Checklist for Reviewing Development Regulations to Protect Fish and Wildlife Habitat
The following checklist background and rationale is issued as a supplement to the Washington Environmental Council’s
Habitat Protection Toolkit: A Guide to Habitat Conservation Planning Under the Growth Management Act
February 2003
CHECKLIST QUESTIONS
1. General Provisions / Yes / No1) Is there a statement of purpose for land use planning to protect fish and wildlife habitat (e.g., "suitable habitats to maintain native fish and wildlife species within their natural geographic distribution so that isolated subpopulations are not created")?
2) Is there a statement to the effect that no land use action will result in a net loss of critical area structure and functions and that any adverse impacts resulting from a development proposal shall be fully mitigated?
3) Are mitigation actions defined in the preferred sequence?
4) When mitigation is required, is a mitigation plan required that includes monitoring?
5) Is there a statement that all land uses and activities within 300 feet of Critical Areas and their associated buffers are subject to the requirements of the critical areas ordinance?
6) Are exemptions sufficiently limited to prevent harm to critical areas?
7) Are allowed activities in Critical Areas or their buffers consistent with purpose to protect critical area structure and functions?
8) Are variances to Critical Area protection standards subject to public hearing and notice requirements?
9) If there is a "reasonable economic use" variance to avoid property takings and compensation claims, is there a public notice and hearing requirement to determine that the standard development regulations would deny all reasonable use of the property and that any variance will result in the minimum feasible impact to any critical areas?
10) Will a record of notice be placed on the title of property affected by a designated Critical Area?
11) Will boundaries of a Critical Area and its buffer be clearly marked prior to construction activities?
12) Does the development code include enforcement provisions, including use of both civil and criminal penalties, to ensure compliance with Critical Area performance standards?
13) Is a building setback of at least 15 feet required from the edge of any buffer?
2. Fish and Wildlife Habitat Conservation Areas (FWHCA) / Yes / No
14) Are Habitat Management Plans or Mitigation Plans required when proposals have the potential to impact FWHCA functions and values? If so, are the contents of such reports specified?
15) Do the regulations apply to ponds and lakes less than 20 acres?
16) Do the regulations apply to all Waters of the State? (e.g., those waters that meet the criteria for Type 1-5 streams as set forth in WAC 222)
17) Does the ordinance designate and protect state and federal endangered, threatened and sensitive species?
18) Does the ordinance designate and protect state Priority Habitats and Species found within the local government jurisdiction?
19) Are riparian buffers required to be maintained in their natural condition?
20) Does the local government require that Washington Department of Fish and Wildlife management recommendations for Priority Habitats and Species serve as the basis for Habitat Management Plans?
21) Do the regulations protect habitats and species of local importance and include process for designating them?
22) Do the standard riparian buffer widths conform to Washington Department of Fish and Wildlife Priority Habitat and Species Program recommendations?
23) Are FWHCA stream buffer widths measured from the outer margin of the channel migration zone when present?
24) Do FWHCA stream buffer widths extend to the edge of the 100-year floodplain?
25) Does the ordinance limit buffer averaging so that the total buffer area is no less than that contained within the standard buffer, the buffer width is not reduced by more than 50 percent of the standard buffer, and will not be less than 50 feet from the ordinary high water mark or outer margin of the channel migration zone when present?
26) Are limitations placed on stream bank stabilization and shoreline modifications?
3. Wetlands / Yes / No
27) Do the regulations use the Washington State Wetlands Identification and Delineation Manual to designate wetlands and their boundaries?
28) Do the regulations adopt the Washington State Wetlands Rating System for Eastern or Western Washington as the rating system for jurisdiction wetlands?
29) Do the standard wetland buffer widths conform to Office of Community Development (OCD) Model Code Provisions?
30) Is there a provision for expanding wetland buffers when necessary to protect wetland structure and functions based on site-specific characteristics?
31) Are wetland buffers required to be retained in natural condition?
32) Does the ordinance limit buffer averaging so that the total buffer area is no less than that contained within the standard buffer, the buffer width is not reduced by more than 50 percent of the standard buffer, and will not be less than 50 feet from the wetland edge?
33) Are replacement ratios for compensatory mitigation consistent with OCD Model Code Provisions?
34) Are there guidelines to locate wetland mitigation sites in the same sub-basin except for special situations justified by a wetland mitigation plan?
35) Can replacement ratios be increased based upon factors such as risk of failure, timing, reduced functions or code violations?
36) Does the ordinance apply to all wetlands, regardless of size?
