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Definitions:
Breeding site: The immediate area and features associated with producing and rearing young (e.g. nest tree, den).
Breeding area: The area necessary to support reproduction and the rearing of young. Includes breeding sites and adjacent foraging habitat, and may include a disturbance buffer.
Communal roosts: Habitat features (e.g. trees, caves, cliffs) that are regularly or traditionally used by a group of animals for resting, hibernation, breeding or young rearing.
Foraging Area: Feeding areas that are regularly used by individuals or groups of animals.
Haulouts: Areas where marine mammals regularly remove themselves from the water for resting.
Occurrence: Fish and wildlife observation from a source deemed reliable by WDFW biologists. Occurrences may represent an observation of an individual animal or a group of animals.
Regular occurrence: Areas or features (e.g. trees, cliffs) that are commonly or traditionally used on a seasonal or year round basis by species that do not typically occur in groups.
Regular concentration: Areas that are commonly or traditionally used by a group of animals on a seasonal or year round basis.
Regular large concentration: Areas that are commonly or traditionally used by significantly large aggregations of animals, relative to what is expected for a particular species or geographic area.
Regularly used perches: Habitat features (e.g. cliffs, trees) that are regularly or traditionally used by one or more birds for perching.
Note: Guidance is needed on whether we are legally required to protect endangered, threatened and sensitive plants as Fish and Wildlife Habitat Conservation Areas. While it appears the authors of the legislation were thinking about animals, the language in the WAC simply refers to listed species. Some animals (e.g. butterflies) are closely tied to their food plants and if you lose the plant you also lose the animal. Guidance from Tim Gates has been requested.
Draft of Critical Areas Ordinance available
Next meeting April 24
posted 04/17/2008
Senior Planner Shireene Hale and the Critical Areas Ordinance Citizens Review Committee have been drafting an update of the Critical Areas ordinance. They have held a series of meetings on different islands and have several more meetings scheduled.
Under the draft, the critical area regulations apply to land use and development in and within 300 feet
of critical areas. All areas within the county meeting the definition of a critical area
are designated Critical Areas.
The reason for the ordinance according is: to protect the functions and values of ecologically
sensitive and/or hazardous Critical Areas in accordance with the Best Available Science; to protect people,
property and natural ecosystems; to ensure there is no net loss of protected species, habitats and in the
shoreline, ecological functions and processes per WAC 173-26-221(2)(b)(iv); and to implement the goals,
policies and requirements of the Comprehensive Plan and the Washington Growth Management Act.
The purpose: The critical areas overlay district is adopted to implement the policies of the Comprehensive Plan for
the protection of critical areas. The purpose is to protect the functions and values of critical areas and to protect
people, public and private property, and natural ecosystems. There are five types of critical areas as defined in
SJCC 18.30.120 through 18.30.160:
- Geologically hazardous areas.
- Frequently flooded areas.
- Critical aquifer recharge areas.
- Wetlands.
- Fish and wildlife habitat areas.
These regulations apply as an overlay, in addition to other County requirements. If there is overlap between
types of Critical Areas, or conflict between the requirements of this chapter and other sections of this code, the
most restrictive requirement providing the most protection for Critical Areas shall apply. No permit involving a
Critical Area may be approved unless it is in compliance with this chapter.
The draft Critical Areas Ordinance covers the groundwater sections, the committee has been working on (which are currently being reviewed by the Water Resources Committee), the general sections that apply to all five critical areas, and the sections on fish and wildlife habitat conservation areas. The draft is available in a PDF.
This ordinance was prepared by county staff and is patterned after Jefferson County, who just adopted their ordinance after having been appealed to the Growth Board. Some of the recommendations from Steward & Associates (the consultants who assisted the county in 2006) and those who commented on the draft Best Available Science document are also included.
This is a rough, working draft intended to give the CAO Review Committee a place to start on the fish and wildlife issues, and a framework for plugging in decisions and Senior Planner Shireene Hale anticipates there will be many changes.
