HomeMy WebLinkAboutO-2571 - Adds Sec. 19.06.112, 19.06.271, 19.06.369 and 19.06.384; amends Sec. 19.06.123, 19.06.410, 19.06.470, 19.06.498, 19.06.543 and Ch. 19.24; repeals Sec. 19.06.408 and 19.06.413, zoning (Repealed by 2852)CITYOF MARYSVILLE
Marysville,Washington
ORDINANCE NO..2S 7/
AN ORDINANCE OF THE CITY OF MARYSVILLE,
WASHINGTON, COMPLYING .WITH THE GROWTH
MANAGEMENT ACT'S REQUIRED REVIEW AND UPDATING
OF THE CITY'S DEVELOPMENT REGULATIONS BY
AMENDING THE SENSITIVE AREAS MANAGEMENT
ORDINANCE, RENAMING IT THE "CRITICAL AREAS
MANAGEMENT ORDINANCE", ADOPTING FINDINGS OF
FACT, AND AMENDING CHAPTERS 19.06 AND 19.24 OF THE
MARYSVILLE MUNICIPAL CODE.
WHEREAS, as one of the cities in Snohomish County, the City of Marysville isrequired
under RCW 36.70A.130(4) to review and,if needed, revise its Comprehensive Plan and
development regulations to ensure that the Plan and regulations comply with the Growth
Management Act (GMA); and
WHEREAS, the City is meeting the spirit and intent of the GMA by adopting Ordinance
;)..Sb ~,which (I)sets forth the City's public participation program, (2) identifies needed
revisions to the Comprehensive Plan and development regulations, and (3) adopts needed
revisions to the Comprehensive Plan, and by adopting this Ordinance, which adopts needed
revisions to the City's critical areas regulations; and
WHEREAS, in taking the actions set forth in this Ordinance, the City of Marysville has
made a good faith effort to comply with the regulations and recommendations of the Washington
State Department of Community, Trade, and Economic Development (CTED) and the
Washington State Department of Ecology (DOE), has submitted to CTED and DOE the
proposed needed revisions to the City's critical areas regulations, and has duly considered the
suggested changes from said agencies; and
WHEREAS, in taking the actions set forth in this Ordinance, the City of Marysville has
utilized the best available science and has adopted measures to protect anadromous fish and
other species in compliance with the GMA and the Endangered SpeciesAct, as is documented in
the findings of factset forth herein; and
WHEREAS, the City of Marysville has provided ample opportunity for public hearing
input and written comments on the proposed revisions to the City's critical areas regulations and
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has duly considered said input and comments; and
WHEREAS, in taking the actions set forth in this Ordinance, the City of Marysville has
prepared and considered an environmental impact statement (EIS)prepared pursuant to the State
Environmental Policy Act, Ch.43.2IC.RCW, the Final EIS having been issued on April 12,
2005;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MARYSVILLE,
WASHINGTON DO ORDAIN AS FOLLOWS:
Section 1.Findings of Fact. The City hereby adopts the following findings offact in
support of the revisions to the City's critical areas regulations set forth in this Ordinance:
I. The Growth Management Act (GMA) requires the adoption of development
regulations that protect critical areas designated in accordance with RCW
36.70A.170.
2. RCW 36.70A.I72 requires local govemments to use best available science and to
give special consideration to the conservation and protection measures necessary to
preserve or enhance anadromous fisheries.
3. The City's best available science review for the revised critical areas regulations was
performed by the City's planning staff in conjunction with a highly qualified
.environmental consulting firm and the City's Critical Area Ordinance Review
Committee.
4. The City's best available science review is contained in the following documents and
is supported by a comprehensive number of sources as referenced in said documents:
a."Use of Best Available Science in City of Marysville Buffer Regulations",
10/28/04
b."Commentary on City of Marysville Best Available Science Review", Jones
and Stokes,10120104
c."Overview and Comparison of Aquifer, Flood Hazard,Wildlife Habitat,
Geologic Hazard, and Procedural Regulations to State Example Critical Areas .
Code",Jones and Stokes,10120104
d. Critical Area Ordinance Committee meeting summaries,11/04-12/04
e."Wetland Classification at Whispering Pines", Jones and Stokes,11/17/04
f."Stream and Wetland Buffer Width Lot Impact Analysis-Staff Buffer Width
Recommendations Versus CTED Model Code Recommendations",12/16104
g."CAO Update",Community Development Department,111 0105
h."Wetlands having a wildlife value of more than 29 points",Jones and Stokes,
3/14105
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I."Wetland Exemption-Supplemental BAS Discussion",Jones &Stokes,
4118/05
5.The City has given due consideration to the information available in CTED's model
critical areas ordinance and in DOE's Wetland Identification and Delineation Manual
and Wetland Rating System for Western Washington.Additionally,the City has
considered the written comments of, has met with, and has obtained the concurrence
of, the Department of Ecology with regard to the critical areas regulations adopted
herein.
6.The City has received numerous comments regarding the critical areas regulations
from individual citizens,environmental groups,developer organizations,and
government agencies.The City has responded to these comments in the Final EIS
issued on April 12,2005 and has duly considered these comments in the adoption of
this Ordinance.
7.The critical areas regulations set forth in this Ordinance are supported by the best
available science as well as by the other goals and policies of the GMA,including
reducing sprawl,encouraging growth in urban areas,encouraging economic
development,protecting property rights,protecting the environment,open space, and
recreation areas, and encouraging and coordinating public participation in the
planning process.
8. In determining what critical areas are to be afforded a particular degree of protection,
the City of Marysville has evaluated the full scope of best available science and has
relied on the best available science in making informed decisions that meet the goals
and policies of the GMA referenced in Finding # 7 and that also reflect the unique
circumstances in Marysville.
9.The City's application of best available science together with the other GMA goals
and policies referenced in Finding #7 in a manner that reflects the unique
circumstances in Marysville is exemplified by relying on the 12/16/04 Lot Impact
Analysis referenced in Finding #4f and the other best available science referenced in
Finding #4 to support deviations from the CTED and DOE information referenced in
Finding #5.Such deviations include the wetland buffer widths in MMC 19.24.100
and the exemptions in MMC 19.24.080 and 19.24.330.These regulations protect the
functions and values of the City's critical areas while reducing the extreme number of
non-conforming lots that would result from the standardized CTEDIDOE approach.
As a result,the City of Marysville will enjoy an urban environment that features well
protected critical areas but that also allows for urban growth as mandated by the
GMA.
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10. In addition to adopting this Ordinance,the City of Marysville is also taking other
actions to protect its critical areas,including stonnwater management standards and
practices,critical areas restoration projects,and public education.
Section 2.Chapter 19.24 of the Marysville Municipal Code is hereby amended to read
as follows:
CHAPTER 19.24
CRITICAL AREAS MANAGEMENT
Sections:
19.24.010
19.24.020
19.24.030
19.24.040
19.24.050
19.24.060
19.24.070
19.24.080
19.24.090
19.24.100
19.24.110
19.24.120
19.24.125
19.24.130
19.24.140
19.24.150
19.24.160
19.24.170
19.24.180
19.24.190
19.24.200
19.24.210
19.24.220
19.24.230
Article 1.General1ntroduction
General purpose and intent.
General applicability of these regulations.
General relationship of regulation of one type of critical area protection to
other regulations.
Best Available Science.
Article II.Wetlands
Applicability to wetlands.
Wetland rating and classification.
Regulated activities in wetlands.
Exemptions to wetland regulations.
Wetland inventory maps.
Wetland buffer areas.
Wetland alteration and mitigation.
Wetland mitigation standards,criteria and plan requirements.
Wetland mitigation banks.
Wetland mitigation plan requirements.
Performance standards for wetlands mitigation planning.
Wetland monitoring program and contingency plan.
Off-site density transfers for wetland areas.
Reserved.
Article III.Fish and Wildlife Habitat Areas
Fish and wildlife habitat conservation areas designated.
Regulated activities in habitats.
Exemptions from fish and wildlife regulations.
Fish and wildlife habitat inventory maps.
Classification of fish and wildlife habitat areas.
Fish and wildlife habitat buffer areas.
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19.24.240
19.24.250
19.24.260
19.24.270
19.24.280
19.24.290
19.24.300
19.24.310
19.24.320
19.24.330
19.24.340
19.24.350
19.24.360
19.24.370
19.24.380
19.24.390
19.24.400
19.24.410
19.24.420
19.24.430
Fish and wildlife habitat alteration and mitigation.
Fish and wildlife mitigation standards,criteria and plan requirements.
Fish and wildlife habitat performance standards and incentives.
Fish and wildlife habitat monitoring program and contingency plan.
Article IV.Geologic Hazard Areas
Applicability to geological hazards.
Geologic hazard inventory map.
Alteration of geologic hazard areas and development limitations.
Setbacks from geologic hazards.
Geologic hazard performance standards.
Article V.General Information
General exemptions.
Permit process and application requirements.
Selection of qualified scientific professional and city review of report.
Land divisions.
On-site density transfer for critical areas.
Fencing and signage requirements.
Building setbacks.
General procedural provisions.
Penalties and enforcement.
General savings provisions -Reasonable use.
No special duty created.
Article I. General Introduction
19.24.010 General purpose and intent.
(I)The city of Marysville finds that critical areas perform many important biological and
physical functions that benefit the city of Marysville and its residents,with the exception of
geologic hazard areas which may pose a threat to human safety or to public and private
property.Specifically,the functions they perform include but are not limited to the following
by type:
(a)Wetlands:helping to maintain water quality;storing and conveying storm water
and floodwater;recharging groundwater;providing important fish and wildlife habitat;and
serving as areas for recreation,education and scientific study and aesthetic appreciation;and
(b)Fish and wildlife habitat areas:maintaining species diversity and genetic diversity;
providing opportunities for food,cover,nesting,breeding and movement for fish and wildlife;
serving as areas for recreation,education,and scientific study and aesthetic appreciation;
helping to maintain air and water quality;controlling erosion;and providing neighborhood
separation and visual diversity within urban areas.
In addition,certain portions of the city of Marysville are characterized by geologic
ORDINANCE - 5
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hazards that pose a risk to public and private property, to human life and safety and to the
natural systems that make up the environment of the city of Marysville. These lands are
affected by natural processes that make them susceptible to landslides, seismic activity
and severe erosion. Protection of critical areas and regulation of geologic hazards are,
theretofore, necessary to protect thepublic health, safety and general welfare.
(2)These regulations of the city of Marysville critical areas ordinance contains standards,
guidelines,criteria and requirements intended to identify, analyze and mitigate potential
impacts to the city of Marysville's critical areas and to enhance and restore them where
possible.The intent of these regulations is to avoid impacts where such avoidance is feasible
and reasonable.In appropriate circumstances,impacts to critical areas resulting from
.regulated activities may be minimized,rectified,reduced or compensated for,consistent with
the requirements of these regulations. The city of Marysville's overall goal shall be to protect
the functions and values of critical areas and protect the people,public and private property,
and natural ecosystems.
(3)It is the further intent of these regulations to:
(a)Implement the goals and policies ofthe city of Marysville comprehensive plan,
including those pertaining to natural features and environmental protection;aesthetics and
community character;providing adequate housing and infrastructure;providing opportunities
for economic development;creating a balanced transportation system; ensuring adequate
public facilities; and achieving a mix of land use types and densities consistent with the city of
Marysville's land use plan;
(b)Serve as a basis for exercise of the city of Marysville's substantive authority under
the State Environmental Policy Act (SEPA) and the city of Marysville's SEPA rules;
(c)Comply with the requirements of the Growth Management Act (RCW 36.70A)and
its implementing rules; and through the application of the best available science, in
accordance with WAC 365-195-900 through 365-195-925,and in consultation with state and
federal agencies and other qualified professionals.
(d)Coordinate environmental review and permitting of proposals to avoid duplication
and delay.
(4) The city of Marysville further finds that Snohomish County has identified and mapped
some portions ofthe city of Marysville based on topographic,geologic, hydrologic, and
habitat characteristics where the conditions indicate that critical areas are believed to exist.
There is,however,a need for additional study and mapping to verify that such conditions do,
in fact, prevail and to identify other areas that are potentially geologic hazards. Such mapping
will enable the city of Marysville to provide notice to the public of the potential presence of
critical areas or the risks associated with developing lands subject to geologic hazards.
However,the boundaries of the critical areas and geologic hazard areas displayed on these
maps are approximate and are not intended to be used for individual site assessment.Where
differences occur between what is illustrated on these maps and site conditions,the actual
presence or absence of environmentally critical areas or geologic hazard areas on the site shall
control.
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19.24.020 General applicability of these regulations.
(1)The provisions of these regulations shall apply to any activity that potentially affects
critical areas or their established buffers unless otherwise exempt. Any action taken pursuant
to this Title shall result in equivalent or greater functions and values of the critical areas
associated with the proposed action, as determined by the best available science and as
provided in Chapter 19.24 MMC. All actions and developments shall be designed and
constructed in accordance with the priority sequencing outlined in Section(s)19.24.120 and
19.24.240 to avoid,minimize,and restore all adverse impacts.Applicants must first
demonstrate an inability to avoid or reduce impacts,before restoration and compensation of
impacts will be allowed. No activity or use shall be allowed that results in a net loss of the
functions and values of critical areas unless otherwise permitted by a reasonable use
determination under MMC 19.24.420.
(2) To avoid duplication,the following permits and approvals shall be subject to and
.coordinated with the requirements of these regulations:clearing and grading;subdivision or
short subdivision;building permit;planned unit development;shoreline substantial
development;variance;conditional use permit;other permits leading to the development or
alteration ofland;and rezones and other nonproject actions if not combined with another
development permit.
19.24.030 General relationship of regulation of one type of critical area protection to
other regulations.
These regulations shall apply as an overlay and in addition to zoning, land use and other
regulations,including critical areas regulations,established by the city of Marysville.
