Chapter 90 – DRAINAGE BASINS

Sections:

Introduction

90.05 User Guide

90.10 Purpose

90.15 Applicability

90.20 General Exceptions

90.25 Sensitive Areas Maps and Other Resources

90.30 Definitions

Wetlands

90.35 Wetland Determinations, Delineations, Regulations, Criteria, and Procedures

90.40 Wetland Determinations

90.45 Wetland Buffers and Setbacks

90.50 Wetland Buffer Fence or Barrier

90.55 Wetland Modification

90.60 Wetland Buffer Modification

90.65 Wetland Restoration

90.70 Wetland Access

Minor Lakes

90.75 Totem Lake and Forbes Lake

Streams

90.80 Activities in or Near Streams

90.85 Stream Determinations

90.90 Stream Buffers and Setbacks

90.95 Stream Buffer Fence or Barrier

90.100 Stream Buffer Modification

90.105 Stream Relocation or Modification

90.110 Bulkheads in Streams

90.115 Culverts in Streams

90.120 Stream Rehabilitation

General

90.125 Frequently Flooded Areas

90.127 Heron Habitat Protection Areas

90.130 Site Requirements and Sensitive Areas Protection Techniques

90.135 Maximum Development Potential

90.140 Reasonable Use Exception

90.145 Bond or Performance Security

90.150 Dedication

90.155 Liability

90.160 Appeals

90.165 Setbacks and Buffers Required by Prior Approvals

90.170 Planning/Public Works Official Decisions – Lapse of Approval

INTRODUCTION

90.05 User Guide

The regulations in this chapter apply to activities, work, and conditions in or near any stream, wetland, frequently flooded area, or lake in the City. For properties within jurisdiction of the Shoreline Management Act, the regulations in Chapter 83 KZC must be met. These regulations add to and in some cases supersede other City regulations. Anyone interested in conducting any development activity on or near a wetland, stream, lake, or frequently flooded area; wishing to participate in the City’s decision on a proposed development on or near any of these areas; or wishing to have a determination made as to the presence of one (1) of these areas on their property, should read these regulations. See also KZC 95.23(5)(d)(2), Trees in Critical Areas or Critical Area Buffers; and KZC 95.50(11), Installation Standards for Required Plantings – Mitigation and Restoration Plantings in Critical Areas and Critical Area Buffers.

Chapter 83 KZC contains wetland, stream and flood hazard reduction regulations for properties located within its jurisdiction. However, regulations contained in this chapter that are not addressed in Chapter 83 KZC continue to apply, such as bond or performance security, dedication and liability.

90.10 Purpose

These regulations were prepared to comply with the Growth Management Act, Chapter 36.70A RCW. The purpose of these regulations is to protect the environment, human life, and property. This purpose will be achieved by preserving the important ecological functions of wetlands, streams, lakes, and frequently flooded areas. The designation and classification of these sensitive areas is intended to assure their preservation and protection from loss or degradation, and to restrict incompatible land uses.

Sensitive areas perform a variety of valuable biological, chemical, and physical functions that benefit the City and its residents. The functions of sensitive areas include, but are not limited to, the following:

1. Wetlands – Wetlands help maintain water quality; store and convey storm and flood water; recharge ground water; provide fish and wildlife habitat; and serve as areas for recreation, education, scientific study, and aesthetic appreciation. The City’s goal is to achieve no net loss of wetlands through retention of wetland functions, values, and acreage within each drainage basin. Wetlands are protected in part by buffers, which are upland areas adjacent to wetlands.

Wetland buffers serve to moderate runoff volume and flow rates; reduce sediment loads; remove waterborne contaminants such as excess nutrients, synthetic organic chemicals (e.g., pesticides, oils, and greases), and metals; provide shade for surface water temperature moderation; provide wildlife habitat; and deter harmful intrusion into wetlands.

The primary purpose of wetland regulations is to achieve a goal of no net loss of wetland function, value, and acreage within each drainage basin, which, where possible, includes enhancing and restoring wetlands.

2. Streams – Streams and their associated buffers provide important fish and wildlife habitat and travel corridors; help maintain water quality; store and convey storm and flood water; recharge groundwater; and serve as areas for recreation, education, scientific study, and aesthetic appreciation. Streams are protected in part by buffers, which are adjacent upland areas that interact with streams.

Stream buffers – sometimes known as riparian buffers – serve to moderate runoff volume and flow rates; reduce sediment loads; remove waterborne contaminants such as excess nutrients, synthetic organic chemicals (e.g., pesticides, oils, and greases), and metals; provide shade for surface water temperature moderation; provide wildlife habitat; and deter harmful intrusion into streams.

The primary purpose of stream regulations is to avoid reducing stream and riparian corridor functions, and where possible, to enhance and restore streams and riparian areas.

3. Lakes – Lakes provide important fish and wildlife habitat; store and convey storm and flood water; recharge ground water; store ground water discharge; and serve as areas for recreation, education, scientific study, and aesthetic appreciation. Many uses and activities in and around lakes are regulated under the wetland regulations, because the shallow perimeter of most lakes (the littoral zone) often meets the definition of a wetland.

Lake Washington is a Shoreline of the State, and is subject to the Shoreline Management Act. Uses and activities near, on or in Lake Washington are regulated by the applicable use zone regulations in Chapters 15 through 60 KZC and by the shoreline regulations in Chapters 83 and 141 KZC. Uses and activities in wetlands contiguous to Lake Washington are subject primarily to the wetland regulations in Chapter 83 KZC, but also some applicable regulations in this chapter. Wetland buffers not located within 200 feet of the ordinary high water mark of Lake Washington are subject to the wetland buffer regulations in this chapter.

The primary purpose of the lake regulations is to avoid impacts to lakes and contiguous riparian areas, and where possible, to enhance and restore lakes.

4. Frequently Flooded Areas – Frequently flooded areas help to store and convey storm and flood water; recharge ground water; provide important riparian habitat for fish and wildlife; and serve as areas for recreation, education, and scientific study. Development within these areas can be hazardous to those inhabiting such development, and to those living upstream and downstream. Flooding also can cause substantial damage to public and private property that results in significant costs to the public as well as to private individuals.

The primary purpose of frequently flooded areas regulations is to regulate development in the 100-year floodplain to avoid substantial risk and damage to public and private property and loss of life.

90.15 Applicability

1. General – These regulations apply to any property that contains any of the following:

a. Streams;

b. Type 1 or 2 wetlands;

c. Type 3 wetlands greater than 1,000 square feet in a primary basin;

d. Type 3 wetlands greater than 2,500 square feet in a secondary basin;

e. Totem Lake and Forbes Lake;

f. Frequently flooded areas; and

g. Buffers required for the preceding six (6) features.

2. Conflicting Provisions – The regulations in this chapter supersede any conflicting regulations in the Kirkland Zoning Code. For properties within jurisdiction of the Shoreline Management Act, the regulations in Chapter 83 KZC supersede any conflicting regulation in this chapter. If more than one (1) regulation applies to the subject property, then the regulation that provides the greatest protection to sensitive areas shall apply.

3. Other Jurisdictions – Nothing in these regulations eliminates or otherwise affects the responsibility of the applicant or property owner to comply with all other applicable local, state, and federal laws regulating development activities in sensitive areas, as herein defined.

4. SEPA Compliance – Nothing in these regulations or the decisions made pursuant to these regulations affects the authority of the City to review, condition, and deny projects under the State Environmental Policy Act, Chapter 43.21C RCW.

90.20 General Exceptions

The following activities or conditions shall be exempt from this chapter:

1. Activities involving artificially created wetlands or streams intentionally created from non-wetland sites, including but not limited to grass-lined swales, irrigation and drainage ditches, retention and/or detention facilities, farm ponds, and landscape features, except activities involving wetlands or streams that are created as mitigation for impacts to regulated sensitive areas, or that support state or federally listed threatened or endangered species.

2. Legally filled wetlands, or wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.

3. Activities affecting Type 3 wetlands that are 1,000 square feet or less in any of the primary basins, or affecting Type 3 wetlands that are 2,500 square feet or less in any of the secondary basins.

4. All utility work in improved City rights-of-way; and all normal and routine maintenance, operation and reconstruction of existing roads, streets, and associated rights-of-way and structures; and construction of sewer or water lines that connect to existing lines in a sensitive area or buffer where no feasible alternative location exists based on an analysis of technology and system efficiency; provided, in each case, that (1) such activities will not increase the impervious area or reduce flood storage capacity, and (2) the construction drawings specify that all affected sensitive areas and buffers will be expeditiously restored to their pre-project condition or better. For purposes of this subsection only, “improved City rights-of-way” include those rights-of-way that have improvements only underground, as well as those with surface improvements.