Background and Rationale for Checklist Questions
1. General Provisions
1) Is there a statement of purpose for land use planning to protect fish and wildlife habitat (e.g., "suitable habitats to maintain native fish and wildlife species within their natural geographic distribution so that isolated subpopulations are not created")?
2) Is there a statement to the effect that no land use action will result in a net loss of critical area structure and functions and that any adverse impacts resulting from a development proposal shall be fully mitigated?
Rationale: The regulations are the legal embodiment of the policies and goals of the comprehensive plan. Although these statements of purpose may be prominent in the plan, it is important to include them in the regulations to guide both applicants and administrators by making clear the priorities and objectives of the regulations. A statement in the code somewhat similar to the example in question #1 is rated a "yes."
3) Are mitigation actions defined in the preferred sequence?
4) When mitigation is required, is a mitigation plan required that includes monitoring?
The preferred sequence for mitigation is coded in Chapter 197-11 WAC SEPA Rules as follows:
(1) Avoiding the impact altogether by not taking a certain action or parts of an action;
(2) 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;
(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
(5) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or
(6) Monitoring the impact and taking appropriate corrective measures.
Rationale: Studies conducted around the region raise significant questions about the validity of mitigation strategies as currently practiced. The failure of mitigation projects is often attributed to inadequate planning, poor site selection and insufficient information on the critical environmental variables at a mitigation site. The Washington State Departments of Ecology, and Fish and Wildlife, the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service, have subsequently developed a guidance document that outlines the information needed by these agencies to process and review permits requiring compensatory wetland mitigation.
5) Is there a statement that all land uses and activities within 300 feet of Critical Areas and their associated buffers are subject to the requirements of the critical areas ordinance?
Rationale: The 300-foot margin is intended to accommodate mapping errors and potential wetland and stream buffers. Although most counties maintain critical areas maps and folios, even the most populous counties have not been able to survey every parcel for critical areas. Performance standards are necessary to determine on a case-by-case basis the critical areas status of each property. The purpose of this provision in an ordinance is to ensure that all land within the potential buffer of a critical area is evaluated according to the Critical Areas Ordinance (“CAO”), even if the critical area feature is located on another parcel.
6) Are exemptions sufficiently limited to prevent harm to critical areas?
7) Are allowed activities in Critical Areas or their buffers consistent with purpose to protect critical area structure and functions?
Rationale: All CAO's list activities exempt from the ordinance or allowed in critical areas and buffers. Proper restrictions on these exemptions are necessary for full protection of the critical areas. Exemptions such as emergencies, passive recreation, repair and maintenance of existing structures or infrastructure are common exemptions that should have little effect. Forestry under the Forest Practices Act is exempt from local control and is permitted under a different system, except for conversion of forest lands to other non-forestry uses. Agriculture is an issue of concern when scoring CAO's for these questions. The Western Washington Growth Management Hearings Board has recently ruled that only existing and ongoing agriculture on designated resource lands can be exempted from the standard requirements of a CAO; however, this does not mean that agricultural lands are exempted from any regulation under the critical areas requirements of the GMA [RCW 36.70A.060; WAC 365-190-040(1)]. The 2002 legislature passed ESHB 2305, which exempts agricultural lands from regulations under the Shoreline Management Act; however, there is no such categorical exemption for agricultural lands from regulation under the critical areas requirements of the GMA. Agriculture must be properly defined to apply only to designated resource lands, and if there is an exemption for agricultural activities from the general provisions, there must still be some other provisions guaranteeing that agricultural uses don’t conflict with the achievement of GMA mandated habitat and species protection. Ordinances that exempt agriculture without both of these restrictions, or that allow expansion of existing structures on critical areas or buffer without permits, or that allow substantial clearing for other activities should be given a "no."
8) Are variances to Critical Area protection standards subject to public hearing and notice requirements?
9) If there is a "reasonable economic use" variance to avoid property takings and compensation claims, is there a public notice and hearing requirement to determine that the standard development regulations would deny all reasonable use of the property and that any variance will result in the minimum feasible impact to any critical areas?
Rationale: Most CAO's contain provisions for requesting exceptions to the standards in the code. Monitoring of and commenting on these exceptions is an option often used by citizen activists to control excessive use of these provisions. Regulations that required public hearings and involvement and that limited exceptions to the minimum necessary impact to use the property should be given a score of "yes."
10) Will a record of notice be placed on the title of property affected by a designated Critical Area?
11) Will boundaries of a Critical Area and its buffer be clearly marked prior to construction activities?