(1)Areas characterized as a critical area may also be subject to other regulations established
by this chapter due to the overlap or multiple functions of some critical areas. For example,
some landslide hazard areas (e.g., steep slopes)adjacent to wetlands may be regulated by
buffering requirements according to the wetland management provisions of this chapter.Also,
wetlands,for example,may be defined and regulated according to the wetland and habitat
management provisions of this chapter. In the event of any conflict between regulations for
particular critical areas in this chapter,those regulations which provide greater protection to
enviromnentally critical areas shall apply.
(2)These critical area regulations shall apply as an overlay and in addition to zoning,land use,
and other regulations established by the city of Marysville.In the event of any conflict
between these regulations and any other regulations of the city of Marysville,the regulations
which provide greater protection to enviromnentally critical areas shall apply.
(3)Compliance with the provisions of this Title does not constitute compliance with other
federal,state, and local regulations and permit requirements that may be required.The
applicant is responsible for complying with these requirements,apart from the process
established in this Title.
19.24.040 Best Available Science.
(1)Criteria for best available science.The best available science is that scientific information
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program;
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applicable to the critical area 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 365-195-925,as amended.
(2)Protection of functions and value and fish usage.Critical area studies 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 or protection measures
necessary to preserve or enhance anadromous fish and their habitat,such as salmon and bull
trout.
(3)Lack of Scientific Information.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 or permitting an alteration of or impact to the critical area, the city
shall:
(a)Take a "precautionary or no-risk approach,"that strictly limits development and
land use activities until the uncertainty is sufficiently resolved;and
(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 deliberative scientific
approach to taking action and obtaining information in the face of uncertainty.To effectively
implement an adaptive management program,the city hereby commits to:
(i)Address funding for the research component of the adaptive management
(ii)Change course based on the results and interpretation of new information
that resolves uncertainties;and
(iii)Commit to the appropriate timeframe and scale necessary to reliably
evaluate regulatory and nonregulatory actions affecting protection of critical areas and
anadromous fisheries.
Article II.Wetlands
19.24.050 Applicability to wetlands.
(1)See MMC 19.24.020 for general applicability.
(2)Nonproject actions such as rezones shall be required to perform a wetland determination
as defined by these regulations.
19.24.060 Wetland rating and classification.
A.Classification.Wetlands shall be classified as Category I,II, III, or IV using the
Washington State Department ofEcology's Wetland Rating System for Western Washington,
Publication #04-06-025,or as amended hereafter.Wetland delineations shall be determined
by using the Washington Stale Wetlands Identification and Delineation Manual,March 1997,
or as amended hereafter.
B.Sources used to identify designated wetlands include,but are not limited to:
(1)United States Department of the Interior, Fish and Wildlife Service,National
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Wetlands Inventory.
(2) Areas identified as hydric soils, soils with significant soil inclusions and "wet
spots"within the United States Department of Agriculture/Soil Conservation Service Soil
Survey for Snohomish County.
(3)Washington State Department of Natural Resources,Geographic Information
System,Hydrography and Soils Survey Layers.
(4) City ofMarysville Critical Areas Inventory Maps.
19.24.070 Regulated activities in wetlands.
The following activities within a wetland and its associated buffer, or outside a wetland or
buffer but potentially affecting the wetland or buffer, shall be regulated pursuant to the
standards of this chapter:
(I)Removing,excavating,disturbing or dredging soil, sand, gravel,minerals,organic matter
or materials of any kind;
(2)Dumping,discharging or filling with any material;
(3)Draining,flooding or disturbing the water level or water table;
(4)Driving piling or placing obstructions;
(5)Constructing,reconstructing,demolishing or altering the size of any structure or
infrastructure;
(6)Construction of anyon-site sewage disposal system, or other underground facilities, except
exempted activities;
(7)Destroying or altering vegetation through clearing,harvesting,shading or planting
vegetation that would alter the character of a wetland;
(8)Activities that result in significant changes in water temperature,physical or chemical
characteristics of wetland water sources,including water quantity and quality, soil flow, or
natural contours,and pollutants;and
(9) Any other activity potentially affecting a wetland or wetland buffer not otherwise exempt
from the provisions of this chapter; and
(10) Work to maintain wetlands intentionally created from non-wetland areas as mitigation for
wetland impacts.
19.24.080 Exemptions to wetland regulations.
(1) See MMC 19.24.330 for general exemptions to all critical areas.
(2) The following activities shall be exempt from the provisions of this chapter related to
wetlands and their buffers,provided they are conducted using best managementpractices on
wetlands:
(a)Activities involving artificially created wetlands intentionally created from
nonwetland sites,including but not limited to grass-lined swales,irrigation and drainage
ditches,detention facilities, and landscape features, except wetlands created as mitigation.
(b)Work in wetlands created after July 1, 1990 that were unintentionally created as a
result of road, street, or highway construction.
(c) In addition,the Director may waive compliance with wetland buffer and
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compensation requirements for the fill of a Class IV wetland no greater than one tenth of an
acre in size if all the following criteria are met:
(i) The wetland is not contiguous with a freshwater or estuarine system and is
not considered part of a mosaic wetland complex;
(ii) Standing water is not present in sufficient amounts to support breeding
amphibians;
(iii) Species listed by federal endangered,threatened,and candidate species, or
listed by the ~tate as endangered, threatened, and sensitive species, or essential habitat for
those species, are not present;
(iv) Some form of mitigation is provided for the hydrologic and water quality
functions; for example,stormwater treatment or landscaping or other mitigation; and
(v) A wetland assessment prepared by a qualified professionaldemonstrating
the waiver criteria are met.
(vi) The determination to waive requirements shall be reviewed through the
city's SEPA review process as established in Chapter 19.22 MMC.
(3)Notwithstanding the exemption provided by MMC 19.24.330 and by this chapter, any
otherwise exempt activities occurring in or near wetlands shall comply with the intent of these
standards and shall consider on-site alternatives that avoid or minimize potential wetland
impacts.
19.24.090 Wetland inventory maps.
The approximate location and extent of wetlands within the city of Marysville's planning
area are shown on the critical areas maps adopted as part of this chapter. These maps
shall be used as a general guide only for the assistance of property owners and thepublic;
boundaries are generalized. The actual category, extent and boundaries of wetlands shall
be determined in the field by a qualified scientific professional according to the
procedures, definitions and criteria established by this chapter and ~hapter 19.06 MMC.
In the event of any conflict between the wetland location or designation shown on the
city of Marysville wetland areas maps and the criteria or standards of this chapter, the
criteria and standards resulting from the field investigation shall control.
19.24.100 Wetland buffer areas.
(l)The establishment of wetland buffer areas shall be required for all development
proposals and activities adjacent to wetlands to protect the integrity, function and value
of the wetland. Buffers shall consist of an undisturbed area of native vegetation
established to protect the functions and values of the wetland. Buffers shall be
determined in conjunction with considerations of wetland category and quality, approved
wetland alterations and required mitigation measures. Buffers are not intended to be
established or to function independently of the wetland they are established to protect;
the establishment of a buffer shall not operate to prevent a use or activity that would
otherwise be permitted as set forth in Section(s) 19.24.080, 19.24.100 (7)&(8), and
19.24.330, in the wetland subject to mitigation.
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(2) Buffers shall be measured from the wetland edge as delineated and marked in the
field using the wetland delineation methods defined in Chapter 19.06 MMC. Required
buffer widths shall reflect the sensitivity of the wetland and its category and intensity of
human activity proposed to be conducted near the wetland.
(3)Where existing buffer area plantings provide minimal vegetative cover and cannot
provide the minimum water quality or habitat functions, buffer enhancement shall be
required. Where buffer enhancement is required, a plan shall be prepared that includes
plant densities not less than five (5) feet on center for shrubs and ten (10) feet on center
for trees.Monitoring and maintenance of plants shall be required in accordance with
Section 19.24.150,Wetland Monitoring Program and Contingency Plan.Existing buffer
vegetation is considered "inadequate"and will require enhancement through additional
native plantings and removal of non-native plants when:
(a)Non-native or invasive plant species provide the dominate cover;
~(b)Vegetation is lacking due to disturbance, and wetland resources could be
adversely affected; or
(c)Enhancement plantings in the buffer could significantly improve buffer
functions.
(4)The following buffer widths are established as minimum targets. All buffer widths
shall be measured from the wetland boundary as surveyed in the field.If according to
the buffer mitigation plan, the buffer is not sufficient to protect the wetland, the city shall
require larger buffers where it is necessary to protect wetlands functions based on site-
specific characteristics.As an alternative to the buffer width being based on wetland
category, the buffer width for Category 1 wetlands may be established according to the
"Buffer Altemative 3"methodology contained in the Department of Ecology's
document titled "Freshwater Wetlands in Washington State, Volume 2:Managing and
Protecting Wetlands,Appendix 8_C".Buffer Alterative 3 establishes buffer widths
based on wetland category,intensity of impacts, and wetland functions or special
characteristics.
Table 1 Wetland Buffer Widths
Wetland Catezorv Buffer Width
Category 1 125 feet
100 feet
Ebey Slough
except in the following location:North and south shore of Ebey Slough
between the western city limits,at approximately 1-5,and 47th Ave.NE
~5 feet
Catezorv II 100feet
Category III 75feet
Catezorv IV 35feet
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(5)Buffer widths may be modified by averaging buffer widths as set forth herein.
(a)Buffer width averaging shall be allowed only where the applicant
demonstrates to the community development department that the averaging will not
impair or reduce the habitat,water quality purification and enhancement,storm water
detention,ground water recharge,shoreline protection and erosion protection and other
functions of the wetland and buffer,that lower-intensity land uses would be located
adjacent to areas where buffer width is reduced, and that the total area contained within
the buffer after averaging is no less than that contained within the standard buffer prior to
averaging;
(b)Buffer reductions may be allowed for Category 3 and 4 wetlands provided
that the applicant demonstrates the proposal meets criteria (i)through (iii)and either (iv)
or (v).Buffer width reduction proposals that meet the criteria as determined by the
director shall be reduced by no more than 25 percent of the required buffer and shall not
be less than 25 feet in width.
(i) The buffer area meets buffer area planting requirements in MMC
19.24.100(3)and 19.24.140 and has less than fifteen percent (15%) slopes; and
(ii) A site specific evaluation and documentation of buffer adequacy is
based on consideration of the best available science as described in MMC 19.24.040;
and
(iii)Buffer width averaging as outlined in 19.24.100(5)(a)above is not
being utilized;and either
(iv)The subject property is separated from the wetland by pre-existing,
intervening,and lawfully created structures,public roads, or other substantial pre-
existing intervening improvements;and the intervening structures,public roads, or other
substantial improvements are found to separate the subject upland property from the
wetland due to their height or width,preventing or impairing the delivery of buffer
functions to the wetland,in which cases the reduced buffer width shalt reflect the buffer
functions that can be delivered to the wetland;or
(v)The wetland scores 19 points or less for wildlife habitat in accordance
with the rating system applied in MMC 19.24.060, and mitigation is provided based on
MMC 19.24.140,MMC 19.24.380,and the Table below,when determined appropriate
based on the evaluation criteria (ii) above.
T bl 2 M" Ma e
itigation easures
Disturbance Activities that May cause Measures to mmnruzc
Disturbance Impacts
Lights Parking lots,warehouses,Direct lights away from
manufacturing,high wetland
density residential
Noise Manufacturing,high Place activity away from
density residential wetland
Pets and
Residential areas Landscaping to delineate
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,.••
Humans buffer edge and to discourage
disturbance of wildlife by
humans and pets
Dust Tilled fields Best Management Practices
for dust control
(c)Notwithstanding the reductions permitted in subparagraph (a) and (b) above,
buffer widths shall not be reduced by more than 25 percent of the required buffer.
(6)The buffer width stated in subsection (4)of this section shall be increased by 25%:
(a)When the qualified scientific professional determines,based upon a site-
specific wetland analysis, that for Category 3 and 4 wetlands the habitat value equals or
exceeds 20 points,and for Category 2 wetlands the habitat value equals or exceeds 29
points;or
(b)When the adjacent land is susceptible to severe erosion and erosion control
measures wiJInot effectively prevent adverse wetland impacts;or
(c)When the standard buffer has minimal or degraded vegetative cover that
cannot be improved through enhancement;or
(d)When the minimum buffer for a wetland exceeds into an area with a slope of
greater than 25 percent,the buffer shall be the greater of:
(i)The minimum buffer for that particular wetland,or
(ii)Twenty-five feet beyond the point where the slope becomes 25
percent or less;
(7)The Community Development Director may authorize the following low impact uses and
activities provided they are consistent with the purpose and function of the wetland buffer and
do not detract from its integrity:viewing platforms and interpretive signage,uses permitted
within the buffer shall be located in the outer 25%of the buffer.
(8)Trails and Open Space:For walkways and trails,and associated open space in critical
buffers located on public property,or on private property where easements or agreements have
been granted for such purposes,all of the following criteria shall be met:
(a)The trail,walkway,and associated open space shall be consistent with the
Comprehensive Parks,Recreation,and Open Space Master Plan.The City may allow private
trails as part of the approval of a site plan,subdivision or other land use permit approvals.
(b)Trails and walkways shall be located in the outer 25%of the buffer,i.e. the portion
of the buffer that is farther away from the critical area.Exceptions to this requirement may be
made for:
(i)Trail segements connecting to existing trails where an alternate alignment
is not practical and where public access points to water bodies are spaced periodically along
the trail.
(c)Enhancement of the buffer area is required where trails are located in the buffer.
Where enhancement of the buffer area adjacent to a trail is not feasible due to existing high
quality vegetation,additional buffer area or other mitigation may be required.
(d)Trail widths shall be a maximum width of ten (J0) feet.Trails shall be
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constructed of permeable materials,provided that impervious materials may be allowed if
pavement is required for handicapped or emergency access,or safety, or is a designated
nonmotorized transportation route or makes a connection to an already dedicated trail, or
reduces potential for other environmental impacts.