5. Normal and routine maintenance or repair of structures; provided, that such activities do not increase the previously approved structure footprint within a sensitive area or its buffer. Increases in structure footprint outside of such areas shall be allowed, even if all or a portion of the previously approved footprint is within such areas.

6. Site investigative work and studies necessary for preparing and processing land use applications, including, but not limited to hand-dug holes for soils tests, water quality sampling, wildlife studies, and wetland and stream investigations; provided, that any disturbance of the sensitive area or its buffer shall be the minimum necessary to carry out the work or studies. Use of any mechanized equipment requires prior approval of the Planning Official. Areas disturbed by these activities shall be expeditiously stabilized and replanted, as approved by the Planning Official, to restore them to their previous condition.

7. Educational activities, scientific research, and passive outdoor recreational activities such as bird watching.

8. Emergency activities necessary to prevent an immediate threat to public health, safety, or welfare.

90.25 Sensitive Areas Maps and Other Resources

As part of the City’s SEPA Ordinance, the City Council adopted, and may amend, a map folio entitled “Kirkland Sensitive Areas.” Some of the maps in this folio depict wetlands, streams, and 100-year floodplains. The most recent amendment to this map folio reflects a 1998 study of wetlands and streams throughout the City’s drainage basins and other sensitive areas discovered since 1992. The map folio, subsequent amendments, and other available resources (such as topographic maps, soils maps, and air photos) are intended only as guides. They depict the approximate location and extent of known sensitive areas. Some sensitive areas depicted in these resources may no longer exist; further, sensitive areas not shown in these resources may occur. Property owners and project applicants are strongly advised to retain qualified professionals to conduct site-specific studies for the presence of sensitive areas.

90.30 Definitions

1. Basin – A specific area of land drained by a particular watercourse and its tributaries.

2. Buffer – The area immediately adjacent to wetlands and streams that protects these sensitive areas and provides essential habitat elements for fish and/or wildlife.

3. Buffer Setback – A setback distance of 10 feet from a designated or modified wetland or stream buffer within which no buildings or other above-ground structures may be constructed, except as provided in KZC 90.45(2) and 90.90(2). The buffer setback serves to protect the wetland or stream buffer during development activities, use, and routine maintenance occurring adjacent to these resources.

4. Class A Streams – Streams that are used by salmonids. Class A streams generally correlate with Type 3 streams as defined in the Washington State Hydraulic Code.

5. Class B Streams – Perennial streams (during years of normal precipitation) that are not used by salmonids. Class B streams generally correlate with Type 4 streams as defined in the Washington State Hydraulic Code.

6. Class C Streams – Seasonal or ephemeral streams (during years of normal precipitation) not used by salmonids. Class C streams generally correlate with Type 5 streams as defined in the Washington State Hydraulic Code.

7. Critical Areas – Critical areas include the following areas and ecosystems: (a) wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.

8. Frequently Flooded Areas – All areas shown on the Kirkland sensitive areas maps as being within a 100-year floodplain, as well as all areas regulated by Chapter 21.56 KMC.

9. Minor Improvements – Walkways, pedestrian bridges, benches, and similar features, as determined by the Planning Official, pursuant to KZC 90.45(5) and 90.90(5).

10. Primary Basins – The following basins, as shown on the Sensitive Areas Map: Juanita Creek, Forbes Creek, South Juanita Slope, Yarrow Creek, Carillon Creek, Denny Creek, and Champagne Creek.

11. Qualified Professional – An individual with relevant education and training, as determined by the Planning Official, and with at least three (3) years’ experience in biological fields such as botany, fisheries, wildlife, soils, ecology, and similar areas of specialization, and including a professional wetland scientist.

12. Salmonid – A member of the fish family salmonidae, which include chinook, coho, chum, sockeye, and pink salmon; rainbow, steelhead, and cutthroat trout; brown trout; brook and dolly varden char, kokenee, and white fish.

13. Secondary Basins – Moss Bay, Houghton Slope A, Houghton Slope B, Kirkland Slope, Holmes Point and Kingsgate Slope, which are depicted on the Sensitive Areas Map.

14. Sensitive Areas – Wetlands, streams, lakes, and frequently flooded areas.

15. Significant Habitat Area – An area that provides food, protective cover, nesting, breeding, or movement for threatened, endangered, sensitive, monitor, or priority species of plants, fish, or wildlife. The terms threatened, endangered, sensitive, monitor, and priority pertain to lists, categories, and definitions of species promulgated by the Washington Department of Wildlife (Non-Game Data Systems Special Animal Species), as identified in WAC 232-12-011 or 232-12-014, or in the Priority Habitat and Species (PHS) program of the Washington State Department of Wildlife, or in rules and regulations adopted from time to time by the U.S. Fish and Wildlife Service.

16. Streams – Areas where surface waters produce a defined channel or bed that demonstrates clear evidence of the passage of water, including but not limited to bedrock channels, gravel beds, sand and silt beds, and defined-channel swales. The channel or bed need not contain water year-round. Streams do not include irrigation ditches, canals, storm or surface water runoff devices, or other entirely artificial watercourses, unless they are used by salmonids or convey a naturally occurring stream that has been diverted into the artificial channel.

17. Type 1 Wetlands – Wetlands that meet any of the following conditions:

a. Wetlands contiguous to Lake Washington;

b. Wetlands containing at least one-quarter (1/4) acre of organic soils, such as peat bogs or mucky soils;

c. Wetlands equal to or greater than 10 acres in size and having three (3) or more wetland classes, as defined by the U.S. Fish & Wildlife Service (Cowardin et al., 1979), one (1) of which is open water;

d. Wetlands that have significant habitat value to state or federally listed threatened or endangered wildlife species; or

e. Wetlands that contain state or federally listed threatened or endangered plant species.

18. Type 2 Wetlands – Wetlands that do not meet any of the criteria for Type 1 Wetlands, yet provide significant habitat function and value, and that merit at least 22 points as determined by using the City’s Wetland Field Data Form, which is Plate 26 of Chapter 180 KZC.

19. Type 3 Wetlands – Wetlands that do not meet the criteria for either Type 1 or Type 2 wetlands and that merit fewer than 22 points as determined by using the City’s Wetland Field Data Form, which is Plate 26 of Chapter 180 KZC.

20. Watershed – A region or area bounded on the periphery by a parting of water and draining to a particular watercourse or body of water.

21. Wetlands – Those areas that are inundated or saturated by surface or groundwater at a frequency and duration to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soils conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from non-wetland sites, including but not limited to irrigation and drainage ditches, grass-lined swales, canals, retention and/or detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. However, wetlands do include those artificial wetlands intentionally created from non-wetland sites as mitigation for the conversion of wetlands.

WETLANDS

90.35 Wetland Determinations, Delineations, Regulations, Criteria, and Procedures

All delineations of wetlands shall be made using the criteria and procedures described in WAC 173-22-035, now or as hereafter amended. All determinations, delineations, and regulations of wetlands shall be based on the entire extent of the wetland, irrespective of property lines, ownership patterns, and the like.

90.40 Wetland Determinations

Either prior to or during review of a development application, the Planning Official shall determine whether a wetland or its buffer is present on the subject property using the following provisions:

1. During or immediately following a site inspection, the Planning Official shall make an initial assessment as to whether any portion of the subject property or surrounding area (which shall be the area within 100 feet of the subject property) meets the definition of a wetland. If this initial site inspection does not indicate the presence of a wetland on the subject property or surrounding area, no additional wetland studies will be required. However, if the initial site inspection or information subsequently obtained indicates the presence of a wetland on the subject property or surrounding area, then the applicant shall follow the procedure in subsection (2) of this section.

2. If the initial site inspection or information subsequently obtained indicates that a wetland may exist on or near the subject property or surrounding area, the applicant shall either (a) fund a study and report prepared by the City’s wetland consultant; or (b) submit a report prepared by a qualified professional approved by the City, and fund a review of this report by the City’s wetland consultant.

