Title 17 (selected sections)

Section 17.54.070 Regulated slopes.

    A.    Classification. A site specific analysis which indicates that regulated slopes are present on or adjacent to a property that is the subject of a development application regulated under the city zoning code, or a proposed project that will artificially create a regulated slope as defined in this section, will result in the property being classified as subject to slope development management. Land uses or developments proposed on sites which are subject to slopes management shall comply with the provisions of this subsection.
    B.    Submittal Requirements. Applications for land uses or developments proposed within areas identified on the city’ s sensitive area inventory to be regulated slopes or be adjacent to regulated slopes or that may contain regulated slopes as determined by the planning director based on a site specific analysis, shall be filed with the planning department. In this latter regard, every land use application shall describe maximum existing and proposed slopes on or adjacent to the project site. Areas containing or adjacent to regulated slopes shall contain the information specified in subsection D of this section, unless the planning director waives specific submittal requirements as unnecessary for review of a specific application.
    C.    Supporting Information Required. All land uses and developments proposed on or adjacent to regulated slopes shall include supporting studies describing the environmental limitations of the site. No construction activity, including clearing or grading, shall be permitted until the information required by this section is reviewed and approved by the city. Such studies shall contain the following information and be prepared by a geologist or geotechnical engineer.
    1.    A description of how the proposed development and its associated grading plan will or will not impact each of the following on the subject property and adjoining properties:
    a.    Slope stability, erosion, and landslide hazard;
    b.    Drainage, surface and subsurface hydrology, and water quality;
    c.    Existing vegetation as it relates to wetlands, regulated slopes and soil stability.
    2.    Recommended methods for mitigating identified impacts and a description of how these mitigating measures may impact adjacent properties.
    3.    The city may retain consultants at the applicant’ s expense to assist the city’ s review of applications and studies outside the range of staff expertise.
    D.    Regulated Slopes (Use and Development Requirements).
    1.    As a part of any approval of development on a regulated slope or unstable soils, the city shall require the implementation of recommendations in the hydro- geotechnical reports described in subsection C of this section to mitigate identified impacts.
    Additionally, the city may require:
    a.    That the applicant provide an environmentally sensitive area protection easement;
    b.    The applicant’ s registered professional engineer be present on site during all clearing, grading, and filling activities;
    c.    Trees and groundcover be retained and additional vegetation added;
    d.    All structures be set back an appropriate distance from the top of a regulated slope;
    e.    All structures and excavations be set back from the toe of a slope the distance necessary to protect such structure from landslide hazard based upon the specific findings and recommendation of the hydrogeotechnical analysis. (Ord. 2316 (part), 1994)

Section 17.54.080 Geologically hazardous areas.

    Potential "geological hazardous areas" as identified in the city of Anacortes comprehensive land use plan shall be subject to subsections (D)(1)(c), (d), and (e) of Section 17.54.070. (Ord. 2316 (part), 1994)

Chapter 17.65 NONTIDAL WETLAND PROTECTION

Section 17.65.020 Purpose.