(9)Utilities may be allowed in wetlands or wetland buffers if limited to the pipelines,cables,
wires and support structures of utility facilities within utility corridors when the following
standards are met:
(a)there is no alternative location with less adverse impact on the critical area and
critical area buffer;
(b) new utility corridors are not located over habitat used for salmonid rearing or
spawning or by a species listed in MMC 19.24.180(1.1)unless the department determines that
there is no other feasible crossing site;
(c) to the maximum extent practical utility corridors are located so that:
(i) the width is minimized;
(ii) the removal of trees is minimized;
(iii) an additional,contiguous and undisturbed wetland buffer,equal in area to
the disturbed critical area buffer area including any allowed maintenance roads,is provided to
protect the wetland;
(d) to the maximum extent practical,access for maintenance is at limited access points
into the critical area buffer rather than by a parallel maintenance road.If a parallel
maintenance road is necessary,the following standards are met:
(i) to the maximum extent practical the width of the maintenance road is
minimized and in no event greater than fifteen feet; and
(ii) the location of the maintenance road is contiguous to the utility corridor on
the side of the utility corridor farthest from the critical area;
(e) the utility corridor or facility will not adversely impact the overall wetland
hydrology;
(f)the utility corridor serves multiple purposes and properties to the maximum extent
practical;
(g)bridges or other construction techniques that do not disturb the wetlands are used
to the maximum extent practical;
(h)bored,drilled or other trenchless crossing is laterally constructed under a wetland,
provided that the activity does not interrupt the ground water connection to the wetland or
percolation of surface water down through the soil column.Specific studies by a hydrologist
shall be conducted to determine whether the ground water connection to the wetland or
percolation of surface water down through the soil column could be disturbed.
(10) Storm water management facilities,such as biofiltration swales,may be located
within the outer 25%wetland buffers only if they will have no negative effect on the
functions and purpose the buffers serve for the wetland. Storm water detention ponds
shall not be allowed in wetlands or their buffers.
(11)For subdivisions and short subdivisions,the applicable wetland and associated
buffer requirements for any development or redevelopment ofuses specifically identified
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in, and approved as part of, the original subdivision or short subdivision application shall
be those requirements in effect at the time that the complete subdivision or short
subdivision application was filed,provided that for subdivisions this provision shall be
limited to final plats reviewed and approved under Ordinance 1928 "Sensitive Areas",
adopted December 14, 1992, or as amended at the time of final plat approval. However,
at the discretion of the community development director a buffer enhancement plan may
be required in accordance with subsection 3 above if the wetland or buffer has become
degraded or is currently not functioning or if the wetland and/or buffer maybe negatively
affected by the proposed new development.
(12)Minor additions or alterations such as decks and minor additions less than 120
square feet, interior remodels, or tenant improvements which have no impact on the
wetland or wetland buffer, are exempt from the buffer enhancement requirements.
(13)Required buffers shall not deny all reasonable use of property. A variance from
buffer width requirements may be granted by the hearing examiner for the city of
Marysville upon showing by the applicant that:
(a) There are special circumstances applicable to the subject property or to the
intended use such as shape, topography, location or surroundings that do not apply
generally to other properties and which support the granting of a variance from buffer
width requirements; and
(b) Such buffer width variance is necessary for the preservation and enjoyment
of a substantial property right or use possessed by other similarly situated property but
which because of special circumstances is denied to the property in question; and
(c) The granting of such buffer width variance will not be materially detrimental
to the public welfare or injurious to the property or improvement; and
(d) The granting of the buffer width variance will not materially affect the
subject wetland.
(e) Best available science, as set forth in Section 19.24.040, shall be taken into
consideration in the granting of a buffer width variance.
19.24.110 Wetland alteration and mitigation.
(1) All adverse impacts to wetland functions and values shall be mitigated.Mitigation actions
by an applicant or property owner shall occur in the following priority sequence:
(a)Avoiding the impact altogether by not taking a certain action or parts of actions;
(b)Minimizing impacts by limiting the degree or magnitude of the action and its
implementation,by using appropriate technology,or by taking affirmative steps to avoid or
reduce impacts;
(c)Rectifying the impact by repairing,rehabilitating,or restoring the affected
environment;
(d)Reducing or eliminating the impact over time by preservation and maintenance
operations;
(e)Compensating for the impact by replacing or providing substitute resources or
environments.
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(f)Monitoring the impact and taking appropriate corrective measures.
(2)Where impacts cannot be avoided,the applicant or property owner shall seek to implement
other appropriate mitigation actions in compliance with the intent,standards and criteria of
this section.These shall include consideration of alternative site plans and building layouts or
reductions in the density or scope of the proposal.
(3)Alteration of wetlands or their buffers may be permitted by the community development
department subject to the following criteria:
(a)Category I wetlands.Alterations of Category I wetlands shall be avoided,subject to
the reasonable use provisions of these regulations.
(b)Category II wetlands:
(i) Any proposed alteration and mitigation shall comply with requirements of
this section,MMC 19.24.120,and 19.24.130 through 19.24.150;and
(ii) No net loss of wetland function and value will occur due to the alteration.
(c)Category III and IV wetlands:
(i)The proposed mitigation complies with the requirements of this section and
MMC 19.24.130 through 19.24.160;and
(ii)Where enhancement is proposed,replacement ratios comply with the
requirements ofMMC 19.24. 120(3).
19.24.120 Wetland mitigation standards and criteria.(1)Location and Timing of
Mitigation.
(a)Restoration,creation,or enhancement actions should be undertaken on or adjacent
to the site, or where restoration or enhancement of a former wetland is proposed,within the
same watershed.Replacement in-kind of the impacted wetland is preferred for creation,
restoration,or enhancement actions.The City may accept or recommend restoration,creation,
or enhancement which is off-site and/or out-of-kind,if the applicant can demonstrate that on-
site or in-kind restoration,creation,or enhancement is infeasible due to constraints such as
parcel size or wetland type or that a wetland of a different type or location is justified based on
regional needs or functions.
(b )Whether occurring on-site or off-site,the mitigation project shall occur near an
adequate water supply with a hydrologic connection to the wetland to ensure a successful
wetlands development or restoration;
(c)Any agreed-upon proposal shall be completed before initiation of other permitted
activities,unless a phased or concurrent schedule has been approved by the community .
development department;
(d)Wetland acreage replacement ratios shall be as specified in subsection (3)of this
section.
(2)Mitigation Performance Standards.
(a)Adverse impacts to wetland functions and values shall be mitigated.Mitigation
actions shall be implemented in the preferred sequence identified in MMC.19.24.110(1).
Proposals which include less preferred or compensatory mitigation shall demonstrate that:
(i) All feasible and reasonable measures will be taken to reduce impacts and
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------~---~-
losses to the original wetland;
(ii) No overall net loss will occur in wetland functions,values and acreage;and
(iii)The restored,created or enhanced wetland will be as persistent and
sustainable as the wetland it replaces.
(3)Wetland Replacement Ratios.
(a)Where wetlands alterations are permitted by this chapter, the applicant shall restore
or create equivalent areas of wetlands in order to compensate for wetland losses.Equivalent
areas shall be determined according to acreage,function,category,location,timing factors,
and projected success of restoration or creation;
(b)Where wetland creation is proposed,all required buffers for the creation site shall
be located on the proposed creation site.Properties adjacent to, or abutting wetland creation
projects shall not be responsible for providing any additional buffer requirements.
(c) The following acreage replacement ratios shall be used as targets.The community
development department may vary these standards if the applicant can demonstrate and
the community development department agrees that the variation will provide adequate
compensation for lost wetland area, functions and values, or if other circumstances as
determined by the community development department justify the variation:
TABLE 3 WETLAND MITIGATION RATIOS
CATEGORY AND RE-RE-RE-ENHANCEMENT
TYPE OF ESTABLISHMENT HABILITATION ESTABLISHMENT ONLY
WETLAND OR CREATION OR CREATION
fRlC)AND
ENHANCEMENT
ilil
Catezorv I
Forested 6:1 12:1 1:1 RIC &10:1 24:1
E
Based on Score 4:1 tl 1:1 RIC &6:1 E 16:1
for Functions
Estuarine Case by Case 6:1 Case by Case Case by Case
rehabilitation of
an estuarine
wetland
Bog Irreplaceable - 6:1 Case by Case Case by Case
Avoidance rehabilitation of
Reauired abo~
Natural Heritage Irreplaceable -6:1 Case by Case Case by Case
Avoidance rehabilitation of
Required a Natural
Heritazc site
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CateaorvII
Estuarine Case by Case 4:1 Case by Case Case by Case
All Other 3:1 8:1 1:1R1C&4:1E 12:1
CatezorvIII 2:1 4:1 1:1 R1C&2:1 E 8:1
Catezorv IV 1.5:1 3:1 1:1R1C&2:1E 6:1
Creation =The manipulation of the physical. chemical. or biological characteristics present to develop a
wetland on an upland or deepwater site, where a wetland did not previously exist. Activities typically
involve excavation of ul1land soils to elevation !)Jat wilLProdjlcc a wetland hyqf.Qperiod,create hydric soils,
and support the growth ofhydrophytic plant species. Establishmentresult in a gain in wetland acres.
Re-Establishment =The manipulation of the l1hysical.chemical. or biological characteristics of a site with the
goal of returning natural or historic functions to a fohner wetland. Activities could include removing fill
material. plugging ditches, or breaking drain tiles. Re-establishment results in a gain in wetland acres.
Rehabilitation =The manil1ulation of the physical. chemical. or biological characteristics of a site with the goal
of rep!J.iring natual or !listoric function of a degraded wetland. Activities could involve breaching a dike or
reconnect wetland to a f1oodl1lain or return tidal influence to a wetland. Rehabilitation results in a gain in
wetland function but does not result in a gain in wetland acres.
Enhancement =The maniJlulation of the physical. chemical. or biological characteristics of a wetland site to
heighten.intensity or improve functions or to change the growth sta.,ge or camp-osition of the vegetation present.
Enhancement is undertaken for specified pumoses such as water quality improvement.flood water retention or
habitat. Activities typically consist of planting vegetation, controlling non-native or invasive species,modifying
the site elevation or the proportion of open water to influence hydroperiods.or some combination of these.
Enhancement results in a change in some wetland functions and can lead to a decline in other wetland function,
butdoes not result in a gainin wetland acres.
(d)The qualified scientific professional in the wetlands report may,where feasible,
recommend that restored or created wetlands shall be a higher wetland category than the
altered wetland,
(4)The community development 4irector may increase the ratios under the following
circumstances:
(a)Uncertainty exists as to the probable success of the proposed restoration or
creation;
(b) A significant period oftime will elapse between impact and replication of wetland
functions;
(c)Proposed mitigation will result in a lower category of wetland or reduced functions
relative to the wetland being impacted;or
(d)The impact was an unauthorized impact.
19.24.125 Wetland Mitigation Banks.
Wetland mitigation banks are a site where wetlands are restored,created,enhanced,or in
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exceptional circumstances, preserved expressly for the purpose of providing compensatory
mitigation in advance of authorized impacts to similar resources.
(I)Credits from a wetland bank may be approved for use as compensation for unavoidable
impacts to wetlands when:
(a) The bank is certified under Chapter 173-700 WAC;
(b)The Qommunity!levelopment !lirector 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.
(2)Replacement ratios for projects using bank credits shall be consistent with the terms and
conditions ofthe bank's certification.
(3) 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, bank service areas may include portions of more than one adjacent drainage basin
for specific wetland functions.
19.24.130 Wetland mitigation plan requirements.
Where it is determined by the city that compensatory wetland mitigation is required or
appropriate, a mitigation plan shall be prepared. The purpose of the plan is to prescribe
mitigation to compensate for impacts to the wetland functions, values and acreage as a
result of the proposed action. This plan shall consider the chemical, physical, and
biological impacts on the wetland system using a recognized wetlands assessment
methodology and best professional judgment. The mitigation plan shall be prepared in
two phases, a preliminaryphase and a detailed phase.
(I)Preliminary Plan - Standardsand Criteria. The applicantshall prepare a preliminary
mitigation plan for submission to the communitydevelopment department at the time of
application filing. The preliminary mitigation plan shall include the following
components and shall be consistent with the standardsin MMC 19.24.120:
(a) A clear statement of the objectives of the mitigation. The goals of the
mitigation plan should be stated in terms of the new wetland functions and values
compared to the functions and values of the original wetland. Objectives should include
qualitative and quantitative standards for success of the project, including:
(i) Hydrologic characteristics (water depths, water quality,
hydroperiod/hydrocyclecharacteristics,floodstorage capacity);
(ii) Vegetative characteristics (community types, species composition,
density, and spacing),
(iii) Faunal characteristics,and
(iv) Final topographic elevations;
(b)An ecological assessment of the wetlands values and wetland buffers that
will be lost as a result of the activities, and of the replacement wetlands and buffers,
including but not limited to the following:
(i) Acreage of project,
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(ii)Existing functions and values,
(iii)Sizes of wetlands,wetland buffers, and areas to be altered,
(iv)Vegetative characteristics,including community type, area coverage,
species composition and density,
(v)Habitat type(s) to be enhanced, restored, or created, and
(c) A statement of the location,elevation,and hydrology of the new site,
including the following:
(i)Relationship of the project to the watershed and existing water bodies,
(ii)Topography of site using one-foot contour intervals,
(iii)Water level data,including depth and duration of seasonally high
water table,
(iv)Water flow patterns,
(v)Estimated amounts of grading, filling and excavation,including a
description of imported soils,
(vi)Water pollution mitigation measures during construction,
(vii) Aerial coverage of planted areas to open water areas (if any open
water is to be present), and
(viii)Appropriate buffers;
(d) A conceptual planting plan,
(2) Prior to final development approval, a final plan consistent with the standards in
MMC 19.24.150 shall be submitted.In addition to information contained within the
preliminary plan, the detailed plan will contain:
(a) A detailed planting plan,describing what will be planted, and where and
when the planting will occur as follows:
(i) Soils and substrate characteristics,
(ii) Specify substrate stockpiling techniques,and
(iii)Planting instructions,including species, stock type and size,density
or spacing of plants, and water and nutrient requirements;and
(iv) Dates for beginning and completion of mitigation project,and
sequence of construction activities;
(e) A monitoring and maintenance plan,consistent with MMC 19.24.160:
(i)Specify procedures for monitoring and site maintenance,and
(ii)Submit monitoring reports to the community development
department as outlined in MMC 19.24.150(2)(d)(i-vi);
(f) A contingency plan,consistent with these regulations;
(g) A detailed budget for implementation of the mitigation plan,including
monitoring,maintenance and contingency phases;
(h)A guarantee,in the form of a bond or other security device in a form acceptable to
the city attorney,assuring that the work will be performed as planned and approved,
consistent with SectionI9.24.150(2)MMC below.