3. If a wetlands study and report are required, at a minimum the report shall include the following:

a. A summary of the methodology used to conduct the study;

b. A professional survey which is based on the KCAS or plat-bearing system and tied to a known monument, depicting the wetland boundary on a map of the surrounding area which shows the wetland and its buffer;

c. A description of the wetland habitat(s) found throughout the entire wetland (not just on the subject property) using the U.S. Fish & Wildlife Service classification system (Classification of Wetlands and Deepwater Habitats in the U.S., Cowardin et al., 1979);

d. A description of nesting, denning, and breeding areas found in the wetland or its surrounding area;

e. A description of the surrounding area, including any drainage systems entering and leaving the wetland, and a list of observed or documented plant and wildlife species;

f. A description of historical, hydrologic, vegetative, topographic, and soil modifications, if any;

g. A proposed classification of the wetland as a Type 1, 2, or 3 wetland, including the rationale for the proposed classification; and

h. A completed Wetland Field Data Form, which is Plate 26 of Chapter 180 KZC.

4. Formal determination of whether a wetland exists on the subject property, as well as its boundaries, habitat classes, and rating, shall be made by the Planning Official after preparation and review of the report, if applicable, by the City’s wetland consultant. A decision of the Planning Official may be appealed pursuant to KZC 90.160. The Planning Official’s decision under this section shall be used for review of any development activity proposed on the subject property for which an application is received within two (2) years of the decision; provided, that the Planning Official may modify any decision whenever physical circumstances have markedly and demonstrably changed on the subject property or the surrounding area as a result of natural processes or human activity.

90.45 Wetland Buffers and Setbacks

1. No land surface modification or tree removal shall occur and no improvement may be located in a wetland or its buffer, except as provided in this section through KZC 90.70. See also KZC 95.23(5)(d)(2), Trees in Critical Areas or Critical Area Buffers; and KZC 95.50(11), Installation Standards for Required Plantings – Mitigation and Restoration Plantings in Critical Areas and Critical Area Buffers. Required, or standard, buffers for wetlands are as follows:


Wetland Type	Primary Basin	Secondary Basin
1	100 feet	75 feet
2	75 feet	50 feet
3	50 feet	25 feet

2. Buffer Setback – Structures shall be set back at least 10 feet from the designated or modified wetland buffer. The Planning Official may allow within this setback minor improvements which would clearly have no adverse effect during their construction, installation, use, or maintenance, on fish, wildlife, or their habitat or any vegetation in the buffer or adjacent wetland. The Planning Official’s decision may be appealed in accordance with KZC 90.160.

3. Storm Water Outfalls – Surface discharge of storm water through wetland buffers and buffer setbacks is required unless a piped system is approved pursuant to this section. Storm water outfalls (piped systems) may be located within the buffer setback specified in subsection (2) of this section and within the buffers specified in subsection (1) of this section only when the Public Works and Planning Officials both determine, based on a report prepared by a qualified professional under contract to the City and paid for by the applicant, that surface discharge of storm water through the buffer would clearly pose a threat to slope stability, and if the storm water outfall will not:

a. Adversely affect water quality;

b. Adversely affect fish, wildlife, or their habitat;

c. Adversely affect drainage or storm water detention capabilities;

d. Lead to unstable earth conditions or create erosion hazards or contribute to scouring actions; and

e. Be materially detrimental to any other property in the area of the subject property or to the City as a whole, including the loss of significant open space or scenic vistas.

The decision of the Public Works and Planning Officials may be appealed in accordance with KZC 90.160.

If a piped system is used, catch basins may be located within the buffer setback specified in subsection (2) of this section, but must be installed as far as feasible from the buffer boundary (see Plate 25 of Chapter 180 KZC). Under this subsection, pipe conveying storm water may be located within the buffer, but catch basins may not. Detention and water quality treatment devices shall not be located within the wetland buffers or buffer setbacks of this section except as provided below.

4. Water Quality Facilities – Water quality facilities, as determined by the Planning Official, may be located within the wetland buffers of subsection (1) of this section. The Planning Official shall approve a proposal to install a water quality facility within the outer one-half (1/2) of a wetland buffer if:

a. It will not adversely affect water quality;

b. It will not adversely affect fish, wildlife, or their habitat;

c. It will not adversely affect drainage or storm water detention capabilities;

d. It will not lead to unstable earth conditions or create erosion hazards or contribute to scouring actions;

e. It will not be materially detrimental to any other property in the area of the subject property or to the City as a whole, including the loss of significant open space or scenic vistas;

f. The existing buffer is already degraded as determined by a qualified professional;

g. Its installation would be followed immediately by enhancement of an area equal in size and immediately adjacent to the affected portion of the buffer; and

h. Once installed, it would not require any further disturbance or intrusion into the buffer.

The Planning Official shall approve a proposal by a public agency to install a water quality facility elsewhere in a wetland buffer if criteria i – l (below) are met in addition to a – h (above):

i. The project includes enhancement of the entire buffer;

j. The project would provide an exceptional ecological benefit off-site;

k. The water quality facility, once installed, would not require any further disturbance or intrusion into the buffer; and

l. There is no practicable or feasible alternative proposal that results in less impact to the buffer.

The Planning Official’s decision may be appealed in accordance with KZC 90.160.

5. Minor Improvements – Minor improvements may be located within the sensitive area buffers specified in subsection (1) of this section. These minor improvements shall be located within the outer one-half (1/2) of the sensitive area buffer, except where approved stream crossings are made. The Planning Official shall approve a proposal to construct a minor improvement within an environmentally sensitive area buffer if:

a. It will not adversely affect water quality;

b. It will not adversely affect fish, wildlife, or their habitat;

c. It will not adversely affect drainage or storm water detention capabilities;

d. It will not lead to unstable earth conditions or create erosion hazards or contribute to scouring actions; and

e. It will not be materially detrimental to any other property in the area of the subject property or to the City as a whole, including the loss of significant open space or scenic vistas.

The Planning Official may require the applicant to submit a report prepared by a qualified professional which describes how the proposal will or will not comply with the criteria for approving a minor improvement. The Planning Official’s decision may be appealed in accordance with KZC 90.160.

90.50 Wetland Buffer Fence or Barrier

Prior to beginning development activities, the applicant shall install a 6-foot-high construction-phase chain link fence or equivalent fence, as approved by the Planning Official along the upland boundary of the entire wetland buffer with silt screen fabric installed per City standard, in a manner approved by the Planning Official. The construction-phase fence shall remain upright in the approved location for the duration of development activities.

Upon project completion, the applicant shall install between the upland boundary of all wetland buffers and the developed portion of the site, either (1) a permanent 3- to 4-foot-tall split rail fence; or (2) permanent planting of equal barrier value; or (3) equivalent barrier, as approved by the Planning Official. Installation of the permanent fence or planted barrier must be done by hand where necessary to prevent machinery from entering the wetland or its buffer.

90.55 Wetland Modification

1. Modification of Type 1 Wetlands – No land surface modification shall occur and no improvement shall be located in a Type 1 wetland, except as provided in this subsection. Furthermore, all modifications of a Type 1 wetland shall be consistent with Kirkland’s Streams, Wetlands and Wildlife Study (The Watershed Company, 1998) and the Kirkland Sensitive Areas Regulatory Recommendations Report (Adolfson Associates, Inc., 1998).

An applicant may request a modification of the requirements of this subsection. The City Council shall consider the modification request pursuant to Process IIB, described in Chapter 152 KZC. As part of the modification request, the applicant shall submit a report prepared by a qualified professional and fund a review of this report by the City’s wetland consultant. The report shall contain all information specified in KZC 90.40(3) as well as an assessment of the habitat, water quality, storm water detention, ground water recharge, shoreline protection, and erosion protection functions of the wetland and its buffer. The report shall also assess the effects of the proposed modification on those functions. In addition to criteria of Process IIB, the City Council shall approve an improvement or land surface modification in a wetland only if:

a. It will not adversely affect water quality;

b. It will not adversely affect fish, wildlife, or their habitat;

c. It will not have an adverse effect on drainage and/or storm water detention capabilities;

d. It will not lead to unstable earth conditions or create an erosion hazard or contribute to scouring actions;

e. It will not be materially detrimental to any other property or the City as a whole;

f. It will result in land surface modification of no more than five (5) percent of the wetland on the subject property;

g. Compensatory mitigation is provided in accordance with the table in subsection (4) of this section;

h. Fill material does not contain organic or inorganic material that would be detrimental to water quality or fish and wildlife habitat;

i. All exposed areas are stabilized with vegetation normally associated with native wetlands and/or buffers, as appropriate; and

j. There is no practicable or feasible alternative development proposal that results in less impact to the Type 1 wetland and its buffer.

2. Modification of Type 2 Wetlands – No land surface modification shall occur and no improvement shall be located in a Type 2 wetland, except as provided in this subsection.

