The Zoning Report - July 30, 2024

Updates to Critical Areas Ordinances in Kitsap & Snohomish Counties & More on the Snohomish River Watershed Initiative in Everett

One of the things that comes along with updating comprehensive plans and development regulations is a review of existing critical areas regulations. Critical areas ordinances are required to be updated periodically and must reflect best available science. When these reviews periodically occur, they open up the regulations for public comment from developers, environmental organizations, tribes, state/federal agencies, and others.

By their nature, critical areas ordinances are complex. And in situations where the critical areas involve floodplains, floodways, shorelines of the state, etc., the complexity only increases. For some folks, establishing bigger buffers is seen as better whereas others want to look more at the quality, functions, and values of the critical areas and their buffers.

Obviously, it’s much easier in rural areas to apply larger buffers around critical areas. But in urban areas, there’s a lot of discussion about how increasing buffers impacts the remaining available land supply in urban growth areas, especially since most urban growth area boundaries haven’t been expanded nor are likely to be expanded in the future.

So, what types of changes are Puget Sound jurisdictions considering in this round of updates?

• Larger buffers, including for non-fish bearing streams

• More scrutiny over the use of buffer averaging and/or buffer reductions¹

A notable problem with continually making buffers large is that it further restricts the net developable area of a site, impacting achieved densities that are not often adjusted commensurately (until the next 10-year planning period) to balance out the changes. Not only does this have an immediate impact of killing some projects as they are no longer financially viable, but such changes may have long-term impacts on housing creation at a time when the region (and state) are battling a chronic, critical deficit in housing units. What many don’t understand is that this likely means densities in neighborhoods will need to be increased even more or urban growth area boundaries may need to be adjusted to ensure sufficient land supply (an action that would draw stiff opposition of its own).

Overview of Kitsap County’s Update

Kitsap County is just one of many jurisdictions contemplating critical areas ordinance updates. They’ve recently released a new draft ordinance seeking written public comments through August 7th, but they will ultimately accept comments received through their public hearing on August 26th. Here’s a link to the County’s outreach page.

As a land use consulting firm that works with an array of clients, we often reach out to experts in other fields to help us understand how proposed regulations could impact projects (good and bad). In this case, I reached out to a few colleagues over at Soundview Consultants², who have successfully worked with our firm’s clients on some very complex projects, to get some expert insight on Kitsap’s proposal.

PROPOSED CHANGES THAT ARE IMPROVEMENTS

The following proposed changes would improve the usability of the critical areas regulations:

• There is a set of alternate stream buffers for projects in urban growth boundaries (UGAs) that are intended to be used on a limited basis and would require a full suite of reporting to justify their application to projects. That said, it could be an improvement.

• Administrative wetland buffer reductions for single-family homes are increased to match the current stream buffer standards (i.e., up to 50% reduction is allowed administratively instead of 25%).

• Preservation may be accepted as a form of mitigation if the preserved wetlands are at least Category II. However, this allowance and Ecology’s requirements are likely to be different. Thus, any project using this may still be held to a higher standard to receive a state or federal permit.

• The readability of the code is improved, including some needed clarification to certain standards, procedures, etc.

PROPOSED CHANGES THAT WILL IMPACT LAND USES

The following would be some of the more significant changes:

• Stream buffers are proposed to increase across the board for all types.

  • Type F (fish-bearing) streams will see a 33% increase up to 200 feet in areas outside the urban growth boundary.

  • Other stream buffer minimums will increase to 100’ from 50’ except for a new classification of “Type O” streams.

• “Type O” streams are a newly created type of stream defined as those that do not connect to a Type S, F, or N water by an above-ground channel system, pipe or culvert, stream, or wetland. “Type O” streams aren’t an official stream type according to the Department of Natural Resources stream typing code and they were previously unregulated by the County. These now have a proposed 50’ buffer.

• The options for buffer modification and exemption are likely to be further limited. Buffer averaging would be mandatory before considering a reduction, and any modification will require a full mitigation plan.

