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HomeMy WebLinkAbout4476 ORDINANCE AN ORDINANCE amending the Critical Lands Ordinance with regard to Wetlands Regulations and amending Chapter 21.22 of the Bremerton Municipal Code. THE CITY OF BREMERTON DOES HEREBY ORDAIN: Section 1. Amendment. BMC Section 21.22.130is hereby amended to read as follows: 21.22.130 CLASSIFICATION. (a) General: A wetland or stream classification shall be established based upon the completion of a delineation report to determine boundary, size, function, and value. Guidelines for preparing stream corridor and wetland delineation reports are defined in Section .140(c) and the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands" (1989). (c) Wetlands shall be classified type I, II, III and IV, in accordance with the following criteria from the Washington State Wetlands Rating System for Western Washington developed by the Washington Department of Ecology. The Washington Department of Ecology has developed a methodology for rating wetlands under this rating system. That methodology shall be used in rating wetlands under this chapter. It is contained in Washington Department of Ecology Publication Number 91-57 (October 1991). (2) Type II wetlands are categorized as meeting one of the following: i. Documented habitat for sensitive species of plant, animal or fish recognized by federal or state agencies; WETLANDS.JJM - Disk 2 - 6/24/94 vii. Wetlands equal to or tess greater than one acre in size and having three or more wetland classes; or Section 2. Amendment. BMC Section 21.22.140 is hereby amended to read as follows: 21.22.140 REVIEW PROCESS. (a) Overview: Application for a wetland Or stream assessment, delineation or permit by one or more property owners or applicants shall be made to the Department of Community Development. The Department of Community Development may utilize information from the United States Department of Agriculture Soil Conservation Service, the United States Geological Survey, the Washington Department of Ecology, the Coastal Zone Atlas, the National Wetlands Inventory maps, Bremerton topography maps, and the Kitsap County Critical lands map to establish general locations and/or verify the location of any wetland or stream site. The Director shall make an initial assessment, which may require plans as specified in Section . 140(c) and a site inspection, to determine whether a delineation report is required. If a delineation report is required, the Director will then determine whether a wetland or stream development permit is required. Review by the Department of Community Development will generally be in accordance with the following process, except as provided in Section . 150 or. 160: (2) If, after the comment period, site inspection, and preliminary review of plans, the Director is unable to determine the wetland or stream delineation or potential adverse impacts on the wetland or stream and/or its adjacent buffer zones, then a delineation report WETLANDS.JJM - Disk 2 - 6/24/94 2 is required per Section . 140(c). i. If the applicant can meet the minimum buffer requirement as provided in Section .220 and the applicant can demonstrate no adverse impacts to the stream or wetland and/or buffer, including storm runoff discharging into an approved storm drainage system, then: 1. No mitigation plans are required; 2. The Director issues a written decision (permit) stating reasons for exemption; and 3. The decision is sent to parties of record per Section .140(e) allowing time for an appeal in accordance with Section .300. ii. If there will be adverse impacts to the wetland or stream or the applicant cannot meet the minimum buffer requirements as provided in Section .220, then: 1. The applicant must demonstrate: A. In addition to the application material required in that Section, the applicant shall submit a report prepared by a wetland specialist, and fund a review of this report by the City's wetland specialist corisultant, except that a modification necessary_ for the construction of a single family residence shall not be required to fund an independent review by the City's wetland consultant. This report must contain an assessment of the habitat, water quality purification and enhancement, storm water detention, ground water recharge, shoreline protection, WETLANDS.JJM - Disk 2 - 6/24/94 3 and erosion protection functions of the wetland and/or buffer for the wetland and the effect on those functions caused by the proposed improvement or land surface modification. The Director of Community Development may approve an improvement or land surface modification in a wetland or buffers for a wetland under this paragraph in accordance with the criteria set fourth in Section .220 and .230. or ~B_. The application of these standards presents an extraordinary hardship in accordance with Section .240, or t?,C_. The proposal is in the public interest in accordance with Section .250; and 2. Mitigation is required in accordance with Section .260; and 3. The Director either: A. Issues a written decision (permit) specifying conditions of approval, and the decision is sent to parties of record per Section .140(e), allowing time for appeal in accordance with Section .300, or B. Determines that a public hearing pursuant to the Official Code of