An applicant may request a modification of the requirements of this subsection. The Hearing Examiner shall consider the modification request pursuant to Process IIA, described in Chapter 150 KZC. The requirements for requesting such a modification are identical to those listed above for a Type 1 wetland with the following exceptions:

a. In primary basins, the modification shall not affect more than 10 percent of the wetland on the subject property; and

b. In secondary basins, the modification shall not affect more than 25 percent of the wetland on the subject property.

3. Modification of Type 3 Wetlands – No land surface modification shall occur and no improvement may be located in a Type 3 wetland, except as provided in this subsection.

An applicant may request a modification of the requirements of this subsection. The Planning Official shall consider the modification request in conjunction with approval of the applicable development permit. The requirements for requesting such a modification are identical to those listed above for a Type 1 wetland with the following exceptions:

a. In primary basins, the modification shall not affect more than 50 percent of the wetland on the subject property; and

b. In secondary basins, the modification may affect all of the wetland on the subject property.

Decisions on requests to modify Type 3 wetlands may be appealed in accordance with KZC 90.160.

4. Compensatory Mitigation – All approved impacts to regulated wetlands require compensatory mitigation so that the goal of no net loss of wetland function, value, and acreage may be achieved. Mitigation shall be implemented through the creation of wetlands (from non-wetland areas) or through the restoration of wetlands (from uplands that were formerly wetlands). The following mitigation ratios (the ratio of the mitigated area to the impacted area) shall apply:


Wetland Type	Primary Basin	Secondary Basin
1	3:1	3:1
2	2:1	1.5:1
3	1.5:1	1:1

Compensatory mitigation as wetland enhancement (that is, the improvement of existing wetlands) shall also be allowed. In primary basins, no more than one-third (1/3) of the mitigation may consist of enhancement; in secondary basins, no more than one-half (1/2) of the mitigation may consist of enhancement.

On-site mitigation is presumed to be preferable to off-site mitigation. The decision maker may approve a plan to implement all or a portion of the required mitigation off-site, if the off-site mitigation is within the same drainage basin as the property that will be impacted by the project. The applicant shall demonstrate that the off-site mitigation will result in higher wetland functions, values, and/or acreage than on-site mitigation. Required compensatory mitigation ratios shall be the same for on-site or off-site mitigation, or a combination of both.

If the proposed on-site or off-site mitigation plan will result in the creation or expansion of a wetland or its buffer on any property other than the subject property, the plan shall not be approved until the applicant submits to the Planning Official a copy of a statement signed by the owners of all affected properties, in a form approved by the City Attorney and recorded in the King County Department of Elections and Records, consenting to the wetland and/or buffer creation or increase on such property.

Applicants proposing to alter wetlands or their buffers shall submit a mitigation plan prepared by a qualified professional. The mitigation plan shall consist of a description of the existing functions and values of the wetlands and buffers affected by the proposed project, the nature and extent of impacts to those areas, and the mitigation measures to offset those impacts. The mitigation plan shall also contain a drawing that illustrates the compensatory mitigation elements. The plan and/or drawing shall list plant materials and other habitat features to be installed.

To ensure success of the mitigation plan, the applicant shall submit a monitoring and maintenance program prepared by a qualified professional. At a minimum, the monitoring and maintenance plan shall include the following:

a. The goals and objectives for the mitigation plan;

b. Success criteria by which the mitigation will be assessed;

c. Plans for a 5-year monitoring and maintenance program;

d. A contingency plan in case of failure; and

e. Proof of a written contract with a qualified professional who will perform the monitoring program.

The monitoring program shall consist of at least two (2) site visits per year by a qualified professional, with annual progress reports submitted to the Planning Official and all other agencies with jurisdiction.

The cost of producing and implementing the mitigation plan, the monitoring and maintenance program, reports, and drawing, as well as the review of each component by the City’s wetland consultant, shall be borne by the applicant.

90.60 Wetland Buffer Modification

1. Modification of Wetland Buffers when Wetland Is Also To Be Modified – Wetland buffer impact is assumed to occur when wetland fill or modification is proposed. Any proposal for wetland fill/modification shall include provisions for establishing a new wetland buffer zone to be located around the compensatory mitigation sites and to be equal in width to its standard buffer specified in KZC 90.45(1) or a buffer reduced in accordance with this section by no more than one-third (1/3) of the standard buffer width in all cases (regardless of wetland type or basin type).

2. Modification of Wetland Buffers when Wetland Is Not To Be Modified – No land surface modification may occur and no improvement may be located in a wetland buffer, except as provided for in this subsection. Buffer widths may be decreased if an applicant receives a modification request approval.

a. Types of Buffer Modifications – Buffers may be reduced through one (1) of two (2) means, either (1) buffer averaging, or (2) buffer reduction with enhancement. A combination of these two (2) buffer reduction approaches shall not be used:

1) Buffer averaging requires that the area of the buffer resulting from the buffer averaging is equal in size and quality to the buffer area calculated by the standards specified in KZC 90.45(1). Buffers may not be reduced at any point by more than one-third (1/3) of the standards specified in KZC 90.45(1). Buffer averaging calculations shall only consider the subject property.

2) Buffers may be decreased through buffer enhancement. The applicant shall demonstrate that through enhancing the buffer (by removing invasive plants, planting native vegetation, installing habitat features such as downed logs or snags, or other means), the reduced buffer will function at a higher level than the existing standard buffer. At a minimum, a buffer enhancement plan shall provide the following: (a) a map locating the specific area of enhancement; (b) a planting plan that uses native species, including groundcover, shrubs, and trees; and (c) a monitoring and maintenance program prepared by a qualified professional consistent with the standards specified in KZC 90.55(4). Buffers may not be reduced at any point by more than one-third (1/3) of the standards in KZC 90.45(1).

b. Review Process and Decisional Criteria – Modification requests for averaging or reduction/enhancement of Types 1 and 2 wetland buffers shall be considered by the Hearing Examiner pursuant to Process IIA, described in Chapter 150 KZC. Modification requests for averaging or reduction/enhancement of Type 3 wetland buffers shall be considered by the Planning Official.

An improvement or land surface modification shall be approved in a wetland buffer only if:

1) It is consistent with Kirkland’s Streams, Wetlands and Wildlife Study (The Watershed Company, 1998) and the Kirkland Sensitive Areas Regulatory Recommendations Report (Adolfson Associates, Inc., 1998);

2) It will not adversely affect water quality;

3) It will not adversely affect fish, wildlife, or their habitat;

4) It will not have an adverse effect on drainage and/or storm water detention capabilities;

5) It will not lead to unstable earth conditions or create an erosion hazard;

6) It will not be materially detrimental to any other property or the City as a whole;

7) Fill material does not contain organic or inorganic material that would be detrimental to water quality or to fish, wildlife, or their habitat;

8) All exposed areas are stabilized with vegetation normally associated with native wetland buffers, as appropriate; and

9) There is no practicable or feasible alternative development proposal that results in less impact to the buffer.

As part of the modification request, the applicant shall submit a report prepared by a qualified professional and fund a review of this report by the City’s wetland consultant. The report shall assess the habitat, water quality, storm water detention, ground water recharge, shoreline protection, and erosion protection functions of the buffer; assess the effects of the proposed modification on those functions; and address the nine (9) criteria listed in this subsection (2)(b) of this section.

90.65 Wetland Restoration

Planning Official approval is required prior to wetland restoration. The Planning Official may permit or require the applicant or property owner to restore and maintain a wetland and/or its buffer by removing material detrimental to the area, such as debris, sediment, or vegetation. The Planning Official may also permit or require the applicant to restore a wetland or its buffer through the addition of native plants and other habitat features. See also KZC 95.23(5)(d)(2), Trees in Critical Areas or Critical Area Buffers; and KZC 95.50(11), Installation Standards for Required Plantings – Mitigation and Restoration Plantings in Critical Areas and Critical Area Buffers. Restoration may be required whenever a condition detrimental to water quality or habitat exists. When wetland restoration is required by the City, the requirements of KZC 90.55(4), Compensatory Mitigation, shall apply.

90.70 Wetland Access

The City may develop access through a wetland and its buffer in conjunction with a public park.