19.24.140 Performance standards for wetlands mitigation planning.
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(I)The following performance standards shall be incorporated into mitigation plans submitted
to the city of Marysville:
(a) Use native plants (not introduced or foreign species);
(b)Use plants adaptable to a broad range of water depths;
(c)Plants should be commercially available or available from local sources;
(d)Plant species high in food and cover value for fish and wildlife;
(e)Plant mostly perennial species;
(f)Avoid committing significant areas of site to species that have questionable
potential for successful establishment;
(g)Plant selection must be approved by a qualified scientific professional;
(h)Planting densities and placement of plants should be determined by the qualified
scientific professional and shown on the design plans;
(i) The wetland (excluding the buffer area)should not contain more than 60 percent
open water as measured at the seasonal high water mark;
(j)Minimum buffer widths as outlined in Section 19.24.100;
(k) The planting plan must be approved by the city's planning director or consultant;
(I)Stockpiling should be confined to upland areas and contract specifications should
limit stockpile durations to less than four weeks;
(m)Planting instructions which describe proper placement,diversity,and spacing of
seeds,tubers,bulbs,rhizomes,sprigs,plugs,and transplanted stock;
(n)Apply controlled-release fertilizer at the time of planting and afterward only as
plant conditions warrant (determined during the monitoring process)and with consideration of
run-off and a type that will minimize impacts beyond the area intended;
(0)Install an irrigation system,if necessary,for initial establishment period as
determined by the planning director or their designated official;
(P)Buffers shall be surveyed,staked,and fenced prior to any construction work,
including grading and clearing,may take place on the site.Pennanent fencing is required
pursuant to MMC 19.24.380
(q)Temporary erosion and sedimentation controls,pursuant to an approved plan, shall
be implemented during construction;and
(r)Construction specifications andmethods must be approved by a qualified scientific
professional and the community development department.
(2) The following additional standards shall apply to wetland creation sites;
(a)Water depth is not to exceed 6.5 feet (two meters);
(b)The grade or slope that water flows through the wetland is not to exceed six
percent;
(c)Slopes within the wetland basin and the buffer zone should not be steeper than
three to one ratio (horizontal to vertical);
(3) On completion of construction,the wetland mitigation project must be signed off to
indicate that the construction has been completed as planned,by the applicant's qualified
scientific professional and the community development department.
ORDINANCE - 21
W/wpf7mv/ord.Critical Areas cl
19.24.150 Wetland monitoring program and contingency plan.
(l)A monitoring program shall be implemented to determine the success of the mitigation
project and any necessary corrective actions. This program shall determine if the original
goals and objectives are being met.
(2) A contingency plan shall be established for compensation in the event that the mitigation
project is inadequate or fails. A performance,monitoring,and maintenance bond or other
acceptable security device is required to ensure the applicant's compliance with the terms of
the mitigation agreement.The amount ofthe performance,monitoring,and maintenance bond
shall equal 125 percent of the cost of the mitigation project for a period of five years; the
community development department may agree to reduce the bond in phases in proportion to
work successfully completed overthe period of the bond.Failure to complete any required
performance,monitoring,and maintenance shall result in the forfeiture of the guarantee.
Applicants who have previously defaulted will no longer be allowed to post a bond for
performance,monitoring,and maintenance but will instead be required to submit an
assignment of bank account to the city of Marysville for two times the cost of the mitigation
project.
(a)During monitoring,use scientific procedures for establishing the success or failure
of the project;
(b) For vegetation determinations,permanent sampling points shall be established;
(c)Vegetative success equals 80 percent survival of planted trees and shrubs and 80
percent cover of desirable understory or emergent species;
(d)Submit monitoring reports on the current status of the mitigation project to the
community development department.The reports are to be prepared by a qualified scientific
professional and reviewed by the community development department and should include
monitoring information on wildlife,vegetation,water quality,water flow,storm water storage
and conveyance,and existing or potential degradation,and shall be produced on the following
schedule:
(i) At time of construction,
(ii)Thirty days after planting,
(iii)Early in the growing season of the first year,
(iv) End of the growing season of first year,
(v)Twice the second year, and
(vi)Annually thereafter;
(e)Monitor between three and five growing seasons,depending on the complexity of
the wetland system.The time period will be determined and specified in writing prior to the
implementation of the site plan;
(f)If necessary,correct for failures in the mitigation project;
(g)Replace dead or undesirable vegetation with appropriate plantings,based on the
approved planting plan or MMC 19.24. 140;
(h)Repair damages caused by erosion,settling,or other geomorphological processes;
(i)Redesign mitigation project (if necessary)and implement the new design;and
G)Correction procedures shall be approved by a qualified scientific professional and
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the community development department.
19.24.160
19.24.170
Off-site density transfers for wetland areas.
(Reserved)
Article III.Fish and Wildlife Habitat Areas
19.24.180 Fish and Wildlife Habitat Conservation Areas Designated.
While not all of the below listed critical habitat areas exist in the city of Marysville,these
regulations provide for the protection of the following Fish and Wildlife Habitat Conservation
Areas:
(I)Primary fish and wildlife habitat ~onservation .<!Teas shall include the following:
(1.1)Habitats with federally designated endangered,threatened,and candidate species
and State designated endangered,threatened,and sensitive species which have a primary
association as defined in Chapter 19.06.375 MMC.Federally designated endangered,
threatened and candidate species are those fish and wildlife 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.The U.S. Fish and Wildlife Service and the
National Marine Fisheries Service should be consulted for current listing status.State
designated endangered,threatened,and sensitive species are those fish and wildlife species
native to the ~tate of Washington identified by the Washington Department ofFish 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 ~tate without cooperative management or removal of threats.State
designated endangered,threatened,and sensitive species are periodically recorded in WAC
232-12-014 (State Endangered Species)and WAC 232-12-011,(State Threatened and
Sensitive Species).The ~tate Department ofFish and Wildlife maintains the most current
listing and should be consulted for current listing status.
(1.2)State designated priority habitats and areas that are associated with ~tate
designated endangered,threatened,and sensitive species in Section 1.1.Priority habitats and
species are considered to be priorities for conservation and management.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 state, or a specific structural element.Priority habitats and species
are identified by the Department ofFish and Wildlife.
(1.3)Naturally occurring ponds under twenty acres or not less than 0.50 acres (lakes
greater than twenty (20) acres are covered under shoreline regulations).
(1.4)Lakes, ponds,streams and rivers planted with game fish by a goverrnnental or
tribal entity.
ORDINANCE - 23
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"
(1.5)State natural area preserves and natural resource conservation areas.
(1.6) Areas of rare plant species and high quality ecosystems as documented by the
State Department of Natural Resources Heritage Program.
(1.7) Land that provides essential connections between habitat blocks and open space
and that is designated by the State Department ofFish and Wildlife as a priority habitat in
association with state endangered,threatened,or sensitive species in subsection 1.1.
(1.8)Streams as defined and classified in MMC 19.06.470.
(2)Habitats and species oflocal importance are those identified by the city,including but not
limited to those habitats and species that, due to their population status or sensitivity to habitat
manipulation,warrant protection.Habitats may include a seasonal range or habitat element
with which a species has a primary association,and which,if altered,may reduce the
likelihood that the species will maintain and reproduce over the long term.
(a)Designation process.The city shall accept and consider nomination for habitat
areas and species to be designated as locally important on an annual basis.
(b)Habitats and species to be designated shall exhibit at least one of the criteria in
subsections (i) to (iii) and shall meet criteria (iv) and (v).
(i) Local populations of native species are in danger of extirpation based on
existing trends, including:
• Local populations of native species that are likely to become endangered;or
• Local populations of native species that are vulnerable or declining;or
(ii) The species or habitat has recreation,commercial,game, tribal,or other
special value;or
(iii)Long-term persistence of a species is dependent on the protection,
maintenance,and/or restoration of the nominated habitat;and
(iv)Protection by other county, state, or federal policies,laws,regulations,or
nonregulatory tools is not adequate to prevent degradation of the species or habitat in the city;
and
(v)Without protection,there is a likelihood that the species or habitat will be
diminished over the long term.
(c) Areas nominated to protect a particular habitat or species must represent high-
quality native habitat or habitat that either has a high potential to recover to a suitable
condition and is oflimited availability or provides landscape connectivity which contributes to
the designated species or habitat's preservation.
(d)Habitats and species may be nominated for designation by any resident of
Marysville.
(e) The petition to nominate an area or a species to this category shall contain all of
the following:
(i) A completed SEPA environmental checklist.
(ii) A written statement using best available science to show that nomination
criteria (b) and (c) are met;
(iii) A written proposal including specific and relevant protection regulations
that meet the goals of this Chapter.Management strategies must be supported by the best
ORDINANCE - 24
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'i.
available science, and where restoration of habitat is proposed,a specific plan for restoration
must be provided;
(iv)Demonstration of relevant, feasible,management strategies that are
effective and within the scope of this Chapter;
(v)Provision of species habitat location(s)on a map that works in concert with
other £ity maps;
(vi) An economic impact (cost/benefit)analysis of proposal.
(vii)Documentation of public notice methods that the petitioner(s)have used.
Examples of reasonable methods are:
•Posting the property.
•Publishing a paid advertisement in a newspaper or newsletter of circulation in the general
area of the proposal,where interested persons may review information on the proposal.
Information in the notice must contain a description of the proposal,general location of
the affected area and where comments on the proposal may be sent.
•Notification to public or private groups in the affected area that may have an interest in the
petition.
• News media articles that have been published concerning the proposal.
•Notices placed at public buildings or bulletin boards in the affected area.
•Mailing of informational flyers to property owners within the affected area.
(viii)Signatures of all petitioners.
(g) The community development director shall determine whether the nomination
proposal is complete,and if complete,shall evaluate it according to the characteristics
enumerated in subsection (2)(b) and make a recommendation to the planning commission
based on those findings.
(h) The planning commission shall hold a public hearing for proposals found to be
complete and make a recommendation to the city council based on the characteristics
enumerated in subsection (2) (b).
(i)Following the recommendation of the planning commission,the city council may
hold an additional public hearing and shall determine whether to designate a Habitat or
Species of Local Importance.
(ix)Approved nominations will be subject to the provisions of this
title.
19.24.190 Regulated activities in habitats:
The following activities within a habitat and its associated buffer as set forth in Section
19.24.230,or outside a habitat or buffer but with the potential of adversely affecting the
habitat or buffer, shall be regulated pursuant to the standards of this chapter:
(I)Removing,excavating,disturbing or dredging soil, sand, gravel,minerals,organic matter
or materials of any kind.
(2)Dumping,discharging or filling with any material.
(3)Draining,flooding or disturbing the water level or water table.
(4)Driving piling or placing obstructions.
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(5)Constructing,reconstructing,demolishing or altering the size of any structure or
infrastructure.
(6)Construction of anyon-site sewage disposal system, or other underground facilities, except
exempted activities.
(7)Destroying or altering habitat vegetation through clearing,harvesting,shading or planting
vegetation that would alter the character of a habitat or buffer, the shade and protection for a
stream, or that is a source of food or habitat for fish or game.
(8)Activities that result in significant changes in water temperature,physical or chemical
characteristics of water sources,including water quantity and quality, soil flow, natural ground
contours, or pollutants.
(9)Relocation of the natural course of the stream, or modification of the flow characteristics
thereof.
(10) Any other activity potentially affecting a habitat or habitat buffer not otherwise exempt
from the provisions of this chapter.
19.24.200 Exemptions from fish and wildlife regulations.
(I)See MMC 19.24.330 for general exemptions to all critical areas.
(2) The following activities shall be exempt from the provisions of this chapter related to fish
and wildlife habitat provided they are conducted using best management practices:
(a)Activities involving artificially created habitat,including but not limited to grass
lined swales,irrigation and drainage ditches,detention facilities such as ponds,and landscape
features, except for habitat areas created as mitigation and artificially created habitats used by
salmonid fish;
(b)Prior to the effective date of the ordinance codified in this chapter,all commercial
and industrial uses,developments,and activities which exist within the stream buffers shall be
allowed to continue in existence,and to be repaired,maintained and remodeled as provided in
Chapter 19.44 MMC,Nonconformance and Temporary Uses.
(3) No private or public entity shall undertake exempt activities as listed in this section prior
to providing the city written notification of the entity's intent to proceed with an exempt
activity. The city shall verbally confirm whether or not the activity is exempt and where
needed provide written authorization within thirty (30) days of receipt of the written notice.
(4) In case of any questions as to whether a particular activity is exempt under provisions of
this section, the community development department's determination shall prevail and be
determinative.
(5)Notwithstanding the exemption provided by this section, any otherwise exempt activities
occurring in or near critical habitat areas shall comply with the intent of these standards and
shall consider on-site alternatives that avoid or minimize potential habitat impacts.Exempt
activities shall use reasonable methods (i.e., Best Management Practices),to avoid potential
impacts to fish and wildlife habitat.
19.24.210 Fish and wildlife habitat inventory maps.
(1)The approximate location and extent of habitat areas within the city of Marysville's
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planning area are shown on the maps adopted as part of this chapter.These maps shall be used
as a general guide only for the assistance of property owners and other interested parties;
boundaries are generalized.The actual type,extent and boundaries of habitat areas shall be
determined by a qualified scientific professional according to the procedures,definitions and
criteria established by this chapter. In the event of any conflict between the habitat location or
type shown on the the city's Fish and Wildlife Conservation Areas maps and the criteria or
standards of this ordinance,the criteria and standards resulting from the field investigation
shall control.