    A.    It is the policy of the city to encourage or require planning to avoid or minimize damage to nontidal wetlands wherever prudent or feasible; to require that activities not dependent upon a nontidal wetland location be located at upland sites; to allow nontidal wetland losses only where all practicable measures have been applied to reduce those losses that are unavoidable and in the public interest; to provide for compensation in the form of nontidal wetland restoration or creation to offset further losses; to prevent any net-loss of wetlands and to provide for the protection of wetlands under additional ordinances already adopted by the city, including building codes, clearing and grading control ordinances, groundwater management regulations, stormwater management regulations, and other pertinent regulations.
    B.    Furthermore, such activities must not threaten public safety or cause nuisances by:
    1.    Blocking flood flows or destroying flood storage areas, thereby raising flood heights or velocities on other land and increasing flood damages;
    2.    Causing water pollution through any means, including location of wastewater disposal systems in wet soils; unauthorized or detrimental application of pesticides, herbicides, and algacides; disposal of solid wastes or stormwater runoff at inappropriate sites; or the creation of unstabilized fills. However, nothing contained in this title shall prevent the establishment of new wetland areas designed to improve water quality;
    3.    Increasing erosion; or
    4.    Increasing runoff of sediment and stormwater.
    C.    In addition, it is the policy of the city that activities in or affecting nontidal wetlands do not destroy natural wetland functions important to the general welfare by:
    1.    Decreasing breeding, spawning, nesting, wintering, feeding, or other critical habitat for fish and wildlife, including rare, threatened, and endangered plant and animal species and commercially and recreationally important wildlife;
    2.    Interfering with the exchange of nutrients needed by fish and other forms of wildlife;
    3.    Decreasing groundwater recharge;
    4.    Destroying sites needed for education and scientific research as outdoor biophysical laboratories, living classrooms, and training areas;
    5.    Interfering with public rights in waters and the recreation opportunities for fishing, boating, hiking, birdwatching, photography, camping, and other activities in nontidal wetlands; or
    6.    Destroying aesthetic and property values. (Ord. 2316 (part), 1994)

Section 17.65.030 Wetland district.

    This title shall apply to all lands in or within twenty-five feet of a nontidal wetland of more than ten thousand square feet located within the jurisdiction of the city. Such nontidal wetlands are hereby designated to be within the wetland district and protected under all of the terms and provisions of this title. (Ord. 2316 (part), 1994)

Section 17.65.040 Rules for interpretation of wetland district boundaries.

    The boundaries of the wetland district shall ordinarily be determined by the applicant through the performance of a field survey applying the nontidal wetland definition. The applicant is required under Section 17.65.110 to show a wetland district boundary on a scaled drawing submitted as part of the permit application. Nontidal wetland delineations shall be performed in accordance with the procedures specified in the 1987 manual in use on January 1, 1995 by the United States Army Corps of Engineers and the United States Environmental Protection Agency and any subsequent amendments thereto. Evidence documenting the results of the boundary survey shall be required by the planning department. The definition of wetlands does not apply to those wetlands created after July 1, 1990 that were unintentionally created as a result of the construction of a road, street, or highway.
    The planning department, when requested by the applicant, may waive the delineation and, in lieu of direct action by the applicant, perform the delineation. The planning department may use remote sensing, hydrology, soils, plant species, and other data, and consult with biologists, hydrologists, soil scientists, or other experts as needed to perform the delineation. The applicant will be charged for costs incurred in accordance with the provisions of Section 17.65.110.
    Where the planning department performs a wetland district determination at the request of the applicant, it shall be considered a final determination.
    Where the applicant has provided a determination of the wetland district boundary, the planning department shall verify the accuracy of, and may render adjustments to, the boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the planning department shall, at the applicant’ s expense, obtain competent expert services to render a final delineation. (Ord. 2448 (part), 1998; Ord. 2381 § 1H, 1995; Ord. 2316 (part), 1994)

Section 17.65.050 Permit requirements, enforcement.

    No regulated activity in or within twenty-five feet of a nontidal wetland may be conducted without a permit from the zoning administrator and full compliance with the terms of this title and other applicable regulations. All activities that are not permitted as of right or as special permit uses shall be prohibited. All projects shall be fully bonded prior to any wetland work being undertaken pursuant to permits issued under this title. (Ord. 2316 (part), 1994)

Section 17.65.060 Temporary emergency permit.

    Notwithstanding the provisions of this title or any other law to the contrary, the planning department may issue a temporary nontidal wetlands permit through oral or written authorization, provided a written permit is accomplished within three working days, if it deems that an unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted. The emergency permit may be terminated at any time without process upon a determination by the planning department that the action was not or is no longer necessary to protect human health or the environment. The planning department may, within ninety days of the emergency permit, require that the action be reconsidered as an after-the-fact permit, subject to any or all of the terms and provisions of this title. (Ord. 2316 (part), 1994)

Section 17.65.070 Uses by right.