MINOR LAKES

90.75 Totem Lake and Forbes Lake

The majority, if not the entirety, of the perimeters of Totem Lake and Forbes Lake meet the definition of wetlands. All activities in the shallow (less than or equal to 6.6 feet) portions of these lakes as well as in their contiguous wetlands (located above the high waterline) are regulated pursuant to KZC 90.35 through 90.70. Activities in deep water portions (water depths greater than 6.6 feet) of these lakes, that is, waterward of the lakes’ perimeter wetlands, shall be regulated as follows:

1. The Planning Official may permit or require the applicant or property owner to rehabilitate and maintain a lake by removing material detrimental to the lake, such as debris, sediment, or non-native vegetation. Rehabilitation may be required when a condition detrimental to water quality or habitat exists. Decisions made under this paragraph may be appealed in accordance with KZC 90.160.

2. Moorage structures are permitted in Totem Lake and Forbes Lake. The Planning Official shall consider requests to construct, replace, or repair structures concurrently with the Washington Department of Fish and Wildlife’s review of a Hydraulic Project Approval (HPA), or upon notification by that agency that an HPA is not required.

3. The Planning Official shall review applications for moorage structures using Process I, described in Chapter 145 KZC. The Planning Director shall authorize a moorage structure to be constructed only if (a) it is accessory to a dwelling unit or public park on the subject property, and (b) no significant habitat area will be destroyed.

4. A moorage structure shall extend no farther than is necessary to function properly, but in no event may extend more than 125 feet waterward of the high waterline.

5. A moorage structure shall not be treated with creosote or oil base or toxic substances.

6. Docks and pier decks and the tops of other moorage structures shall not be more than two (2) feet above the high waterline.

7. Bulkheads are prohibited unless (a) necessary to prevent significant erosion and (b) the use of vegetation or other “bioengineering” materials and techniques would not sufficiently stabilize the shoreline.

STREAMS

90.80 Activities in or Near Streams

No land surface modification or tree removal may occur and no improvements may be located in a stream or its buffer except as provided in this chapter.

90.85 Stream Determinations

The Planning Official shall determine whether a stream or stream buffer is present on the subject property using the following provisions. During or immediately following a site inspection, the Planning Official shall make an initial assessment as to whether a stream exists on any portion of the subject property or surrounding area (which shall be the area within approximately 100 feet of the subject property).

If the initial site inspection indicates the presence of a stream, the Planning Official shall determine, based on the definitions contained in this chapter and after a review of all information available to the City, the classification of the stream.

If this initial site inspection does not indicate the presence of a stream on or near the subject property, no additional stream study will be required.

If an applicant disagrees with the Planning Official’s determination that a stream exists on or near the subject property or the Planning Official’s classification of a stream, the applicant shall submit a report prepared by a qualified professional approved by the Planning Official that independently evaluates the presence of a stream or the classification of the stream, based on the definitions contained in this chapter.

The Planning Official shall make final determinations regarding the existence of a stream and the proper classification of that stream. This determination may be appealed pursuant to the provisions of KZC 90.160. The Planning Official’s decision under this section shall be used for review of any development activity proposed on the subject property for which an application is received within two (2) years of the decision; provided, that the Planning Official may modify any decision whenever physical circumstances have markedly and demonstrably changed on the subject property or the surrounding area as a result of natural processes or human activity.

90.90 Stream Buffers and Setbacks

1. Stream Buffers – No land surface modification or tree removal shall occur and no improvement may be located in a stream or its buffer, except as provided in this section through KZC 90.120. See also KZC 95.23(5)(d)(2), Trees in Critical Areas or Critical Area Buffers; and KZC 95.50(11), Installation Standards for Required Plantings – Mitigation and Restoration Plantings in Critical Areas and Critical Area Buffers. Required, or standard, buffers for streams are as follows:


Stream Class	Primary Basins	Secondary Basins
A	75 feet	N/A
B	60 feet	50 feet
C	35 feet	25 feet

Stream buffers shall be measured from each side of the top of the slope of the channel of the stream except that where streams enter or exit pipes, the buffer shall be measured in all directions from the pipe opening (see Plates 16 and 16A of Chapter 180 KZC). Essential improvements to accommodate required vehicular, pedestrian, or utility access to the subject property may be located within those portions of stream buffers which are measured toward culverts from culvert openings.

2. Buffer Setback – Structures shall be set back at least 10 feet from the designated or modified stream buffer. The Planning Official may allow within this setback minor improvements which would have no potential adverse effect during their construction, installation, use, or maintenance to fish, wildlife, or their habitat or to any vegetation in the buffer or adjacent stream. The Planning Official’s decision may be appealed in accordance with KZC 90.160.

3. Storm Water Outfalls – Surface discharge of storm water through stream buffers and buffer setbacks is required unless a piped system is approved pursuant to this section. Storm water outfalls (piped systems) may be located within the buffer setback specified in subsection (2) of this section and within the buffers specified in subsection (1) of this section only when the Public Works and Planning Officials both determine, based on a report prepared by a qualified professional under contract to the City and paid for by the applicant, that surface discharge of storm water through the buffer would clearly pose a threat to slope stability; and if the storm water outfall will not:

a. Adversely affect water quality;

b. Adversely affect fish, wildlife, or their habitat;

c. Adversely affect drainage or storm water detention capabilities;

d. Lead to unstable earth conditions or create erosion hazards or contribute to scouring actions;

e. Be materially detrimental to any other property in the area of the subject property or to the City as a whole, including the loss of significant open space or scenic vistas.

The decision of the Planning and Public Works Officials may be appealed in accordance with KZC 90.160.

If a pipe system is used, catch basins may be located within the buffer setback of subsection (2) of this section, but must be installed as far as feasible from the buffer boundary (see Plate 25 of Chapter 180 KZC). Under this subsection, pipe conveying storm water may be located within the buffer, but catch basins may not. Detention and water quality treatment devices shall not be located within the stream buffers or buffer setbacks of this section except as provided below.

4. Water Quality Facilities – Water quality facilities, as determined by the Planning Official, may be located within the stream buffers of subsection (1) of this section. The Planning Official shall approve a proposal to install a water quality facility within the outer one-half (1/2) of a stream buffer if:

a. It will not adversely affect water quality;

b. It will not adversely affect fish, wildlife, or their habitat;

c. It will not adversely affect drainage or storm water detention capabilities;

d. It will not lead to unstable earth conditions or create erosion hazards or contribute to scouring actions;

e. It will not be materially detrimental to any other property in the area of the subject property or to the City as a whole, including the loss of significant open space or scenic vistas;

f. The existing buffer is already degraded as determined by a qualified professional;

g. Its installation of the water quality facility would be followed immediately by enhancement of an area equal in size and immediately adjacent to the affected portion of the buffer; and

h. Once installed, it would not require any further disturbance or intrusion into the buffer.

The Planning Official shall approve a proposal by a public agency to install a water quality facility elsewhere in a stream buffer if Criteria i – l (below) are met in addition to a – h (above):

i. The project includes enhancement of the entire buffer;

j. The project would provide an exceptional ecological benefit off-site;

k. The water quality facility, once installed, would not require any further disturbance or intrusion into the buffer; and

l. There is no practicable or feasible alternative proposal that results in less impact to the buffer.

The Planning Official’s decision may be appealed in accordance with KZC 90.160.

a. It will not adversely affect water quality;

b. It will not adversely affect fish, wildlife, or their habitat;

c. It will not adversely affect drainage or storm water detention capabilities;

d. It will not lead to unstable earth conditions or create erosion hazards or contribute to scouring actions; and

e. It will not be materially detrimental to any other property in the area of the subject property or to the City as a whole, including the loss of significant open space or scenic vistas.

90.95 Stream Buffer Fence or Barrier

Prior to beginning development activities, the applicant shall install a 6-foot-high construction-phase chain link fence or equivalent fence, as approved by the Planning Official, along the upland boundary of the entire stream buffer with silt screen fabric installed per City standard, in a manner approved by the Planning Official. The construction-phase fence shall remain upright in the approved location for the duration of development activities.

Upon project completion, the applicant shall install between the upland boundary of all stream buffers and the developed portion of the site, either (1) a permanent 3- to 4-foot-tall split rail fence; or (2) permanent planting of equal barrier value; or (3) equivalent barrier, as approved by the Planning Official. Installation of the permanent fence or planted barrier must be done by hand where necessary to prevent machinery from entering the stream or its buffer.