Before the committee discusses particular details however, they will be developing recommendations on the general sense of direction including the following:
a) Are we interested in developing alternatives to the management recommendations of the Best Available Science (which would require that we establish and fund a monitoring and assessment program)?
b) Do we want to consider something like Jefferson County's Critical Area Stewardship Plan option where landowners can develop a site specific plan rather than follow prescriptive requirements? Again, that will require that we have a monitoring/assessment program that can detect changes to protected habitats and species.
c) What are appropriate guidelines for a development that qualifies for a "Reasonable Use Exception"?
d) Do we want to allow limited scale development within the outer portion of science based buffers (e.g. 150 to 285 feet from the shoreline)? If so what is a reasonable scale for development in this area? What are other actions that might help make development in this area more compatible with wildlife?
e) Given the limited capacity of the County, the difficulty associated with successful implementation of mitigation projects, and that allowing higher impact development in conjunction with mitigation may ultimately result in higher long term impacts, do we want to focus on doing the best we can to integrate development into the natural environment in a way that protects species and habitats without relying on mitigation?
f) If we are going to establish a monitoring and assessment program, how do we pay for it?
Agendas for the next few meetings are as follows:
April 24 - Islanders Bank Annex, Friday Harbor - Establish general direction on fish and wildlife regulations and begin work on SJCC 18.30.110.
May 1 - Council Hearing Room, Legislative Building, 55 Second Street, Friday Harbor - Discuss Jefferson County's experience and recommendations with Joel Peterson and begin discussing buffers and other wildlife requirements (SJCC 18.30.160)
May 15 - undetermined Friday Harbor location - Discuss impacts and recommendations on terrestrial species with Eliza Habegger and Russel Barsh - continue discussion on wildlife requirements
June 5 - undetermined location on Lopez - Complete draft ordinance/ recommendations on general and fish and wildlife sections?
June 19 - undetermined location Friday Harbor - Joint meeting with Water Resources Committee to complete recommendations on groundwater section of the ordinance.
Strategy for Protecting Groundwater in San Juan County
In 1990 the Washington State Legislature adopted the Growth Management Act (GMA). This statute included a requirement that local jurisdictions adopt policies or regulations that protect the ecological functions and human values of "Critical Areas". Critical Areas include Critical Aquifer Recharge Areas (CARAs), Frequently Flooded Areas, Geologically Hazardous Areas, Wetlands, and Fish and Wildlife Habitat Conservation Areas.
In 1995, the Washington State legislature amended the GMA to require that local governments consider the Best Available Science (BAS) in designating and protecting Critical Areas (RCW § 36.70A.172(1)). In 2000 the State Office of Community Trade and Economic Development (CTED) adopted procedural criteria to implement these changes and provided guidance for identifying BAS. According to this guidance, BAS means current scientific information derived from research, monitoring, inventory, survey, modeling, assessment, synthesis, and expert opinion that is:
- Logical and reasonable
- Based on quantitative analysis
- Peer reviewed
- Used in the appropriate context
- Based on accepted methods
- Well referenced
State laws and regulations regarding the protection of Critical Areas are found in RCW 36.70A and WAC 365-195. These requirements have been clarified by a number of Growth Management Hearings Board and Court decisions which are cited at the end of this document. Following is a summary of the Critical Area requirements of the Growth Management Act (GMA) and associated court and growth board decisions:1
- Ensure there is no net loss to the functions and values of critical areas. Identify potential risks to these areas and adopt measures to reduce that risk. Prevent adverse impacts when possible; mitigate impacts that cannot be avoided.2,3
- Substantially consider the best available science (BAS). If the science is inadequate, or if there is uncertainty that the regulations will prevent harm to critical areas, be conservative, monitor the activity and associated critical areas, and be prepared to make changes if harm to critical areas is detected. 4, 5, 6, 7
- Base departures from BAS on specific evidence and a justifiable rationale documented in the record. Identify potential risks and additional protection measures to limit the risks to critical areas, and establish a monitoring program that can detect changes to critical areas. 7
- If monitoring is part of a critical areas protection program, it must have clearly identified goals, objectives, performance standards, and benchmarks against which to measure harm to critical areas.