the City of Bremerton is required: (i) Notice is sent to property owners within 300 feet regarding the public hearing, allowing time for comment and testimony, WETLANDS.JJM - Disk 2 - 6/24/94 4 (ii) The Planning Commission issues a decision (permit) specifying conditions of approval, and (iii) The decision is sent to parties of record, allowing time for appeal pursuant to of the Official Code of the City of Bremerton. Section 3. Amendment. BMC Section 21.22.220is hereby amended to read as follows: 21.22.220 BUFFERS. (a) General: A buffer zone shall be provided for all uses and activities adjacent to a wetland area or stream corridor to protect the integrity, function, and value of the wetland or stream. Buffers between regulated activities and wetlands or stream corridors are important because they help to stabilize soils, prevent erosion, act as filters for pollutants, enhance wildlife diversity, and support and protect wetland plants and wildlife. A permit may be granted if it has been demonstrated that no adverse impact to a wetland will occur and a minimum buffer width will be provided in accordance with this section. The buffer shall be measured from the upland edge of the wetland or stream and shall consist of an area of natural, enhanced or new native vegetation. (b) Minimum Requirement: (1) Wetlands: i. Wetland buffer widths shall be established as follows, based on wetland classification: Type I 200 feet Type II 100 feet WETLANDS.JJM - Disk 2 - 6/24/94 5 Type III 50 feet Type IV. 25 feet ii__.~. Modification: For Type III and Type IV wetlands and buffers for a Type III and Type IV wetlands, the applicant may request a modification of the requirements of this section using the Review Process described in Section . 140 of this Chapter. In addition to the application material required in Section .140,the applicant shall submit a report prepared by a wetland specialist, and fund a review of this report by the City's wetland specialist consultant, except that a modification necessary for the construction of a single family residence shall not be required to fund an independent review by the City's wetland consultant. This report must contain an assessment of the habitat, water quality purification and enhancement, storm water detention~ ground water recharge, shoreline protection~ and erosion protection functions of the wetland and/or buffer and the effect on those functions caused by the proposed improvement or land surface modification. The Director of Community Development may approve an improvement or land surface modification in a wetland or environmentally sensitive area buffers for a wetland under this paragraph only if he/she finds that: 1_.. It will not adversely affect water quality; 2~ It will not destroy, nor damage, or disrupt a significant habitat area; 3.=. It will not have an adverse effect on drainage and/or storm WETLANDS.JIM - Disk 2 - 6/24/94 6 water detention capabilities; It will not lead to unstable earth conditions or create erosion hazards; It will not be materially detrimental to any other property in the area of the subject property or to the City as a whole: and 6-. It will result in land surface modification of not more than one (1) acre, nor more than twenty-five percent (25%) of the wetland on the subject property. 7_. Mitigation is provided as required in accordance with Section .260. · · o Section 4. Amendment. BMC Section 21.22.230is hereby amended to read as follows: 21.22.230 STANDARDS. (a) Wetlands: (1) Type I wetlands: No regulated activities shall be permitted within the wetland boundary or buffer except where the applicant can demonstrate an extraordinary hardship in accordance with Section .240 and mitigation is provided in accordance with Section .260 hereof. However, those low-intensity uses or activities necessary for public access, educational or research purposes may be allowed within the wetland buffer if it can be demonstrated that there will be no adverse impact on the wetland ecosystem. (2) Type II, III ~d IV wetlands: No regulated activities shall be allowed within the wetland boundary or buffer unless the applicant can demonstrate: i. The application of these standards presents an extraordinary hardship WETLANDS.JJM - Disk 2 - 6/24/94 7 in accordance with Section .240 hereof; or ii. The proposal is in the public interest in accordance with Section .250 hereof. iii. Mitigation is provided in accordance with section .260 hereof. (3) Type III and IV wetlands: No regulated activities shall be allowed within the wetland boundary or buffer unless the applicant can demonstrate as follows: i_. The application of these standards presents an extraordinary hardship in accordance with Section .240 hereof; or ii~ The proposal is in the public interest in accordance with Section .250 hereof; or iii. In addition to the application material required in Section .140, the applicant shall submit a report prepared by a wetland specialist, and fund a review of this report by the City's wetland specialist consultant. except that a modification necessary for the construction of a single family residence shall not be required to fund an independent review by the City's wetland consultant. This report must contain an assessment of the habitat, water quality purification and enhancement. storm water detention, ground water recharge, shoreline protection, and erosion protection functions of the wetland and/or buffer for the wetland and the effect on those functions caused by the proposed improvement or land surface modification. The Director of Community Development may approve an improvement or land surface modification in a wetland or environmentally sensitive area buffers for a wetland under this paragraph only if he/she finds that: WETLANDS.JIM - Disk 2 - 6/24/94 8 It will not adversely affect water quality; It will not destroy, nor damage, or disrupt a significant habitat 3_. It will not have an adverse effect on drainage and/or storm water detention capabilities; 4~ It will not lead to unstable earth conditions or create erosion hazards; 5.