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Flexibility in Environmental Regulation

Introduction

All Washington cities and counties are required to adopt critical areas (environmentally sensitive areas) regulations (RCW 36.70A.060). Critical areas include wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. The GMA was amended in 1995 to require counties and cities to include the best available science in developing policies and development regulations. That amendment was intended to ensure that cities and counties consider reliable scientific information when adopting critical areas policies and regulations to protect the functions and values of critical areas (RCW 36.70A.172). Under the same statute, counties and cities are required to give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries, including salmon, steelhead and bull trout fisheries. See the MRSC webpage: Critical Areas for more information on the subject of critical areas. In addition, the National Marine Fisheries Service (NMFS) has listed 16 populations of Washington salmon and bull trout populations as "endangered" or "threatened" under the Endangered Species Act. A variety of mechanisms including erosion and stormwater controls, and setbacks or buffers around streams, wetlands and shorelines can protect anadromous fish habitat from activities that contribute to erosion, surface water runoff, and pollution.

Because setbacks and other protective measures can significantly restrict new land uses and activities on constrained lands, critical areas ordinances implementing the new requirements have been controversial in some communities. Wide stream setbacks and buffer requirements, often bolstered by best available science documents, have been particularly difficult to accommodate on small urban lots or for farming operations that require access to water for cattle and irrigation. The following information and examples illustrate approaches for using incentives or adding flexibility to regulations to ease difficulties for property owners, while continuing to protect important resources.

Increased Visibility for Flexible Options Offered

Many local governments have incorporated added flexibility into critical areas codes, but these provisions do not always stand out, especially in lengthier codes. Some jurisdictions have added sections that highlight the many incentives and opportunities for increased flexibility and choice available within the code.

  • Clark County Code Sec. 40.440.020 - Standards and Nonregulatory Measures. (See especially sections C, D and E for incentives and nonregulatory measures. These sections organize together and point the user to code sections where flexible options are offered.)
  • Cowlitz County Code Sec. 19.15.080 - Optional incentives for nondevelopment of critical areas
  • Spokane County Code Sec.11.20.080 - Incentives

Reasonable Use Exceptions and Other Critical Area Exemptions

Reasonable use exceptions are a mechanism by which a local jurisdiction may grant relief from code requirements where compliance leaves no reasonable use of the property. Reasonable use exceptions are a legal concept that has been articulated by federal and state courts in regulatory takings cases. In a takings case, the decision-maker must balance the public's interests against the owner's interests by considering the nature of the harm the regulation is intended to prevent, the availability and effectiveness of alternative measures, and the economic loss borne by the owner. Public interest factors include the seriousness of the public problem, the extent to which the land involved contributes to the problem, the degree to which the regulation solves the problem, and the feasibility of less oppressive solutions. In addition to exceptions that assure that a restricted property retains some reasonable economic use, some communities have gone beyond this legal standard. These communities are incorporating other exemptions and provisions to assure that codes are not unduly burdensome and that property owners are treated fairly.

Exemptions, Alterations and Flexible Uses/Activities within Critical Areas

Many communities have anticipated a number of specific situations under which strict application of new environment regulations may create difficulties for existing property owners, agricultural and forest operations or other uses and related activities. The following codes exempt some uses and activities from critical areas regulation, and often specify conditions under which these activities may be conducted. Many communities have provisions that allow minor alterations within critical areas provided that the values and functions of the critical areas are protected.

  • Bainbridge Island Municipal Code Sec. 16.20.040 - Applicability, exemptions, and prior development activity
  • Bellingham Municipal Code Sec. 16.55.080 - Exemptions
  • Clallam County Critical Areas Code
  • Everett Municipal Code
  • King County
    • King County Code Title 21A, - Critical Areas - Scroll to following sections:
      • Sec. 21A.24.045 - Allowed alterations
      • Sec. 21A.24.070 - Alteration exception
      • Sec. 21A.24.210 - .310, 21A.24.335, 21A.24.365, and 21A.24.386 - Development standards and altervations in various types of hazard or critical areas
    • Department of Development and Environmental Services, Customer Information Bulletin No. 21, "Critical Areas Review"
    • Office of Strategic Planning and Performance Management Rural Economic Strategies - Program to increase viable economic uses in rural areas, including home-based businesses. The changes also facilitate animal specialty services and farm-worker housing.
  • Kitsap County Code Sec. 19.100.125 - Exemptions
  • Langley Municipal Code Sec. 16.20.075 - Wetlands and Streams - Exemptions
  • Renton Municipal Code Sec. 4-3-050(C)(5), (6), (7) - Scroll to Section tables with exemptions of a variety of uses and activities.
  • Seattle Client Assistance Memo No. 327 - Environmentally Critical Area Exemptions and Modifications.

Onsite Density Transfer for Critical Areas

Many Washington communities have adopted provisions that allow density to be transferred from a constrained portion of a site to an unconstrained area on the same site. Such density transfers achieve protection of critical areas while permitting the property owner to retain some or all development rights. These provisions generally include some criteria to assure that density in receiving area doesn't exceed what that area can accommodate. Some jurisdictions use a sliding scale that specifies how much density may be transferred, based on the percentage of the site that is constrained.

