure.
10. 
Minor site investigative work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads, removal of native trees or shrubs, or displacement of more than five cubic yards of material. Investigations involving displacement of more than five cubic yards of material, including geotechnical soil borings, groundwater monitoring wells, percolation tests, and similar activities shall require submittal of specific plans and restoration plans to the city prior to commencement of any activity. In every case, impacts to the sensitive area shall be minimized and disturbed areas shall be immediately restored. No activity shall commence or occur without city written approval.
11. 
The application of herbicides, pesticides, fungicides, organic or mineral-derived fertilizers, or other hazardous or potentially hazardous substances, if necessary; provided, that their use shall be conducted in accordance with applicable local, state and federal law.
12. 
Activities undertaken to comply with a United States Environmental Protection Agency superfund related order, or a Washington Department of Ecology order pursuant to the Model Toxics Control Act that specifically preempts local regulations in the findings of the order.
13. 
Project and facilities for restoration and enhancement of ecological functions of critical areas and related resources may be allowed within critical areas and buffers, upon city approval of a restoration and mitigation plan in accordance with the provisions of this chapter, or for restoration of enhancement programs in an adopted shoreline restoration plan pursuant to Chapter 173-26 WAC, a watershed planning document prepared and adopted pursuant to Chapter 90.82 RCW, a watershed restoration project pursuant to RCW 89.08.460, a salmonid recovery plan, the Salmon Recovery Board habitat project list, or identified by the Washington Department of Fish and Wildlife as essential for fish and wildlife habitat enhancement pursuant to RCW 77.55.181.
14. 
The repair and maintenance of drainage ditches.
15. 
The installation of individual service lines for agricultural purposes and to existing uses.
16. 
Reasonably necessary activities conducted by a public agency to control mosquitoes, pests, rodents, weeds, invasive species, and the like.
17. 
Agricultural activities including farming, horticulture, normal maintenance and repair of irrigation delivery systems and drainage systems, ranching, and grazing of animals and pest and weed control. This includes land lying idle under a government program, agricultural set-aside land and changes between agricultural activities.
18. 
Normal and routine maintenance of agricultural ponds, livestock watering ponds, and fishponds.
19. 
Intentional construction of artificial structures from upland areas for purposes of storm water drainage or water quality control, grassy swales or ornamental landscape ponds, which are not a part of a critical mitigation plan and are consistent with the Washington State Department of Ecology Stormwater Management Manual, as adopted and implemented by the city.
20. 
Normal dredging required to maintain flows and minimize flooding; provided, that other applicable local, state, and federal permits are obtained.
21. 
Cases where a federal agency has jurisdictional control over a wetland and the city determines that those permit conditions would satisfy the requirements of this chapter.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.020 General provisions.