~. It will not be materially detrimental to any other property in the area of the subject property or to the City as a whole; 6~ It will result in land surface modification of no more than one (1) acre, nor more than twenty-five percent (25%) of the wetland on the subject property; and 7~ Mitigation is provided as required in accordance with Section .260 (-3)L4.l For ail wetland types, the applicant must demonstrate the following: i. The existence of plant or wildlife species appearing on the federal or state endangered or threatened species list will not be jeopardized; ii. The proposal will not lead to significant degradation of groundwater or surface water quality; and iii. The proposal complies with the remaining standards of this chapter, which include those pertaining to wetland compensation and the provision of bonds. (4-)4~ Hydrologically isolated type III and IV wetlands which have been classified and identified as having a total cumulative area of less than 1,000square feet, WETLANDS.JIM - Disk 2 - 6/24/94 9 regardless of property lines, are exempt from the provisions of this chapter. Unless the wetland is determined to have exceptional value, the Director shall exclude type III wetlands less than 2,500square feet and type IV wetlands less than 10,000 square feet from the provisions of this chapter, provided the applicant provides monetary compensation to mitigate for such wetland loss. These monies shall be held in a designated mitigation fund to meet the City's intent of no net loss in wetland function. Such funds shall be used in future wetland creation, restoration and/or enhancement projects or acquisition of wetland sites for public purposes. Such monetary compensation shall be based on the area of wetland loss on a square foot per square foot basis. This monetary compensation value shall be based upon the price of land acquisition plus 125 percent of the amount that would be required to perform off-site, in-kind compensation in accordance with the replacement guidelines set forth in Section .260.Co)(1) hereof and monitoring requirements in Section .260(e) hereof. Dedication of land containing wetlands or streams may substitute for monetary compensation, but only to the extent that such dedication would provide the City with increased value because of access, control and protection provided by public ownership or to the extent that such dedicated land would be developable under the provisions of this chapter. Provisions for access must be included with any dedication of land. WETLANDS.JJM - Disk 2 - 6/24/94 10 Section 5. Amendment. BMC Section 21.22.260is hereby amended to read as follows: 21.22.260 MITIGATION PROCEDURES. (a) General: (1) The first underlying measure of wetland and stream protection is to avoid impacts. The next measure is to minimize impacts where possible by limiting the magnitude or scope of the development or use. The final measure of protection is to mitigate or compensate for impacts. This can be accomplished through creation, enhancement or restoration of the wetland or stream. However, the Director may allow compensation rather than avoidance when the applicant demonstrates that compensation would be the preferable environmental alternative. (2) En-eept-a_As provided in Subparagraph 1 above, the creation, enhancement or restoration to compensate for a degraded or destroyed stream or wetland ahall nzt may be an alternative to thc as stated in the standards set forth in Section .230 hereof, but ah~Ml and may be used omCy to compensate for unavc,~dablc losses. The new, enhanced or restored wetland shall recreate as nearly as possible the original wetland in terms of functions, value, geographic location, and setting as provided in Subs~tion .260.(b)hereof. The goal of the compensation alternative shall be no net loss of wetland function. Where possible, compensation shall be completed prior to wetland or stream corridor destruction. (3) Creation, enhancement or restoration alternatives should be undertaken on or adjacent to the site where permanent losses have been sustained or, where enhancement or restoration of a former wetland is possible, within the same drainage basin. Replacement in kind of the impacted stream or wetland will be the preferred alternative for creation, enhancement or restoration efforts. The Dir~tor may accept or recommend creation, WETLANDS.JJM - Disk 2 - 6/24/94 1 1 enhancement or restoration which is not in-kind, is off-site, and/or is monetary compensation as provided for in this section as an alternative proposal, if