90.100 Stream Buffer Modification

1. Types of Buffer Modification – Buffers may be reduced through one (1) of two (2) means, either (a) buffer averaging; or (b) buffer reduction with enhancement. A combination of these two (2) buffer reduction approaches shall not be used.

a. Buffer averaging requires that the area of the buffer resulting from the buffer averaging be equal in size and quality to the buffer area calculated by the standards specified in KZC 90.90(1). Buffers may not be reduced at any point by more than one-third (1/3) of the standards in KZC 90.90(1). Buffer averaging calculations shall only consider the subject property.

b. Buffers may be decreased through buffer enhancement. The applicant shall demonstrate that through enhancing the buffer (by removing invasive plants, planting native vegetation, installing habitat features such as downed logs or snags, or other means) the reduced buffer will function at a higher level than the standard existing buffer. A buffer enhancement plan shall at a minimum provide the following: (1) a map locating the specific area of enhancement; (2) a planting plan that uses native species, including groundcover, shrubs, and trees; and (3) a monitoring and maintenance program prepared by a qualified professional consistent with the standards specified in KZC 90.55(4). Buffers may not be reduced at any point by more than one-third (1/3) of the standards in KZC 90.90(1).

2. Review Process and Decisional Criteria – Modification requests for averaging or reduction/enhancement of Class A stream buffers shall be considered by the Hearing Examiner pursuant to Process IIA, described in Chapter 150 KZC. Modification requests for averaging or reduction/enhancement of Class B stream buffers shall be considered by the Planning Official pursuant to Process I, described in Chapter 145 KZC. Modification requests for averaging or reduction/enhancement of Class C stream buffers shall be considered by the Planning Official.

An improvement or land surface modification shall be approved in a stream buffer only if:

a. It is consistent with Kirkland’s Streams, Wetlands and Wildlife Study (The Watershed Company, 1998) and the Kirkland Sensitive Areas Regulatory Recommendations Report (Adolfson Associates, Inc., 1998);

b. It will not adversely affect water quality;

c. It will not adversely affect fish, wildlife, or their habitat;

d. It will not have an adverse effect on drainage and/or storm water detention capabilities;

e. It will not lead to unstable earth conditions or create an erosion hazard or contribute to scouring actions;

f. It will not be materially detrimental to any other property or the City as a whole;

g. Fill material does not contain organic or inorganic material that would be detrimental to water quality or to fish, wildlife, or their habitat;

h. All exposed areas are stabilized with vegetation normally associated with native stream buffers, as appropriate; and

i. There is no practicable or feasible alternative development proposal that results in less impact to the buffer.

As part of the modification request, the applicant shall submit a report prepared by a qualified professional and fund a review of this report by the City’s wetland consultant. The report shall assess the habitat, water quality, storm water detention, ground water recharge, and erosion protection functions of the buffer; assess the effects of the proposed modification on those functions; and address the nine (9) criteria listed in this subsection.

90.105 Stream Relocation or Modification

A proposal to relocate or modify a Class C stream shall be considered by the Planning Official. A proposal to relocate or modify a Class A or B stream shall be considered by the Planning Official pursuant to Process I. The Planning Official shall permit a stream to be relocated or modified only if water quality, conveyance, fish and wildlife habitat, wetland recharge (if hydrologically connected to a wetland), and storm water detention capabilities of the stream, will be significantly improved by the relocation or modification. Convenience to the applicant in order to facilitate general site design may not be considered.

A proposal to relocate or modify a Class A stream shall be approved only if the Washington Department of Fish and Wildlife issues a Hydraulic Project Approval for the project. Furthermore, all modifications shall be consistent with Kirkland’s Streams, Wetlands and Wildlife Study (The Watershed Company, 1998) and the Kirkland Sensitive Areas Regulatory Recommendations Report (Adolfson Associates, Inc., 1998).

If the proposed stream activity will result in the creation or expansion of a stream or its buffer on any property other than the subject property, the Planning Official shall not approve the plan until the applicant submits to the Planning Official a copy of a statement signed by the owners of all affected properties, in a form approved by the City Attorney and recorded in the King County Department of Elections and Records, consenting to the sensitive area and/or buffer creation or increase on such property.

Prior to the Planning Official’s approval of a stream relocation or modification, the applicant shall submit a stream relocation/modification plan prepared by a qualified professional approved by the Planning Official. The cost of producing and implementing the stream relocation/modification plan, and the cost of review of that plan by the City’s stream consultant shall be borne by the applicant. This plan shall contain or demonstrate the following:

1. A topographic survey showing existing and proposed topography and improvements;

2. The filling and revegetation of the existing stream channel;

3. A proposed phasing plan specifying time of year for all project phases;

4. The ability of the new stream channel to accommodate flow and velocity of 100-year storm events; and

5. The design and implementation features and techniques listed below, unless clearly and demonstrably inappropriate for the proposed relocation or modification:

a. The creation of natural meander patterns;

b. The formation of gentle and stable side slopes, no steeper than two (2) feet horizontal to one (1) foot vertical, and the installation of both temporary and permanent erosion-control features (the use of native vegetation on stream banks shall be emphasized);

c. The creation of a narrow sub-channel (thalweg) against the south or west stream bank;

d. The utilization of native materials;

e. The installation of vegetation normally associated with streams, emphasizing native plants with high food and cover value for fish and wildlife;

f. The creation of spawning areas, as appropriate;

g. The re-establishment of fish population, as appropriate;

h. The restoration of water flow characteristics compatible with fish habitat areas;

i. Demonstration that the flow and velocity of the stream after relocation or modification shall not be increased or decreased at the points where the stream enters and leaves the subject property, unless the change has been approved by the Planning Official to improve fish and wildlife habitat or to improve storm water management; and

j. A written description of how the proposed relocation or modification of the stream will significantly improve water quality, conveyance, fish and wildlife habitat, wetland recharge (if hydrologically connected to a wetland), and storm water detention capabilities of the stream.

Prior to diverting water into a new stream channel, a qualified professional approved by the Planning Official shall inspect the completed new channel and issue a written report to the Planning Official stating that the new stream channel complies with the requirements of this section. The cost for this inspection and report shall be borne by the applicant.

90.110 Bulkheads in Streams

Bulkheads are not permitted along a stream except as provided in this section. A proposal for a bulkhead shall be reviewed and decided upon by the Planning Official. Decisions made under this subsection may be appealed in accordance with KZC 90.160. The Planning Official shall allow a bulkhead to be constructed only if:

1. It is not located within a wetland or between a wetland and a stream;

2. It is needed to prevent significant erosion;

3. The use of vegetation and/or other biological materials would not sufficiently stabilize the stream bank to prevent significant erosion;

4. The applicant submits a plan prepared by a qualified professional approved by the Planning Official that shows a bulkhead and implementation techniques that meet the following criteria:

a. There will be no adverse impact to water quality;

b. There will be no adverse impact to fish, wildlife, and their habitat;

c. There will be no increase in the velocity of stream flow, unless approved by the Planning Official to improve fish habitat;

d. There will be no decrease in flood storage volumes;

e. Neither the installation, existence, nor operation of the bulkhead will lead to unstable earth conditions or create erosion hazards or contribute to scouring actions; and

f. Neither the installation, existence, nor operation of the bulkhead will be detrimental to any other property or the City as a whole.

The bulkhead shall be designed and constructed to minimize the transmittal of water current and energy to other properties. Changes in the horizontal or vertical configuration of the land shall be kept to a minimum. Fill material used in construction of a bulkhead shall be non-dissolving and non-decomposing. The applicant shall also stabilize all exposed soils by planting native riparian vegetation with high food and cover value for fish and wildlife.

90.115 Culverts in Streams

Culverts are not permitted in streams except as specified in this section. The Planning Official shall review and decide upon an application to place a stream in a culvert under an access drive, driveway, or street. Decisions made under this subsection may be appealed in accordance with KZC 90.160. The Planning Director will review and decide upon proposals to place streams in culverts, other than as specified above, using Process I, described in Chapter 145 KZC. A stream shall be allowed to be put in a culvert only if:

1. Placing the stream in a culvert is necessary to provide required vehicular, pedestrian, or utility access to the subject property. Convenience to the applicant in order to facilitate general site design shall not be considered; and

2. The applicant submits a plan prepared by a qualified professional approved by the Planning Official that shows the culvert and implementation techniques that meet the following criteria:

a. There will be no adverse impact to water quality;

b. There will be no adverse impact to fish, wildlife, and their habitat;

c. There will be no increase in the velocity of stream flow, unless approved by the Planning Official to improve fish habitat;

d. There will be no decrease in flood storage volumes;

e. Neither the installation, existence, nor operation of the culvert will lead to unstable earth conditions or create erosion hazards or contribute to scouring actions; and

f. Neither the installation, existence, nor operation of the culvert will be detrimental to any other property or to the City as a whole.