(2) The following maps are hereby adopted for the purpose set forth in Subsection (1):
(a) City of Marysville Fish and Wildlife Conservation Areas Map;
(b)Washington Department ofFish and Wildlife Priority Habitat and Species Maps;
(c)Washington State Department of Natural Resources,Official Water Type
Reference maps, as amended;
(d)Washington State Department of Natural Resources Natural Heritage Program
mapping data;
(e)Washington State Department of Natural Resources State Natural Area Preserves
and Natural Resources Conservation Area maps;
(f)Washington State Department of Health Annual Inventory of Shellfish Harvest
Areas;
(g)Anadromous and resident salmonid distribution maps contained in the Habitat
Limiting Factors reports published by the Washington Conservation Commission;
(h)Washington State Department of Natural Resources Puget Sound Intertidal Habitat
Inventory maps; and
(i)Washington State Department of Natural Resources Shorezone Inventory or North
West Straits Commission -Snohomish County Marine Resources Committee Inventory.
19.24.220 Classification offish and wildlife habitat areas.
A. Streams. Streams shall be classified according to the stream type system as provided in
WAC 222-16-030,Stream Classification System,as amended.
(1) Type S Stream.Those streams,within their ordinary high water mark, as inventoried as
"shorelines of the state"under Chapter 90.58 RCW and the rules promulgated pursuant
thereto.
(2) Type F Stream.Those stream segments within the ordinary high water mark that are not
Type S Streams, and which are demonstrated or provisionally presumed to be used by
salmonid fish. Stream segments which have a width of two feet or greater at the ordinary high
water mark and have a gradient of 16 percent or less for basins less than or equal to 50 acres
in size, or have a gradient of20 percent or less for basins greater than 50 acres in size are
provisionally presumed to be used by salmonid fish. A provisional presumption of salmonid
fish use may be refuted at the discretion of the community development director where any of
the following conditions are met:
(a)It is demonstrated to the satisfaction of the Qity that the stream segment in question
is upstream of a complete,permanent,natural fish passage barrier,above which no stream
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section exhibits perennial flow;
(b)It is demonstrated to the satisfaction of the city that the stream segment in question
has confirmed,long-term,naturally-occurring water quality parameters incapable of
supporting salmonid fish;
(c)Sufficient information about a geomorphic region is available to support a
departure from the characteristics described above for the presumption of salmonid fish use,
as determined in consultation with the Washington Department ofFish and Wildlife,the
Department of Ecology, affected tribes, or others;
(d) The Washington Department offish and Wildlife has issued a hydraulic project
.approval pursuant to RCW 77.55.100,which includes a determination that the stream segment
in question is not used by salmonid fish;
(e) No salmonid fish are discovered in the stream segment in question during a stream
survey conducted according to the protocol provided in the Washington Forest Practices
Board Manual,Section 13,Guidelines for Determining Fish Use for the Purpose of Typing
waters under WAC 222-16-031,provided that no unnatural fish passage barriers have been
present downstream of said stream segment over a period of at least two years.
(3) Type Np Stream.Those stream segments within the ordinary high water mark that are
perennial and are not Type S or Type F Streams.However,for the purpose of ~c1assification,
Type Np Streams include intermittent dry portions of the channel below the uppermost point
of perennial flow.If the uppermost point of perennial flow cannot be identified with simple,
non-technical observations (see Washington Forest Practices Board Manual,Section 23), then
said point shall be determined by a qualified professional selected or approved by the City.
(4) Type Ns Stream.Those stream segments within the ordinary high water mark that are not
Type S, Type F, or Type Np Streams.These include seasonal streams in which surface flow is
not present for at least some portion of a year of normal rainfall that are not located
downstream from any Type Np Stream segment.
19.24.230 Fish and wildlife habitat buffer areas.
A. The establishment of buffer areas shall be required for regulated activities in or adjacent to
habitat areas.Buffers shall consist of an undisturbed area of native vegetation established to
protect the integrity,functions and values of the affected habitat.Activities within buffers
should not result in any net loss of the functions and values associated with streams and their
buffers.
(1) The following buffer widths are established:
Streams Buffer
Type S
Quilceda Creek 200'
EbeySlough 100'
Except in the following location north &south shore of
Ebey slough between the western city limits and 47'h Ave
NE
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25'
TypeF 150'
Gissberg Twin Lakes Lake setbacks correspond to
county park boundaries
Tvpe Np 100'
TypeNs 50'
(2) Federal, State, and Local Habitats and Species:
(2.1)
(a) Except for waters subject to Section 19.24.230.A(1), and bald eagles subject
to 19.24.230.A(2.1)(b),the establishment of buffer areas may be required for regulated
activities in or adjacent to federal,]itate,and local species and habitat areas as designated
pursuant to Sections 19.24.180 and 19.24.220. Buffers shall consist of an undisturbed
area of native vegetation established to protect the integrity, functions and values of the
affected habitat. Required buffer widths shall reflect the sensitivity of the habitat and the
type and intensity of human activity proposed to be conducted nearby. Buffers shall be
determined by the department based on information in the biological/habitat report, a
habitat management plan approved by the Department of Fish and Wildlife
supplemented by its own investigations, the intensity and design of the proposed use, and
adjacent uses and activities. Buffers are not intended to be established or to function
independently of the habitat they are established to protect. Buffers shall be measured
from the edge of the habitat area.
(b) Bald eagle habitat shall be protected pursuant to the Washington State Bald
Eagle Protection Rules (WAC 232-12-292).
B. Where existing buffer area plantings provide minimal vegetative cover and cannot
provide the minimum water quality or habitat functions, buffer enhancement shall be
required. Where buffer enhancement is required a plan shall be prepared that includes
plant densities that are not less than five (5) feet on center for shrubs and ten (10) feet on
center for trees.Monitoring and maintenance of plants shall be required in accordance
with Section 19.24.270.Existing buffer vegetation is considered "inadequate"and will
require enhancement through additional native plantings and removal of non-native
plants when:
(a)Non-native or invasive plant species provide the dominate cover;
(b)Vegetation is lacking due to disturbance and stream resources could be
adversely affected; or .
(c)Enhancement planting in the buffer could significantly improve buffer
functions.lf according to the buffer enhancement plan, additional buffer mitigation is
not sufficient to protect the habitat, the £ity shall require larger buffers where it is
necessary to protect habitat functions based on site-specific characteristics.
(3)Measurement of Buffers.
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(a) Stream Buffers. All buffers shall be measured from the ordinary high water
mark as identified in the field or,if that cannot be determined,from the top of the bank.
In braided channels and alluvial fans, the ordinary high water mark or top of bank shall
be determined so as to include the entire stream feature;
(b)Combination Buffers. Any stream adjoined by a wetland or other adjacent
habitat area shall have the buffer which applies to the wetland or other habitat area unless
the stream buffer requirements are more expansive.
(4)Buffer widths may be modified by averaging buffer widths as set forth herein.
(a)Buffer width averaging shall be allowed only where the applicant
demonstrates to the community development department that the averaging will not
impair or reduce habitat, water quality purification and enhancement,storm water
detention, ground water recharge,shoreline protection and erosion protection and other
functions of the stream and buffer, that lower intensity land uses would be located
adjacent to areas where buffer width is reduced,and that the total area contained within
the buffer after averaging is no less than that contained within the standard buffer prior to
averaging;
(b)Not withstanding the reductions permitted in subparagraph (a) above,buffer
widths shall not be reduced by more than 25 percent of the required buffer.
(5)The buffer width stated in subsection (2)of this section shall be increased in the
following circumstances :
(a) When the adjacent land is susceptible to severe erosion and erosion control
measures will not effectively prevent adverse habitat impacts; or
(b) When the standard buffer has minimal or degraded vegetative cover that
cannot be improved through enhancement;or
(c)When the minimum buffer for a habitat extends into an area with a slope of
greater than 25 percent,the buffer shall be the greater of:
(i)The minimum buffer for that particular habitat;or
(ii)Twenty-five feet beyond the point where the slope becomes 25 percent or
less. (6)The community development director may authorize the following low impact uses
and activities provided they are consistent with the purpose and function of the habitat buffer
and do not detract from its integrity may be permitted within the buffer depending on the
sensitivity of the habitat involved.To the extent reasonably practicable,examples of uses and
activities which may be permitted in appropriate cases include pedestrian trails,viewing
platforms,interpretive signage,,utility easements and the installation of underground utilities
pursuant to best management practices.Uses permitted within the buffer shall be located in
the outer 25 percent ofthe buffer.
(7)Trails and Open Space:For walkways and trails,associated open space in critical buffers
located on public property,or on private property where easements or agreements have been
granted for such purposes all of the following criteria shall be met.
(a)The trail,walkway,and associated open space shall be consistent with the
Comprehensive Parks,Recreation,and Open Space Master Plan.The City may allow private
trails as part of the approval of a site plan,subdivision or other land use permit approvals.
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(b)Trails and walkways shall be located in the outer 25%of the buffer,i.e.the portion
of the buffer that is farther away from the critical area.Exceptions to this requirement may be
made for:
(i)Trail segments connecting to existing trails where an alternate alignment is
not practical.Public access points to water bodies spaced periodically along the trail.
(c)Enhancement of the buffer area is required where trails are located in the buffer.
Where enhancement of the buffer area adjacent to a trail is not feasible due to existing high
quality vegetation,additional buffer area or other mitigation may be required.
(d)Trail widths shall be a maximum width of ten (10)feet.Trails shall be
constructed ofpermeable materials,provided that impervious materials may be allowed if
pavement is required for handicapped or emergency access,or safety,or is a designated
nonmotorized transportation route or makes a connection to an already dedicated trail,or
reduces potential for other environmental impacts.
(8)...Allowed Activity -Utilities in streams.New utility lines and facilities may be permitted __.
to cross water bodies in accordance with an approved supplemental stream/lake study,if they
comply with the following criteria:
(a)Fish and wildlife habitat areas shall be avoided to the maximum extent possible;
and
(b)The utility is designed consistent with one or more of the following methods:
(i)Installation shall be accomplished by boring beneath the scour depth and
hyporheic zone of the water body and channel migration zone;or
(ii)The utilities shall cross at an angle greater than sixty (60)degrees to the
centerline of the channel in streams perpendicular to the channel centerline;or
(iii)Crossings shall be contained within the footprint of an existing road or
utility crossing;and
(c)New utility routes shall avoid paralleling the stream or following a down-valley
course near the channel;and
(d)The utility installation shall not increase or decrease the natural rate of shore
migration or channel migration;and
(e)Seasonal work windows are determined and made a condition of approval;and
(f)Mitigation criteria ofMMC 19.24.250 are met.
(9)Storm water Management Facilities,such as biofiltration swales may be located within
the outer 25%of buffers only if they will have no negative effect on the functions and purpose
the buffers serve for the fish and wildlife habitat areas.Storm water detention ponds shall not
be allowed in fish and wildlife habitat areas or their required buffers.
(10)For subdivisions and short subdivisions,the applicable wetland and associated
buffer requirements for any development or redevelopment of uses specifically identified
in, and approved as part of,the original subdivision or short subdivision application shall
be those requirements in effect at the time that the complete subdivision or short
subdivision application was filed,provided that for subdivisions this provision shall be
limited to final plats reviewed and approved under Ordinance 1928 "Sensitive Areas",
adopted December 14, 1992, or as amended at the time of final plat approval.However,
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at the discretion of the community development !lirector a buffer enhancement plan may
be required in accordance with subsection 3 above if the wetland or buffer has become
degraded or is currently not functioning or if the wetland and/or buffer maybe negatively
affected by the proposed new development.
(II)Minor additions or alterations such as decks and smalI additions less than 120 square
feet,interior remodels,or tenant improvements which have no impact on the habitat or buffer
shalI be exempt from the buffer enhancement requirements.
(12)Required buffers shalI not deny alI reasonable use of property. A variance from buffer
width requirements may be granted by the city of MarysvilIe upon a showing by the applicant
that:
(a)There are special circumstances applicable to the subject property or to the
intended use such as shape, topography,location or surroundings that do not apply generalIy
to other properties and which support the granting of a variance from the buffer width
requirements;and
(b) Such buffer width variance is necessary for the preservation and enjoyment of a
substantial property right or use possessed by other similarly situated property but which
because of special circumstances is denied to the property in question;and
(c) The granting of such buffer width variance will not be materialIy detrimental to the
public welfare or injurious to the property or improvement;and
(d) The granting of the buffer width variance will not materialIy affect the subject
habitat area; and
(e)Ifa variance application for stream buffers is merged with a pending shoreline
development permit application,the applicant shalI pay the city a single fee equal to the
amount of the shoreline permit;and
(f) No variance from stream buffers shalI be granted which is inconsistent with the
policies of the Shoreline Management Act of the State of Washington and the master program
of the city of Marysville.
(g) Best available science, as set forth in Section 19.24.040, shalI be taken into
consideration in the granting of a buffer width variance.
19.24.240 Fish and wildlife habitat alteration and mitigation.
After careful consideration of the potential impacts and a determination that impacts are
unavoidable,unavoidable impacts to streams,associated fish buffers and wildlife habitat not
exempt under Section 19.24.200,granted a variance under Section 19.24.230,or meeting the
criteria for a reasonable use exception in Section 19.24.390 shalI be mitigated as folIows:
(1)Adverse impacts to habitat functions and values shalI be mitigated to the extent feasible
and reasonable.Mitigation actions by an applicant or property owner shall occur in the
folIowing preferred sequence:
(a) A voiding the impact altogether by not taking a certain action or parts of actions;
(b)Minimizing impacts by limiting the degree of magnitude of the action and its
implementation,by using appropriate technology,or by taking affirmative steps to avoid or
reduce impacts;
ORDINANCE - 32
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(c)Rectifying the impact by repairing,rehabilitating,or restoring the affected
environment;
(d)Reducing or eliminating the impact over time by preservation and maintenance
operations;
(e)Compensating for the impact by replacing or providing substitute resources or
environments.