the applicant can demonstrate that in-kind and/or on-site creation, enhancement or restoration is infeasible due to constraints such as parcel size, stream or wetland type; that a wetland of a different type or location is justified based on regional needs or functions and value; or that on-site compensation is not desirable. Where feasible, created, enhanced or restored wetlands shall be of a higher type than the altered wetland. Compensation areas shall be determined according to the altered wetland's function, acreage, type, location, self-sustaining abilities and the amount of time required for the created, enhanced or restored wetland to become a functioning wetland. (4) Compensation shall not be required for the construction of new storm water system facilities, except for transmission systems not related to the wetland or stream being impacted. (b) Replacement Guidelines: (1) Wetlands and stream corridors with riparian habitats shall be replaced in accordance with their classification at a minimum ratio of 1:1 for functional value. This ratio of replacement may be increased based upon the following criteria: i. If it has been determined that the probable success of the replacement wetland is uncertain; ii. The compensation project is proposed off-site; or iii. If there is a significant period of time between destruction and replication of wetland functions. (2) Applicants proposing restoration or enhancement as an alternative to replace wetland loss shall identify how the wetland restoration or enhancement conforms to the WETLANDS.JJM - Disk 2 - 6/24/94 12 overall goals and requirements of this chapter. Wetland restoration and enhancement proposals shall meet the following criteria: i. The restoration or enhancement for one function and value shall not degrade another function or value; ii. The restoration and enhancement ratios shall also be 1:1 for functional value. The functional value of the restored or enhanced wetland shall be equal to or greater than the functional value of the wetland altered plus the functional value of the restored or enhanced wetland prior to restoration or enhancement. (3) ' t~he Director may allow the applicant to contribute a fee in lieu of compensation for loss ,,f ~sc, latcd type III or IV wetlands, the total areas of which do not exceed one acre, to a fund to mitigate for wetland loss. The Director shall set reasonable fees for monetary compensation of stream or wetland loss. Fees shall be based upon the price of land acquisition plus 125 percent of the amount that would be required to perform off-site, in-kind compensation in accordance with the replacement guidelines set forth in Section .260¢)(1) hereof and monitoring requirements in Section .260.(e)hereof. Such fees shall be held in a designated mitigation bank fund for the express use of ongoing wetland acquisition, creation, enhancement or restoration projects and shall not be commingled with other funds. Dedication of land containing wetlands or streams may substitute for monetary compensation, but only to the extent that such dedication would provide the City with increased value because of access, control and protection provided by public ownership or to the extent that such dedicated land could be improved under the provisions of this chapter (see Section . 170). Provisions for access must be included with any dedication of WETLANDS.JIM - Disk 2- 6/24/94 13 land. Section 2. Effective Date. This ordinance shall become effective ten (10) days from passage and publication. APPROVED by the City Council of the City of Bremerton this ~ day of PASSED by the City Council of the City of Bremerton this ~, day of k 7/,/J~57, , 1994. SHERRIL HUF[,/~I~NELqS, Council President APPROVED this,..~l:5 day of-~_~-~ ,1994. L~N HORTON, Mayor A~EST: KATHLEEN McCLUSK~, City Clerk EFFECTIVE DATE '7'-,2 7.-: ¢"-/.,. PUBLICATION DATE ?- / 7- ¢--/ ORDINANCE NUMBER' , 5"-f 7& ..... WETLANDS.JJM - Disk 2 - 6/24/94 14 BREMERTON CRITICAL LANDS ORDINANCE REVISIONS WETLAND CHAPTER VIII AS /~MENDED BY ORDINANCE NO. 4476 The Bremerton Critical Lands Ordinance was adopted by the city Council in July of 1993. Since its adoption, planning staff have identified several issues and received requests for amendments. The Planning Division met with a Planning Commission sub- committee on April 7, 1994 and reviewed the proposed amendments. On April 19, 1993 the Planning Commission, held a public hearing accepted the subcommittee's recommendation and forwarded a recommendation of approval to the City Council. The Bremerton City Council, at a public hearing held on May 18, 1994, accepted the Planning Commissions recommendation and passed a motion to amend the ordinance. To do so, the Council passed Ordinance No. 4476 on second reading on July 13, 1994 amending Chapter 21.22 of the Bremerton Municipal Code. The amendments are summarized as follows: 1. Section 1.140 C. 2. h. -- Wetland Classification -- The ordinance classifies wetlands into 4 types (I -IV) subject to certain criteria. Type I wetlands have the highest values and functions, and type IV have the lowest value and functions. The current classification has an ambiguity which classifies any wetland greater than one acre in size as a type II wetland while type IV wetlands include certain wetlands up to two acres in size. It was determined that this was an error, and the amendments remove the "greater than one acre" criterion from the type II wetland classification. 