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A. Applicability.

1. Unless exempted by this chapter the provisions of this chapter shall apply to all lands, all land uses, clearing and development activity, and all structures and facilities in the city located within a critical area or buffer or on a site containing a critical area or buffer including single-family residential lots platted prior to April 29, 2005, and developments such as play structures that require no other permits.

2. The provisions of this chapter shall apply whether or not a permit or authorization is required.

3. No person, company, agency, or applicant shall alter a critical area or buffer (including removal of downed woody vegetation or application of chemicals harmful to fish and wildlife within 25 feet of wetlands, ponds, lakes, streams or rivers) except as consistent with the requirements of this chapter.

4. The Critical Areas Permit required pursuant to this chapter shall be obtained prior to undertaking any activity or development regulated by this chapter, unless exempted by this chapter.

B. Statements of Exemption Process. For exempt activities listed in subsection (C)(1) of this section, a written Statement of Exemption from securing a Critical Areas Permit must be obtained prior to undertaking any development activity. Activities exempt from subsection (C)(2) of this section do not require a statement of exemption.

All exempt activities are still subject to the policies and regulations of this chapter. The planning official shall attach Critical Areas Ordinance conditions to the building permits and other permits and approval as necessary to enforce the policies and regulations of this chapter.

The request for the Statement of Exemption shall be in writing, on forms required by the planning official, and include the information required by the planning official.

The planning official shall issue a decision on a request for a Statement of Exemption in writing within 21 calendar days of receiving the request.

C. Exemptions from Requirement to Obtain a Critical Areas Permit.

1. Activities for which a Statement of Exemption is required. The following activities shall obtain a Statement of Exemption under subsection B of this section:

a. Existing Structure Remodel – Impervious Surface Increase Less than 500 Square Feet. Development or clearing, outside areas of special flood hazards and other than tree removal, as minimally necessary to remodel an existing structure, provided:

i. The activity will increase the footprint of structures including impervious surfaces by less than 500 square feet from the footprint size at the time of the adoption of this chapter; and

ii. If the structure or impervious surface is within a critical area or buffer, the distance from the nearest structure or impervious surface to lakes, streams, rivers, wetlands or geological hazards is not decreased; and

iii. All vegetation disturbed as a result of the development shall be replaced one-to-one, except trees shall be replaced using tree units derived from Chapter 20.770 VMC, Tree, Vegetation, and Soil Conservation. Native vegetation shall be used where feasible.

iv. Impacts to critical areas and buffers shall be minimized and mitigated.

b. No Impervious Surface Increase in the Riparian Management Area or Riparian Buffer. Development activity on the portions of sites with existing structures or impervious surfaces which does not increase the impervious surface area within the Riparian Management Area or Riparian Buffer and which is not otherwise exempt under subsection B of this section shall be exempt from the provisions of VMC 20.740.110 (Fish and Wildlife Habitat Conservation Areas). The applicant is encouraged to provide enhancement to the extent feasible. Such enhancement activities may include, but are not limited to, landscaping using native plants, additional treatment of stormwater as appropriate, and implementation of best management practices that would enhance habitat functions.

c. Approved Subarea Plan with EIS. Development activity covered by and in compliance with all the conditions of an approved subarea plan that contains:

i. Baseline information on existing critical areas and their functions at the level of detail required for an Environmental Impact Statement (EIS) under the State Environmental Policy Act (SEPA);

ii. An analysis of the impacts of full development at the level of detail required for an EIS under SEPA and in keeping with the plan; and

iii. Mitigation for those impacts consistent with the requirements of this chapter.

d. Fence. A fence may be installed in a critical area buffer (not in a critical area) where:

i. The fence is necessary for safety and security;

ii. The property was developed prior to the effective date of Chapter 20.740 VMC (April 29, 2005);

iii. The fence is designed and installed in a manner that protects the critical area and buffer functions and blends with the critical area environment.