- Give special consideration to protection measures for anadromous fisheries (e.g. salmon). Implement applicable recommendations of the Salmon Recovery Plan.8
- Identify existing and proposed non-regulatory measures that protect and preserve critical areas (e.g. tax incentives, educational programs, voluntary land preservation).
- Apply new regulations to preexisting uses if harm to critical areas is identified; identify and mitigate impacts resulting from authorized exemptions. Enhancement of degraded critical areas is optional. (Does not apply to agricultural uses which are exempted for three years in accordance with Substitute Senate Bill 5248).7, 9, 10
- Ensure compatibility with the Shoreline Management Act and associated State guidance.10
- Monitor and enforce BMP’s designed to protect critical areas.11
- Evaluate the success of the program and adapt it as necessary to protect critical areas. 12
- Allow for reasonable use of land.
- Requirements must be roughly proportional and connected to impacts to critical areas.
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San Juan County is currently reviewing the science, regulations, policies, potential management strategies and funding options related to the protection of groundwater. This evaluation is summarized in Chapters 1 and 2 of a document entitled San Juan County Best Available Science for Critical Areas
Following is a summary of the actions recommended by the San Juan County Council-appointed Critical Areas Citizen Review Committee. This proposal is based on what is currently known about groundwater and critical areas, the program evaluations presented in the Best Available Science document, and the management options which have been identified thus far.
Some of these actions could be implemented now - others require additional research and consideration of impacts to other types of critical areas which will be analyzed in the coming months.
1. Continue implementing the Council adopted Water Resources Management Plan and the Board of Health approved On-site Sewage System Operation and Maintenance Program Plan (SJ County Health & Community Services Dept. (H&CS)).
2. Partner with other counties and cities and encourage the State legislature to a) remove the financial penalties of the Growth Management Act for jurisdictions that are, to the best of their ability, working to come into compliance with the requirements of the GMA, and b) change the focus of State grant programs to emphasize getting all Puget Sound communities up to a basic level of environmental protection and to increase the emphasis on preventing environmental degradation, which is more cost effective than after the fact remediation (County Council).
Staff note: In the interest of making good use of Committee and staff time, the Committee may want to consider removing item 2a. from this proposal. Even if a majority of the Committee agreed to this item, and the County pursued it, chances are slim the State legislature could be convinced to remove the financial penalties for noncompliance with GMA. Given the extreme limits on County resources and staff time it might be better to focus on the things we can do that are more likely to be successful at protecting groundwater resources.
County Wide Groundwater Protection Measures
3. Implement the following ground and drinking water protection measures Countywide. Given the complex, interconnected geology of the County, the overall susceptibility of groundwater to contamination, the limited amount of recharge available, and the need to protect surface water systems from contamination, these general measures are an important component of a comprehensive drinking water protection program. Some of these measures could be adopted now; those that are related to protection of other types of Critical Areas should however wait until subsequent analyses are completed.
- A general prohibition of new landfills (with the possible exception of landfills for inert waste such as brick and concrete); wood treatment and metal plating facilities; facilities that process or dispose of radioactive substances on site; and facilities that treat and/or dispose of hazardous waste on site (SJ County Community Development and Planning Dept. (CDPD).
- A requirement that the use of pesticides, petroleum products and hazardous chemicals be minimized and that they a) be used in accordance with the manufacturer’s directions, b) be stored, handled and disposed of in a manner that prevents them from coming in contact with the ground surface, or with ground or surface water, and c) that they not be disposed of in floor drains, drywells, septic or sewage disposal systems Use in accordance with the manufacturers directions would not constitute disposal (CD&P and H&CS).
- A requirement that permit applications plans for commercial, industrial, institutional and public facilities be reviewed for compliance with the above requirements (CD&P).