    The following uses shall be allowed as a right within a nontidal wetland to the extent that they are not prohibited by any other ordinance or law and provided they do not require structures, grading, fill, draining or dredging except as provided in this chapter or authorized by special permit:
    A.    Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife;
    B.    Outdoor recreational activities, including fishing, trapping, birdwatching, hiking, boating, horseback riding, swimming, canoeing, skeet and trap shooting;
    C.    The harvesting of wild crops, such as march hay, ferns, moss, wild rice, berries, tree fruits, and seeds in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require alteration of the nontidal wetland by changing existing nontidal wetland water conditions or sources, tilling of soil, or planting of crops;
    D.    The continued cultivation of agricultural crops, provided no nontidal wetlands are subject to cultivation where no such use existed five years prior to the effective date of application;
    E.    Education, scientific research and nature trails;
    F.    Uses by right that do not require a special permit and that may involve filling, flooding, draining, dredging, ditching or excavating to the extent specifically provided below:
    1.    Maintenance or repair of lawfully located roads or structures and of facilities used in the service of the public to provide transportation, electric, gas, water, telephone, telegraph, telecommunication, or other services, provided that such roads, structures or facilities are not materially changed or enlarged and written notice prior to the commencement of work has been given to the planning department and provided that the work is conducted using best management practices to ensure that flow and circulation patterns, and chemical and biological characteristics of the wetland, are not impaired and that any adverse effect on the aquatic environment will be minimized,
    2.    Temporary water-level stabilization measures associated with silvicultural operations, provided a complete reversion to previous hydrological conditions is accomplished subsequent to completed operations,
    3.    Limited excavating and filling necessary for the repair and maintenance of piers, walkways, observation decks, wildlife management shelters, boathouses, and other similar water-related structures, provided that they are built on pilings to allow unobstructed flow of water and preserve the natural contour of the nontidal wetland, except as authorized by special permit. (Ord. 2448 (part), 1998: Ord. 2316 (part), 1994)

Section 17.65.080 Special permit uses.

    Regulated activities other than those specified in Section 17.65.070 may not be conducted except upon application to the planning department and issuance of a special permit. (Ord. 2316 (part), 1994)

Section 17.65.090 Special permits.

    Application for a special permit to conduct a regulated activity shall be made to the planning department on forms furnished by that office. Permits shall be valid for a period not to exceed three years from the date of issue unless a shorter or longer period is specified by the planning department upon issuance of the permit. An extension of an original permit may be granted upon written request to the planning department by the original permit holder or the successor in title. The request for renewal of a permit shall follow the same form and procedure as the original application. (Ord. 2316 (part), 1994)

Section 17.65.100 Permit applications.