e. On-site Critical Area will be Avoided. Development may be permitted on a site containing a critical area or buffer not also subject to state or federal permits where the Planning Official determines that the critical areas and buffers will be clearly avoided using the following procedures and criteria:

i. The planning official has visited the site;

ii. The critical area(s) and buffer(s) has/have been identified in the field and clearly mapped by a qualified professional through an approved, limited-scope Critical Areas Report (for example, a wetland boundary delineation without categorization or functional assessment, but with the minimum documentation necessary to justify the boundary location); except that for a single-family or duplex residential development on a property with a stream not regulated under the state Shoreline Management Act, its Riparian Management Area or Riparian Buffer, the planning official may accept an aerial photo overlain with two-foot contour lines from the Clark County Digital Atlas with the required information drawn to scale by someone other than a qualified professional;

iii. The site plan and final plat show a development envelope within which all development activity will take place, and a note identifying the development envelope and its purpose is placed on the face of the site plan and the final plat;

iv. The boundaries of the development envelope are clearly outside of all maximum critical areas and all maximum buffers. The maximum critical area and maximum buffer are the greatest that may be applied under any circumstances. (For example, under this chapter, the maximum wetland buffer that could be applied under any circumstance is 300 feet; the maximum Riparian Management Area is 100 feet, and the maximum Riparian Buffer is 75 feet from the outer boundary of the Riparian Management Area.)

f. Fire-Defensible Space. Maintaining fire-defensible space around a structure to reduce fire hazards, involving regular maintenance of existing trees at least six-inch diameter at breast height, grasses, and underbrush, not tree removal or other ground-disturbing or soil-destabilizing activities. Creating fire-defensible space (see VMC 20.740.040(H)) or undertaking other development requires a Critical Areas Permit under VMC 20.740.040(A)(2)(f) and could require other permits as well.

i. Pruning trees, grasses, and brush within a critical area or buffer to maintain fire-defensible space around a structure may be permitted when one or more of the following criteria are met:

A. The structure nearest the property line is within 30 feet of a slope of at least 25 percent (also designated as a landslide hazard area under this chapter);

B. The nearest structure is within 30 feet of a forested area;

C. The vegetation within 30 feet of the structure is comprised of less than 50 percent native species;

D. The vegetation within 30 feet of the structure is higher than 12 inches;

E. Trees are crowded within 30 feet of the structure or overhanging the structure’s roof;

F. The structure is located in an area designated by the Fire Marshal as a “Wildfire Safety Area.”

ii. When maintenance of a fire-defensible space is permitted, the following standards shall apply:

A. Trees may be pruned or limbed-up to mitigate a hazard, but trees may not be removed without a Critical Areas Permit and any other necessary permit(s). (See VMC 20.740.040(A)(2)(f) and 20.740.040(H) on creating fire-defensible space.)

B. Grasses and underbrush shall be maintained between eight inches and 12 inches in height.

C. Topping trees is prohibited.

D. Any debris from pruning shall be disposed of promptly and properly.

2. Activities for which a Statement of Exemption is not required. Reasonable methods shall be used to avoid potential impacts to critical areas. Any damage to, or alteration of, a critical area that is not a necessary outcome of the exempt activity shall be corrected at the property owner’s expense.

The following activities are exempt from needing a Critical Areas Permit and do not require a statement of exemption:

a. Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of property damage and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter, so long as all of the following apply:

i. The emergency action uses reasonable methods to address the emergency.

ii. The emergency action must have the minimum possible impact to the critical area or its buffer.

iii. The property owner, person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity.

iv. Within 14 days the planning official shall determine if the action taken was within the scope of the emergency actions allowed in this section. If the planning official determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of VMC 20.740.090 shall apply.

v. After the emergency, the property owner, person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved Critical Areas Report and mitigation plan. The property owner, person or agency undertaking the action shall apply for review. The alteration, Critical Areas Report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained in this chapter.

vi. Restoration and/or mitigation activities must be initiated within three months of the date of the emergency or as otherwise determined by the planning official, and completed in a timely manner.

b. Valid Critical Areas Permit. Any development proposed on property pursuant to a currently valid Critical Areas Permit, provided all conditions and requirements of the Critical Areas Permit are met and the proposed activity is within the scope of the original permit.

c. Hazard Tree. Emergency or hazard tree removal (as defined in Chapter 20.770 VMC) conducted so that critical area impacts are minimized.