The culvert shall be designed and constructed to allow passage of fish inhabiting the stream or which may inhabit the stream in the future. The culvert shall be large enough to accommodate a 100-year storm event. The applicant shall at all times keep the culvert free of debris and sediment so as to allow free passage of water and fish. The Planning Official shall require a security or perpetual culvert maintenance agreement under KZC 90.145 for continued maintenance of the culvert.

If a proposal for a culvert is denied, a bridge may be approved if the bridge complies with the above criteria.

If a proposed project requires approval through Process IIB, the City Council may require that any stream in a culvert on the subject property be opened, relocated, and restored, consistent with the provisions of this subsection.

90.120 Stream Rehabilitation

Planning Official approval is required prior to stream rehabilitation. The Planning Official may permit or require the applicant or property owner to restore and maintain a stream and/or its buffer by removing material detrimental to the stream and its surrounding area such as debris, sediment, or vegetation. The Planning Official may also permit or require the applicant to restore a stream or its buffer through the addition of native plants and other habitat features. See also KZC 95.23(5)(d)(2), Trees in Critical Areas or Critical Area Buffers; and KZC 95.50(11), Installation Standards for Required Plantings – Mitigation and Restoration Plantings in Critical Areas and Critical Area Buffers. Restoration may be required at any time that a condition detrimental to water quality or habitat exists. When stream rehabilitation is required by the City, the mitigation plan and monitoring requirements of KZC 90.55(4), shall apply.

GENERAL

90.125 Frequently Flooded Areas

No land surface modification may take place and no improvements may be located in a frequently flooded area except as specifically provided for in Chapter 21.56 KMC.

90.127 Heron Habitat Protection Areas

1. Purpose of the Heron Habitat Protection Area – The purpose of the heron habitat protection area designation is to identify and protect areas that provide essential feeding, nesting and roosting habitat for identified great blue heron rookeries. The protection areas contain isolated areas of known heron habitat in the general region surrounding the heron rookery.

2. The following development standards shall be applied in addition to all applicable buffers and required yards development permits located within a heron habitat protection area designated in Plate 39:

a. Subdivisions and short subdivisions adjacent to streams or wetlands within the heron habitat protection area shall provide buffers that are 50 feet greater than required pursuant to this chapter along those streams and wetlands to provide habitat for herons. This additional 50-foot buffer shall be planted with dense native plant material to discourage human intrusion into feeding or nesting and roosting areas. Plantings shall be reviewed and approved by the City.

b. For subdivisions and short subdivisions adjacent to Lake Washington within the heron habitat protection area, the required high waterline yard shall be increased by 50 feet. This additional 50-foot buffer shall be planted with dense native plant material to discourage human intrusion into feeding or nesting and roosting areas. Plantings shall be reviewed and approved by the City.

c. New docks, piers, bulkheads, and boat ramps constructed within the heron habitat protection area shall mitigate for loss of heron feeding habitat by providing enhanced native vegetation approved by the City adjacent to the development or between the development and the shoreline. Bulkheads shall be buffered from the water’s edge by enhanced plantings of native vegetation approved by the City.

90.130 Site Requirements and Sensitive Areas Protection Techniques

In addition to any other requirements of this chapter, the applicant shall locate all improvements on the subject property to minimize adverse impacts to sensitive areas. In order to minimize adverse impacts to sensitive areas or to other areas not subject to development activity, the decision maker may require construction techniques, conditions, and restrictions, including:

1. The decision maker may limit development activity in or near sensitive areas to specific months and to a maximum number of continuous days or hours in order to minimize adverse impacts.

2. The decision maker may require that equipment be operated from only one (1) side of a stream in order to minimize bank disruption.

3. The applicant shall install a berm, curb, or other physical barrier during construction and following completion of the project when necessary to prevent direct runoff and erosion from any modified land surface into any sensitive area.

90.135 Maximum Development Potential

1. Dwelling Units – The maximum potential number of dwelling units for a site which contains a wetland, stream, minor lake, or their buffers shall be the buildable area in square feet divided by the minimum lot area per unit or the maximum units per acre as specified by Chapters 15 through 60 KZC, plus the area of the required sensitive area buffer in square feet divided by the minimum lot area per unit, the maximum units per acre or as specified by Chapters 15 through 60 KZC, multiplied by the development factor derived from subsection (2) of this section:

MAXIMUM DWELLING UNIT POTENTIAL = (BUILDABLE AREA/THE PRESCRIBED MINIMUM LOT AREA PER UNIT OR MAXIMUM UNITS PER ACRE) + [(BUFFER AREA/THE PRESCRIBED MINIMUM LOT AREA PER UNIT OR MAXIMUM UNITS PER ACRE) X (DEVELOPMENT FACTOR)]

For purposes of this subsection only, “buildable area” means the total area of the subject property minus sensitive areas and their buffers.

For developments providing affordable housing units pursuant to Chapter 112 KZC, or cottage, carriage or two/three-unit homes pursuant to Chapter 113 KZC, the density bonus and resulting maximum density shall be calculated using the maximum dwelling unit potential of this section as the base to which the bonus units will be added.

For multifamily development, if application of the maximum development potential formula results in a fraction, the number of permitted dwelling units shall be rounded up to the next whole number (unit) if the fraction of the whole number is at least 0.50. For single-family development, if application of the maximum development potential formula results in a fraction, the number of permitted dwelling units (lots) shall not be rounded up, regardless of the fraction. This provision shall not be construed to preclude application of Chapter 22.28 KMC.

Lot size and/or density may be limited by or through other provisions of this code or other applicable law, and the application of the provisions of this chapter may result in the necessity for larger lot sizes or lower density due to inadequate buildable area.

2. Development Factor – The development factor, consisting of a “percent credit,” to be used in computing the maximum potential number of dwelling units for a site which contains a sensitive area buffer is derived from the following table:


Percentage of Site in Sensitive Area Buffer			Counted at
< 1	to	10%	100%
> 10	to	20%	90%
> 20	to	30%	80%
> 30	to	40%	70%
> 40	to	50%	60%
> 50	to	60%	50%
> 60	to	70%	40%
> 70	to	80%	30%
> 80	to	90%	20%
> 90	to	100%	10%

90.140 Reasonable Use Exception

1. Purpose of the Reasonable Use Exception – The purpose of the reasonable use exception is to:

a. Provide the City with a mechanism to approve limited use and disturbance of a sensitive area and sensitive area buffer when strict application of this chapter would deny all economically viable use of the property;

b. Establish guidelines and standards for the exercise of this authority adjusted to the specific conditions of each site; and

c. Protect public health, welfare and safety of the citizens of Kirkland.

2. “Reasonable Use” – is 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 benefit 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 benefit factors include the seriousness of the harm to be prevented, the extent to which the land involved contributes to the harm, the degree to which the regulation solves the problem, and the feasibility of less oppressive solutions.

3. Reasonable Use Process – If the strict application of this chapter would preclude all reasonable use of a site, an owner of real property may apply for a reasonable use exception to this chapter. The application shall be considered under Process IIA of Chapter 150 KZC; provided, that for a single-family development proposal which does not exceed a total of 3,000 square feet of site disturbance, and does not encroach into the sensitive area, but only the associated buffer, the application shall be considered pursuant to subsection (7) of this section, Reasonable Use Process: Administrative Alternative.

4. Submittal Requirements – As part of the reasonable use request, in addition to submitting an application, the applicant shall submit a report prepared by a qualified professional and fund a review of this report by the City’s qualified professional. The report shall include the following:

a. A determination and delineation of the sensitive area and sensitive area buffer containing all the information specified in KZC 90.40(3) for a wetland or based on the definitions contained in this chapter for a stream;

b. An analysis of whether any other reasonable use with less impact on the sensitive area and sensitive area buffer is possible;

c. Sensitive site design and construction staging of the proposal so that the development will have the least practicable impact on the sensitive area and sensitive area buffer;

d. A description of the area of the site which is within the sensitive area or within the setbacks or buffers required by this chapter;

e. A description of protective measures that will be undertaken such as siltation curtains, hay bales and other siltation prevention measures, and scheduling the construction activity to avoid interference with wildlife and fisheries rearing, nesting or spawning activities;

f. An analysis of the impact that the amount of development proposed would have on the sensitive area and the sensitive area buffer;

g. How the proposal minimizes to the greatest extent possible net loss of sensitive area functions;

h. Whether the improvement is located away from the sensitive area and the sensitive area buffer to the greatest extent possible; and

i. Such other information or studies as the Planning Official may reasonably require.