    Application for a special permit for a regulated activity shall include but not be limited to the following unless waived with written justification by the planning department:
    A.    The purpose of the project and an explanation of why the proposed activity requires a wetland location or access to wetlands, or cannot be located at other sites;
    B.    A site plan drawn to an appropriate scale showing the wetland district boundary and the nontidal wetland boundary as determined by field survey; the width, depth, and length of all existing and proposed structures, roads, watercourses, and drainageways; water, wastewater, and storm water facilities; utility installations within two hundred feet of a nontidal wetland; and the relationship of the proposed activity and any potentially affected nontidal wetland to the entire parcel of land owned by the applicant;
    C.    A description of the wetland or wetlands that will be affected by the regulated activity, including a sketch plan for the entire wetland drawn to a scale appropriate to delineate all significant or affected features, the area that may be filled or impacted; vegetation type; wetland water sources; and a general characterization of the habitat, wildlife, and common plants;
    D.    Soil types on the site and the exact locations and specifications for all proposed draining, filling, grading, dredging, and vegetation removal, including the amounts and methods;
    E.    Adjacent land use; and
    F.    Elevations of the site and adjacent lands within two hundred feet of the site at contour intervals of no greater than five feet.
    The planning department may require additional information, including, but not limited to, documentation and evidence of a wetland boundary determination by field survey; an assessment of wetland functional characteristics; documentation of the ecological, aesthetic, economic, or other values of a wetland, a study of flood, erosion, or other hazards at the site; evidence of any protective measures that might be taken to reduce such hazards; and any other information deemed necessary to verify compliance with the provisions of this title or to evaluate the proposed use in terms of the purposes of this title.
    Any person who wants to know whether a proposed activity or an area is subject to this title may request in writing a determination from the planning department. Such a request for determination shall contain plans, data, and other information as may be specified by the planning department.
    At the time of an application or request for determination, the applicant shall pay a filing fee sufficient to cover the costs of evaluation of the application as specified by city ordinance. These fees may be used to retain expert consultants who will provide services pertaining to wetland boundary determinations, functional assessment, and mitigation measures, as deemed necessary by the planning department.
    Upon receipt of the completed application, the planning department shall notify the individuals and agencies, including federal and state agencies, having jurisdiction over or an interest in the matter to provide such individuals and agencies an opportunity to comment.
    The planning department shall establish a mailing list of all interested persons and agencies who wish to be notified of such applications. (Ord. 2316 (part), 1994)

Section 17.65.110 Public hearing and recommendations.

    No later than sixty days after receipt of the permit application and after at least fifteen days advance notice that the application has been published in one newspaper having general circulation in the area, the planning commission shall hold a public hearing on the application unless the planning department finds that the activity is so minor as to not affect the nontidal wetland and the planning commission concurs.
    Any person may present evidence and testimony at the hearing. At the hearing, the applicant shall have the burden of demonstrating that the proposed activity will be on accordance with the purposes of this title and the standards set forth below. (Ord. 2316 (part), 1994)

Section 17.65.120 Standards for special permits.

    The city, after according consideration to the comments of the general public, other affected municipalities and counties, and federal and state agencies with jurisdiction over the area in question, shall issue a nontidal wetland permit only if it is found that the regulated activity is determined to be in the public interest in accordance with Section 17.65.140 of this chapter and that the applicant has demonstrated by a preponderance of the evidence that the regulated activity:
    A.    Is water-dependent or requires access to the nontidal wetland as a central element of its basic function, or is not water-dependent but has no practicable alternative;
    B.    Will result in minimum feasible alteration or impairment to the nontidal wetland’ s functional characteristics and its existing contour, vegetation, fish and wildlife resources, and hydrological conditions;
    C.    Will not jeopardize the continued existence of species that appear on federal or state endangered or threatened species lists; or on the Department of Wildlife List of Species of Special Concern in Skagit County;
    D.    Will not cause significant degradation of groundwater or surface-water quality;
    E.    Complies with all applicable state, local, and federal laws, including those related to sediment control, pollution control, floodplain zoning, and on-site wastewater and stormwater disposal;
    F.    Will provide a nontidal wetland buffer area of not less than twenty-five feet between the nontidal wetland and upland activities for those portions of a regulated activity that need not be conducted in the wetland; and
    G.    Complies with other standards contained in this title, including those pertaining to nontidal wetland creation and restoration as required. (Ord. 2316 (part), 1994)

Section 17.65.130 Practicable alternative test.

    For all permit applications, an alternative site for the proposed activity shall be considered practicable if it is available and the proposed activity can be carried out on that site after taking into consideration costs, existing technology, infrastructure, and logistics, in light of overall project purposes.
    There is no practicable alternative if the applicant demonstrates all of the following to the satisfaction of the zoning administrator:
    A.    The basic purpose of the project cannot reasonably be accomplished using one or more other sites in the general region that would avoid or result in less adverse impact on a nontidal wetland;
    B.    The basic purpose of the project cannot be accomplished by a reduction in the size, scope, configuration, or density of the project as proposed or by changing the design of the project in a way that would avoid or result in fewer adverse effects on the nontidal wetland; and
    C.    In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure, or parcel size, the applicant has made reasonable attempts to remove or accommodate such constraints. (Ord. 2316 (part), 1994)

Section 17.65.140 Public interest test.