d. Landscape Maintenance. Landscape maintenance (other than tree removal or use of pesticides, herbicides, fungicides or fertilizers applied into or within 25 feet of water bodies) consistent with accepted horticultural practices, such as those recommended by the Washington State University Extension Service, within the boundaries of an existing lawn, garden or landscaped area and not associated with development.

e. Noxious or Invasive Plants. Clearing of noxious or invasive plants using hand-held equipment such as a weed-whacker, provided (1) fueling and maintenance take place outside the critical area and buffer; (2) all cleared vegetation is taken away and disposed of properly; and (3) denuded soils are stabilized with native vegetation. The city of Vancouver’s Noxious or Invasive Plants List and Native Plant Species List are available from the planning official.

f. Pesticides, Herbicides, Fungicides or Fertilizers 25 feet from Critical Area. Application of pesticides, herbicides, fungicides or fertilizers farther than 25 feet from any wetland, pond, lake, stream or river or in a manner specified in a valid permit.

g. State or Federally Approved Conservation or Preservation. State or federally approved conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife that does not entail changing the structure or functions of the existing critical area or buffer.

h. Harvesting Wild Crops. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops or other native vegetation and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the critical area or buffer by changing existing topography, water conditions or water sources.

i. Passive Activities. Passive outdoor recreation, education, and scientific research activities such as fishing, hiking, and bird watching that do not degrade the critical area or buffer.

j. Land surveys, soil sampling, percolation tests, and other related activities. In every case, impacts to the critical area or buffer shall be minimized and disturbed areas shall be stabilized immediately.

k. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. Impacts to the critical area or buffer shall be minimized and disturbed areas shall be restored within 72 hours.

l. Agricultural Activities. Existing and ongoing agricultural activities protected under the federal Food Security Act occurring in wetland areas.

Existing and ongoing agriculture within fish and wildlife habitat conservation areas so long as livestock and application of pesticides, herbicides, fungicides and fertilizers are kept 25 feet from any water body.

m. State or Federally Approved Restoration or Enhancement Project. Implementation of a state or federally approved restoration or enhancement project not related to any development project.

n. Operation, Repair and Maintenance. Operation, repair and maintenance of existing structures, infrastructure, roads, sidewalks, railroads, trails, dikes, or levees or water, sewer, stormwater, power, gas, telephone, cable, or fiber optic facilities if the activity does not further increase the impact to, or encroach farther within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, repair, or maintenance.

o. Areas with only ground shaking or liquefaction hazards. In areas with only ground shaking or liquefaction hazards, repair or construction of roads, sidewalks or trails (except where there are structures), or water, sewer, stormwater, gas, power, cable, or fiber optic facilities shall be exempt from the ground shaking and liquefaction permitting requirements.

p. Public improvement projects located within existing impervious surface areas.

q. City, State or Federally Approved Stand-alone “Critical Area” Creation Project. Implementation of a city, state or federally approved stand-alone “critical area” creation project that is not mitigation. A “Critical Area” created under these circumstances that would not otherwise have met the definition of that type of critical area is exempt from the provisions of this chapter. Also see the definition of “Wetlands” at Chapter 20.150 VMC.

r. Clearing in Frequently Flooded Area and/or Seismic Hazard Area Only. Clearing vegetation within the floodplain but outside the Riparian Management Area or Riparian Buffer (see VMC 20.740.040(A)(2)(f)).

Clearing vegetation in critical areas that are only seismic hazard areas (see VMC 20.740.040(A)(2)(f)).

s. Fence Repair. Maintenance, repair, and in-kind replacement of existing fences.

t. Seismic Hazard Areas Only. Sites identified as located within only a Seismic Hazard Area (VMC 20.740.130 – Geologic Hazard Areas) shall be exempt from needing to obtain a critical areas permit. All projects within the Seismic Hazard Area must comply with the Building Code at time of building permit review including providing a geotechnical report. (Ord. M-4034 § 23, 12/03/2012; Ord. M-4017 § 5, 07/16/2012; Ord. M-3931 § 22, 11/02/2009; Ord. M-3922 § 36, 07/06/2009; Ord. M-3844 § 2, 10/01/2007; Ord. M-3692, Added, 02/28/2005, Sec 2)