Flexibility in Environmental Regulation
This page provides information on flexibility in environmental regulations for local governments in Washington State, including examples of code provisions.
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 when creating 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 MRSC's page on Critical Areas for more information.
In addition, the National Marine Fisheries Service (NOAA Fisheries) has listed 28 population groups of salmon and steelhead on the west coast as "endangered" or "threatened" under the Endangered Species Act. A variety of mechanisms including erosion and stormwater controls, 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.
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. There are also incentive options outside of regulation, such as transfer of development rights, conservation districts, or open space tax incentives.
Examples of Codes with Incentives
- Clark County Code Sec. 40.440.020 – 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 – Offers optional incentives for nondevelopment of critical areas
- Spokane County Code Sec. 11.20.080 – Incentives
- Washington State Department of Commerce: Critical Areas Handbook (Ch. 6) (2018) – Non-Regulatory Incentive Programs
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. Both the federal and Washington State constitutions provide that the government may not take private property unless it is for a public use and just compensation is paid. A regulatory takings occurs when a governmental agency regulates or limits the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use. To avoid this issue, local governments would include a reasonable use exception in their zoning code(s). For more information, see our page on Property Rights and Regulatory Takings.
Examples of Codes
- Bothell Municipal Code Sec. 14.04.140 – Reasonable use exceptions
- Enumclaw Municipal Code Sec. 19.02.030(B) – Exceptions
- Gig Harbor Municipal Code Sec. 18.08.206 – Reasonable use exceptions
- Kirkland Zoning Code Ch. 90.180 – Includes a concise definition, purpose, and process for reasonable exceptions. Also in this code are the allowed uses and decision criteria.
- Mukilteo Municipal Code Sec. 17.52.025 – Approval criteria and standards address single family, multi-family and subdivisions
- Richland Municipal Code Sec. 22.10.420 – General Savings Provision. Reasonable Economic Use
- Whatcom County Code Sec. 16.16.270 – Reasonable use exceptions
Many communities have anticipated a number of specific situations under which strict application of new environment regulations may create difficulties for existing property owners such as:
- Routine structure or utilities maintenance
- Agricultural and forest operations
- Other uses and related activities
Examples of Codes
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.
- Bellingham Municipal Code Sec. 16.55.080 – Minor critical area permits
- Clallam County
- Bainbridge Island Municipal Code Sec. 16.20.040 – Exemptions
- Renton Municipal Code Sec. 4-3-050C – Exempt, prohibited, and nonconforming activities
- Covington Municipal Code Sec. 18.65.050 – Allowed alterations of critical areas
- King County Code Title 21A.24 – Includes sections on allowed alterations (Sec. 21A.24.045); alteration exceptions (Sec. 21A.24.070); and development standards and alterations in various types of hazard or critical areas (Sec. 21A.24.210 - .310, 21A.24.335, 21A.24.365, and 21A.24.386)
- Shoreline Municipal Code Sec. 20.80.050 – Alteration of 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 areas don'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.
Examples of Codes
- Bainbridge Island Municipal Code Sec. 16.20.140(H)(2)(a) – Provides density calculation for wetlands
- Cowlitz County Code Sec. 19.15.080(D) and (E) – Allows density transfer for Planned Unit Developments (PUDs) and provides density credits for development proposals (other than PUDs) on lands containing critical areas based on formula.
- Enumclaw Municipal Code Sec. 19.02.200(A) – Follows Department of Ecology Model Wetlands Protection Ordinance
- Mukilteo Municipal Code Sec. 17.52B.110 – Provides density calculation for wetlands
- Puyallup Municipal Code Sec. 21.06.160 – Offers limited density transfer
- Spokane County Code Sec. 11.20.080(B) and (C) – Offers on-site and off-site transfer of density or development rights
Buffers are designated areas around the perimeter of critical areas that provide a margin of safety or buffer for 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; in all cases, buffer functions are maintained and certain criteria are met. In most scenarios, the flexibility that is allowed serves to improve overall critical area protection, such as increasing the buffer width in more sensitive areas while decreasing the buffer width in less sensitive areas.
Examples of Codes
- Bainbridge Island
- Clark County Code Sec. 40.450.040(C) – Buffer standards and authorized activities
- Mukilteo Municipal Code Sec. 17.52B.100 – Buffer areas
- Municipal Code Sec. 25.09.160(D) – Buffer averaging and buffer reductions
- Municipal Code Sec. 25.09.260(C) – Environmentally critical areas administrative conditional use
- Municipal Code Sec. 25.09.280 – Yard and setback reduction and variance to preserve ECA buffers and riparian corridor management areas
- Municipal Code Sec. 25.09.300(D) & (E) – Environmentally critical area exception
- Richland Municipal Code Sec. 22.10.115 – Buffer modifications
- Department of Ecology: Wetland Guidance for Critical Area Ordinance (CAO) Updates (2022) – Guidance includes recommendations for wetland protection based on best available science, such as wetland buffers and mitigation options.
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.
The Voluntary Stewardship Program (VSP) was created in 2011 and allows participating counties to develop local work plans that use voluntary and incentive-based tools, as an alternative to regulation, to protect critical areas and agricultural lands (see RCW 36.70A.710). Counties had to opt in by early 2012, and 28 counties chose to participate. Counties participating in VSP create a work plan that is approved by the Washington State Conservation Commission and then implement the plan by recruiting local landowners to participate in incentive-based stewardship activities. Counties report their progress to the Conservation Commission.