(f)Monitoring the impact and taking appropriate corrective measures in accordance
with Section 19.24.260.
(2)Where impacts cannot be avoided, the applicant or property owner shall implement other
appropriate mitigation actions in compliance with the intent, standards and criteria of this
section. In an individual case, these actions may include consideration of alternative site plans
and layouts,reductions in the density or scope of the proposal, and implementation of the
performance standards listed in MMC 19.24.260.
(3)Alteration of habitat and their buffers may be permitted by the community development
department subject to the following standards:
(a) Type S and F Streams.Alterations of Type S streams shall be avoided,subject to
the reasonable use provisions of this chapter and conformance with the city of Marysville
Shoreline Management Master Program. Access to the shoreline will be permitted for water-
dependent and water-oriented uses subject to the mitigation sequence referred to in
subsections (I)and (2)of this section;
(b)Type F, Np and Ns Streams.Alterations of Type F, Np and Ns streams maybe
permitted provided that the applicant mitigates adverse impacts consistent with the
performance standards and other requirements of this chapter and provided that no overall net
loss will occur in stream functions and fish habitat;
(c)Relocation of a stream may occur only when it is part of an approved mitigation or
rehabilitation plan, and will result in equal or better habitat and water quality, and will not
diminish the flow capacity of the stream.
19.24.250 Fish and wildlife mitigation standards,criteria and plan requirements.
(I)Location and Timing of Mitigation.
(a)Mitigation shall be provided on-site,except where on-site mitigation is not
scientifically feasible or practical due to physical features of the property. The burden of proof
shall be on the applicant to demonstrate that mitigation cannot be provided on-site.
(b)When mitigation cannot be provided on-site,mitigation shall be provided in the
immediate vicinity of and within the same watershed as the permitted activity on property
owned or controlled by the applicant,where practical and beneficial to the fish and wildlife
habitat resources. When possible,this means within the same watershed as the location of the
proposed project.
(c)In-kind mitigation,as defined in Section 19.06.271, shall be provided, except when
the applicant demonstrates and the community development department concurs that greater
,functional and habitat value can be achieved through out-of-kind mitigation,as defined in
19.06.369.
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(d) Only when it is determined'by the community development department that
subparagraphs (a), (b), and (c) above are inappropriate or impractical shall off-site, out-of-
kind mitigation be considered.
(e)Any agreed-upon proposal shall be completed before initiation of other permitted
activities,unless a phased or concurrent schedule has been approved by the community
development department.
19.24.260 Fish and wildlife habitat performance standards and incentives.
(1)The habitat performance standards and criteria contained in this section shall be
incorporated into plans submitted for regulated activities.It is recognized that in specific
situations,all the listed standards may not apply or be feasible to implement or individual
standards may conflict,in which case the standard(s)most protective of the environment shall
apply.
_(a)Consider habitat in site planning and design;
,(b)Locate buildings and structures in a manner that preserves and minimizes adverse
impacts to important habitat areas;
(c)Integrate retained habitat into open space and landscaping;
(d)Where possible,consolidate habitat and vegetated open space in contiguous
blocks;
(e)Locate habitat contiguous to other habitat areas, open space or landscaped areas to
contribute to a continuous system or corridor that provides connections to adjacent habitat
areas and allows movement of wildlife;
(f)Use native species in any landscaping of disturbed or undeveloped areas and in any
enhancement of habitat or buffers;
(g)Emphasize heterogeneity and structural diversity of vegetation in landscaping,and .
food-producing plants beneficial to wildlife and fish;
(h)Remove and control any noxious or undesirable species of plants and animals;
(i)Preserve significant trees and snags,preferably in groups,consistent with achieving
the objectives of these standards;
G)Buffers shall be surveyed,staked, and fenced with erosion control and/or clearing
limits fencing prior to any construction work,including grading and clearing, that may take
place on the site; and
(k)Temporary erosion and sedimentation controls,pursuant to an approved plan, shall
be implemented during construction.
(2) A landscape plan shall be submitted consistent with the requirements,goals, and standards
of this chapter. The plan shall reflect the report prepared pursuant to MMC 19.24.330 of these
regulations.
(3) As an incentive to encourage preservation of secondary and tertiary habitat,as those terms
are defined in these regulations,the net amount of landscaping required by the city of
Marysville may be reduced by .25 acres for each one acre of secondary or tertiary habitat and
buffer preserved on the site;however,that amount cannot exceed 50 percent of the amount of
required landscaping.The reduction shall be calculated on the basis of square feet of habitat
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preserved or enhanced and square feet oflandscaping required.Habitat and habitat buffer that
is enhanced by the applicant may also qualify for this reduction.Preservation of secondary or
tertiary habitat shall be assured by the execution of an easement or other protective device
acceptable to the city of Marysville.
19.24.270 Fish and wildlife habitat monitoring program and contingency plan.
(I)A monitoring program shall be implemented to determine the success of the mitigation
project and any necessary corrective actions.This program shall determine if the original
goals and objectives are being met.
(2) A contingency plan shall be established for compensation in the event that the mitigation
project is inadequate or fails. A performance,monitoring,and maintenance bond or other
acceptable security device is required to ensure the applicant's compliance with the terms of
the mitigation agreement.The amount of the performance,monitoring,and maintenance bond
shall equal 125 percent of the cost of the mitigation project for a period of five years,provided
that the community development department may agree to reduce the bond in phases in
proportion to work successfully completed over the period of the bond.Failure to complete
any required performance,monitoring,and maintenance shall result in the.forfeiture of the
guarantee.Applicants who have previously defaulted will no longer be allowed to post a bond .
for performance,monitoring,and maintenance but will instead be required to submit an
assignment of bank account to the fity of Marysville for two times the cost of the mitigation
project.
(3)The monitoring program shall consist of the following:
(a)During monitoring,best available scientific procedures shall be used as the method
of establishing the success or failure of the project;.
(b)For vegetation determinations,permanent sampling points shall be established;
(c) For measurement purposes,vegetative success shall equal 80 percent survival of
planted trees and shrubs and 80 percent cover of desirable understory or emergent species;
(d)Monitoring reports. shall be submitted on the current status of the mitigation project
to the community development department.The reports shall be prepared by a qualified
scientific professional and reviewed by the city, shall to the extent applicable include
monitoring information on wildlife,vegetation,water quality,water flow,storm water storage
and conveyance,and existing or potential degradation,and shall be produced on the following
schedule:'.
(i) At time of construction,
(ii)Thirty days after planting,
(iii)Early in the growing season of the first year,
(iv)End of the growing season of first year,
(v)Twice the second year, and
(vi)Annually thereafter;
(e)Monitoring shall occur three,four, or five growing seasons,depending on the
complexity of the fish and wildlife habitat system.The monitoring period will be determined
by the community gevelopment gepartment and specified in writing prior to the
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implementation of the site plan;
(f)The applicant shall if necessary,correct for failures in the mitigation project;
(g)The applicant shall replace dead or undesirable vegetation with appropriate
plantings,based on the approved planting plan or MMC 19.24. 140;
(h)The applicant shall repair damage caused by erosion,settling,or other
geomorphological processes;
(i)Correction procedures shall be approved by a qualified scientific professional and
the community development department;and
(j)In the event of failure of the mitigation project,the applicant shall redesign the
projectand implement the new design.
Article IV.Geologic Hazard Areas
19.24.280 Applicability to geological hazards.
(1)The provisions of this section shall apply to any activity that occurs in, on or within 300
feet of (as indicated on the Geologic Hazard Maps),or potentially affects,a geologic hazard
area subject to this chapter unless otherwise exempt.These activities may include,but are not
limited to the following:
(a)Removing,excavating,disturbing or dredging soil, sand,gravel,minerals,organic
matter or materials of any kind;
(b)Dumping,discharging or filling with any material;
(c)Driving pilings or placing obstructions;
(d)Constructing,reconstructing,demolishing or altering the size of any structure or
infrastructure;
(e)Construction of anyon-site sewage disposal system,or other underground
facilities,except exempted activities;
(f)Draining,flooding,or disturbing the water level or water table,or changing the
flow of water through the site;
(g)Destroying or altering vegetation through clearing or harvesting;and
(h) Arty other activity potentially affecting a geologic hazard area or its setback not
otherwise exempt from the provisions ofthis section.
(2)To avoid duplication,the following permits and approvals shall be subject to and
coordinated with the requirements of this section:clearing and grading;subdivision or short
subdivision;building permit;planned unit development;shoreline substantial development;
variance;conditional use permit;other permits leading to the development or alteration of
land;and rezones.
19.24.290 Geologic hazard inventory map.
The approximate location and extent of geologic hazard areas within the city of Marysville's
planning area are shown on the critical areas maps adopted as part of this chapter.These maps
should be used as a general guide only for the assistance of property owners and as
information for the public.They are intended to indicate where potentially hazardous
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conditions are believed to exist.Boundaries are generalized;field investigation and analysis
by a qualified scientific professional is required to confirm the actual presence or absence of a
critical area. In the event of any conflict between the location,designation or classification of
geologic hazard area shown on the Snohomish County Tomorrow Geologic Hazard Areas
maps and criteria or standards of this chapter,the criteria and standards resulting from the
field investigation shall prevail.
19.24.300 Alteration of geologic hazard areas and development limitations.
(1)The city of Marysville may approve,condition or deny proposals as appropriate based on
the degree to which significant risks posed by critical hazard areas to public and private
property and to public health safety can be mitigated.The objective of mitigation measures
shall be to render a site containing a critical geologic hazard site as safe as one not containing
such hazard or to develop a structure that will tolerate the hazard.Enforceable guarantees
shall be required where appropriate.Conditions may include limitations of proposed uses,
modification of density,alteration of site layout and other appropriate changes to the proposal.
Where potential impacts cannot be effectively mitigated,or where the risk to public health,
safety and welfare,public or private property,or important natural resources is significant
notwithstanding mitigation,the proposal shall be denied.
(2)Assurances required of the applicant and the qualified scientific professional for geologic
hazard areas may at the discretion of the community development director include:
(a) A letter from the geotechnical engineer or geologist who prepared the required
studies stating that the riskof damage from the proposal,both on-site and off-site,are minimal
subject to the conditions set forth in the report,that the proposal will not increase the risk of
occurrence of the geologic hazard,and that measures to eliminate or reduce risks have been
incorporated into its recommendations;or
(b) A letter from the applicant,or the owner of the property if not the applicant,stating
its understanding and acceptance of any risk of injury or damage associated with development..,...
of the site and agreeing to notify any future purchasers of the site,portions of the site, or
structures located on the site of the geologic hazard;or
(c) A legally enforceable agreement,which shall be recorded as a covenant and noted
on the face of the deed or plat,and executed in a form satisfactory to the city of Marysville,
acknowledging that the site is located in a geologic hazard area; the risks associated with
development of such site; and a waiver and release of any and all claims of the owner(s),their
directors,employees,successors or assigns against the city of Marysville for any loss,damage
or injury,whether direct or indirect,arising out of issuance of development permits for the
proposal.
(3)When alteration of a geologic hazard area is approved,the city of Marysville at the
discretion of the community development director and/or city engineer may require an
assurance device,such as a bond or ---assignment of bank account to cover the cost of
monitoring,maintenance and any necessary corrective actions.
19.24.310 Setbacks from geologic hazards.
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(1) A setback shall be established from the edge of any geologic hazard area that is not
approved for alteration pursuant to these regulations.The setback shall consist of an
undisturbed area of natural vegetation;if the site has previously been disturbed,the setback
area shall be revegetated pursuant to an approved planting plan.
(2)Required setbacks shall typically vary between 25 and 50 feet; the width of the setback,
determined by the community development director and/or city engineer or his or her
representative,shall reflect the sensitivity of the geologic hazard area and the types and
density of uses and activities proposed on or adjacent to the geologic hazard area.In
determining an appropriate setback width,the community development director or his or her
representative shall consider the recommendations contained in any technical report prepared
by the applicant's geotechnical engineer.Building and structures shall be set back 10 feet from
the edge of the setback.
(a)Setbacks shall be measured as follows:
(i)Critical landslide hazard areas: from the edges of the hazard area as
identified in the Geologic Hazard Area Report,
(ii)Critical recharge areas: from the edge of the recharge area as identified in
the Geologic Hazard Area Report;
(b)Setbacks may be reduced to a minimum of 10 feet when the applicant demonstrates
through technical studies that the reduction will adequately protect the geologic hazard and the
proposed development.
19.24.320 Geologic hazard performance standards.
(I)The following standards shall be implemented in all proposals occurring in or adjacent to
geologic hazard areas:
(a)Geotechnical studies shall be prepared to identify and evaluate potential hazards
and to formulate mitigation measures;
(b)Construction methods will reduce or not adversely affect geologic hazards;
(c)Site planning should minimize disruption of existing topography and natural
vegetation;
(d)Disturbed areas should be replanted as soon as feasible pursuant to a previously
approved landscape plan;
(e) Use of retaining walls that allow maintenance of existing natural slope areas are
preferred over graded slopes;
(f)Setbacks shall be surveyed,staked, and fenced with erosion control and/or clearing
limits fencing prior to any construction work,including grading and clearing,may take place
on the site;
(g)Temporary erosion and sedimentation controls,pursuant to an approved plan, shall
be implemented during construction;
(h) A master drainage plan should be prepared for large projects;
(i)Undevelopable geologic hazard areas larger than one-half acre should be placed in a
separate tract;
(j)A monitoring program should be prepared for construction activities permitted in
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geologic hazard areas; and
(k)Development shall not increase instability or create a hazard to the site or adjacent
properties,or result in a significant increase in sedimentation or erosion.
(I)The proposal will not adversely impact other critical areas.
(m) At the discretion of the community development director,peer review of
geotechnical reports may be required prior to locating a critical facility within a geologic
hazard area.