- In coordination with the existing hazardous waste reduction/ collection program, develop an information and education program designed to reduce the use of pesticides, fertilizer and other chemicals, and to raise awareness of proper handling and disposal methods. Seek funding for these activities and provide voluntary technical assistance. (CD&P).
- Improve hazardous waste collection and storage capabilities on outer islands (PW).
- Identify and map areas of potential sea water intrusion (H&CS). Following are the criteria for identifying areas of potential seawater intrusion from County Code Chapter 8.06.
Table 1. Assessment Criteria
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| Location criteria | Groundwater Criteria |
| 1. Within 1000 feet of the shoreline, or |
1. Wells completed in unconsolidated material:
water level elevations less than 8 feet above sea level (based on NAVD 88), or |
| 2. Within 1000 feet of wells with chloride levels greater than 160 ppm, or | 2. Wells completed in bedrock: pumping water level below sea level, or |
| 3. Within 1000 feet of wells with changes in chloride levels greater than 20 ppm |
3. Well tests 100 ppm or greater for chloride; or changes in chloride levels greater than 20 ppm, or |
| |
4. Well chemical analysis confirms chloride from sea water intrusion
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g. Establish a county wide groundwater monitoring network. In areas where the County Water Resources Committee identifies nitrates as a contaminant of concern, collect nitrate samples biannually. Coordinate sampling with those conducted by public water supplies and by the Conservation District. If the annual average nitrate concentration of a well exceeds 2.5 mg/l or if the county hydrogeologist determines a risk of contamination exists, the County will investigate the source of the contamination and identify the most appropriate strategy to reduce the nitrate source(s). If septic systems appear to be the source of the contamination the Health and Community Services Department will work with property owners to identify and implement actions to reduce the contamination. Actions could include requiring the use of proprietary on-site sewage systems with enhanced nitrate removal capability and/or connection to sewer if available. If nitrate levels continue to rise and reach 5 mg/l then corrective action will be required. Establish a requirement that all new wells be tested for ????? (H&CS).
h. Change the existing variance procedure in the County Unified Development Code to allow extension of sewer to areas where the State Department of Health and the County Health and Community Services Department declare it is necessary to protect basic public health, safety and the environment. Extension of sewer outside Urban Growth Areas must conform to the requirements of RCW 36.70A.110.(CD&P)
i. Begin conducting environmental compliance inspections to ensure that new development is adhering to approved plans and to existing requirements for managing stormwater and protecting critical areas. Increase permit fees to cover the cost of inspections Potential cost of $175 to $350 per permit per year depending on the number of inspections conducted per site(CD&P).
j. Concurrently with the review and update of the County’s critical area protection programs, review and revise the sections of the Unified Development Code (SJCC Title 18) pertaining to stormwater management, lot coverage and impervious area. Some actions must be coordinated with the other four types of Critical Areas and require additional research and discussion to develop a workable approach. Actions that should be adopted now include:
- Adopt the Puget Sound Action Team 2005 Low Impact Development Manual as an acceptable alternative to the Western Washington Stormwater Management Manual. In the interim develop a policy implementing this option. Staff note: It appears the Western Washington Stormwater Manual already permits the use of the PSATs LID manual as a State approved alternative, but this could be clarified in the San Juan County Code (see attached excerpt from Section 1.6.1 of the Western Washington Manual). At the last meeting there was also discussion regarding the requirement for an engineer to perform stormwater calculations – this requirement may be a result of State laws governing those who design wastewater treatment systems. More information and research is needed on this issue.
- Requiring clearing and grading permits for all projects with the potential to negatively affect private or public property, groundwater or natural resources. The amount of soil that must be moved before a clearing and grading permit is required is currently set at 500 cubic yards or approximately 50 dump truck loads of soil. This is a significant amount of bare soil to manage and if adequate erosion control measures are not installed and maintained throughout the life of the project, significant damage could occur to neighboring property, County ditches, streams, wetlands and nearshore areas.