• Category IV wetlands (the lowest quality wetlands) between 2,000 and 4,000 square feet will no longer be exempt. The proposed threshold for exemption will be 1,000 square feet and in addition to the small size/low category criterion, they must also now have a low habitat score (new to this code). The result is that fewer wetlands will qualify as exempt. Those that do qualify as exempt are proposed to have a 15’ building setback.

• The code proposes a 15’ buffer on piped sections of streams, requiring projects to see a variance to not have to provide a buffer where a stream is piped underground.

• Buffer interruptions will be less frequently considered. For example, under the current code, driveways and existing landscaping are considered interruptions to buffers. By contrast, the new code essentially requires a full road or similar barrier with no hydrologic connectivity (e.g. culvert). Thus, if there is a hydrologic connection across the barrier, then the buffer is unlikely to be considered interrupted.

• Buffer impacts now require 1:1 mitigation.

• The new code prefers the use of onsite mitigation, which is not the preference of either the state or the Corp. This scenario is very likely to create new conflicts between agencies responsible for permitting.

• Increased tree protection standards are proposed, consistent with new tree retention requirements being proposed in the comp plan update.

Overview of Snohomish County’s Update

Like Kitsap County, Snohomish County is updating its critical areas ordinance. Scanning through the current drafts, here’s a brief look at some of the changes proposed:

PROPOSED CHANGES THAT ARE IMPROVEMENTS

The following proposed changes would improve the usability of the critical areas regulations:

• A change is proposed to clarify that site plans only have to show the location and description of all wetlands and fish and wildlife habitat conservation areas located on the site and within 300 feet. This eliminates the need to show all critical area buffers within 300 feet.

• The proposal would add an allowance for disconnected buffers where a public or private road or other legally established development interrupts the buffer.

PROPOSED CHANGES THAT WILL IMPACT LAND USES

The following could have significant impacts on future projects:

• The proposed changes will add mature forest and old-growth forest wetlands to the types of wetlands that qualify as Category I (requiring the highest level of protection and largest buffers).

• Greater emphasis is being placed on on-site mitigation, which differs from the off-site mitigation state and federal agencies prefer, trusting that a professionally managed mitigation bank is more likely to have long-term success than on-site mitigation that may or may not receive the proper after care. The result sets up a potential conflict between agencies.

• Type F streams are proposed to have their buffers increased to 150’ from 100’

• Wetland mitigation ratios for enhancement are proposed to double.

• In cases where a reasonable use permit is sought (most commonly to construct a single house on a heavily impacted site), the proposed code would limit the maximum disturbance area impacting critical areas and buffers to no larger than 4,000 square feet. The disturbance area is more than just the area of the house, but includes things like decks, driveways, a lawn, etc.

Update on the Snohomish River Watershed Initiative

In the July 17th edition of The Zoning Report, I mentioned the effort by “Standing for Washington” to gather signatures for an Initiative in the City of Everett that would give legal standing to the Snohomish River Watershed - a measure that could have profound negative impacts to economic development, capital improvements, road projects, etc. in Everett in the coming years.

The proponents have pitched the Initiative as a measure to hold polluters accountable (sounds great, right?). But all the Initiative actually does is create a flashier way in which a person can assume the identity of the Snohomish River Watershed to file a lawsuit against another person, company or project. Read the Initiative’s full text.

Although the Initiative is currently only proposed in Everett (and would only affect Everett) its backers have already indicated they plan to push similar initiatives in other communities around the region. Whether your a property owner, a business or a local government, you’ll want to follow what happens in Everett.

This story continues below for our premium subscribers and includes analysis of the next steps in the Initiative process, as well as analysis of the Initiative and some potential implications. Permitted with Conditions is running a Summer Special for new paid subscribers (here) - a savings of 24% on the first year. Paid subscribers get access to all our premium content, including full editions of The Zoning Report, early access to select posts and podcasts, special features, and legislative session alerts. It’s a great time to become a paid subscriber!