  • Bainbridge Island Municipal Code, Sec. 16.20.160(F)(5)(a) - Density calculation (for wetlands and streams)
  • Cowlitz County Code Sec. 19.15.080(D) and (E)
  • Des Moines Municipal Code Sec. 18.86.270 - Limited density transfer
  • Enumclaw Municipal Code Sec. 19.02.200(A) - Limited density transfer - Follows Department of Ecology Model Wetlands Protection Ordinance
  • Gig Harbor Municipal Code Ch. 17.59- Planned Community Develoment Transfer of Density Credit Option
  • Lynnwood Municipal Code Sec. 17.10.100 - Buffer credit
  • Mukilteo Municipal Code Sec. 17.52B.110- Density calculation for wetlands areas
  • Puyallup Municipal Code Sec. 21.06.160 - Limited density transfer
  • Richland Municipal Code Sec. 22.10.340 - On-Site Density Transfer for Sensitive Areas
  • Spokane County Code Sec. 11.20.080(B) and (C) - Incentives - Offers on-site and off-site transfer of density or development rights
  • Vancouver Municipal Code Ch. 20.940 - On-Site Density Transfers

Flexible Buffer Widths

Buffers are designated areas around the perimeter of critical areas that provide a margin of safety or buffer critical areas from the impacts of adjacent uses. Because of variations in slopes, soils, vegetative cover, mitigation measures or other conditions, buffers may sometimes be reduced without compromising the buffer functions. Variations in buffer widths may also be possible. These provisions address buffer modifications, including averaging of buffer widths, and reduction of standard buffer widths when buffer functions are maintained and certain criteria are met.

  • Bainbridge Island Municipal Code
    • Sec. 16.20.050 - Prescriptive buffers variations
    • Sec. 16.20.170 - The Winslow Ravine - Special rules in Mixed Use Town Center.
      Choice of prescriptive setback or mitigated standard based on study.
  • Clark County Code Sec. 40.450.040(C) - Buffer standards and authorized activities
  • Everett
  • Mukilteo Municipal Code Sec. 17.52B.100 - Buffer areas - Buffer reduction and averaging Sec.s of CAO were amended in response to Growth Management Hearings Board decision, 2005.
  • Pierce County Code Sec. 18E.30.060(B) - Modification of buffer widths - Buffer modification and averaging
    • Sec. 21A.24.520- Buffer modfications to achieve zoned density
    • Sec. 21A.24.055(C) and (E) Flexible widths via a Rural Stewardship Plan.
  •  
  • Redmond Zoning Code Sec. 21.64.030(B)(5), (6) and (7)- Clear description of conditions under which buffer averaging or reduction is permitted.
  • Sammamish Municipal Code
    • Sec. 21A.50.330(6) - Streams - Development standards - Buffer reduction
    • Sec. 21A.50.290(8) - Wetlands - Development standards - Increased buffers

      The options to reduce or average buffers are offered in exchange for other measures that maintain or improve buffer functions including removal of impervious surfaces or installation of biofiltration/infiltration mechanisms.

  • Seattle
    • Sec. 25.09.160(D) - Buffer averaging and buffer reductions
    • Sec. 25.09.260(C) - Environmentally critical areas administrative conditional use
    • Sec. 25.09.280 - Yard and setback reduction and variance to preserve ECA buffers and riparian corridor management areas
    • Sec. 25.09.300(D) & (E)- Environmentally critical area exception
  • Richland Municipal Code Sec. 22.10.110(D)
  • Tacoma Municipal Code
  • Washington State Department of Ecology Ch. 6.6 - Determining Adequate Buffers, Wetland Mitigation in Washington State: Part 1: Agency Policies and Guidance, March 2006

Small Project Waivers

Some communities allow some construction of small projects within critical areas, particularly on pre-existing lots.

Individual Stewardship Plans

Some communities provide property owners with the option to develop an individual stewardship or conservation plan in place of standard critical area requirements when developing their property. Similarly, farm or forest management plans allow the flexibility to choose critical areas protection techniques that work well for individual farming and forestry operations.

Mitigation Banking

Some communities allow a developer to create or restore wetlands off-site on another property to compensate for unavoidable lost or damage of wetlands on the site that will be developed. To better assure that the created wetland is viable for the long term, some local jurisdictions have purchased property which is then converted to a wetland mitigation bank, under the jurisdiction's management. A private developer or another agency may then purchase credits from the jurisdiction (or "buy in" to the created wetland bank) to compensate for wetland damage when a property is developed.

General

Local Programs and Code Examples

Incentives - Green Build and Low Impact Development

Some communities offer code modifications in exchange for projects that incorporate green and low impact development features.

Incentive Programs - Critical Areas

  • Grants and Incentives, Washington State Department of Fish and Wildlife.
  • Wildlife Habitat Incentives Program, United States Department of Agriculture, Natural Resources Conservation Service - Voluntary program for people who want to develop and improve wildlife habitat primarily on private land
  • Incentives for Biodiversity Conservation: An Ecologial and Economic Assessment, Defenders of Wildlife, 2006
  • Cowlitz County Code Sec. 19.15.080 - Optional incentives for nondevelopment of critical areas
  • Clark County Code Sec. 40.440.020 - Standards and Nonregulatory Measures (See especially Sections C, D and E for incentives and nonregulatory measures. These Sections organize together and point the user to code Sections where flexible options are offered
  • Clark County Code Sec. 40.410.040 - Incentives, Education, and Technical
  • King County Critical Areas Review, Permitting Department Customer Information Bulletin 21 - See "What incentives are available to property owners to protect critical areas?"

Land Exchange to Preserve Critical Areas

  • Cowlitz County Code Sec. 19.15.080(F) - Optional Incentives for Non-Development of Critical Areas (Land exchange by state and/or local government.)

Last Modified: September 22, 2016