Staff note: It appears the Western Washington Stormwater Manual already requires a plan review if more than 2,000 square feet of impervious area is created, or more than 7,000 sq. ft. of soil is disturbed. See attached excerpt from the manual.
- Implementing impervious area requirements for Villages, Hamlets, Island Centers, and modifying existing requirements in Rural Farm Forest land use zones, and for parcels less than 5 acres in Rural Zones. Newly created lots should be adequately sized so that stormwater runoff generated on the property can be managed on the property.
- Developing a risk assessment methodology and making compliance easier and less costly for small projects on low risk sites.
- Better defining County requirements and their relationship to State guidance.
- Developing a system of financial guarantees for projects with a high risk of environmental degradation to assure that erosion is controlled, that approved plans are implemented, and that wetlands, streams, and nearshore areas are not damaged.
4. Clarify in the regulations that commercial, industrial, institutional and public facilities that generate non-domestic wastewater (that is wastewater not produced in showers, restrooms or kitchens) be served by an appropriate wastewater treatment system or facility, approved by the agency with jurisdiction (CD&P and H&CS).
Additional Regulations Within CARAs
5. Delineate the following as Critical Aquifer Recharge Areas (CARAs):
a) Wellhead protection areas for Group A and B public water supplies.
b) Areas with a high susceptibility to contamination as shown in the San Juan County Best Available Science for Critical Areas Figure 5.
c) Critical Water Resource Areas designated by the County Board of Health.
This approach was selected because it will allow the County to focus limited resources in the areas needing the greatest protection and because it is legally defensible. This approach is not entirely compatible with the State guidance provided in the Critical Areas Assistance Handbook, which suggests that Critical Aquifer Recharge Areas include both moderate and highly susceptible areas, but that does not appear to be a requirement, and to be effective the protection program must be commensurate with the resources available.
Staff considered adding a vulnerability component to the CARA designation (e.g. areas zoned for commercial and industrial uses) but the County Code allows cottage enterprises with up to six employees, utility uses (e.g. a power generation plant) and essential public facilities in nearly all land use zones, and it was felt this approach would be legally difficult to defend. For example identical businesses could be located in areas with a high susceptibility to contamination, and they would be treated differently simply because they were in different land use zones.
Staff also considered drawing CARA boundaries based on the predominate characteristics of each area, and while this approach would be easier to administer, and would result in a better looking map, that too would be difficult to defend. Some parcels of land with medium susceptibility to groundwater contamination would end up within a CARA, while others with high susceptibility would be excluded (CD&P and H&CS).
6. Replace the existing regulations in County Code Section 18.30.140.B with a more specific requirement that commercial, industrial, institutional and other facilities using, storing or handling pesticides, petroleum products and other chemicals that can be a health hazard in drinking water use approved Best Management Practices (BMPs). An acceptable set of BMP’s will need to be identified, the requirements will need to be phased in over a period of time, and technical assistance will need to be provided to affected facilities. Within CARAs periodic inspections (every 2-3 years) will be necessary to comply with the requirements of the Growth Management Act. If possible these inspections should be coordinated with the operational inspections conducted by the County Fire Code Official.
For businesses that choose to use standard, pre-approved BMP’s staff propose that a hyrdogeologic evaluation not be required. This is a change from the current regulations, which state that an evaluation can be required of any facility that stores, uses, handles or produces hazardous substances or hazardous waste products. A facility that proposes a management practice that has not been pre-approved however, should be required to provide a hydrogeologic evaluation and documentation showing that their proposed approach will protect groundwater quality (CD&P).
Sources of Funding
Sources of funding will be required for some of the proposed actions. Potential sources of funding are included in the following table (H&CS and CD&P). |
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New Action/Funding Source |
Permit Fees |
Special Purpose Fee |
State Grants |
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Groundwater monitoring around areas of dense development. |
X |
? |
X |
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Info/education on toxics and improved haz. waste program. |
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Environmental compliance inspections for construction projects. |
X |
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