A. 
It is the responsibility of property owners and project sponsors to know and/or to identify the location of critical areas on and near their property and to comply with the provisions of this chapter at all times.
1. 
Property owners and project sponsors that may be proposing development activities in proximity of critical areas are strongly encouraged to schedule a conference with city staff to discuss the applicability of these regulations prior to preparing and submitting land use applications to the city.
2. 
The city maintains public maps that may assist in the identification of critical areas.
a. 
It is the responsibility of the property owner/project sponsor to identify and map all critical areas on their property.
b. 
The presence of a critical area and/or its associated buffer on a parcel triggers the requirements of these regulations, regardless of whether a critical area or buffer is depicted on a city map.
3. 
Reasonable access to the project site shall be provided to the city, state, and federal agency staff for the purpose of inspections and compliance review during any proposal review, restoration, emergency action, new construction, or monitoring period.
B. 
These regulations shall apply in addition to the other applicable provisions of this title, as well as applicable local, state, and federal regulations.
1. 
Compliance with the provisions of this chapter does not necessarily constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Hydraulic Project Approvals permits, Army Corps of Engineers Section 404 permits, National Pollutant Discharge Elimination System permits).
2. 
The project sponsor shall be responsible for obtaining all required permits and approvals before initiating any action.
C. 
The city, when regulating uses, activities, and developments within or adjacent to, and likely to affect one or more critical areas, shall do so consistent with the best available science and the provisions of this chapter.
1. 
The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified professional, or team of qualified professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.
2. 
Nonscientific information may supplement scientific information, but it is not an adequate substitute for valid and available scientific information. Common sources of nonscientific information include anecdotal information, nonexpert opinion, and hearsay.
3. 
Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the city may:
a. 
Take a "precautionary" or a "no-risk approach," that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and/or
b. 
Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:
i. 
Address funding for the research component of the adaptive management program;
ii. 
Change course based on the results and interpretation of new information that resolves uncertainties; and
iii. 
Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries.
D. 
Property owners and project sponsors shall, when designing development activities and uses that may affect geologic hazard areas, wetlands, and fish and wildlife habitat conservation areas, use the following measures, listed in priority order:
1. 
Avoid the adverse impact altogether by not taking a certain action or parts of an action or moving the proposed action;
2. 
Minimize adverse impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology and engineering, or by taking affirmative steps to avoid or reduce adverse impacts;
3. 
Rectify the adverse impact by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;
4. 
Reduce or eliminate the adverse impact over time by preservation and maintenance activities during the life of the action;
5. 
Compensate for the adverse impact by replacing, enhancing, or providing similar substitute resources or environments;
6. 
Monitor the impact for a reasonable period and taking appropriate corrective measures; and
7. 
Mitigate the adverse impact through a combination of measures.
E. 
A critical area authorization or permit is required before any construction or development activity may be initiated on a site with an area that meets the criteria for designation as a special flood hazard area, geologic hazard area, wetland, or fish and wildlife habitat conservation area(s) or their associated buffers.
1. 
A critical area authorization must be based on a written finding by the city that the proposed activity meets one of more of the following criteria:
a. 
The proposed activity is exempt;
b. 
The proposed activity only occurs outside of the critical area and the associated buffer;
c. 
The city has adequate information to determine that the proposal will not have an adverse impact on the critical area; or
d. 
The proposed activity will not have an adverse impact on the critical area and otherwise complies with the provisions of this section.
2. 
A critical area permit shall be based on the findings and recommendations contained in a critical area report(s).
F. 
In order to receive a required critical area permit, project sponsors must prepare and submit for city review and approval a critical area report(s) in a format prescribed by the city.
1. 
The city shall determine the scope, content, and format for a critical area report based on preapplication consultation with the project sponsor and their consultants, resource agencies, and qualified professionals. Individual critical areas reports may be combined into a single comprehensive report, in a format approved by the city.
a. 
Please refer to the city of Newport Critical Areas Manual for information on how to identify and protect critical areas and for guidelines for the preparation of critical areas reports. Copies are available online through the city's website and from the city clerk's office.
2. 
Critical area reports shall be prepared by a qualified professional, as determined by the city.
a. 
The cost of preparing required critical areas report(s) shall be borne by the applicant/project sponsor.
b. 
The cost of a professional peer review of any required critical areas report, if required by the city, shall be borne by the applicant/project sponsor.
3. 
Critical area reports shall be submitted to the city in draft form for city review and comment. Following this review, the city shall notify the applicant in writing:
a. 
That the report complies with city guidelines and that it may be submitted in final form;
b. 
That additional information is necessary and/or revisions must be made before the report can be accepted for processing, and that identifies the corrective actions that must be taken; or
c. 
That the report does not comply with city guidelines and that identifies the corrective actions that must be taken.
4. 
Upon acceptance of the critical area report(s), the city shall utilize the report to evaluate the proposed development activity and to establish conditions of approval. In addition, the city may require the project sponsor to:
a. 
Submit detailed construction plans and drawings prepared by a qualified professional necessary to implement mitigating measures and other conditions of approval;
b. 
Conduct or permit to be conducted ongoing monitoring and evaluation;
c. 
Install protective fencing and signage;
d. 
Provide the city with financial guarantees; and/or
e. 
Demonstrate compliance with the provisions of the applicable local, state, and federal laws.
G. 
The city may require, as a condition of approval, that temporary or permanent fencing and signage may be installed to protect critical areas and their buffers from inappropriate uses, unauthorized development activities, intrusion, or accidental encroachment.
1. 
The outer perimeter of the critical area or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and is subject to inspection by the city prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.
2. 
Fencing installed as part of a proposed activity or as required in this section shall be designed so as to not interfere with native species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to critical areas and buffers.
H. 
In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of private property containing a critical area or buffer on which a development proposal has been approved, may be required to file a notice to title with the Pend Oreille County auditor's office. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.030 Critical aquifer recharge areas.