(2)Required setbacks shall not deny all reasonable use of property.A variance from setback
width requirements may be granted by the city of Marysville upon a showing:
(a)There are special circumstances applicable to the subject property or to the
intended use such as shape,topography,location or surroundings that do not apply generally
to other properties and which support the granting of a variance from the setback
requirements;and
(b)Such setback with variance is necessary for the preservation and enjoyment of a
substantial property right or use possessed by other similarly situated property but which
because of special circumstances is denied to the property in question;and
(c)The granting of such setback width variance will not be materially detrimental to
the public welfare or injurious to the property or improvement.
Article V.General Information
19.24.330 General exemptions.
The following activities shall be exempt from the provisions of this chapter provided they are
conducted using best management practices:
(1)Existing and ongoing agricultural activities,as defined in MMC 19.06.183,and any lands
designated long-term commercially significant agricultural lands;
(2)Maintenance,operation and reconstruction of existing roads,streets,utilities and
associated structures,provided that reconstruction of any structures may not increase the. .impervious area;
(3)Normal maintenance,repair and reconstruction of residential or commercial structures,
provided that reconstruction of any structures may not increase the previous floor area;
(4)Site investigative work and studies necessary for preparing land use applications,including
soils tests,water quality studies,wildlife studies and similar tests and investigations,provided
that any disturbance of critical areas shall be the minimum necessary to carry out the work or
studies;
(5)Educational activities,scientific research,and outdoor recreational activities that will not
have a significant effect on the habitat area;
(6)Public agency emergency activities necessary to prevent an immediate threat to public
health,safety or property;
(7)Prior to the effective date of the ordinance codified in this chapter,any of the following
activities that have met all conditions of approval in a timely manner and are consistent with
the reasonable use provisions of this chapter:
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(a)Complete applications as defined by the appropriate ordinance or by city policy,
(b)Approved plats, and
(c)Development oflegally created lots which have been recorded with Snohomish
County,provided they were reviewed and approved under Ordinance 1928 "Sensitive Areas"
adopted December 14,1992,or as amended at the time of final plat approval; and (8)Minor
activities not mentioned above and determined by the community development department to
pose minimal risk to the public health, safety, general welfare and critical area functions.
19.24.340 Permit process and application requirements.
(1)Preapplication Conference. All applicants are encouraged to meet with the community
development director of the city of Marysville or his or her representative prior to submitting
an application subject to these regulations.The purpose of this meeting shall be to discuss the
city of Marysville's critical areas requirements,process and procedures;to review any
conceptual site plans prepared by the applicant; to discuss appropriate investigative techniques
and methodology;to identify potential impacts and mitigation measures; and to familiarize the
applicant with state and federal programs,particularly those pertaining to wetlands.Such
conference shall be for the convenience of the applicant and any recommendations shall not
be binding on the applicant or the city of Marysville.
(2)Application Requirements.The information required by this section should be coordinated
with reporting requirements required by this section for any other critical areas located on the
site.
(a)Prior to the issuance of a SEPA threshold determination for a proposal,a wetland
determination,wetland delineation report,or fish and wildlife habitat report must be
submitted to the city of Marysville for review upon request of the community development
director due to inclusion of a portion or all of a site on the habitat or wetland inventory maps
prepared by Snohomish County Tomorrow.The purpose of the report is to determine the
extent and function ofwetlands, and the extent, type, function and value of wildlife habitat on
any site where regulated activities are proposed. The report will also be used by the city of .
Marysville to determine the appropriate wetland, or the sensitivity and appropriate
classification of the habitat,appropriate buffering requirements,and potential impacts of
proposed activities;
(b)In addition, wetland boundaries must be staked and flagged in the field by a
qualified scientific professional employing the Washington State Wetlands Identification and
Delineation Manual methodology. Field flagging must be distinguishable from other survey
flagging on the site. The field flagging must be accompanied by a wetland delineation report;
(c)Applicants for activities within geologic hazard areas shall conduct technical
studies to:evaluate the actual presence of geologic conditions giving rise to geologic hazards;
determine the appropriate hazard category,according to the classification of potential hazards
in these regulations;evaluate the safety and appropriateness of proposed activities;and
recommend appropriate construction practices,monitoring programs and other mitigation
measures required to ensure achievement of the purpose and intent of these regulations.The
format of any required reports shall be determined by the city of Marysville;
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,
(d) The report of any critical area shall include the following information:
(i)Vicinity map,
(ii) A map showing:
(A) Site boundary,property lines, and roads,
(B) Internal property lines,rights-of-way,easements,etc.,
(C)Existing physical features of the site including buildings,fences,
and other structures, roads,parking lots,utilities,water bodies,etc.,
(D)Contours at the smallest readily available intervals,preferably at
five-foot intervals, and
(e) For large (50 acres or larger) or complex projects with wetlands or habitat areas, an
aerial photo with overlays displaying the site boundaries and wetland delineation or habitat
area(s) may be required. Generally, an orthophotograph at a scale of one inch equals 400 feet
or greater (such as one inch equals 200 feet) should be used.If an orthophotograph is not
available, the center of a small scale (e.g., one inch equals 2,000 feet) aerial photograph
enlarged to one inch equals 400 feet may be used,
(iii) The report for any critical area must describe:
(A) Locational information including legal description and address,
(B) All natural and manmade features within 150 feet of the site
boundary,
(C) General site conditions including topography, acreage, and water
bodies or wetlands, and
(D)Identification of any areas that have previously been disturbed or
degraded by human activity or natural processes;
(E)In addition to the general report requirements,a report on wetlands
shall include the following information:
(i)Delineated wetland boundary,
(ii) The wetland boundary must be accurately drawn at an appropriate
engineering scale such that information shown is not cramped or illegible. The drawing shall
be prepared by a surveyor. Generally, a scale of one foot equals 40 feet or greater (such as one
inch equals 20 feet) should be used.Existing features must be distinguished from proposed
features,
(iii) Site designated on the Wetlands Areas Maps prepared for Snohomish
County Tomorrow,July 1991,
(iv)Hydrologic mapping showing patterns of water movement into, through,
and out of the site area,
(v)Location of all test holes and vegetation sample sites,numbered to
correspond with flagging in the field and field data sheets,
(vi) Field data sheets from the federal manual,numbered to correspond with
sample site locations as staked and flagged in the field, and describe:
(vii)Specific descriptions of plant communities,soils and hydrology,
(viii) A summary of existing wetland function and value, and
(ix) A summary of proposed wetland and buffer alterations,impacts,and the
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need for the alterations as proposed.Potential impacts may include but are not limited to loss
of flood storage potential,loss of wildlife habitat,expected decreases in species diversity or
quantity,changes in water quality,increases in human intrusion,and impacts on associated
wetland or water resources.If alteration of a Category I,II,III,or VI wetland is proposed,a
wetland mitigation plan is required according to the standards ofMMC 19.24.140;
(f)In addition to the general report requirements,a report on fish and wildlife habitats
shall include the following information.The level of detail contained in the report shall
generally reflect the size and complexity of the proposal and the function and value of the
habitat.The community development department may require field studies at the applicant's
expense in appropriate cases:
(i) A map of vegetative cover types,reflecting the general boundaries of
different plant communities on the site,
(ii) A description of the species typically associated with the cover types,
including an identification of any critical wildlife species that might expected to be found,
(iii)The results of searches ofDNR's Natural Heritage and WDFW's Non-
Game Data System databases,if available,and
(iv)Additional information on species occurrence available from the city of
Marysville or Snohomish County,and describe:
(v)The layers,diversity and variety of habitat found on the site,
(vi)Identification of edges between habitat types and any species commonly
associated with that habitat,
(vii)The location of any migration or movement corridors,
(viii)A narrative summary of existing habitat functions and values,and
(ix)A summary of proposed habitat and buffer alterations,impacts and
mitigation.Potential impacts may include but are not limited to clearing of vegetation,
fragmentation of wildlife habitat,expected decreases in species diversity or quantity,changes
in water quality,increases in human intrusion,and impacts on wetlands or water resources;
(g)In addition to the general report requirements,a report on geologic hazards shall
include the following information:
(i)A characterization of soils,geology and drainage,
(ii) A characterization of groundwater conditions including the presence of any
public or private wells in the immediate vicinity,and
(iii) An analysis of proposed clearing,grading and construction activities,
including construction scheduling;potential direct and indirect,on-site and off-site impacts
from the development;and proposed mitigation measures,including any special construction
techniques,monitoring or inspection program,erosion or sedimentation programs (during and
after construction),and surface water management controls.
In order to determine the geologic hazard classification project,applicants shall also include in
their report to the city of Marysville a description prepared by a qualified scientific
professional that reviews the site history and results of a surface reconnaissance.The purpose
of these regulations is to require a level of study and analysis commensurate with potential
risks associated with geologic hazards on particular sites and for particular proposals.
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Depending on the particular geologic hazard, geologic hydrologic,and topographic studies
may be required. The appropriate report(s)and level of analysis shall be determined using the
following guidelines:
(A)Moderate Landslide Hazard Areas:
1. Review site history and available information,
2.Conduct a surface reconnaissance of the site and adjacent areas, and
3.Conduct subsurface exploration if indicated by (I)and (2) as determined by
the applicant's qualified scientific professional and the city,
(B) High Landslide Hazard Areas:
1.Review site history and available information,
2.Conduct a surface reconnaissance of the site and adjacent areas,
3.Conduct subsurface exploration suitable to the site and proposal to assess
geohydrologic conditions,
4.Recommend surface water management controls during construction and
operation,
5.Proposed construction scheduling,and
6.Recommendations for site monitoring and inspection during construction.
(C) Very High Landslide Hazard Areas:
1.Development is prohibited in these areas.
(D)Moderate and High Erosion Hazard Areas:
1.Review site history and available information,
2.Conduct a surface reconnaissance of the site and adjacent areas, and
3.Identify surface water management,erosion and sediment controls
appropriate to the site and proposal.
(E)Seismic Hazard Areas:
I.For one and two-story single-family structures,conduct an evaluation of site
response and liquefaction potential based on the performance of similar structures under
similar foundation conditions;and
2. For all other proposals,conduct an evaluation of site response and
liquefaction potential including sufficient subsurface exploration to provide a site coefficient
(S) for use in the static lateral force procedure described in the Uniform Building Code.
(3)Permit Process. This section is not intended to create a separate permit
process for development proposals.To the extent possible,the city of Marysville shall
consolidate and integrate the review and processing of critical area-related aspects of
proposals with other land use and environmental considerations and approvals.
19.24.350 Selection of qualified scientific professional and city review of report.
For the purposes of this chapter,qualified scientific professionals not licensed by the state of
Washington for the activities they are to perform in evaluation of critical areas, shall be
reviewed by and their names appear on an approved list prepared by the city of Marysville.
(1)Bi-annually the city shall advertise requests for qualifications for qualified scientific
professionals for each area established by this chapter:wetlands,fish habitat areas/streams,
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wildlife habitat areas, and geologic hazard areas. The community development director shall
establish a panel, to review the firm and individual's qualifications and references. Each
qualified scientific professional shall have completed at least a four-year degree program and
meet the minimum requirements contained within the definitions section. The panel shall
recommend to the Community development director the list of consultants,as selected by the
panel, that are qualified to evaluate each type of critical area identified in this chapter. There
shall be a minimum of 12 qualified scientific professionals for each of the three categories.
The list shall be adopted within 60 days of the adoption of the ordinance codified in this
chapter and 60 days of January 1st bi-annually thereafter.
(2) The adopted lists of qualified scientific professionals shall be available at the community
development department.
(3) Reports meeting the criteria as required by this chapter,submitted by a qualified scientific
professional,included on the adopted list should be accepted by the city of Marysville.
However, the city retains the right to have a separate review of the reports, and at its discretion
may retain a qualified scientific professional at the city's expense to review and confirm the
applicant's reports,studies, and plans.Applicants may choose to use other consultants which
they feel meet the definition of qualified scientific professionals given;however,the city
retains the right to have a separate review of their reports, and at its discretion may retain a
qualified scientific professional at the applicant's expense to review and confirm the
applicant's reports,studies, and plans.
19.24.360 Land divisions.
All proposed divisions of land which include regulated critical areas shall comply with
the following procedures and development standards:
(1)New lots shall contain at least one building site,including access, that is suitable for
development and is not within the regulated critical area or it's associated buffer or setback.
(2) A regulated critical area and its associated buffer or setback shall be placed in a separate
tract on which development is prohibited,protected by execution of an easement given to the
city of Marysville,or dedicated to the city of Marysville at the discretion of the city of
Marysville. The location and limitations associated with the critical area and its associated
buffer or setback shall be shown on the face of the deed or plat applicable to the property and
shall be recorded with the Snohomish County auditor.
19.24.370 On-site density transfer for critical areas.
(1)An owner of a residential site or property containing critical areas may be permitted to
transfer the density attributable to the critical area and associated buffer area or setback to
another non critical portion of the same site or property,subject to the limitations of this
section and other applicable regulations.In the case of streams,only the density attributable to
the buffer may be transferred.
(2) Up to one hundred (100)percent of the density that could be achieved on the critical area
and buffer portion of the site,excluding stream channels,can be transferred to the non-critical
area portion,subject to:
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,.~l
(a)The density limitations ofthe underlying zone must be applied;
(b)The bulk and dimensional standards of the next higher zoning classification may be
utilized to accommodate the transfers in density;
(c)The non critical,nonbuffer portion of the site is not constrained by another
environmentally critical areas regulated by this code.
(3)An on-site density transfer shall meet the requirements and follow the procedures of Title
20 MMC,Subdivisions.
19.24.380 Fencing and signage requirements.
Wetland fencing and signage adjacent to a regulated wetland or stream corridor shall be
required.Two rail fencing shall be constructed with pressure treated posts and rails and
cemented into the ground with either cedar or treated rails.Alternative materials may be used
subject to approval by the city.Signs designating the presence of an environmentally
sensitive area shall be posted along the buffer boundary.The signs shall be posted at a
minimum rate of one every 100 lineal feet.
19.24.390 Building setbacks.
Unless otherwise provided,buildings and other structures shall be set back a distance of
fifteen (15) feet from the edges of all critical area buffers or from the edges of all critical
areas,if no buffers are required.The following may be allowed in the building setback area:
(1)Landscaping;
(2)Uncovered decks;
(3}Building overhangs,if such overhangs do not extend more than eighteen (18)
inches into the setback area;and
(4)Impervious ground surfaces,such as driveways and patios,provided that such
improvements may be subject to water quality regulations as adopted.