Examples of Programs
Below are a few VSP examples from Washington State. For additional examples, see the Washington State Conservation Commission's VSP County Directory page.
- Chelan County Voluntary Stewardship Program – Includes links to the Work Plan (2017), goals, and outreach materials
- Clark County Code Sec. 40.440.020 (see subsection D)
- Foster Creek Conservation District Voluntary Stewardship Program – Includes link to the Douglas County VSP Work Plan (2018)
- King County
- Land stewardship in King County – Links to information on farm management, forest management and rural stewardship planning programs.
- Rural stewardship planning in King County – Overview of a program that provides opportunity for modification of buffers and permit process in exchange for long-term commitment to resource protection.
- Kittitas County Conservation District Voluntary Stewardship Program
- Pierce County Biodiversity Alliance Crescent Valley Biodiversity Management Area (BMA) Stewardship Plan (2007)
- Thurston County Voluntary Stewardship Program and Work Plan (2017)
- Appendix I: Voluntary Incentive Programs (2017) – Includes a variety of technical assistance, incentives to improve irrigation efficiency, promote native planting, and an open space tax incentive
- Stevens County Voluntary Stewardship Program – Includes information on stewardship program best practices
- Spokane County Voluntary Stewardship Program
Some communities allow a developer to create or restore wetlands off-site on another property to compensate for unavoidable loss 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. A positive outcome that is associated with mitigation banking is that having one larger wetland can be more ecologically valuable than several wetland sites that are dispersed through a geographic area.
Examples of Codes and Ordinances
- Auburn Municipal Code Sec. 16.10.110 – Mitigation standards, location, and timing, wetland replacement ratios, and long-term protection requirements
- Renton Municipal Code Sec. 4-3-050(G)(9)(e) – Wetlands Regulations (Renton was one of the first communities to establish wetlands mitigation banking and has Wetland Mitigation Bank agreement with Glacier Park.)
- Clark County Code Sec. 40.450.040(D)(7) – Wetland Banking
- Pacific County Ordinance No. 147B (2000)
- Bainbridge Island Municipal Code Sec. 16.20.140(J)(5)
- Grant County Code Ch. 24.08 – Scroll down to Sec. 24.08.260
- Department of Ecology: Wetland Mitigation Banking
- National Environmental Banking Association – Environmental land banking industry association
Conservation easements are used by landowners to designate areas for conservation within their property while still maintaining private ownership of the property. A common easement type in Washington State are those designated for agriculture, historical preservation, or preservation of critical areas.
Examples of Codes
- Whatcom County Code Ch. 3.25A
- Burlington Municipal Code Sec. 14.15.170(B)
- Sedro-Wooley Municipal Code Sec. 17.65.180(B)
- Washington Association of Land Trusts: Conservation Easements – Describes in detail how landowners are compensated by Land Trusts and other entities when conservation easements are in place
These studies examine data and cases to evaluate how effective wetland replacement projects are at restoring habitats. Replacing wetlands has its own set of challenges, primarily that it is difficult to replicate an original wetlands' natural ecological functions through construction of a new, man-made wetland.
Examples of Studies
- U.S. Geological Survey: Do Created Wetlands Replace the Wetlands that are Destroyed? (1996)
- WA Department of Ecology: Wetland Mitigation Replacement Ratios (1992)
In-lieu fee (ILF) mitigation is another method used to offset unavoidable impacts to critical areas by allowing a permittee to pay a fee to a third party, likely a municipality or nonprofit, as opposed to implementing their own mitigation project. The fee is a one-time payment that goes towards a site or project that is certified under state and federal regulations. This form of compensatory mitigation differs from mitigation banking as it does not apply strictly to wetlands.
One example of an ILF program would be the Hood Canal Coordinating Council (HCCC) ILF Program, which provides an alternate mitigation option for authorized, unavoidable impacts to freshwater and marine aquatic resources. Under this program, landowners or developers may make a one-time payment to the ILF Program instead of implementing their own mitigation project. The payment funds are used by HCCC to implement mitigation projects that are strategically sited with respect to a watershed's ecological needs. The primary purpose of the ILF Program is to meet the goal for no net loss of aquatic resource functions.
Examples of Codes and Programs
- DuPont Municipal Code Sec. 254.1054.060 – Guidelines and regulations for ILF mitigation
- Pierce County
- Hood Canal In-Lieu Fee Mitigation Program – Mitigation projects include salmon recovery, water quality protection, and shellfish protection in the Hood Canal watershed
TDRs are designed to conserve critical areas and open spaces by transferring development to another area of planned development. Developers receive compensation for moving their development projects.
Examples of Codes
- Cowlitz County Code Sec. 19.15.080(F) – Optional Incentives for non-development of critical areas (Land exchange by state and/or local government)
- Castle Rock Municipal Code Sec. 18.10.090(F) – Optional Incentives for non-development of critical areas (Land exchange by state and/or local government)
- Kitsap County Code Ch. 17.580 – Transfer of Development Rights
- North Bend Municipal Code Ch. 18.36 – Transfer of Development Rights
Example of Program
- Resources for the Future: Transfer of Development Rights in U.S. Communities - Evaluating Program Design, Implementation, and Outcomes (2007) – Examines factors affecting a successful TDR program through multiple case studies