35.40.030 Regulations – General mitigation requirements

35.40.030 Regulations – General mitigation requirements.

(1) Proponents of new shoreline use and development shall employ measures to mitigate unavoidable adverse impacts to ensure no net loss of shoreline ecological functions and to sustain shoreline ecosystem processes. Required mitigation shall not exceed a level necessary to assure that proposed uses or development will result in a no net loss of shoreline ecological functions.

(2) Mitigation shall include the following actions in order of priority (referred to as the mitigation sequence):

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation by adhering to the dimensional requirements, performance standards and design criteria in this Program and using other technologies or steps, as needed, to avoid or reduce impacts;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations;

(e) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and

(f) Monitoring the impact and the compensation projects and taking appropriate corrective measures.

(3) The Administrator shall require compensatory mitigation for development proposals that:

(a) Do not fully conform to one or more of the dimensional requirements, performance standards, and/or design criteria in this Program; or

(b) Result in measurable adverse impacts, loss and/or displacement of shoreline ecological functions including a wetland, aquatic habitat conservation area, terrestrial habitat conservation area, flood storage or conveyance area, or critical aquifer recharge area or geologic and hydraulic processes; or

(c) Result in measurable adverse impacts, loss and/or displacement of kelp beds, eelgrass beds, spawning and holding areas for forage fish, such as herring, smelt and sand lance; subsistence, commercial and recreational shellfish beds; mudflats; intertidal habitats with vascular plants; and areas with which priority species have a primary association.

(4) When compensatory mitigation is required, it shall occur directly and in the immediate vicinity of the impact to ensure no net loss of ecological functions. Off-site, compensatory mitigation within the same watershed or appropriate section of marine shoreline (e.g., reach or drift cell) may be authorized when on-site mitigation to fully mitigate unavoidable adverse impacts is not possible. When determining whether to authorize off-site mitigation, the Administrator or Hearing Examiner shall consider limiting factors, critical habitat needs, and other factors (e.g., provides equivalent or greater and more sustainable ecological functions) identified by the County’s adopted shoreline restoration plan, or an approved watershed or comprehensive resource management plan. Authorization of compensatory mitigation measures shall require appropriate safeguards, terms or conditions as necessary to ensure no net loss of ecological functions.

The Administrator or Hearing Examiner may also approve use of alternative mitigation programs such as in-lieu fee programs, mitigation banks, and other similar approaches provided they have been adopted by the County following a public review process and obtaining any required approvals by the appropriate State and federal agencies with jurisdiction. Clallam County shall consult with State and federal agencies with jurisdiction and Tribes in the development, adoption and administration of such alternative mitigation programs.

(5) To prevent cumulative impacts that could lead to a net loss of ecological functions, the Administrator shall consider the following factors when assessing whether individual development proposals are consistent with this Program:

(a) Current ecological functions and human factors influencing shoreline natural processes; and

(b) Reasonably foreseeable future use and development of the shoreline; and

(d) Mitigation measures implemented in conjunction with the proposed project to avoid, reduce, and/or compensate for adverse impacts.

(6) The Administrator shall prohibit any use or development that will result in unmitigated cumulative impacts.

(7) When compensatory mitigation is required pursuant to this Program, all of the following shall apply:

(a) The quality and quantity of the replaced, enhanced, or substituted resources shall be the same or better than the affected resources; and

(b) The mitigation site and associated vegetative planting shall be nurtured and maintained in perpetuity such that healthy native plant communities grow and mature over time; and

(c) The mitigation shall be informed by pertinent scientific and technical studies, including but not limited to the Shoreline Inventory and Characterization Report, the Shoreline Restoration Plan, and other background studies prepared in support of this Program; and

(d) The mitigation shall replace the functions as quickly as possible following the impacts; and

(e) Mitigation activity shall be monitored and maintained to ensure that it achieves its intended functions and values; and

(f) The mitigation site will be protected through a conservation easement or similar mechanism to ensure that it is maintained and protected in perpetuity; and

(g) The Administrator shall require the applicant/proponent to post a bond or provide other financial surety equal to 150 percent of the estimated cost of the mitigation to ensure the mitigation is carried out successfully. The bond/surety shall be refunded to the applicant/proponent upon completion of the mitigation activity and any required monitoring.

(8) Compensatory mitigation plans shall be prepared by qualified professionals with education, training and experience in the applicable field:

(a) Wetland mitigation plans shall be prepared by a qualified professional who is educated/trained in wetland biology or a closely related field, and has demonstrated experience in mitigation plan design, implementation, and monitoring. The overall goal of any such mitigation plan shall be no net loss of wetland functions, acreage, and values.

(b) Mitigation plans for impacts to aquatic and wildlife habitat conservation areas shall be prepared by a qualified professional with education/training in wildlife biology or a closely related field, and professional experience in habitat mitigation plan design, implementation, and monitoring. Where this plan is required for the protection of eagle habitat, the eagle habitat management plan shall normally be prepared by the Washington State Department of Fish and Wildlife, as required under the Bald Eagle Management Rules. The Washington Department of Fish and Wildlife Priority Habitat and Species Management Recommendations, dated May 1991 or as thereafter amended, may serve as guidance for preparing mitigation plans to protect wildlife habitat conservation areas.

(c) Mitigation plans for geologically hazardous areas shall be prepared by a qualified professional who is either a geologist and a geotechnical engineer, a geotechnical engineer, or a civil engineer licensed in the State of Washington, who is knowledgeable of regional geologic conditions and who has professional experience in landslide and/or seismic hazard evaluation, mitigation plan design, implementation, and monitoring.

(d) Mitigation plans for development within frequently flooded areas shall be prepared by a civil engineer licensed in the State of Washington.

(e) Mitigation plans for impacts to critical aquifer recharge areas shall be prepared by a person(s) with professional experience in mitigation plan design, implementation, and monitoring, hydrogeologic assessment, and professional experience in hydrogeology or a related field. The person(s) shall also be knowledgeable in the effect of the proposed development on groundwater quality and quantity.

(9) The applicant shall pay for or reimburse the County for the costs incurred in the review of a mitigation plan and for any costs incurred by the County to engage technical consultants or staff for review and interpretation of data and findings submitted by or on behalf of the proponent consistent with CCC 35.50.120, Fees, and CCC 35.50.210, Third-party review.

(10) When there is a conflict between the findings of a special report and the findings of the Administrator in review of the special report, the applicant or affected party may appeal such decisions of the Administrator pursuant to the procedures in this section and Chapter 26.10 CCC, Clallam County Consolidated Development Permit Process.