Critical aquifer recharge areas (CARAs) are lands with prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of groundwater resources or contribute significantly to the replenishment of groundwater.
A. 
The entire city of Newport is hereby designated as a critical aquifer recharge area and the provisions of this chapter shall apply to all proposed development activities unless specifically exempted, or otherwise provided.
B. 
All uses and development activities shall comply with local, state, and federal laws and regulations to protect groundwater. This shall include, but is not limited to:
1. 
Chapters 173-216, 173-218, 173-240, 173-303, 173-304, and 173-360A WAC.
2. 
The water source protection requirements and recommendations of the Washington State Department of Health and the Pend Oreille County health department.
3. 
The city of Newport storm water management regulations.
4. 
The U.S. Clean Water Act.
C. 
Uses and activities may only be permitted if the project sponsor can show that the proposed use or activity will not cause contaminants to enter local aquifers, adversely affect the recharging of the aquifer, or adversely affect the quantity or quality of groundwater.
1. 
Depending on the location and nature of the proposed use, the city may require a critical area report prepared by a qualified professional and supported by best available science, to identify design features and best management practices necessary to protect the quality and quantity of groundwater.
2. 
Where these uses are permitted, the following special development standards shall also apply:
a. 
Aboveground or underground storage tanks or vaults for the storage of hazardous substances or dangerous wastes as defined in Chapter 173-303 WAC, Dangerous Waste Regulations, or any other substances, solids, or liquids in quantities identified by the city, consistent with Chapter 173-303 WAC, as a risk to groundwater quality, shall conform to the International Building and Fire Codes, and Chapter 173-360A WAC, Underground Storage Tank Regulations.
b. 
Vehicle repair and servicing activities must be conducted over impermeable pads and within a covered structure capable of withstanding normally expected weather conditions. Chemicals used in the process of vehicle repair and servicing or accessory uses must be stored in a manner that protects them from weather and provides containment should leaks occur.
c. 
No dry wells shall be allowed in CARAs on sites used for vehicle repair and servicing. Dry wells existing on the site prior to facility establishment must be abandoned using techniques approved by the State Department of Ecology prior to commencement of the proposed activity.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.040 Special flood hazard areas.

A. 
All special flood hazard areas in the city of Newport, as determined by utilizing data obtained from the Federal Emergency Management Agency (FEMA) flood insurance rate maps (FIRM), are subject to the provisions of this section. Special flood hazard areas are subject to inundation by one percent annual chance flood and shall include Zones A and AE.
B. 
No development activities or new uses may be permitted on sites with designated special flood hazard areas without a critical areas authorization or permit in accordance with the provisions of this chapter.
C. 
All proposed development activities and new uses on sites with designated special flood hazard areas must comply with:
1. 
The Newport Municipal Code.
2. 
FEMA regulations and standards.
3. 
Other applicable federal, state, and local laws and regulations.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.050 Geologic hazard areas.

The purpose of these regulations is to maintain the integrity of designated geologic hazard areas and their buffers in order to protect adjacent lands from the impacts of landslides, mudslides, subsidence, excessive erosion and seismic events, and to safeguard the public from these threats to life or property.
A. 
Geologic hazard areas in the city of Newport shall include those areas that are susceptible to one or more of the following types of hazards:
1. 
Erosion hazard;
2. 
Landslide hazard;
3. 
Seismic hazard;
4. 
Mine hazard;
5. 
Volcanic hazard; or
6. 
Other geological events including volcanic hazards, mass wasting, debris flows, rock falls, and differential settlement.
B. 
No development activities or new uses may be permitted on sites with areas that meet the criteria for designation as a geologic hazard area or an associated buffer without a critical areas authorization or permit.
1. 
The city may waive or reduce engineering study and design requirements in geologic hazard areas for:
a. 
Additions or alterations to existing structures that do not increase occupancy or significantly affect the risk of structural damage or injury; or
b. 
New buildings that are not dwelling units or used as places of employment or public assembly and do not pose a significant threat to a dwelling unit(s) or places of employment or public assembly.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.060 Wetlands.

Wetlands are 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. 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 intentionally created from nonwetland areas created to mitigate conversion of wetlands.
A. 
All areas within the city of Newport meeting the wetland designation criteria in the approved federal wetland delineation manual and applicable regional supplements, as amended, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.
1. 
Wetlands shall be rated according to the Washington Department of Ecology Wetland Rating System, as set forth in the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029), or as revised and adopted by the city.
2. 
A buffer area shall be established for all designated wetlands to protect the function and values of the wetland.
3. 
For more information on the rating of wetlands as well as the criteria and standards for establishing buffer areas, please refer to the city of Newport Critical Areas Manual.
B. 
No development activities or new uses may be permitted on sites that meet the criteria for designation as a wetland or an associated buffer without a critical areas authorization or critical areas permit in accordance with the provisions of this chapter.
1. 
The following uses and activities may be permitted by the city in wetlands through a critical areas authorization:
a. 
Conservation or preservation of soil, water, vegetation, fish, and other wildlife that does not entail changing the structure or functions of the existing wetland.
b. 
The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, or alteration of the wetland by changing existing topography, water conditions or water sources.
c. 
Recreational and educational activities.
d. 
Research.
e. 
Drilling for utilities under a wetland; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. The city may require the project sponsor to submit a special study prepared by a qualified professional to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column is disturbed prior to any drilling or drilling associated activities.
f. 
Enhancement of a wetland through the removal of nonnative invasive species. Weeding shall be restricted to hand removal and weed material shall be removed from the site. Bare areas that remain after weed removal shall be revegetated with native shrubs and trees at natural densities. Some hand seeding may also be done over the bare areas with native plants.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.070 Fish and wildlife habitat conservation areas.