5. Decisional Criteria – The City shall grant applications for reasonable use exceptions only if all of the following criteria are met:

a. That no permitted type of land use for the property with less impact on the sensitive area and associated buffer is feasible and reasonable, which in a residential zone shall be one (1) single-family dwelling and in a commercial or industrial zone shall be an office use;

b. That there is no feasible on-site alternative to the proposed activities, including reduction in size, density or intensity, phasing of project implementation, change in timing of activities, revision of road and lot layout, and/or related site planning considerations, that would allow a reasonable economic use with less adverse impacts to the sensitive area and buffer;

c. Unless the applicant can demonstrate unique circumstances related to the subject property, the amount of site area that will be disturbed by structure placement or other land alteration, including but not limited to grading, utility installation, decks, driveways, paving, and landscaping, shall not exceed the following limits:

i. If the subject property contains 6,000 square feet of area or less, no more than 50 percent of the site may be disturbed.

ii. If the subject property contains more than 6,000 square feet but less than 30,000 square feet, no more than 3,000 square feet may be disturbed.

iii. For properties containing 30,000 square feet or more, the maximum allowable site disturbance shall be between 3,000 square feet and 10 percent of the lot area, to be determined by the City on a case-by-case basis.

iv. The amount of allowable disturbance shall be that which will have the least practicable impact on the sensitive area and the sensitive area buffer given the characteristics and context of the subject property, sensitive area, and buffer.

The applicant shall pay for a qualified professional to help with the City’s determination of the appropriate limit for disturbance;

d. The proposal is compatible in design, scale and use with other legally established development in the immediate vicinity of the subject property in the same zone and with similar site constraints;

e. The proposal utilizes to the maximum extent possible innovative construction, design, and development techniques, including pervious surfaces, which minimize to the greatest extent possible net loss of sensitive area functions and values;

f. The proposed development does not pose an unacceptable threat to the public health, safety, or welfare on or off the property;

g. The proposal meets the mitigation, maintenance, and monitoring requirements of this chapter;

h. The inability to derive reasonable use is not the result of actions by the applicant after the effective date of the ordinance codified in this chapter or its predecessor; and

i. The granting of the exception will not confer on the applicant any special privilege that is denied by this chapter to other lands, buildings, or structures under similar circumstances.

6. Modifications and Conditions – The City may approve reduction in required yards or buffer setbacks and may allow the maximum height of structures to be increased up to five (5) feet to reduce the impact on the sensitive area and sensitive area buffer. The City shall include in the written decision any conditions and restrictions that the City determines are necessary to eliminate or minimize any undesirable effects of approving the exception.

7. Reasonable Use Process: Administrative Alternative – If, in order to provide reasonable use of a site, the standards of this chapter need to be modified and the proposed improvement does not exceed a total of 3,000 square feet of site impact, including but not limited to structures, paved areas, landscaping, decks, driveways, utility installation, and grading, the Planning Director is authorized to approve a reasonable use exception subject to subsections (4) and (5) of this section and considered under Process I of Chapter 145 KZC. Administrative approval shall also be subject to the following limitations:

a. The required front yard may be reduced by up to 50 percent where the applicant demonstrates that the development cannot meet the City’s code requirements without encroaching into the sensitive area buffer.

b. The encroachment of the proposed development shall only be into the sensitive area buffer, not the sensitive area.

8. Lapse of Approval

a. The reasonable use exception approval expires and is void if the applicant fails to file a complete building permit application within one (1) year of the final decision granting or approving the exception, unless the applicant has received an extension for the exception from the decision-maker 30 days prior to expiration. “Final decision” means the final decision of the Planning Director or City Council.

b. The applicant may apply for a one-time extension of up to one (1) year. The application must be submitted by letter to the Planning Official and, along with any other supplemental documentation, must demonstrate that the applicant is making substantial progress toward developing the subject property consistent with the approval and that circumstances beyond his/her control prevent compliance with the time limit under this section.

c. The lapse of approval period provided in this section is shorter than the lapse of approval period in KZC 150.135 generally applicable to Process IIA approvals and this shorter period shall control for reasonable use exception approvals.

90.145 Bond or Performance Security

The Planning Official shall require a performance or maintenance bond, a performance or maintenance security, a perpetual culvert maintenance agreement, and/or a perpetual landscape maintenance agreement, as determined to be appropriate by the Planning Official, to ensure compliance with any aspect of this chapter or any decision or determination made pursuant to this chapter.

1. Performance or Maintenance Bond or Security Requirement – The performance or maintenance security required by the Planning Official shall be provided in such forms and amounts as the Planning Official deems necessary to assure that all work or actions are satisfactorily completed or maintained in accordance with the approved plans, specifications, permit or approval requirements, and applicable regulations, and to assure that all work or actions not satisfactorily completed or maintained will be corrected to comply with approved plans, specifications, requirements, and regulations to restore environmental damage or degradation, protect fish and wildlife habitat and protect the health, safety, and general welfare of the public.

2. Form of Performance Security – The performance security shall be a surety bond obtained from companies registered as surety in the state or certified as acceptable sureties on federal bonds. In lieu of a surety bond, the Planning Official may allow alternative performance security in the form of an assignment of funds or account, an escrow agreement, an irrevocable letter of credit, or other financial security device in an amount equal to that required for a surety bond. The surety bond or other performance security shall be conditioned on the work being completed or maintained in accordance with requirements, approvals, or permits; on the site being left or maintained in a safe condition; and on the site and adjacent or surrounding areas being restored in the event of damages or other environmental degradation from development or maintenance activities conducted pursuant to the permit or approval.

3. Amount of Performance Security – The amount of the performance or maintenance security shall be 125 percent of the estimated cost, as approved by the Planning Official, of conformance to plans, specifications, and permit or approval requirements under this chapter, including corrective work and compensation, enhancement, mitigation, maintenance, and restoration of sensitive areas. In addition, an administrative deposit shall be paid as required in KZC 175.25. All bond or performance security shall be submitted in their original form with original signatures of authorization.

4. Administration of Performance Security – If during the term of the performance or maintenance security, the Planning Official determines that conditions exist which do not conform with plans, specifications, approval or permit requirements, the Planning Official may issue a stop work order prohibiting any additional work or maintenance until the condition is corrected. The Planning Official may revoke the performance or maintenance security, or a portion thereof, in order to correct conditions that are not in conformance with plans, specifications, approval or permit requirements. The performance or maintenance security may be released upon written notification by the Planning Official, following final site inspection or completion, as appropriate, or when the Planning Official is satisfied that the work or activity complies with permits or approved requirements.

5. Exemptions for Public Agencies – State agencies and local government bodies, including school districts, shall not be required to secure the performance or maintenance of permit or approval conditions with a surety bond or other financial security device. These public agencies are required to comply with all requirements, terms, and conditions of the permit or approval, and the Planning Official may enforce compliance by withholding certificates of occupancy or occupancy approval, by administrative enforcement action, or by any other legal means.

90.150 Dedication

Consistent with law, the applicant shall dedicate development rights, air space, or grant a greenbelt protection or open space easement to the City to protect sensitive areas and their buffers. Land survey information shall be provided by the applicant for this purpose in a format approved by the Planning Official.

90.155 Liability

Prior to issuance of a land surface modification permit or a building permit, whichever is issued first, the applicant shall enter into an agreement with the City that runs with the property, in a form acceptable to the City Attorney, indemnifying the City from any claims, actions, liability and damages to sensitive areas arising out of development activity on the subject property. The applicant shall record this agreement with the King County Department of Elections and Records.

90.160 Appeals

All classifications, decisions, and determinations made pursuant to this chapter may be appealed using, except as stated below, the applicable appeal provisions of Chapter 145 KZC. If a proposed development activity requires approval through Process IIA or IIB (as described in Chapters 150 and 152 KZC, respectively), any appeal of a classification, determination, or decision will be heard as part of that other process.

90.165 Setbacks and Buffers Required by Prior Approvals

If, subsequent to October 2, 1982, the City approved a variance, planned unit development, rezone, or zoning permit through Processes I, II, IIA, or IIB, as described in Chapters 120, 125, 130, 145, 150, and 152 KZC, respectively, and/or a subdivision or short subdivision for the subject property with established setbacks or buffers on the subject property from a stream or wetland, those setbacks or buffers shall apply to the original construction on the subject property. All of the provisions of this chapter which do not directly conflict with the previously imposed setback or buffer requirements shall fully apply to the subject property.

90.170 Planning/Public Works Official Decisions – Lapse of Approval

Planning or Public Works Official decisions authorized by this chapter shall be subject to the lapse of approval provisions of KZC 145.115.