19.24.400 General procedural provisions.
(I)Interpretation and Conflicts.Any question regarding interpretation of these regulations
shall be resolved pursuant to the procedures set forth in Chapter 2.70 MMC,relating to the
hearing examiner.
(2)Appeals from Permit Decisions.Appeals from permit decisions shall be governed by the
procedures set forth in Chapter 2.70 MMC,relating to the hearing examiner.
19.24.410 Penalties and enforcement.
Penalty and enforcement provided in this section shall not be deemed exclusive,and the city
may pursue any remedy or relief it deems appropriate.
(I)Any person,firm,corporation,or association or any agent thereof who violates any of the
provisions of this chapter shall be guilty of a misdemeanor punishable by a fine not to exceed
$1,000.It shall be a separate offense for each and every day or portion thereof during which
any violation of any provisions of this chapter is committed.
(2)Any person,firm,corporation,or association of any agent thereof who violates any of the
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provisions of this chapter shall be liable for all damages to public or private property arising
from such violation,including the cost of restoring the affected area to an equivalent or
improved condition prior to the violation occurring.If an equivalent condition cannot be
provided,the violator shall be subject to a fine in an amount equal to the value to the damage
to the environmentally critical area,determined using best available methods of calculating
the value of vegetation,land, and water resources.
(3)Restoration shall include but not be limited to, the replacement of all improperly removed
ground cover with species similar to those which were removed or other approved species
such that the biological and habitat values will be replaced,improper fill removed,and slope
stabilized.Studies by the qualified experts shall be submitted to determine the conditions
which were likely to exist on the lot prior to the illegal alteration.
(4)Restoration shall also include installation and maintenance of interim and emergency
erosion control measures until such time as the restored ground cover and vegetation reach
sufficient maturation to function in compliance with the performance standards adopted by the
city.
(5)The city shall stop work on any existing permits and halt the issuance of any or all future
permits or approvals for any activity which violates the provisions of this chapter until the
property is fully restored in compliance with this chapter and all penalties are paid.
(6)Notwithstanding the other provisions provided in this chapter,anything done contrary to
the provisions of this chapter or the failure to comply with the provisions of this chapter shall
be and the same is hereby declared to be a public nuisance.
The city is authorized to apply to any court of competent jurisdiction for any such court,upon
hearing and for cause shown,may grant a preliminary,temporary or permanent injunction
restraining any person,firm,and/or corporation from violating any of the provisions of this
chapter and compelling compliance with the provisions thereof.The violator shall comply
with the injunction and pay all cost incurred by the city in seeking the injunction.
19.24.420 General savings provisions -Reasonable use determination.
(1)The standards and regulations of this section are not intended,and shall not be construed
or applied in a manner,to deny all reasonable economic use of private property.If an
applicant demonstrates to the satisfaction of the city of Marysville that strict application of
these standards and the utilization"of cluster techniques,planned unit development,and
transfer of development rights would deny all reasonable economic use of its property,
development may be permitted subject to appropriate conditions,derived from this chapter as
determined by the community development director.
(2)An applicant for relief from strict application of these standards shall demonstrate the
following:
(a)That no reasonable use with less impact on the critical area and buffer or setback is
feasible and reasonable;and
(b)That there is no feasible and reasonable on-site alternative to the activities
proposed,considering possible changes in site layout,reductions in density and similar
factors; and
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(c)That the proposed activities,as conditioned,will result in the minimum possible
impacts to critical area and buffer or setback;and
(d)That all reasonable mitigation measures have been implemented or assured;' and
(e)That all provisions of the city's regulations allowing density transfer on-site and
off-site have been considered;and
(f)That the inability to derive reasonable economic use is not the result of the
,applicant's actions.
19.24.430 No special duty created.
(I)It is the purpose of this chapter to provide for the health,welfare,and safety of the general
public,and not to create or otherwise establish or designate any particular class or group of
persons who will or should be especially protected or benefited by the terms of this chapter.
No provisions or term used in this chapter is intended to impose any duty whatsoever upon the
city or any of its officers,agents, or employees for whom the implementation or enforcement
of this chapter shall be discretionary and not mandatory.
(2)Nothing contained in this chapter is intended to be,nor shall be construed to create or
from the basis for any liability on the part of the city or its officers,agents, and employees for
any injury or damage resulting from the failure of any premises to abate a nuisance or to
comply with the provisions of this chapter or be a reason or a consequence of any inspection,
notice or order, in connection with the implementation or enforcement of this chapter,or by
reason of any action of the city related in any manner to enforcement of this chapter by its
officers,agents or employees.
Section 3.Chapter 19.06 of the Marysville Municipal Code is hereby amended by
repealing MMC 19.06.408 and 19.06.413 and by amending or adopting MMC 19.06.112,
19.06.123,19.06.271,19.06.369,19.06.384,19.06.410, 19.06.470,19.46.498,and 19.06.543
to read as follows:
19.06.112 Compensatory mitigation.
"Compensatory mitigaton"means replacing project-induced losses or impacts to a critical area
including,but not limited to, the following:'
(1)Restoration -Actions performed to reestablish wetland functional characteristics
and processes that have been lost by alterations,activities,or catastrophic events within an
area that no longer meets the definition of a wetland.
(2)Creation -Actions performed to intentionally establish a wetland at a site where it
did not formerly exist.'
(3)Enhancement -Actions performed to improve the condition of existing degraded
wetlands so that the functions they provide are of a higher quality.
(4)Preservation -Actions taken to ensure the permanent protection of existing high-
quality wetlands.
19.06.123 Critical habitat or critical wildlife habitat.
"Critical habitat or critical wildlife habitat"means habitat areas associated with threatened,
endangered,sensitive,or priority species of plants,fish, or wildlife and which,if altered,
could reduce the likelihood that the species will maintain and reproduce over the long term.
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Areas are documented with reference to lists,categories and definitions of species
promulgated by the Washington Department of Wildlife (Non-Game Data System Special
Animal Species)as identified in WAC 232-12-011 or 232-12-014 and in the Priority Habitat
Species lists compiled in compliance with WAC 365-190-080;or by rules and regulations
adopted currently or hereafter by the u.S.Fish and Wildlife Service,copies of which are
available at the community development department.Critical habitat also includes the
following types of areas:
(I)Regionally rare native fish and wildlife habitat (i.e.,one of five or fewer
examples of the habitat type within the city of Marysville).
(2) Fish and wildlife areas with irreplaceable ecological functions,including the
following:
(a)Estuarine marshes meeting any of the following criteria:
(i)The area is listed as a National Wildlife Refuge,National Park,
National Estuary Reserve,Natural Area Preserve or any preserve or reserve designated under
WAC 332-30-151,
(ii)The total area is five acres or greater and contains at least two
estuarine wetland habitat classes,or
(iii)The total area is less than five acres and meets four of the
following conditions:
(A) Area is greater than one acre,
(B)Contains at least two estuarine wetland classes,
(C)Shows minimum evidence of human-caused physical alteration,such as
diking,filling,cultivating,etc.,
(0)Contains a functional tidal channel(s)or is connected to a tidal stream,
(E)Within a watershed that has few to moderate point or nonpoint water
quality problems cited by the Department of Ecology,or
(F) Land adjacent to more than 75 percent of the area's border is agricultural or
relatively undisturbed forest;
(b)Eelgrass and kelp beds (floating or nonfloating)with greater than 50
percent macroalgal cover during August or September;
(c)Category I wetlands as defined in MMC 19.24.100;
(d)Documented commercial and recreational shellfish beds managed by the
Washington Department of Fisheries;
(e)State Nature Area Preserves or Natural Resource Conservation Areas
identified by state law and managed by the Department ofNatural Resources;
(f)Documented habitat or presence of threatened and endangered species;
(g)Documented habitat of regional or national significance for migrating birds;
(h)Naturally occurring ponds stocked with native game fish by government or tribal
entities,and naturally occurring ponds greater than one acre and less than 20 acres in area,not
more than 50 percent of which is covered by emergent aquatic vegetation,shrubs or trees,and
whose maximum depth does not exceed 6.6 feet.
19.06.271 In-Kind Mitigation.
"In-Kind Mitigation"means measures taken to replace critical areas with substitute areas
whose characteristics and functions closely approximate those destroyed or degraded by a
regulated activity.It does not mean replacement "in-category".
19.06.369 Out-of-Kind Mitigation.
"Out-of-Kind Mitigation"means measures taken to replace critical areas with substitute
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critical areas whose characteristics do not closely approximate those destroyed or degraded.It
does not refer to replacement "out of category".
19.06.384 Primary Association Area.
"Primary Association Area"means the area used on a regular basis, is in close association
with, or is necessary for the proper functioning of the habitat of a critical species.Regular
basis means that the habitat area is normally,or usually known to contain a critical species,or
based on known habitat requirements of the species, the area is likely to contain the critical
species.Regular basis is species and population dependent.Species that exist in low
numbers may be present infrequently yet rely on certain habitat types.
19.06.410 Qualified scientific professional.
"Qualified scientific professional"means a person with experience and training in the
pertinent scientific discipline,and who is a qualified scientific expert with expertise
appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4).A
qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology,
engineering,environmental studies,fisheries,geomorphology,or related field, and two years
of related work experience.(1)A qualified professional for habitats or wetlands must have a
degree in biology and professional experience related to the subject species.
(2) A qualified professional for a geological hazard must be a professional engineer or
geologist,licensed by the state of Washington.
19.06.470 Streams.
"Streams"means water contained within a channel,either perennial or intermittent,and
classified according to locally appropriate stream classification system based on WAC 222-
16-030.Streams also include open natural watercourses modified by man.Streams do not
include irrigation ditches,waste ways, drains,outfalls,operational spillways,channels,storm
water runoff facilities or other wholly artificial watercourses,except those that directly result
from the modification to a natural watercourse.Streams are further characterized as follows:
(1)Type S Stream.Those streams,within their ordinary high water mark, as inventoried as
"shorelines of the state"under chapter 90.58 RCW and the rules promulgated pursuant to
chapter 90.58 RCW.
(2)Type F Stream.Those stream segments within the ordinary high water mark that are not
Type S Streams,and which are demonstrated or provisionally presumed to be used by
salmonid fish.Stream segments which have a width of two feet or greater at the ordinary high
water mark and have a gradient of 16 percent or less for basins less than or equal to 50 acres
in size, or have a gradient of 20 percent or less for basins greater than 50 acres in size are
provisionally presumed to be used by salmonid fish. A provisional presumption of salmonid
fish use may be refuted at the discretion of the community development director where any of
the following conditions are met:
(a)It is demonstrated to the satisfaction of the City that the stream segment in question is
upstream of a complete,permanent,natural fish passage barrier,above which no stream
section exhibits perennial flow;
(b)It is demonstrated to the satisfaction of the City that the stream segment in question has
confirmed,long-term,naturally-occurring water quality parameters incapable of
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supporting salmonid fish;
(c) Sufficient information about a geomorphic region is available to support a departure from
the characteristics described above for the presumption of salmonid fish use, as
determined in consultation with the Washington Department of Fish and Wildlife, the
Department of Ecology, affected tribes, or others;
(d) The Washington Department of Fish and Wildlife has issued a Hydraulic Project Approval
pursuant to RCW 77.55.100 that includes a determination that the stream segment in
question is not used by salmonid fish;
(e) No salmonid fish are discovered in the stream segment in question during a stream survey
conducted according to the protocol provided in the Washington Forest Practices Board
Manual, Section 13, Guidelines for Determining Fish Use for the Purpose of Typing
Waters Under WAC 222-16-031, provided no unnatural fish passage barriers have been
present downstream of said stream segment over a period of at least two years.
(3) Type Np Stream. Those stream segments within the ordinary high water mark that are
perennial and are not Type S or Type F Streams. However, for the purpose of
classification, Type Np Streams include the intermittent dry portions of the channel below
the uppermost point of perennial flow.If the uppermost point of perennial flow cannot be
identified with simple, non-technical observations (see Washington Forest Practices Board
Manual, Section 23), then said point shall be determined by a qualified professional
selected or approved by the City.
(4) Type Ns Stream. Those stream segments within the ordinary high water mark that are
not Type S, Type F, or Type Np Streams. These include seasonal streams in which surface
flow is not present for at least some portion of a year of normal rainfall that are not located
downstream from any Type Np Stream segment.
19.06.498 Top of the bank.
"Top of the bank" means that point in the natural contourwhere there is a distinct, sharp break
in slope for a minimum of 50 running feet or greaterwhich separates inclines at less than 25%
from slopes equal to or greater than 25%. Where no distinct break exists, the top of the top of
the bank shall be the uppermost limit of the area where the ground surface drops six feet and
three inches or more vertically within a horizontal distance of twenty-five feet.
19.06.543 Wetland delineation.
"Wetland delineation" means a technical procedure performed by a wetland specialist to
determine the area of a wetland, ascertaining the wetland's classification, function, and value,
and to define the boundary between a wetland and adjacent uplands.Delineation's shall be
performed by a wetland specialist according to the Washington State Wetlands Identification
and Delineation Manual (for Western Washington)as prepared by the Washington State
Department of Ecology, adopted under RCW 36.07A.175 pursuant to RCW 90.58.380.
Section 4. Severability.If any section, subsection, sentence, clause, phrase, or word of this
Ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction,such
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invalidity or unconstitutionality shall not affect the validity or unconstitutionality of the
remainder of this Ordinance.
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Section 5. Effective date. This Ordinance shall take effect five days after the date of its
publication by summary.
PASSED by the City Council and APPROVED by the Mayor thisJ5~ay of
~rl \,2005.
CITY OF MARYSVILLE
By~:aZKiti
DENNIS L.KENDALL, Mayor
ATTEST:
Approved as to form:
Date of Publication:'-I {-2..7/05
Effective Date (5 days after publication):~'2-105
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