A. 
All areas within the city meeting one or more of the following criteria, regardless of any formal designation, are hereby designated fish and wildlife habitat conservation areas and are subject to the critical area provisions of this chapter:
1. 
Areas where state or federal designated endangered, threatened, and sensitive species have a primary association.
a. 
Federal designated endangered and threatened species are those fish, wildlife, and plant species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered.
b. 
State designated endangered, threatened, and sensitive species are those fish, wildlife and plant species native to the state of Washington identified by the State Department of Fish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 220-610-020 (state endangered species), and WAC 220-200-100 (state threatened and sensitive species).
c. 
Priority habitats and species identified by the state Department of Fish and Wildlife. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element.
2. 
Priority habitats and species identified by the Washington State Department of Fish and Wildlife, and as subsequently amended.
3. 
Habitats and species designated by the county as being of local importance and warranting protection, based on provisions of best available science.
4. 
Herring, smelt, or other forage fish spawning areas.
5. 
Naturally occurring ponds are those ponds under 20 acres and their submerged aquatic beds that provide native fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation.
6. 
Waters of the state includes lakes, rivers, ponds, streams, inland waters, undergroundwaters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-030 and 222-16-031.
7. 
Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity.
8. 
State natural area preserves, natural resource conservation areas, and state wildlife areas.
9. 
Streams shall be designated in accordance with the Washington State Department of Natural Resources (DNR) stream type as provided in WAC 222-16-030.
10. 
Areas of rare plant species and high-quality ecosystems that are identified by the Washington State Department of Natural Resources through the Natural Heritage Program.
B. 
No development activities or new or modified uses may be permitted on sites that meet the criteria for designation as a fish and wildlife habitat conservation area or an associated buffer without a critical areas authorization or permit in accordance with the provisions of this chapter.
(Ord. 2104 § 1 (Exh. A), 2022)

§ 17.10.080 Enforcement.

A. 
When a critical area or its buffer has been altered in violation of this chapter, the city shall have the authority to issue a stop work order to cease all development activities, and order restoration, rehabilitation, replacement, or, where determined appropriate, mitigation measures at the owner's or other responsible party's expense to compensate for violation of provisions of this chapter and other applicable city codes.
1. 
All development work shall remain stopped until a restoration and/or mitigation plan is prepared at the project sponsor's expense and approved by the city. The plan must be prepared by a qualified professional and shall describe how the actions proposed meet the minimum requirements of this section.
2. 
The city may, at the violator's expense, seek expert advice in determining the adequacy of the plan.
3. 
Inadequate plans shall be returned to the violator for revision and resubmittal, with a written explanation regarding any deficiencies and/or additional information that may need to be submitted.
4. 
Any work recommenced shall be done in accordance with the approved restoration/mitigation plan.
5. 
For alterations to frequently flooded areas, wetlands, and habitat conservation areas the following minimum performance standards shall be met for the restoration of a critical area to the condition and state preexisting the violation provided that if the violator can demonstrate in a restoration/mitigation plan that greater functional and habitat values can be obtained, these standards may be modified by the city:
a. 
The function and values of the affected area shall be restored, including water volumes, quality, and wildlife habitat;
b. 
The soil types and configuration shall be replicated; and
c. 
The critical area and buffers shall be replanted with native vegetation that replicates the vegetation typically found on the site in species types, sizes, and densities.
6. 
For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that, if the violator can demonstrate that greater safety can be obtained, these standards may be modified:
a. 
The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;
b. 
Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and
c. 
The hazard area and any buffers shall be replanted with native vegetation sufficient to minimize the hazard.
B. 
Representatives of the city are authorized to make site inspections and take such actions as are necessary to enforce this chapter. The authorized representatives shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.
C. 
Any violation of this chapter shall be enforced in accordance with the provisions of the Newport Municipal Code.
1. 
Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be subject to civil or criminal penalties.
2. 
Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense.
3. 
Any development activity carried out contrary to the provisions of this chapter shall constitute a public nuisance in accordance with the provisions of Chapter 8.36 NMC and may be enjoined as provided by the statutes of the state of Washington.
(Ord. 2104 § 1 (Exh. A), 2022)