Rationale: These provisions are meant to ensure that critical areas are protected both during development and by subsequent owners who may not initially be aware of the critical area or buffer on the property. The notice on title feature also has the added benefit of saving time and money by avoiding future critical areas studies.
12) Does the development code include enforcement provisions, including use of both civil and criminal penalties, to ensure compliance with Critical Area performance standards?
Rationale: Any law will only be effective if it can be enforced. Although development activities may be controlled carefully on the paper of the permit, actual implementation of the project may differ significantly. This question is intended to indicate the legal force of the CAO enforcement.
13) Is a building setback of at least 15 feet required from the edge of any Critical Areas buffer?
Rationale: The setback is to protect buffer integrity.
2. Fish and Wildlife Habitat Conservation Areas
14) Are Habitat Management Plans or Mitigation Plans required when proposals have the potential to impact Fish and Wildlife Habitat Conservation Areas (“FWHCA”) functions and values? If so, are the contents of such reports specified? Is review by the appropriate agency required?
Rationale: Standard buffers and agency management recommendations are intended to only be the starting point for area-wide habitat planning and site-specific enhancement, restoration and protection. Professionally prepared Habitat Management Plans created in consultation with experts at the state resource agencies are one of the links between statewide strategies and local tactics. These plans may go under different names in different jurisdictions, but if the regulations required a habitat plan beyond the permit application itself, details the contents, and requires agency review, the code should receive a "yes."
15) Do the regulations apply to ponds and lakes less than 20 acres?
16) Do the regulations apply to all Waters of the State? (e.g., those waters that meet the criteria for Type 1-5 streams as set forth in WAC 222)
17) Does the ordinance designate and protect state and federal endangered, threatened and sensitive species?
18) Does the ordinance designate and protect state Priority Habitats and Species found within the local government jurisdiction?
Rationale: These four questions determine how well the CAO follows the recommendations of WAC 365-190-080 and the Office of Community Development guidance for designating Fish and Wildlife Habitat Conservation Areas. Local protections of streams and of federally or state listed species and habitats are obviously important components of an integrated wildlife protection system for the state. The Priority Habitats and Species (“PHS”) system maintained by the Washington Department of Fish and Wildlife (“WDFW”) is the cornerstone of that agency's system for protecting wildlife and habitat in the state. As stated by the PHS web site:
PHS is the principal means by which WDFW provides important fish, wildlife, and habitat information to local governments, state and federal agencies, private landowners and consultants, and tribal biologists for land use planning purposes. PHS is the agency's primary means of transferring fish and wildlife information from our resource experts to those who can protect habitat.
The PHS list includes state and federally listed endangered, threatened and sensitive species and other species or specific habitat types, such as riparian areas, forage fish spawning habitats and eel grass beds, that are of statewide concern and require protection. The WDFW also maintains a database of locations of special features such as spotted owl and bald eagle nests, and areas with significant concentrations of animals.
Lakes and ponds under 20 acres are important to include in local protection regulations because they fall into a regulatory gap between vegetated wetlands (shallower than the 6.6 ft definition of a pond or lake) and lakes larger than 20 acres, which are protected under the Shoreline Management Act.
19) Are riparian buffers required to be maintained in their natural condition?
Rationale: The integrity of the riparian zone, in terms of continuity and quality of the vegetation, is almost as important as buffer width in protecting stream functions and the habitat values of the corridor. A statement in the regulations to the effect that the riparian buffer zones should remain in natural vegetation or undeveloped should receive a "yes."
20) Does the local government require that WDFW management recommendations for Priority Habitats and Species serve as the basis for Habitat Management Plans?
Rationale: As part of the PHS system, the WDFW has published a series of documents intended to represent the best available science for managing and protecting sensitive species and habitats. While site-specific adjustments or modifications to these recommendations will often be required, the WDFW recommendations are intended to represent the best available science from which to create habitat management plans.
21) Do the regulations protect “habitats and species of local importance” and include a process for designating them?
Rationale: Although WDFW has identified an extensive list of important habitats and sensitive species locations and mapped them in the PHS system, the GMA goal is to maintain suitable habitat statewide for all wildlife species. Identification of species or habitats considered sensitive or important on a smaller, local scale is the responsibility of local governments. Protecting areas that provide connections between important habitat areas is potential use for the designation of habitats of local importance, because habitat fragmentation is leading cause of declining wildlife populations in urbanizing areas. Inclusion of species and habitats of local importance in the list of designated fish and wildlife habitat conservation areas, with a list or administrative process for determining them, should receive a “yes.”