2. Section 1.150,2.b.(1) (a) -- Review Process -- This section is being amended to specifically allow modifications to wetlands. The current ordinance greatly restricts modifications to certain types of wetlands. However, there may be instances when modifications would result in better wetland functions and values especially concerning damaged or degraded wetlands. The proposed amendments will allow modification to type III and IV wetlands on a cases by case basis when such modifications would result in a better functioning wetland. This will be determined through a report prepared by wetland specialist which will be independently reviewed by another wetland specialist. Both specialist must concur for the wetland modification to be approved. 3. Section 1.230 B. 1.(b) -- Buffers -- This new section reiterates that modifications to Type III and IV wetland are permitted. It sets fourth the requirement for two reports to be prepared by wetland specialists and the criteria which must be met in order to allow a wetland modification. It also requires that mitigation be provided in accordance with section 1.270, Mitigation Procedures. 4. Section 1.240 -- Standards -- This section sets fourth the standards under which certain activities are permitted within wetlands and buffers. To achieve consistency with section 1.230, Buffers, the proposed amendments specifically allow modifications to Type III and IV wetlands. 5. Section 1.270 -- Mitigation -- This section has been amended to reduce the strict preservation intent of the ordinance. Amendments to this section will achieve consistency with previous amendments which allow wetlands to be modified on a case by case basis. Other Significant issues: Single Family exemption: The amendments will exempt wetland modifications necessary for the construction of a single family residence from having to fund an independent review of a wetland modification report. Percentage of allowable wetland modification: The proposed amendments allow up to 1 acre but not more than 25% of a wetland to be modified. ORDINANCE 4476 AN ORDINANCE amending the Critical Lands Ordinance with regard to Wetlands Regulations and amending Chapter 21.22 of the Bremerton Municipal Code. Summary The amendments are summarized as follows: 1. Section 1.140 C. 2. h. -- Wetland Classification -- The ordinance classifies wetlands into 4 types (I -IV) subject to certain criteria. Type I wetlands have the highest values and functions, and type IV have the lowest value and functions. The current classification has an ambiguity which classifies any wetland greater than one acre in size as a type II wetland while type IV wetlands include certain wetlands up to two acres in size. It was determined that this was an error, and the amendments remove the "greater than one acre" criterion from the type II wetland classification. 2. Section 1.150,2.b.(1) (a) -- Review Process -- This section is being amended to specifically allow modifications to wetlands. The current ordinance greatly restricts modifications to certain types of wetlands. However, there may be instances when modifications would result in better wetland functions and values especially concerning damaged or degraded wetlands. The proposed amendments will allow modification to type III and IV wetlands on a cases by case basis when such modifications would result in a better functioning wetland. This will be determined through a report prepared by wetland specialist which will be independently reviewed by another wetland specialist. Both specialist must concur for the wetland modification to be approved. 3. Section 1.230 B. 1. (b) -- Buffers -- This new section reiterates that modifications to Type III and IV wetland are permitted. It sets fourth the requirement for two reports to be prepared by wetland specialists and the criteria which must be met in order to allow a wetland modification. It also requires that mitigation be provided in accordance with section 1.270, Mitigation Procedures. 4. Section 1.240 -- Standards -- This section sets fourth the standards under which certain activities are permitted within wetlands and buffers. To achieve consistency with section 1.230, Buffers, the proposed amendments specifically allow modifications to Type III and IV wetlands. 5. Section 1.270 -- Mitigation -- This section has been amended to reduce the strict preservation intent of the ordinance. Amendments to this section will achieve consistency with previous amendments which allow wetlands to be modified on a case by case basis. Other Significant issues: Single Family exemption: The amendments will exempt wetland modifications necessary for the construction of a single family residence from having to fund an independent review of a wetland modification report. Percentage of allowable wetland modification: The proposed amendments allow up to 1 acre but not more than 25% of a wetland to be modified. APPROVED by the City Council of the City of Bremerton this 6th day of July, 1994. PASSED by the City Council of the City of Bremerton this 13th day of July, 1994. The full text of this ordinance is available in the City Clerk's office.