    In determining whether a proposed regulated activity in any wetland is in the public interest, the zoning administrator shall consider the following:
    A.    The extent of the public need for the proposed activity;
    B.    The extent and permanence of the beneficial or detrimental effects that the proposed regulated activity may have on the public and private uses for which the property is suited;
    C.    The quality of the wetland that may be affected and the amount of wetland to be disturbed with the quality of the wetland to be evaluated using procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands;
    D.    The economic value of the proposed regulated activity to the general area; and
    E.    The ecological value of the wetland and probable impact on public health and safety, fish, plants, and wildlife. (Ord. 2316 (part), 1994)

Section 17.65.150 Special use permit conditions.

    The city council shall attach such conditions to the granting of a special use permit as deemed necessary to carry out the purposes of this title. Such conditions may include but are not limited to:
    A.    Limitations on minimum lot size for any regulated activity;
    B.    Requirements that structures be elevated on piles and otherwise protected against natural hazards;
    C.    Modification of waste disposal and water supply facilities;
    D.    Imposition of operational control, sureties, and deed restrictions concerning future use and subdivision of lands, such as flood warnings, preservation of undeveloped areas in open space use, and limitation of vegetation removal;
    E.    Dedication of easements to protect wetlands;
    F.    Establishment of vegetated buffer zones separating and protecting the nontidal wetland from proposed activities;
    G.    Erosion control and stormwater management measures;
    H.    Setbacks for structures and restrictions on fill, deposit of soil, and other activities in the nontidal wetland;
    I.    Modification in project design to ensure continued water supply to the nontidal wetland and circulation of water;
    J.    Creation or restoration of an area of nontidal wetland; and
    K.    Development of a plan to guide actions involving the creation of a new wetland or the restoration of a damaged or degraded wetland.
    The planning department shall require a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit. The particular amount and the conditions of the bond shall be consistent with the purposes of this title. In the event of a breach of any condition of any such bond, the planning department may institute an action in a court of competent jurisdiction upon such bond and prosecute the same to judgment and execution. (Ord. 2316 (part), 1994)

Section 17.65.160 Nontidal wetland restoration and creation.

    A.    As a condition of a permit issued or as an enforcement action under this title, the city may require that the applicant engage in the restoration or creation of nontidal wetlands in order to offset, in whole or in part, the losses resulting from an applicant’ s or violator’ s actions. In making a determination of whether such a requirement will be imposed, and, if so, the degree to which it would be required, the planning department will consider the following:
    1.    The long and short-term effects of the action upon nontidal wetland and associated aquatic ecosystem, and the reversible or irreversible nature of the impairment or loss;
    2.    The type and benefit of the wetland functions and associated resources lost;
    3.    The type, size, and location of the wetland altered, and the effect it may have upon the remaining system or watershed of which the wetland is a part;
    4.    Observed or predicted trends with regard to the gains or losses of this type of wetland in the watershed, in light of natural and human processes;
    5.    The cost and likely success of the possible compensation measures in relation to the magnitude of the proposed project or violation; and
    6.    The degree to which the applicant has demonstrated a good-faith effort to incorporate measures to minimize and avoid wetland impacts within the proposed project.
    B.    If wetland restoration or creation is required by the city, the applicant or violator shall develop a nontidal wetland restoration or creation plan for review and approval of the planning department. The creation or restoration of wetlands shall not be an alternative to the standards set forth in Section 17.65.120 but shall be used only to compensate for unavoidable losses.
    C.    The plan should state the exact location, of the proposed site; ownership; size, type and complete ecological assessment (flora, fauna, hydrology, wetland functions, etc.) of the wetland being restored or the area where a new wetland will be created; and the natural suitability of the proposed site for establishing the replacement wetland (i.e., water source and drainage patterns, topographic position, wildlife habitat opportunities, value of the existing area to be converted, etc.). In addition, plane view and cross-sectional, scaled drawings; topographic survey data, including slope percentage and final grade elevations; and other technical information are required in sufficient detail to explain, illustrate, and provide for:
    1.    Soil and substrate conditions; topographic elevations; grading and excavation; erosion and sediment control needed for wetland construction and long-term survival;
    2.    Planting plans specifying plant species types, quantities, locations, size, spacing, or density; source of plant materials, propagules, or seeds; timing, season, water, and nutrient requirements for planting; and, where appropriate, measures to protect plants from predation;
    3.    Water-quality parameters, water source, water depths, water-control structures, and water-level maintenance practices needed to achieve the necessary ambient water conditions and hydrocycle/hydroperiod characteristics;
    4.    Mid-course corrections and a three-year monitoring and replacement plan establishing responsibility for removal of exotic and nuisance vegetation and permanent establishment of the wetland system and all its component parts; and
    5.    A demonstration of fiscal, administrative, and technical competence of sufficient standing to successfully execute the overall project. (Ord. 2316 (part), 1994)

Section 17.65.170 Wetland restoration and creation alternatives.

    Ordinarily, the applicant or violator shall undertake restoration or creation efforts on or adjacent to the site where permanent losses have been sustained or where restoration of a former wetland is possible. Replication "in-kind" of the impacted wetland will be the preferred alternative for creation or restoration efforts. Where the applicant has demonstrated to the satisfaction of the zoning administrator that this approach is infeasible due to technical constraints, such as parcel or wetland size or wetland type, or that a nontidal wetland of a different type or location is strongly justified based on regional needs or the functional value of the impacted wetland, the zoning administrator may accept or recommend an alternative proposal. Such proposal may involve monetary compensation as provided for in this section or the creation or restoration "out of kind" and "off site."
    The council shall set reasonable fees for compensation of wetland losses based upon the amount that would be required to perform on-site, in-kind restoration or creation. Where the city council determines that the public interest is better served, the city council may require a fee in lieu of direct action on behalf of the applicant or violator to initiate restoration or creation projects. Such fees shall be held in escrow for the express use of wetland creation and restoration projects and shall not be commingled with other funds. Work shall begin within twelve months and be completed no later than twenty-four months from receipt of a fee in lieu. (Ord. 2316 (part), 1994)

Section 17.65.180 Suspension, revocation.

    The planning department may suspend or revoke a permit if it finds that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work set forth in the permit. The planning department shall cause notice of its denial, issuance, conditional issuance, revocation, or suspension of a permit to be published in a timely manner in a daily newspaper having a broad circulation in the area wherein the wetland lies. (Ord. 2316 (part), 1994)

Section 17.65.190 Nonconforming activities.

    A regulated activity that was lawful before the passage of the ordinance codified in this title, but which is not in conformity with the provisions of this title, may be continued subject to the following:
    A.    No such structure or use shall be expanded, changed, enlarged, or altered in any way that increases its value at the time of its becoming a nonconforming structure, unless the structure is permanently changed to a conforming use.
    B.    No structural alteration or addition to any nonconforming structure over the life of the structure shall exceed fifty percent of all its value at the time of its becoming a nonconforming structure, unless the structure is permanently changed to a conforming use.
    C.    If a nonconforming use or activity is discontinued for twelve consecutive months, any resumption of the activity shall conform to this title.
    D.    If any nonconforming use or activity is destroyed by human activity or an act of God, it shall not be resumed except in conformity with the provisions of the title.
    E.    Activities or adjuncts thereof that are or become nuisances shall be not entitled to continue as nonconforming activities. (Ord. 2316 (part), 1994)